Introduction to international criminal law. 2nd, rev. ed. 9789004264977, 9004264973

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Introduction to International Criminal Law Second Revised Edition

International Criminal Law Series Editorial Board Series Editor

M. Cherif Bassiouni (USA/EGYPT)

Distinguished Research Professor of Law Emeritus, President Emeritus, International Human Rights Law Institute, DePaul University College of Law; President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale de Droit Pénal; Chicago, USA Kai Ambos (Germany) Judge, District Court, Göttingen; Professor of Law and Head, Department for Foreign and International Criminal Law, Georg August Universität Mahnoush Arsanjani (Iran) Member, Institut de Droit International; former Director, Codification Division, United Nations Office of Legal Affairs Mohamed Chande Othman (Tanzania) Chief Justice, Court of Appeal of Tanzania Eric David (Belgium) Professor of Law, Faculty of Law, Free University of Brussels Mireille Delmas-Marty (France) Professor of Comparative Legal Studies and Internationalisation of Law, Collège de France Adama Dieng (Senegal) UN Secretary-General’s Special Adviser on the Prevention of Genocide; former Registrar, International Criminal Tribunal for Rwanda; former Secretary General, International Commission of Jurists Mark Drumbl (Canada/USA) Class of 1975 Alumni Professor of Law, Director, Transnational Law Institute, Washington and Lee University School of Law Chile Eboe-Osuji (Nigeria) Judge, Trial Division, International Criminal Court; former Legal Adviser to the High Commissioner for Human Rights, Office of the High Commissioner for Human Rights Geoff Gilbert (UK) Professor of Law and Head, School of Law, University of Essex

Philippe Kirsch (Belgium/Canada) Ad hoc Judge, International Court of Justice; former President, International Criminal Court; Ambassador (Ret.) and former Legal Advisor, Ministry of Foreign Affairs of Canada André Klip (The Netherlands) Professor of Law, Department of Criminal Law and Criminology, Faculty of Law, Maastricht University Erkki Kourula (Finland) Judge and President of the Appeals Division, International Criminal Court Motoo Noguchi ( Japan) Legal Adviser, Ministry of Justice of Japan; Visiting Professor of Law, University of Tokyo; former International Judge, Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia Diane Orentlicher (USA) Professor of International Law, Co-Director, Center for Human Rights and Humanitarian Law, Washington College of Law, American University Fausto Pocar (Italy) Judge and former President, International Criminal Tribunal for the Former Yugoslavia; President, International Institute of Humanitarian Law; Professor of International Law Emeritus, University of Milan Leila Nadya Sadat (France/USA) Henry H. Oberschelp Professor of Law, Director, Whitney R. Harris World Law Institute, Washington University School of Law William Schabas (Canada/Ireland) Professor of International Law, Department of Law, Middlesex University; Chairman, Irish Centre for Human Rights, National University of Ireland

Michael Scharf (USA) John Deaver Drinko-Baker & Hostetlier Professor of Law, Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law Ulrich Sieber (Germany) Professor of Criminal Law, Director, Max Plank Institute for Foreign and International Criminal Law, University of Freiburg Göran Sluiter (The Netherlands) Professor of Law, Department of Criminal Law and Criminal Procedure, Faculty of Law, University of Amsterdam Otto Triffterer (Austria) Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Françoise Tulkens (Belgium) Vice-President, European Court of Human Rights Xuimei Wang (China) Professor of International Criminal Law, College for Criminal Law Science, Beijing Normal University; Executive Director, ICC Project Office Christine van den Wyngaert (Belgium) Judge, Trial Division, International Criminal Court; former Judge, International Criminal Tribunal for the Former Yugoslavia; former Ad hoc Judge, International Court of Justice Gert Vermeulen (Belgium) Professor of Criminal Law, Director, Institute for International Research on Criminal Policy, Ghent University; Extraordinary Professor of Evidence Law, Maastricht University Giuliana Ziccardi Capaldo (Italy) Professor of International Law, Faculty of Law, University of Salerno

VOLUME 1 The titles published in this series are listed at brill.com/icls

Introduction to International Criminal Law: Second Revised Edition By

M. Cherif Bassiouni

Leiden • boston 2014

This hardback was originally published in paperback under ISBN 978‐90‐04‐18644‐6. Library of Congress Cataloging-in-Publication Data Introduction to international criminal law / edited by M. Cherif Bassiouni . . . [et al.]. — [2nd rev. ed.].   p. cm. — (International criminal law series ; v. 1)  Rev. ed. of: Introduction to international criminal law / M. Cherif Bassiouni. c2003.  ISBN 978-90-04-18644-6 (pbk. : alk. paper) — ISBN 978-90-04-23169-6 (e-book) 1. International criminal law. 2. Criminal jurisdiction. 3. International crimes. I. Bassiouni, M. Cherif, 1937– II. Bassiouni, M. Cherif, 1937– Introduction to international criminal law.  KZ7000.B37 2012  345—dc23 2012010825

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 2213-2724 ISBN 978-90-04-26497-7 (hardback) ISBN 978-90-04-23169-6 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents Table of Authorities ..................................................................................................... xvii Table of Abbreviations ................................................................................................ cxi Introduction to the Second Edition ........................................................................ cxxi M. Cherif Bassiouni .................................................................................................. cxxxv I. The Discipline of ICL ............................................................................................ 1. The Sources of ICL ............................................................................................ 1.1. The Components of ICL ......................................................................... 1.2. The Different Sources of Law and Their Application to ICL’s Components ............................................................................................... 1.3. Assessing the Sources of Law Applicable to ICL and the Doctrinal Framework of ICL ................................................................. 1.4. Complementarity ...................................................................................... 2. The Peculiarities of ICL Enforcement Regimes ....................................... 3. The Policies and Values of ICL and Their Systemic   Development ...................................................................................................... 3.1. The Historical Evolution of the “Direct Enforcement System” ..... 3.2. The Evolution of ICL Norm-Development ....................................... 3.3. The Historic Evolution of ICL Enforcement through the “Indirect Enforcement System” ............................................................ 3.4. The Underlying Concept of ICL Enforcement: A Civitas Maxima ........................................................................................................ 4. The Changing Nature of International Law and Relations and Their Impact on ICL ................................................................................ 5. Conclusion .......................................................................................................... II. The Subjects of International Criminal Law: Ratione Personae ............... 1. Introduction ........................................................................................................ 2. Doctrinal Considerations ................................................................................ 3. International Criminal Responsibility of Individuals ............................ 3.1. Basis of Responsibility ............................................................................ 3.2. International Criminal Responsibility of Non-State Actors ........ 4. Criminal Responsibility of Heads of State and Other Persons   Benefiting from International Immunities ................................................ 4.1. Introduction ............................................................................................... 4.2. Historical Evolution before International Judicial Organs and under Conventional ICL ......................................................................... 4.3. Customary Practice of States ................................................................

1 1 1 13 15 19 22 27 28 30 34 35 44 52 59 59 61 66 66 70 73 73 75 78

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4.4. The ICJ’s 2002 Ruling on International Immunities of Certain Persons ...................................................................................................... 4.5. Head of State Immunity under the ICTY/ICTR and ICC ........... 4.6. Conclusion ............................................................................................... 5. International Criminal Responsibility of Groups and   Organizations ................................................................................................... 5.1. International Responsibility of Individual Group Members .... 5.2. International Criminal Responsibility of Corporations As Legal Persons .......................................................................................... 5.3. Corporate Liability for Harm to the Environment ...................... 5.4. Liability of TNCs for Their Conduct Abroad: “Aiding and Abetting” As Applied to TNCs ........................................................... 6. International Criminal Responsibility of States .................................... 7. State Immunity: A Bar to Civil Remedies for Jus Cogens International Crime ....................................................................................... 8. The Victim As a Subject of ICL .................................................................. 8.1. The Evolution of the Individual Victim’s Rights in International Law .................................................................................. 8.2. The Normative Framework of a Victim’s Right to Reparation ................................................................................................ 8.2.1. The Evolution and Foundation of the Normative Framework for a Victim’s Right of Reparation ................. 8.2.2. Defining the Term “Victim” ..................................................... 8.2.3. A State’s Obligation to Respect, Ensure Respect for, and Enforce International Human Rights and Humanitarian Law ................................................................................................. 8.2.4. The Rights of Victims ................................................................ 8.3. Mechanisms for Obtaining Reparation for Victims .................... 8.4. Economic and Political Considerations .......................................... 9. Conclusion ........................................................................................................ III. International Crimes: Ratione Materiae ......................................................... 1. Introduction ..................................................................................................... 2. Codification of ICL ......................................................................................... 3. Criteria for International Criminalization .............................................. 4. The Penal Characteristics of ICL Conventions ...................................... 5. The Hierarchy of International Crimes .................................................... 6. The General Categories of International Crimes .................................. 6.1.  Protection of International Peace and Security ........................... 6.1.1. Aggression ...................................................................................... 6.2. Protection of Human Interests Not Associated with Other Internationally Protected Interests ...................................................

89 91 95 96 96 98 99 101 104 109 111 111 113 114 122 124 124 126 130 133 137 137 139 142 143 146 149 150 150 153



contents 6.2.1. Genocide .................................................................................. 6.2.2. Crimes against Humanity ................................................... 6.2.3. War Crimes ............................................................................. 6.2.4. Unlawful Possession, Use, Emplacement Stockpiling, and Trade of Weapons, including Nuclear Weapons .................................................................. 6.2.5. Nuclear Terrorism ................................................................. 6.2.6. Apartheid ................................................................................. 6.2.7. Slavery, Slave-Related Practices, and Trafficking in Human Beings ................................................................... 6.2.8. Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment ........................ 6.2.9. Unlawful Human Experimentation ................................. 6.2.10. Enforced Disappearance and Extrajudicial Execution ................................................................................. 6.2.11. Mercenarism ........................................................................... 6.3. Protection of Human Interests Associated with Other Internationally Protected Interests .................................................. 6.3.1. Piracy and Unlawful Acts against the Safety of Maritime Navigation and the Safety of Platforms on the High Seas .................................................................... 6.3.2. Aircraft Hijacking and Unlawful Acts of International Air Safety ....................................................... 6.3.3. Threat and Use of Force against Internationally Protected Persons and United Nations Personal ......... 6.3.4. Taking of Civilian Hostages ................................................ 6.3.5. Use of Explosives ................................................................... 6.3.6. Financing of Terrorism ........................................................ 6.3.7. Unlawful Use of the Mail .................................................... 6.4. Protection of Social and Cultural Interests ................................... 6.4.1. Unlawful Traffic in Drugs and Related Drug Offenses  . ................................................................................. 6.4.2. Organized Crime and Related Specific Crimes ............ 6.4.3. Destruction and/or Theft of National Treasures ......... 6.4.4. Unlawful Acts against Certain Internationally Protected Elements of the Environment ....................... 6.4.5. International Traffic in Obscene Materials ................... 6.4.6. Falsification and Counterfeiting ....................................... 6.4.7. Unlawful Interference with International Submarine Cables ................................................................. 6.4.8. Corruption and Bribery Bribery of Foreign Public Officials .......................................................................

vii 153 157 167 199 201 201 202 203 204 205 207 208 208 208 209 210 210 210 210 212 212 213 213 214 214 215 215 216

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7. Evolution of the Process of International Criminalization .............. 7.1. Introduction .......................................................................................... 7.2. Assessing the Characteristics of ICL Conventions and Related Instruments ............................................................................ 7.3. Observations on the Ranking and Classification of International Crimes ........................................................................... 8. Jus Cogens International Crimes ............................................................... 8.1. The Meaning of Jus Cogens ............................................................... 8.2. The Scope of Obligatio Erga Omnes ............................................... 9. The Principles of Legality and the Ratione Materiae of ICL ............ 10. Conclusion ....................................................................................................... Appendix: ICL Conventions and Related Materials .........................................

216 216

IV. Principles of Criminal Responsibility: The General Part .......................... 1. Introduction .................................................................................................... 2. General Considerations ................................................................................ 3. National Legal Standards and Their Relevance to ICL ...................... 4. Some Problems in Identifying the General Part from the   Charter to the Rome Statute ...................................................................... 5. Some Specific Problems ............................................................................... 5.1. The Mental Element ............................................................................ 5.2. Theories of Criminal Responsibility ............................................... 6. The Application of the General Part by the IMT, IMTFE, and   in Other Proceedings: A Historical Analysis .......................................... 7. The Jurisprudence of the ICTY, the ICTR, and the ICC ..................... 7.1. Participation .......................................................................................... 7.1.1. Planning ..................................................................................... 7.1.2. Instigating ................................................................................. 7.1.3. Ordering ..................................................................................... 7.1.4. Committing .............................................................................. 7.2. Aiding and Abetting ............................................................................ 7.3. Omission ................................................................................................. 8. Command Responsibility: Policy Considerations ................................ 8.1. The Evolution of Command Responsibility in the Regulation of Armed Conflicts ............................................................................... 8.2. Civilian Command Responsibility ................................................... 9. Joint Criminal Enterprise ............................................................................ 10. Defenses and Exoneration .......................................................................... 10.1. Obedience to Superior Orders ......................................................... 10.1.1. Rationale ................................................................................... 10.1.2. Policy Considerations ........................................................... 10.1.3. Scholarly Views .......................................................................

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219 227 236 239 244 246 253 255

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10.1.4. The Judgments of Tribunals ............................................... 10.1.5. Post-Charter Developments ............................................... 10.1.6. Conclusion ............................................................................... 10.2. Duress ..................................................................................................... 10.3. Reprisals ................................................................................................. 10.3.1. Introduction ............................................................................ 10.3.2. Historical Evolution .............................................................. 10.4. Tu Quoque ............................................................................................. 10.5. Self-Defense .......................................................................................... 10.6. Insanity (Mental Incapacity) ........................................................... 10.7. Intoxication ........................................................................................... 10.8. Mistake of Fact and Mistake of Law ............................................. 10.9. Conclusion ............................................................................................  11. ICL Penalties and Sentencing .................................................................... 11.1. Introduction .......................................................................................... 11.2. IMT, IMTFE, and Subsequent Proceedings ................................. 11.3. ICTY and ICTR ..................................................................................... 11.4. International Criminal Court ........................................................... 12. Conclusion ....................................................................................................... V. The “Indirect Enforcement System:” Modalities of International   Cooperation in Penal Matters ...........................................................................   1. Introduction ....................................................................................................  2. The Maxim Aut Dedere Aut Judicare ....................................................... 2.1. Origin and Rationale .......................................................................... 2.2. Nature and Content of the Obligation ..........................................  3. The Modalities of “International Cooperation in Penal   Matters” ............................................................................................................ 3.1. Introduction .......................................................................................... 3.2. Extradition ............................................................................................. 3.3. Legal Assistance (Also Referred to As Mutual Legal Assistance) ............................................................................................. 3.4. Execution of Foreign Sentences ...................................................... 3.5. Recognition of Foreign Penal Judgments .................................... 3.6. Transfer of Criminal Proceedings ................................................... 3.7. Freezing and Seizing of Assets (Deriving from Criminal Activities) ............................................................................................... 3.8. Intelligence and Law Enforcement Information-Sharing ....... 3.9. Regional and Sub-Regional “Judicial Spaces” ..............................  4. Assessing the “Indirect Enforcement System” ......................................  5. Conclusion .......................................................................................................

ix 416 429 437 438 452 452 454 465 470 470 472 473 474 474 474 476 478 481 484 487 487 487 487 496 499 499 500 504 506 509 510 511 519 526 528 533

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VI. The “Direct Enforcement System:” History of International   Criminal Investigations and Prosecutions ..................................................... 1. Introduction ...................................................................................................... 2. History of International Criminal Investigations and Prosecutions: From Versailles to Rome, 1919–1998 ............................... 2.1. Ad Hoc International Investigative Commissions and International Criminal Tribunals since 1919 ................................. 2.2. The 1919 Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties ...................................... 2.3. The Allies’ Failure to Establish Prosecutions Pursuant to the Treaty of Versailles ............................................................................... 2.4. The Leipzig Trials .................................................................................. 2.5. The 1943 United Nations War Crimes Commission ................... 2.6. The International Military Tribunal at Nuremberg .................... 2.7. Control Council Law No. 10 ............................................................... 2.8. The Instrument of Surrender of Italy .............................................. 2.9. The Far East Commission and the International Military Tribunal for the Far East at Tokyo .................................................. 2.10. Politics of Defendant Selection in the Far East ........................... 2.11. Comparison of the Legal Bases for Setting up the IMT, IMTFE, and CCL 10 and Far East Allied Military Prosecutions ............................................................................................ 2.12. The Years of Silence: 1955–1992 ........................................................ 2.13. The Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) ........................................................... 2.14. The International Criminal Tribunal for the Former Yugoslavia ................................................................................................ 2.15. The Rwanda Commission of Experts .............................................. 2.16. The International Criminal Tribunal for Rwanda (ICTR) ........ 3. Establishing an International Criminal Court 1937–1994 .................... 4. Changing Times: 1989 to 1998 ...................................................................... 4.1. Assessing the Progress from 1989 to 1998 ...................................... 4.2. Informal Inter-Sessional Meetings ................................................... 4.3. The “Like-Minded” States .................................................................... 4.4. The NGO Community .......................................................................... 4.5. The Draft Statute of the International Criminal Court ............. 4.6. The Rome Diplomatic Conference June 15–July 17, 1998 .......... 4.6.1. The Flow of Texts to the Drafting Committee ................. 4.6.2. The Negotiating Process .......................................................... 4.6.3. The Final Stage ........................................................................... 4.6.4. Legal Methods and Techniques ............................................ 4.6.5. The Signing of the Convention .............................................

535 535 540 541 542 545 547 549 551 557 557 558 562 564 565 566 569 572 573 575 584 589 594 595 595 596 599 605 609 613 616 624



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5. Recent Developments 1998–2011 ............................................................... 5.1. ICC Review Conference, Kampala, Uganda (May 31–June 11, 2010) ......................................................................... 5.1.1. Evolution of the Definition of the Crime of Aggression ................................................................................... 5.1.2. Defining Aggression and Its Triggering Mechanism ..... 5.2. Looking Forward .................................................................................. 6. Conclusion ....................................................................................................... VII. The International Criminal Court: A Hybrid “Direct Enforcement   System”  ................................................................................................................... 1. The Need for an ICC ..................................................................................... 2. The Characteristics of the ICC .................................................................. 2.1. The Nature of the ICC ........................................................................ 2.2. Complementarity of the ICC and National Legal Systems ..... 3. Applicable Law ............................................................................................... 4. The Jurisdiction of the ICC ........................................................................ 4.1. Preconditions to the Exercise of Jurisdiction .............................. 4.2. Ratione Temporis: When the ICC May Extend Its Jurisdiction ............................................................................................. 4.3. Ratione Personae: The Subjects of Criminal Responsibility ..... 4.4. Ratione Materiae: The Crimes within the Jurisdiction of the ICC .................................................................................................... 4.5. The Definition and Elements of the Crime of Aggression ...... 4.5.1. The Triggering Mechanisms of the Crime of Aggression .................................................................................. 5. Elements of Criminal Responsibility: The General Part .................... 6. Invoking the Jurisdiction of the Court .................................................... 6.1. Referring a “Situation” to the Court: Initiation of the Investigation and Prosecution .......................................................... 6.2. The Prosecutor’s Proprio Motu Initiation of an Investigation .......................................................................................... 6.3. Admissibility and Inadmissibility .................................................... 6.4. Ne Bis In Idem ........................................................................................ 7. The Court’s Exercise of Jurisdiction ........................................................ 7.1. Procedural Due Process ...................................................................... 7.2. The Investigation Process .................................................................. 7.3. The Trial .................................................................................................. 7.3.1. The Rights of the Accused at Trial ..................................... 7.3.2. Protection of Victims and Witnesses at Trial .................. 7.3.3. Relevant Evidence and the Protection of National Security ........................................................................................

xi 625 630 632 635 642 648 651 651 654 654 655 656 658 658 660 660 661 666 674 678 680 680 682 682 684 685 685 686 688 688 688 688

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7.3.4. Offenses against the Administration of Justice ........... 7.3.5. Decisions and Orders .......................................................... 7.4. The Appeal ......................................................................................... 8. Penalties and Sentencing ......................................................................... 9. Victim Reparation ...................................................................................... 10. Enforcement Modalities, Surrender, and Judicial Assistance ....... 10.1. Enforcement Modalities ................................................................ 10.2. Surrender of Individuals and Judicial Assistance .................. 11. Exceptions to the Obligation to Cooperate ....................................... 12. The Organization and Operation of the Court .................................. 12.1. The Presidency ................................................................................. 12.2. The Appeals, Trial, and Pre-Trial Division ............................... 12.3. The Prosecutor and the Office of the Prosecutor .................. 12.4. The Registry ....................................................................................... 12.5. The Assembly of States Parties .................................................... 13. Relationship of the ICC with the United Nations ............................ 13.1. Relationship to the Security Council ......................................... 14. Amending the Statute ............................................................................... 15. The Operation of The Court ................................................................... 16. Assembly of State Parties ......................................................................... 17. National Implementing Legislation ...................................................... 18. Summary of the ICC’s Work ................................................................... 19. Conclusion ....................................................................................................

689 689 690 690 692 698 698 699 702 705 705 705 706 707 707 708 708 709 710 710 714 715 719

VIII. Mixed Models of International Criminal Justice ...................................... 1. Introduction ................................................................................................. 2. Kosovo ............................................................................................................ 3. Bosnia and Herzegovina ........................................................................... 4. Sierra Leone .................................................................................................. 5. Timor-Leste ................................................................................................... 6. Cambodia ...................................................................................................... 7. Lebanon ......................................................................................................... 8. Conclusion ....................................................................................................

721 721 726 733 739 753 760 769 778







IX. The “Procedural Part” of ICL: Procedural and Evidentiary Norms Applicable to International Criminal Proceedings .................................. 1. Introduction ................................................................................................. 2. International Criminal Procedure ......................................................... 2.1. Introduction ...................................................................................... 2.2. Rights and Clusters of Rights ....................................................... 2.2.1. The Right to Life, Liberty, and Security of the Person ......................................................................................

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2.2.2. The Right to Recognition before the Law and Equal Protection of the Law ............................................................. 2.2.3. The Right to Be Free from Arbitrary Arrest and Detention .................................................................................... 2.2.4. The Right to Freedom from Torture and Cruel, Inhuman, and Degrading Treatment or Punishment .... 2.2.5. The Right to Be Presumed Innocent .................................. 2.2.6. The Right to a Fair Trial ......................................................... 2.2.7. The Right to Assistance of Counsel .................................... 2.2.8. The Right to a Speedy Trial .................................................. 2.2.9. The Right to Appeal ................................................................ 2.2.10. The Right to Be Protected from Double Jeopardy ......... 2.2.11. The Right to Be Protected from Ex Post Facto Law ....... 2.3. A Summary of Protected Procedural Rights .................................. 2.4. Conclusion ................................................................................................ 3. Rules of Evidence ............................................................................................ 3.1. Introduction ............................................................................................. 3.2. Historical Evolution of the Rules Governing Evidence .............. 3.3. The Collection and General Approach to Evidence ................... 3.4. Fair Trial Rights and Evidence ........................................................... 3.4.1. Equality of Arms ....................................................................... 3.4.2. The Right to Be Informed Promptly of the Charges and Disclosure of Evidence ................................................... 3.4.3. The Right to Translated Documents .................................. 3.4.4. The Rights of the Suspects ..................................................... 3.4.5. The Right to an Expeditious Trial and to Be Tried without Undue Delay .............................................................. 3.4.6. The Right to Be Present at Trial .......................................... 3.4.7. Witnesses, the Right to a Public Trial, and Protective Measures ..................................................................................... 3.4.8. The Privilege against Self-Incrimination and the Right to Remain Silent ....................................................................... 3.4.9. Remedies for the Infringement of Rights .......................... 3.5. Other Issues Related to Evidence ..................................................... 3.5.1. Expert Evidence ........................................................................ 3.5.2. Documentary and Forensic Evidence ................................ 3.5.3. Interpretation of the Rules of Evidence and Procedure at the ICTY/ICTR ...................................................................... 3.6. Evidence in Appellate Proceedings .................................................. 4. Conclusion ......................................................................................................... Appendix I: International Instruments Surveyed .............................................. Appendix II: Rights Surveyed ...................................................................................

xiii 799 800 802 805 807 818 825 827 829 830 832 832 833 833 835 836 838 839 841 846 848 848 850 854 858 861 861 861 863 863 867 867 869 870

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Appendix III: Constitutions Surveyed ................................................................... 898 Appendix IV: ICC Comparison Chart .................................................................... 900 X. International Criminal Justice in the Age of Globalization ..................... 1. Introduction ...................................................................................................... 1.1. National Criminal Justice Systems Enforcing ICL Norms ......... 1.2. The Distinction between the Policies and Goals of Punishment in National Criminal Justice Systems and Those in the ICJ System ................................................................................... 1.3. The Need to Harmonize the International Criminal Justice System and National Criminal Justice Systems ........................... 1.4. The Philosophy and Policy of Punishments for Jus Cogens International Crimes ............................................................................ 1.4.1. Philosophical Considerations ................................................. 1.4.2. The Historical Premise of Punishment ............................... 1.4.3. Universal Justice for Jus Cogens International Crimes .... 2. Accountability Mechanisms ........................................................................ 2.1. International Prosecutions ................................................................ 2.2. International and National Criminal Investigatory Commission ............................................................................................ 2.3. International and National Truth Commissions ......................... 2.4. National Prosecutions ......................................................................... 2.5. National Lustration Mechanisms ..................................................... 2.6. National Civil Remedies ..................................................................... 2.7. Mechanisms for the Reparation of Victims .................................. 2.8. Policy Considerations .......................................................................... 2.9. Selecting the Appropriate Accountability Mechanism ............. 2.10. The Right to a Remedy and Reparation for Victims .................. 2.10.1. The Duty to Provide a Remedy ......................................... 2.10.2. Duty to Provide Reparation ............................................... 2.10.3. Forms of Reparation ............................................................ 2.11. Social Policy Considerations ........................................................... 2.12. The Internationalization of National Criminal Justice ........... 3. Amnesties and International Criminal Justice ..................................... 4. Assessment ......................................................................................................

909 909 915

XI. Reflections on International Criminal Justice: Past and Future ........... 1. Introduction .................................................................................................... 2. Law and Legal Systems in Historical Perspective ............................... 3. The Origins of Justice Values ..................................................................... 4. Of War and Peace, and of Interests and Values .................................. 4.1. Contemporary Post-Conflict Justice ..............................................

983 983 989 991 993 995

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4.2. War, Peace, and Realpolitik .............................................................. 4.3. The Challenge of Impunity .............................................................. 5. The Origins of International Criminal Law ......................................... 6. From Tribalism to Supra-Nationalism ................................................... 7. The Paradigms of International Law and Their Evolution ............. 8. International Criminal Justice in the Age of Globalization ............ 8.1. Introduction ......................................................................................... 8.2. The Twentieth Century ..................................................................... 8.3. The Third Stage ................................................................................... 8.4. Tokenism, Symbolism, and Head of State Prosecution .......... 9. Assessment .....................................................................................................

XII. A Historical Review and Quantitative Analysis of International Criminal Justice ................................................................................................. 1. The Historical Stages of International Criminal Justice .................. 1.1. The Early Historic Period—Thirteenth to Nineteenth Centuries ................................................................................................ 1.2. The Twentieth Century ...................................................................... 1.3. The Third Stage .................................................................................... 2. Quantitative Analysis of International Criminal Prosecutions from World War II to 2012 ........................................................................ 2.1. Introduction .......................................................................................... 2.2. The World War II Cases .................................................................... 2.3. The Cold War ........................................................................................ 2.4. The Reemergence of ICL ................................................................... 3. Deterrence and the Value of ICL ............................................................ 4. Tokenism, Symbolism, and Head of State Prosecution ................... 5. Assessment .....................................................................................................

xv 997 1002 1003 1008 1011 1013 1013 1023 1030 1036 1041 1047 1047 1047 1052 1058 1058 1058 1061 1068 1070 1076 1082 1087

List of Court Cases ...................................................................................................... 1093 Index ............................................................................................................................... 1101

TABLE OF AUTHORITIES Books Michael Abell & Bruno A. Ristau, International Judicial Assistance: Criminal Extradition (1995) Salvatore Adinolfi, Diritto Internazionale Penale (1913) Afghanistan: Judicial Reform and Transitional Justice (International Crisis Group, Jan. 28, 2003) S.K. Agrawala, Aircraft Hijacking and International Law (1973) Civilizing World Politics: Society and Community Beyond the State (Mathias Albert, Luthar Brock & Klaus Dieter Wolf eds., 2001) Carlos Alcorta, Principios de Derecho Penal Internacional (1931) Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts: Ansästze einer Dogmatisierung (2002) American Bar Association, Aba Standards For Criminal Justice, Fair Trial and Free Press (1992) Concepts and Strategies in International Human Rights (George J. Andreopoulos ed., 2002) George Ananstaplo, The Constitution Of 1787: A Commentary (1989) The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (George J. Annas & Michael A. Grodin eds., 1992) John A. Appleman, Military Tribunals and International Crimes (1972) Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (1979) Hannah Arendt, Eichmann in Jerusalem: A Report On The Banality Of Evil (1963) Dario Arfelli, Cicerone, De Doveri (1991) Aristotle, Ethics, I and Politics, I (W.D. Ross trans., 1954) —— Nicomachean Ethics (T. Irwin trans., 1985) Roberta Arnold, The ICC as a New Instrument for Repressing Terrorism (Martinus Nijhoff 2004). Eugene Aronéanu, La Définition de l’Agression: Exposé Objectif (1958) —— Le Crime Contre l’Humanité (1961) Droit Pénal International (Hervé Ascensio, Emmanuel Decaux & Alain Pellet eds., 2000) Robert Asprey, The Rise of Napoleon Bonaparte 405 (2001) Thomas Aquinas, Summa Theologica (1485)

xviii

table of authorities

Paul Aussaresses, Services spéciaux, Algérie 1955–1957 (2001) Anthony Aust, Modern Treaty Law and Practice (2d. ed. 2007) John Austin, The Province of Jurisprudence Determined (1954) Balthazar Ayala, De Jure et Officiis Bellicis et Disciplina Militari Libri III (1582) André Aymard & Jeannine Auboyer, L’Orient et la Grèce Antique (1953) James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency From the Cold War Through the Dawn of a New Century (2001) Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000) The Contributions of Specialized Institutes and Non-Governmental Organizations to the U.N. Criminal Justice Program (M. Cherif Bassiouni ed., 1995) M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995) The Contributions of Specialized Institutes and Non-Governmental Organizations to the U.N. Criminal Justice Program (M. Cherif Bassiouni ed., 1995) M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2d rev. ed. 1999) M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011) The Criminal Justice System of the USSR (M. Cherif Bassiouni & Valeri M. Savitsky eds., 1979) M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) Draft Principles on the Independence of the Judiciary and on the Independence of the Legal Profession, 5 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1982) M. Cherif Bassiouni, The Future of Human Rights in the Age of Globalization in 40 Denver J. Int’l L. & Pol’y 22 (2012). M. Cherif Bassiouni, The Institutionalization of Torture in the Bush Administration: Is anyone Responsible? (2010) M. Cherif Bassiouni, International Crimes, Digest/Index of International Instruments 1815–1985 (2 vols., 1985) M. Cherif Bassiouni, An International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) The International Criminal Court: Observations and Issues Before the 1997–1998 Preparatory Committee, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1997)



table of authorities

xix

1 International Criminal Law: Sources, Subjects, and Contents (M. Cherif Bassiouni ed., 3d rev. ed. 2008) 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms (M. Cherif Bassiouni ed., 3d rev. ed. 2008) 3 International Criminal Law: International Enforcement (M. Cherif Bassiouni ed., 3d rev. ed. 2008) International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997) M. Cherif Bassiouni, International Criminal Law: Documents Supplement (2000) M. Cherif Bassiouni, International Criminal Law: A Draft International Criminal Court (1980), French translation by Christine Van den Wyngaert, under the title Projet de Code Pénal International, [I, II] 51 Rev. Int’le de Droit Pénal (1980) M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th rev. ed. 2007) International Terrorism and Political Crimes (M. Cherif Bassiouni ed., 1975) International Terrorism: A Compilation of U.N. Documents (M. Cherif Bassiouni ed., 2002) International Terrorism: Multilateral Conventions, 1937–2001 (M. Cherif Bassiouni ed., 2001) M. Cherif Bassiouni, Introduction au Droit Pénal International (2002) Islamic Criminal Justice System (M. Cherif Bassiouni ed., 1982) La Corte Penal Internacional (M. Cherif Bassiouni et al. eds., 2001)  M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996) M. Cherif Bassiouni, Le Fonti e Il Contenuto Del Diritto Penale Internazionale: Un quadro Teorico (1999) Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) M. Cherif Bassiouni, 1 The Legislative History of the International Criminal Court : Introduction, Analysis, and Integrated Text (M. Cherif Bassiouni ed., 2005) M. Cherif Bassiouni, 2 The Legislative History of the International Criminal Court: An Article-by-Article Evolution of the Statute From 1994–1998 (M. Cherif Bassiouni ed., 2005) M. Cherif Bassiouni, 3 The Legislative History of the International Criminal Court : The 1988 Diplomatic Conference (M. Cherif Bassiouni ed., 2005) M. Cherif Bassiouni, A Manual on International Humanitarian Law and Arms Control Agreements 1 (2000)

xx

table of authorities

Organized Crime: A Compilation of United Nations Documents, 1975–1998 (M. Cherif Bassiouni & Eduardo Vetere ed., 1999) Post-Conflict Justice (M. Cherif Bassiouni ed., 2002) M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994) The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (M. Cherif Bassiouni ed., 2010) M. Cherif Bassiouni, Substantive Criminal Law (1978) The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) M. Cherif Bassiouni, Torture by the U.S.: Is Anyone Responsible? (forthcoming 2010) International Criminal Law: A Guide to U.S. Practice and Procedure (Ved P. Nanda & M. Cherif Bassiouni eds., 1987) Observations on the Consolidated ICC Text Before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler, Special Ed., M. Cherif Bassiouni, General Ed., 1998) 1, 2 A Treatise on International Criminal Law (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) James Basque, Other Losses: The Shocking Truth Behind the Mass Deaths of Disarmed German Soldiers and Civilians Under General Eisenhower’s Command (1991) Fritz Bauer, Die Kriegeverbrecher vor Gericht (1945) Carol E. Baumann, The Diplomatic Kidnappings: A Revolutionary Tactic of Urban Terrorism (1973) Mednarodno Kazensko Pravo (in Slovenian) (Ljubo Bavcon ed. 1997) Anne F. Bayefsky, How to Complain to the U.N. Human Rights Treaty System (2002) —— The U.N. Human Rights Treaty System: Universality at the Crossroads (2001) Cesare Beccaria-Bonesana, An Essay on Crimes and Punishments (Academic Reprints ed. 1953) —— Dei delitti e delle pene (Franco Venturi ed., 1965) —— On Crimes and Punishments (Richard Bellamy ed., 1995) International Rules: Approaches from International Law and International Relations (Robert J. Beck ed., 1996) International Law: Achievements and Prospects (Mohammed Bedjaoui ed., 1992) Mohammed Bedjaoui, The New World Order and the Security Council (1994)



table of authorities

xxi

The Death Penalty in America: Current Controversies (Hugo A. Bedau ed., 2d ed. 1998) Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges (2005) —— Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005) 73–74 (2006) Charles R. Beitz, Political Theory and International Relations (1979) David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Warfare as We Know It (2007) Michal R. Belknap, The Vietnam War on Trial: The My Lai Massacre and Court-Martial of Lieutenant Calley (2002) Norman DeMattos Bentwich & Andrew Martin, Commentary On The Charter Of The United Nations 88 (1969) Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1780) (James H. Burns & Herbert L. A. Hart eds., 1970) —— The Works of Jeremy Bentham (John Bowring ed. 1859) The Age of Enlightenment: The Eighteenth Century Philosophers (Isaiah Berlin ed., 1956) Harold J. Berman, Justice in the USSR (1963) —— Soviet Criminal Law And Procedure: The RSFSR Codes (Harold J. Berman & James W. Spindler trans., 2d ed. 1972) Paolo Bernasconi, New Judicial Instruments Against International Business Crimes (1995) Geoffrey Best, Humanity in Warfare (1983) —— Law and War Since 1945 (2d ed. 1997) Michael Beschloss, May-Day: Eisenhower, Khrushchev, and the U-2 Affair (1986) Baburo Bhiroyama, War Criminal: The Life and Death of Hirota Roki (1977) Michael Bilton & Kevin Sim, Four Hours in My Lai: The Soldiers of Charlie Company (1992) William Blackstone, Commentaries (1769) Christopher Blakesley, Terrorism, Drugs, International Law and the Protection of Human Liberty (1992) Christopher Blakesley, Terrorism and Anti-Terrorism (2006) Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1992 updated through 2008) Human Rights Sourcebook (Albert P. Blaustein et al. eds., 1987) J.C. Bluntschli, Das moderne Völkerrecht des civilisten staten als Rechtsbuch dargestellt (2d ed. 1872) Gideon Boas, James L. Bischoff, & Natalie L. Reid, International Criminal Law Practitioner Library (vol. 1, Cambridge University Press 2007) Jean Bodin, De Republica (1576)

xxii

table of authorities

—— Les Six Livres de La République (1580) Pierre Boissier, Völkerrecht und Militärbefehl (1953) Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008) Honoré Bonet, Tree of Battles (ca. 1387) Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (2002) Hartley Booth, British Extradition Law and Procedure (1980) Michael Bothe et al., New Rules for Victims of Armed Conflicts (1982) Arnold C. Brackman, The Other Nuremberg: The Untold Story of The Tokyo War crimes trials (1987) J.L. Brierly, The Law of Nations (1955) Lea Brilmayer, Justifying International Acts (1989) The British Manual of Military Law, No. 443 (1914) Arnold C. Brockman, The Other Nuremberg, The Untold story of the Tokyo War Crimes Trial (1987) J. Bröhmer, State Immunity and the Violations of Human Rights (1997) The New Shorter Oxford English Dictionary On Historical Principles (Lesley Brown ed., 1993) Basic Documents of Human Rights (Ian Brownlie ed., 2d ed. 1980) Ian Brownlie, International Law and the Use of Force by States (1963) —— Principles of Public International Law (3d ed. 1979) —— State Responsibility: System of the Law of Nations (1983) —— System of the Law of Nations: State Responsibility (1983) Kosovo: Contending Voices on Balkan Interventions (William Joseph Buckley ed., 2000) Thomas Buergenthal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (4th rev. ed. 1995) The Laws of Manu (Georg Bühler trans., Motilal Banarsidass 1964) Hedley Bull, The Anarchical Society (1977) Hugo Grotius and International Relations (H. Bull, B. Kingsbury & A. Roberts eds., 1990) The U.N. Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (J. Herman Burgers & Hans Danelius eds., 1988) Jean Jacques Burlemaqui, Principes du Droit Naturel et Politique (1748) Franck M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946– 1955 (1989) Diplomatic Investigations (H. Butterfield & M. Wight eds., 1968) Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999)



table of authorities

xxiii

The Role of Law in International Politics: Essays in International Relations and International Law (Michael Byers ed., 2000) Greg Campbell, Blood Diamonds: Tracing The Deadly Path of the World’s Most Precious Stones (2002) Pierre Carjeu, Projet d’une juridiction pénale internationale (1953) Thomas Carlyle, The French Revolution (1989) (1837) Carnegie Endowment for International Peace, The Other Balkan Wars: A 1913 Carnegie Endowment Inquiry in Retrospect (1993) —— The Proceedings of the Hague Peace Conferences: Translation of Official Texts—The Conference of 1899 (1920) —— Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars (1914) —— The Treaties of Peace 1919–1923 (1924) Raymond Cartier, Les Secrets de la guerre Dévoilés par Nuremberg (1967) Anthony Carty, The Decay of International Law (1986) Antonio Cassese, International Law in a Divided World (1986) Juridictions Nationales et Crimes Internationaux (Antonio Cassese & Mireille Delmas-Marty eds., 2002) Ctr. for Strategic Research, The Armenian “Genocide”: Facts and Figures (2007) Sorj Chalandon & Pascale Nivelle, Crimes Contre L’Humanité: Barbie Touvier Bousquet Papon (1998) Radharaman Chakrabarti, Intervention and the Problem of its Control in the Twentieth Century (1974) David G. Chandler, The Campaigns of Napoleon (1966) Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea 1976–1977 (David P. Chandler et al. trans. & eds., 1988) Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (1997) Encyclopedia of Genocide (2 vols., Israel Charney ed., 1999) Le Chef d’Etat et le Droit International (SFDI 2002) Lung-Chu Chen, An Introduction to Contemporary International Law (1989) Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Simon Chesterman & Angelina Fisher eds., 2010) Daniel Chirot, Modern Tyrants: The Power and Prevalence of Evil in our Age (1994) Marcus Tullius Cicero, De Officiis (1483)

xxiv

table of authorities

—— De Officiis, (G.P. Goold ed., Walter Miller trans., 1975) —— De Republica and De Legibus (C.W. Keyes, trans., 1928) —— On the Commonwealth (George H. Sabine trans., 1929) Norman Cigar & Paul Williams, Indictment at the Hague: The Milosevic Regime and Crimes of the Balkan Wars (2002) Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006) The Prosecution of International Crimes (Roger S. Clark & Madeleine Sann eds., 1996) Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (2010) Wesley K. Clark, Waging Modern War (2001) David Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (2006) R.G. Collingwood, The New Leviathan (1942; rev. ed. 1992) Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales 1 (1993) Compte Rendu de la xxiii Conference Tenue A Washington et a Ottawa en 1925 (1926) Robert E. Connot, Justice at Nuremberg (1983) Consiglio Superior Della Magistratura. Estradizione E Spazio Giuridico Europeo (1979) War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1998) Responsibility to Protect: The Global Moral Compact for the 21st Century (Richard H. Cooper & Juliette Voinov Kohler eds., 2009) F. Copleston, A History of Philosophy (1960) P.E. Corbett, Law and Society in the Relations of States (1951) Francesco Cosentini, Essai d’un Code Pénal International Dressé sur la Base Comparative des Projets et Textes Récents des Codes Pénaux (1937) Mark Costanzo, Just Revenge: Costs and Consequences of the Death Penalty (1997) Council of Europe, Human Rights in International Law: Basic Texts pas‑ sim (1985) George Creel, War Criminals and Punishment (1944) Ronald D. Crelinstin & Denis Szabo, Hostage-Taking (1979) Carol M. Crosswell, Protection of International Personnel Abroad (1952) Derek Croxton & Anuschka Tischer, The Peace of Westphalia: A Historical Dictionary (2002) Cryer & Boister, The Tokyo International Military Tribunal: A Reappraisal (2008)



table of authorities

xxv

Nuremberg Warns: From Nazism to Terrorism (in Russian) (A.I. Cukhanova ed., 2002) Vahakn N. Dadrian, German Responsibility in the Armenian Genocide (1997) —— The History of the Armenian Genocide (1995) George Dahm, Zur problematik des Völkerstrafrechts (1956) Anthony D’Amato, The Concept of Custom in International Law (1971) The International Court of Justice at a Crossroads (Lori Fisler Damrosch ed., 1987) Law and Force in the New International Order (Lori Fisler Damrosch & David Scheffer ed., 1991) G. M. Danilenko, Law-Making in the International Community (1993) Eric David, 1–3 Elements de Droit Penal International (1992) René David, Les grands systèmes de droit contemporains (1973) René David, Major Legal Systems in the World Today (John E.C. Brierley trans., 1985) The Trial of the Germans: An Account of the Twenty-Two Defendants Before the International Military Tribunal at Nuremberg (Eugene Davidson ed., 1966) Scott Davidson, The Inter-American Human Rights System (1997) Lucy S. Dawidowicz, The War Against the Jews, 1933–1945 (1975) The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (Laurence Boisson de Chazournes & Vera Gowlland-Debbas eds., 2001) A.G. de Barante, Histoire des Ducs de Bourgogne de la Maison de Valois, 1364–1477 (Paris, 1824) La Criminalisation du Comportement Collectif: XIVe Congrès International de Droit Comparé (Hans de Doelder & Klaus Tiedeman eds., 1996) André de Hoogh, Obligatio Erga Omnes and International Crimes (1996) Jose Luis de la Cuesta Arzamendi, El Delito de Tortura (1990) Jose Luis de la Cuesta Arzamendi, Derecho Penal Internacional Projecto de Codigo Penal International (1983) Isabel Lirola Delgado & Magdalena M. Martín Martínez, La Corte Penal Internacional: Justicia versus Impunidad (2001) Carla del Ponte with Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (2008) Democracy: Its Principles and Achievement (Inter-Parliamentary Union ed. 1998) Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans., 1990)

xxvi

table of authorities

Genocide in Cambodia: Documents from the Trial of Pol Pot & Ieng Sary (Howard J. DeNike et al. eds., 2000) Alessander Passerin D’Entrèves, Natural Law: An Introduction to Legal Philosophy (2d ed., 1970) Bart De Schutter, La Belgique et le Droit International Pénal (1975) Ingrid Detter, The Law of War (2d ed. 2000) Emmerick De Vattel, The Law of Nations, Book II (Charles G. Fenwick trad., 1916) —— Le Droit des Gens (1758) Franciscus de Victoria, De Indis et de Ivre Belli Reflectiones (1696), reprinted in Classics of International Law No. 7 (James Brown Scott ed., John Pawley Bate trans., 1917) Charles De Visscher, Theory and Reality in Public International Law 89 (P.E. Corbett trans., rev. ed. 1968) Patrick Devlin, The Enforcement of Morals (1965) Alfred M. de Zayas, The Wehrmacht War Crimes Bureau: 1939–1945 (1989) Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies (1999) Giuseppe Tomasi di Lampedusa, The Leopard (Archibald Colquhoun trans., 1991) (1959) Yoram Dinstein, The Defense of “Obedience to Superior Orders” in International Law (1965) —— War, Aggression and Self-Defense (3d ed. 2001) Dan Dobbs, The Law of Torts (2001) Henri F. Donnedieu De Vabres, Introduction à l’Etude du Droit Pénal International (1922) —— Les principes Modernes du Droit Pénal International (1928) —— Traite de Droit Criminel et de Legislation Penale Comparee (1947) John Donne, Devotions Upon Emergent Occasions XVII (London, 1626) Jack Donnelly, Universal Human Rights in Theory and Practice (2d ed. 2003) Jack Donnelly & Rhoda E. Howard, International Handbook of Human Rights (1987) Marco Sassoli & Antoine A. Bouvier et. al., How Does Law Protect in War: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (2005) Gerald I.A.D. Draper, The Red Cross Convention (1958) The International Criminal Court: Global Politics and the Quest for Justice (William Driscoll et al. eds., 2004) Pieter N. Drost, The Crime of State: Penal Protections for Fundamental Freedoms of Persons and Peoples (1959) Barry H. Dubner, The Law of International Sea Piracy (1980)



table of authorities

xxvii

John B. Duff & Larry A. Greene, Slavery: Its Origins and Legacy (1975) International Criminal Law and Procedure (John Dugard & Christine Van den Wyngaert eds., 1996) Jean Henry Dunant, Un Souvenir de Solferino (2d ed. 1862) Human Rights in Global Politics (Tim Dune & Nicholas Wheeler eds., 1999) Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process (2d ed. 2006) Will Durant & Ariel Durant, The Age of Reason Begins (1961) Gerald Dworkin, Morality, Harm and the Law (1994) Mohammed Hassanein Ebeid, Al-Jarima Al-Dawlia, The International Crime (1979) Comparative Law in Global Perspective (Ian Edge ed., 2001) Albert A. Ehrenzweig & Erik Jayme, 2 Private International Law (1973) Dennis Eisenberg, Uri Dan & Eli Landau, The Mossad, Israel’s Secret Intelligence Service—Inside Story (1978) Taslim Olawale Elias, The Modern Law of Treaties (1974) Jacques Ellul, 1, 2 Histoire des Institutions et des Faits Sociaux (1955) Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World (2003) Judith Ennew, Debt Bondage: A Survey (1981) Justification and Excuse (Albin Eser & George P. Fletcher eds., 1987) The Individual as Subject of International Cooperation in Criminal Matters (Albin Eser, Otto Lagodny & Christopher Blakesley eds., 2002) Principles and Procedures for a New Transnational Criminal Law (Albin Eser & Otto Lagodny eds., 1992) Religion and Global Order (John L. Esposito & Michael Watson eds., 2000) Legal Aspects of International Terrorism (Alona E. Evans & John F. Murphy eds., 1978) Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (2008) International Law: A Contemporary Perspective (R. Falk, F. Kratochwil & S. Mendovitz eds. 1985) The International Law of Civil War (Richard A. Falk ed., 1971) Richard Falk, Revitalizing International Law (1989) Douglas Farah, Blood from Stones: The Secret Financial Network of Terror (2004) —— Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible (2007) Joel Feinberg, Doing and Deserving: The Classic Debate (1970) Classics of International Law (Charles G. Fenwick trad., 1916) Benjamin B. Ferencz, Defining International Aggression: the Search for World Peace (1975)

xxviii

table of authorities

—— An International Criminal Court (1980) Guillermo Fierro, La Ley Penal y el Derecho Internacional (2d ed. 1997) John Finnis, Natural Law and Natural Rights (1980) Piero Fiorelli, 1, 2 La Tortura Giudiziaria el Dirritto Comune (1953) International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002) Law and Force in the New International Order (Lori Fisler Damrosch & David Scheffer eds., 1991) The Handbook of Humanitarian Law in Armed Conflicts (Dieter Fleck ed., 1995) George Fletcher, Rethinking Criminal Law (1978) Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (1999) —— The Power of Legitimacy Among Nations (1990) Benjamin Franklin, Historical Review of Pennsylvania (1759) Preventive Detention: A Comparative and International Law Perspective (Stanislaw Frankowski & Dinah Shelton eds., 1992) Charles Freeman, Egypt, Greece, and Rome: Civilizations of the Ancient Mediterranean (1996) Paul A. Freund, Experimentation with Human Subjects (1970) Terrorism: Documents of International and Local Control (Robert A. Friedlander ed., 1981) Leon Friedman, The Law of War: A Documentary History (1972) Carl J. Friedrich, The Philosophy of Law in Historical Perspective (2d ed. 1990) Lon L. Fuller, The Morality of Law (2d ed. 1969) Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009) Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997) Sévane Garibian, Le Crime Contre L’humanité au Regard des Principles Fondateurs de L’etat Moderne (2009) Blacks Law Dictionary (Brian Garner ed., 7th ed. 1999) James W. Garner, International Law and the World War (1920) Alberico Gentili, De Iure Belli Libri Tres (Carnegie ed., John C. Rolfe trans., 1933) —— De Jure Belli Libri Tres (1612), reprinted in 2 Classics of International Law No. 16 (James Brown Scott ed., John C. Rolfe trans., 1933) Edward Gibbon, The Decline and Fall of the Roman Empire (6 vols., 1960) Alicia Gil Gil, Derecho Penal Internacional (1999)



table of authorities

xxix

William C. Gilmore, Dirty Money: The Evolution of Money Laundering Counter-Measures (1993) International Efforts to Combat Money Laundering (W.C. Gilmore ed., 1992) Nuremberg Trial and International Law (George Ginsburgs & Vladimir N. Kudriavtsev eds., 1990) Stefan Glaser, Crimes internationaux (1957) —— 1 Droit International Pénal Conventionnel (1971) —— 2 Droit International Pénal Conventionnel (1978) —— Droit Pénal International (1971) —— Infractions Internationale: Ses Elements Contitutifs et Ses Aspect Juridiques: Expose sur la Base du Droit Penal Compare (1957) —— Introduction à l’Etude du Droit International Pénal (1954) H. Patrick Glenn, Legal Traditions of the World (2d ed. 2004) Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (1992) 1 Global Cmty Y.B. Int’l L. & Jurisprudence (2007) Sheldon Glueck, The Nuremberg Trial and Aggressive War (1946) Jewish Law and Legal Theory (M. Golding ed., 1994) Legalization and World Politics (Judith Goldstein, Mikes Kahler, Robert O. Keohane, & Anne-Marie Slaughter eds., 2001) Donna Gomien, Judgments of the European Court of Human Rights, 1959–95 (1996) Herbert F. Goodrich & Eugene F. Scoles, Conflict of Laws (4th ed. 1964) Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed With Our Families (1998) Michael Grant, The Ancient Mediterranean (1969) Horace Greeley, The American Conflict (1865) Leslie Green, The Contemporary law of Armed Conflict (2d ed. 2000) —— Essays on the Modern Law of War (2d ed. 1999) —— Superior Orders in National and International Law (1976) Essays on the Modern Law of War (Leslie Green ed., 2d ed. 1999) Morris Greenspan, Modern Law of Land Warfare (1959) Hugo Grotius, De Jure Belli ac Pacis Libri Tres: Classics of International Law (Francis W. Kelsey trans., 1925) William P. Guthrie, The Later Thirty Years War: From the Battle of Wittstock to the Treaty of Westphalia (2003) Jerome Hall, General Principles of Criminal Law (2d ed. 1960) W.E. Hall, A Treatise on International Law (A. Pearee Higgins ed., 8th ed. 1924) Muhammad Hamidullah, The Muslim Conduct of State (4th ed. 1961) W.K. Hancock, Four Studies of War and Peace in this Century (1961)

xxx

table of authorities

Gerd Hankel, Die Leipziger Prozesse (2003) Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürenberger Prozessen (Gerd Hankel & Gerhard Stuby ed., 1995) Strafgerichte Gegen Menschheitsverbrechen (Gerd Hankel & Gerhard Stuby eds., 1995) Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status (1988) Harper et al., The Law of Torts (3d ed. 1996) David J. Harris, Michael et al., Law of the European Convention on Human Rights (1995) Whitney R. Harris, Tyranny on Trial (1954) Herbert L.A. Hart, The Concept of Law (1961) —— Punishment and Responsibility: Essays in the Philosophy of Law (1968) H.L.A. Hart & Raz Bulloch Hart, The Concept of Law (2d ed. 1997) Andreas Hasenclever, Peter Mayer & Volker Rittberg, Theories of International Regimes (1997) Pierre Hassner, Violence and Peace: From the Atomic Bomb to Ethnic Cleansing (1995) Gideon Hausner, Justice in Jerusalem (1966) Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001) —— Unspeakable Truths: The Place for Truth Commissions in a Changing World (2000) Law In The United States of American and in Social and Technological Revolution (John N. Hazard & Wenceslas J. Wagner eds., 1974) Georg W.F. Hegel, Elements of the Philosophy of Right (H.B. Nisbet trans., 1991) —— Phenomenology of Spirit (A.V. Miller trans., 1979) —— The Philosophy of Right (S.W. Dyde trans., 1996) August Hegler, Prinzipien des Internationalen Strafrecths (1906) Robert D. Heinl, Dictionary of Military and Naval Quotations (1956) Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict (2005) International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2006) The Legacy of Abuse: Confronting the Past, Facing the Future (Alice H. Henkin ed., 2002) Louis Henkin, How Nations Behave (2d ed. 1979)



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—— International Law: Politics and Values (1995) Human Rights: An Agenda for the Next Century (Louis Henkin & John Lawrence Hargrove eds., 1994) The International Bill of Rights: The Covenant on Civil and Political Rights (Louis Henkin ed., 1981) Le Droit Pénal à l’Épreuve de l’Internationalisation (Marc Henzelin & Robert Roth eds., 2002) Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000) Lectures on the History of Moral Philosophy, John Rawls (Barbara Herman ed., 2000) J. Christopher Herold, The Age of Napoleon (2002) (1963) Wilhelm Gustav Hertz, Das Problem des Völkerrechtlichen Agriffs (1935) George L. Hicks, The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War (1997) Rosalyn Higgins, Problems & Process: International Law and How We Use It (1994) Raul Hilberg, The Destruction of the European Jews (3 vols. 1985) F.H. Hinsley, Sovereignty (1966) John L. Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy (2001) Christopher Hitchens, The Trial of Henry Kissinger (2002) Thomas Hobbes, Leviathan ([1651] M. Oakeshott ed., 1957) —— On the Citizen (Richard Tuck & Michael Silverthorne eds., 1998) Pondering Postinternationalism: A Paradigm For the Twenty-First Century? (Heidi H. Hobbs ed., 2000) Erik Hobsbawm, The Age of Extremes: A History of the World, 1914–1991 (1995) Barnett Hollander, The International Law of Art for Lawyers, Collectors and Artists (1959) Homer, The Odyssey (Richmond Lattimore ed. & trans., 1967) Roger Hood, The Death Penalty: A Worldwide Perspective (3d ed. 2002) The Tokyo War Crimes Trial: An International Symposium (C. Hosoya et al. eds., 1986) A.E. Dick Howard, Magna Carta: Text and Commentary (1964) M. Howard, G. Andreopoulos & M. Shulman, The Law of War: Constraints on Warfare in the Western World (1994) Holmes Pollock Letters (M. Howe ed., 1941) André Huet & Renée Koering-Joulin, Droit Pénal International (1994) Victor Hugo, Histoire d’un Crime (1852) Human Rts Watch, Justice on the Balance: Recommendations for an Independent and Effective International Criminal Court (1998)

xxxii

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Great Books of the Western World (Robert Maynard Hutchins ed., 1952) Genbaku Saigaishi Henshu Iinkai, Hiroshima and Nagasaki: The Physical, Medical, and Social Effects of the Atomic Bombings (1981) Jeffrey Ian & Dawn L. Rothe, The Ironies of Controlling State Crime (2008) The International Criminal Court: Recommendations on Policy and Practice (Thordis Ingadottir ed., 2003) Jean Imbert et al., Histoires des Institutions et des Faits Sociaux (1956) In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, DePaul University College of Law, 2002) International Center for Transitional Justice, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor (2005) International Human Rights Law Institute, The Chicago Principles on Post-Conflict Justice (2008) The International Institute of Strategic Studies: 2000 Chart of Armed Conflict (2000) International Congress on Penal Law, Actes du XIIe Congrés International de Droit Pénal (Hamburg, Sept. 22, 1979) (Hans-Heinrich Jescheck ed., 1980) The International Institute of Strategic Studies: 2000 Chart of Armed Conflict Akira Iriye, Cultural Internationalism and World Order (1997) David Irving, Nuremberg: The Last Battle (1996) John Jackson, Maximo Langer & Peter Tillers, Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honor of Professor Mirian Damaska (2008) Robert H. Jackson, The Nürnberg Case (1971) Mark Janis, An Introduction to International Law (3d ed. 1999) —— Richard Kay & Anthony Bradley, European Human Rights Law: Text and Materials (1995) International Courts For The Twenty‑First Century (Mark W. Janis ed., 1992) Religion in International Law (Mark Janis & Carolyn Evans eds., 1999) 1,2 Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1992) Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane Nach Volkerstrafrechts (1952) —— Lehrbuch des Strafrechts (1988) Hans-Heinrich Jescheck & Thomas Weigend, Lehrbruch des Strafrechts: Allgemeiner Teil (1996) Chalmers Johnson, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (2004)



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Alun Jones, Jones on Extradition (1995) Contemporary Genocides: Causes, Cases, and Consequences (Albert J. Jongman ed., 1996) Nina H.B. Jørgensen, The Responsibility of States for International Crimes (2000) James Avery Joyce, Capital Punishment: A World View (1961) Nancy D. Joyner, Contemporary Concept of Piracy in International Law (1974) Reining In Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1997, 14 Nouvelles Études Pénales (Christopher C. Joyner special ed., & M. Cherif Bassiouni gen. ed., 1998) Frits Kalshoven & Lisbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (3d ed. 2001) Immanuel Kant, The Categorical Imperative (1797) —— Groundwork of the Metaphysics of Morals (H.D. Paton trans., 1946) —— The Metaphysical Elements of Justice (John Lord trans., 1965) —— Toward Perpetual Peace and Other Writings on Politics, Peace, and History (Pauline Kleingeld ed., David L. Colclasure trans., 2006) (1795) Wojciech Materski, Katyn, A Crime Without Punishment (Anna M. Cienciala and Natalia S. Lebedeva eds., 2008) Igor I. Kavass & Adolf Sprudzs, 1 & 2 Extradition Laws and Treaties (2001) Mednarodno Kazensko Pravo (in Slovenian) (Ljubo Bavcon ed., 1997) John Keegan, A History of Warfare (1993) —— The Illustrated Face of Battle (Viking Press 1988) Maurice H. Keen, The Laws of War in the Middle Ages (1965) Joseph B. Keenan & Brendan F.Brown, Crimes Against International Law (1950) Nico Keijzer, Military Obedience (1978) Barry Kellman, Manual for National Implementation of the Chemical Weapons Convention (2d ed. 1998) Justice as Fairness: A Restatement—John Rawls (Erin Kelly ed., 2001) Hans Kelsen, Pure Theory of Law (1970) John Maynard Keynes, The Economic Consequences of the Peace (1920) Majid Khadduri, War and Peace in the Law of Islam (1955) Kampuchea: Decade of the Genocide (Kimmo Kiljunen ed., 1984) Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations, and the International Community (Ben Kiernan ed., 1993) 1, 2 Substantive and Procedural Aspects of International Criminal Law (Gabrielle Kirk-MacDonald & Olivia Swaak-Goldman eds., 2000)

xxxiv

table of authorities

Jeanne Kirkpatrick & Alan Gerson, Right v. Might: International Law and the Use of Force (1989) Geert-Jan G.J. Knoops, Defenses in Contemporary International Criminal Law (2001) Noliva Kofele-Kale, International Law of Responsibility for Economic Crimes (1995) Joseph Kohler, Internationales Strafrecht (1971) Ruth A. Kok, Statutory Limitations in International Criminal Law (T.M.C. Asser Press 2007) T.H. Kooijmans, Internacionaal Publienkrecht In Vogelvlucht (2000) State Sovereignty and International Governance (Gerard Kreijen et al. ed., 2002) The Concept of Human Dignity in Human Rights Discourse (David Kretzmer & Eckart Klein eds., 2002) Transnational Justice: How Emerging Democracies Reckon with Former Regimes (Neil J. Kritz ed., 1995) International Law: Classic and Contemporary Readings (Charlotte Ku & Paul F. Diehl eds., 1998) Leo Kuper, Genocide: Its Political Use in the Twentieth Century (1981) Richard Lael, The Yamashita Precedent: War Crimes and Command Responsibility (1982) Justice and Human Rights in Islam (Gerald E. Lampe ed., 1997) Stephan Landsman, Crimes of the Holocaust: The Law Confronts Hard Cases (2005) John H. Langbein, Torture and the Law of Proof (1977) The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Jean C. Lauret & Raymond Lassiera, La Torture et les Pouvoirs (1973) Individual Rights and The State of Foreign Affairs: An International Compendium (Elihu Lauterpact & John G. Collier eds., 1972) Hersh Lauterpacht, International Law: Collected Papers (Elihu Lauterpacht ed., 1970) —— International Law and Human Rights (1950) The Law of International Responsibility (James Crawford, Alain Pellet and Simon Olsen, eds. 2010) Lawyers Committee for Human Rights, The International Criminal Tribunal for the Former Yugoslavia: Establishment, Organization, Jurisdiction and Proceedings to Date (1995) League of Arab States Collection of Treaties and Agreements (1978) League of Nations, Proceedings of the International Conference for the Adoption of a Convention for the Suppression of Counterfeiting Currency (1929)



table of authorities

xxxv

International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed., 2001) Fabrizio Lemme, Tra Arte E Diritto (1996) Nino Levi, Diretto Penale Internazionale (1949) Howard S. Levie, The Code of International Armed Conflict (1986) —— Documents on Prisoners of War (1979) —— Prisoners of War in International Armed Conflicts (1979) —— Protection of War Victims (1979) —— Terrorism in War: the Law of War Crimes (1993) Terrorism: Documents of International and Local Control (Howard H. Levie ed., 1996) Haidong Li, Die Prinzipien des Internationalen Strafrechts (1991) R.J. Lifton, The Nazi Doctors (1986) International Relations: A Handbook of Current Theory (M. Light & A.J.R. Groom eds., 1985) Humanitarian Intervention and the United Nations (Richard B. Lillich ed., 1973) International Claims: Contemporary European Practice (Richard B. Lillich & Bruce H. Weston eds., 1982) Richard B. Lillich, International Claims: Postwar British Practice (1967) Richard B. Lillich, International Claims: Their Adjudication by National Commissions (1962) International Law of State Responsibility for Injuries to Aliens (Richard B. Lillich ed., 1983) Robert B. Lillich & Hurst Hannum, International Human Rights: Problems of Law, Policy and Practice (3d ed. 1995) International Claims: Contemporary European Practice (Richard B. Lillich & Bruce H. Weston eds., 1982) Robert Linke et al., Internationales Strafrecht (1981) The Greening of Sovereignty in World Politics (Karen T. Litfin, ed., 1998) John Locke, Second Treatise of Government (Thomas D. Peardon ed., 1952) —— Droit Pénal International (1971) Claude Lombois, Droit Pénal International (2d rev. ed. 1979) Peter D. Lowes, The Genesis of International Narcotic Control (1966) Prosecuting Heads of State (Ellen Lutz and Caitlin Reiger eds., 2009) John A. Lynn, Battle: A History of Combat and Culture (2003) International Human Rights in the 21st Century: Protecting the Rights of Groups (Gene M. Lyons & James Mayall eds., 2003)

xxxvi

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Beyond Westphalia?: State Sovereignty and International Intervention (Gene M. Lyons & Michael Mastanduno eds., 1995) Amin Maalouf, Crusades Through Arab Eyes (Jon Rothschild trans., 1985) Douglas MacArthur, Reminiscences (1964) The European System for the Protection of Human Rights (R. St. J. Macdonald et al. eds., 1993) The International Law and Policy of Human Welfare (R.S.T.J. Macdonald, D.H. Johnston, & G.L. Morris eds., 1978) Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (Stephen Macedo ed., 2003) Niccolo Machiavelli, Il Principe: Le Grandi Opere Politiche (1532) (G.M. Anselmi & E. Menetti trans., 1992) —— The Prince (Luigi Ricci trans., 1935) Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trials (2001) Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Times (1867) Farhad Malekian, International Criminal Responsibility of States (1985) —— The Concept of Islamic International Criminal Law (1994) —— 1, 2 International Criminal Law: The Legal And Critical Analyses Of International Crimes (1991) W. Thomas Mallison, Studies in the Law of Naval Warfare: Submarines in General and Limited Wars (1968) Sean L. Malloy, Atomic Tragedy: Henry L. Stimson and the Decision to Use the Bomb Against Japan (2008) William Manchester, American Caesar: Douglas MacArthur 1880–1964 (1978) Ferrando Mantovani, Diritto Penale: Parte General (2001) Roger Manvell & Heinrich Fraenkel, The Incomparable Crime: Mass Extermination in the Twentieth Century: The Legacy of Guilt (1967) Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (2004) Ian Martin, Self-Determination in East Timor: The United Nations, the Ballot, and International Intervention (2001) Jean Pierre Maunoir, La répression des crimes de guerre devant les tribunaux français et alliés (1956) Larry May, Humanitarian Crimes: Philosophical Problems in International Criminal Law (2001) Richard May & Marieke Wierda, International Criminal Evidence (2002) Essays on ICTY Procedure and Evidence (May, Tolbert, Hocking, Roberts, Bing Jia, Mundis & Oosthuizen eds., 2001) The Community of States (J. Mayall ed., 1982)



table of authorities

xxxvii

International Environmental Law and Policy (Stephen McCaffrey et al. ed., Aspen 1998) The Law of War Crimes: National and International Approaches (Timothy McCormack & Gerry Simpson eds., 1997) Values & Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008) Myres S. McDougal, Harold D. Lasswell & Lung-Chen Chung, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980) —— Law and Minimum World Public Order (1961) —— Law and Public Order in Space (1963) The Basic works of Aristotle (Richard McKeon ed., 1941) Frank McLynn, Napoleon (1997) Arnold D. McNair & Arthur D. Watts, The Legal Effects of War (1966) Extraterritorial Jurisdiction in Theory and Practice (Karl M. Meessen ed., 1996) Schengen: Internationalization of Central Chapters of the Law on Aliens, Refugees, Security and the Police (H. Meijers et al. ed., 1991) Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910) Wolfgang Menzel, Germany from the Earliest Period (1900) Roger Merle & André Vitu, Traité de Droit Criminel (1967) Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989) —— War Crimes Law Comes of Age (1998) Human Rights in International Law: Legal and Policy Issues (Theodor Meron ed., 1984) The Message of the Qur’an (Muhammad Asad trans., 2003) Perspectives on the Nuremberg Trial (Guénaël Mettraux ed., 2008) Guénaël Mettraux, The Law of Command Responsibility (2009) —— Perspective On The Nuremberg Trial (Guenael Mettraux ed., 1st ed. 2008) Karl Ernest Meyer, The Plundered Past (1977) Henri Meyrowitz, La Répression par les Tribunaux Allemands des Crimes Contre l’Humanité et de l’Appartenance à une Organisation Criminelle (1960) Dick de Mildt and Dirk. W. de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany: the “Euthenasia” and the “Aktion Reinhard” Trial Cases 22 (1996) John Stuart Mill, Utilitarianism And the 1868 Speech on Capital Punishment (George Sher ed., 2d ed. 2001) (1863)

xxxviii

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David Miller, Principles of Social Justice (1976) Order and Violence: Hedley Bull and International Relations (J.D.B. Miller & R. J. Vincent eds., 1990) Richard H. Minear, Victors’ justice: The Tokyo War Crimes Trials (1971) Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998) Alexander Mitscherlich & Fred Mielke, Doctors of Infamy: The Story of the Nazi Medical Crimes (1949) Charles de Secondat Montesquieu, De L’Esprit des Lois, Livre I, c.3, 1748 (La Pléiade ed., 1974) J.B. Moore, A Treatise on Extradition & Interstate Rendition (1891) Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest (1989) Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1985) Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for Rwanda (1997) —— An Insider’s Guide to the International Criminal Tribunal for the Former-Yugoslavia: A Documentary History and Analysis (1995) —— 1, 2 The International Criminal Tribunal for Rwanda (1998) International Criminal Law (G.O.W. Mueller & Edward M.Wise ed., 1965) Gerhard O.W. Mueller & Freda Adler, Outlaws of the Ocean (1985) La Cooperation Inter-Étatique Européene en Matière Penale (Ekkehart Müller-Rappard & M. Cherif Bassiouni ed., 2d rev. ed. 1991) Ekkehart Müller-Rappard, L’Ordre Supérieur Militaire et la Responsabilité Pénale du Subordonné (1965) Rein Müllerson, International Law, Rights and Politics (1994) Claude Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (1921) Heraldo Muñoz, The Dictator’s Shadow: Life Under Augusto Pinochet (2008) Cornelius F. Murphy, The Search for World Order: A Study of Thought and Action (1985) —— Theories of World Governance: A Study in the History of Ideas (1999) Jeffrie G. Murphy & Jean Hampton, Forgiveness & Mercy (1988) Terry Nardin, Law, Morality, and the Relation of States (1983) Nazi Conspiracy and Agression, Opinion and Judgment of the International Military Tribunal (1947) Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (1998) Global Society in Transition: An International Politics Reader (Daniel N. Nelson & Laura Neack eds., 2002)



table of authorities

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The Future of International Relations: Masters in the Making (Ives B. Neumann & Abe Weaver eds., 1997) The European Union and Human Rights (Nanette A. Neuwahl & Allan Rosas eds., 1995) The Law of Extradition and Mutual Legal Assistance (Clive Nicholls, Clare Montomery & Julian Knowles eds., 2002) F.S. Northedge, The Use of Force in International Relations (1974) 11 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed., 1993) 13 Nouvelles Etudes Pénales (1997) 71 Nouvelles Études Pénales (2000) Manfred Nowak & Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (2008) Arthur Nussbaum, A Concise History of the Law of Nations (2d ed. 1954) Joseph S. Nye, Jr., Nuclear Ethics (1986) Dietrich Oehler, Internationales Strafrecht (1973) Aktuelle Probleme des Internationalen Strafrechts: Beitrage zur Gestaltung des Internacionalen und Eines Supranationalen Strafrects (Dietrich Oehler & Paul G. Potz ed., 1970) John O’Marnique, The Origins of Justice (2003) Lhassa Oppenheim, International Law (1st ed. 1906) Mark Osiel, Making Sense of Mass Atrocity (2008) Clare Ovey & Robin C.A. White, Jacobs & White, European Convention on Human Rights (3d ed. 2002) Oxford English Dictionary Ozdemir Ozgur, Apartheid, the United Nations and Peaceful Change in South Africa (1982) Antonio Pagliaro, Principi di Diritto Penale: Parte Generale (1996) Alan Palmer, Bernadotte: Napoleon’s Marshal, Sweden’s King (1990) Partnership Africa Canada, The Heart of the Matter: Sierra Leone, Diamonds & Human Security, (Jan. 2000) International Criminal Law, Cases and Materials (Jordan Paust, M. Cherif Bassiouni et. al. eds., 2d rev. ed. 2000) Blaise Pascal, Pensées (William F. Trotter trans., 1941) Jordan J. Paust & M. Cherif Bassiouni et al., International Criminal Law Cases and Materials (2001) Vespasian V. Pella, La Codification du Droit Pénal International (1922) —— La Criminalité Collective des Etats et le Droit Pénal de l’Avenir (1925) —— La Guerre-Crime et les Criminels de Guerre (1964) —— Rapport et Projet de Convention Présentés à la Société des Nations (1927) Joseph E. Persico, Nuremberg: Infamy on Trial (1994)

xl

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Peter Pahm, Child Soldiers, Adult Interests: The Global Dimensions of the Sierra Leonean Tragedy (2005) Albert Parry, Terrorism: From Robespierre to Arafat (1976) Richard Philippe, La Convention de Tokyo (1971) Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (1911) Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operation in the East 1945–1951 (1979) Jean S. Pictet, Le Droit Humanitaire et la Protection des Victimes de la Guerre (1973) —— 1 Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (1952) —— 2 Commentary on the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1960) —— 3 Commentary on the Geneva Convention Relative to the Protection of Prisoners of War (1956) —— 4 Commentary on the Geneva Convention Relative to the Protection of Civilians in Time of War (1956) Jacques-Henri Pirenne, Panorama de l’Histoire Universelle (1963) Antonio Planzer, Le Crime de Génocide (1956) Stanislaw Plawski, Etude des Principes Fondamentaux du Droit International Pénal (1972) Theodore F.T. Plucknett, A Concise History of the Common Law (1936) Plutarch, Romulus (Loeb Classical Library 1914) Global Justice (Thomas W. Pogge ed., 2001) Mauro Politi & Giuseppe Nesi, The International Criminal Court and the Crime of Aggression (2004) The Rome Statute of the International Criminal Court: A Challenge to Impunity (Mauro Politi & Giuseppe Nesi eds., 2001) Cornelis A. Pompe, War: an International Crime (1953) Dominique Poncet, La Protection de L’Accuse Par la Convention Europeene des Droits de l’Homme (1977) Alessandro Portelli, The Order Has Been Carried Out: History, Memory and Meaning of a Nazi Massacre in Rome (2003) Brian Porter, Patterns of Thought and Practice: Martin Wight’s ‘International Theory,’ in The Reason of States 64 (M. Donelan ed., 1978) Roscoe Pound, Law and Morals (1969) Samantha Power, A Problem from Hell: America and the Age of Genocide (2002)



table of authorities

xli

Jean Pradel, Droit Pénal Comparé (1995) President’s Commission on Organized Crime, Interim Report to the President and the Attorney General, The Cash Connection: Organized Crime, Financial Institutions and Money Laundering (1984) Igor Primoratz, Justifying Legal Punishment (1989) Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction (2001) I–XXII The Tokyo War Crimes Trial: The Complete Transcripts Of The International Military Tribunal For The Far East (R. John Pritchard & Sonya M. Zaide eds., 1981) The Tokyo War Crimes Trials: The Comprehensive Index & Guide To The Proceedings Of The International Military Tribunal For The Far East (R. John Pritchard ed., 1981‑87) John Pritchard & Jane L. Garwood-Cutler, The Allied War Crimes Trials of Suspected Italian War Criminals, 1945–1949: A Forgotten Legacy with Vital Lessons for the Present Day (forthcoming) Gerard Prunier, The Rwanda Crisis: History of a Genocide (1997) Samuel Puffendorf, De Jure Naturae et Gentium Libri (1672) The Punishment of War Criminals: Recommendations of the London International Assembly (Report of Commission I) (1944) Christopher H. Pyle, Extradition, Politics, and Human Rights (2001) Rolando Quadri, Diritto Penale Internazionale (1944) Antonio Quintano-Ripoles, Tratado de Derecho Penal Internacional y Penal Internacional Penal (1957) Sayyid Qutb, Social Justice in Islam (1948) S. Ramadan, Islamic Law, Its Scope and Equity (1961) Emil S. Rappaport, Le Problème du Droit Pénal Interétatique (1930) Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2d ed. 2001) John Rawls, The Law of Peoples with “The Ideal of Public Reason Revisited” (1999) —— A Theory of Justice (1971) A. Frank Reel, The Case of General Yamashita (1949) Bertil A. Renborg, International Drug Control: A Study of International Administration By and Through the League of Nations (1947) 68 Rev. Int’le de Droit Pénal (1997) Maria Riccarda-Marchetti, Instituzioni Europee e Lotta al Terrorismo (1986) Guy Richard, L’Histoire Inhumaine: Massacres et Génocides des Origines à nos Jours (1992) Report of the Cambodian Genocide Project (1984)

xlii

table of authorities

Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (U.S. Gov’t Prtg. Office 1949) Report of the Task Force on an International Criminal Court of The American Bar Association (Alaire Bretz Rieffel ed., 1994) Report of the 60th Conference of the International Law Association (1983) Guy Richard, L’Histoire Inhumane: Massacres et Genocides des Origines a Nos Jours (1992) Ahmed M. Rifaat, International Aggression (1979) Regime Theory and International Relations (Volker Rittberg ed., 1993) Documents on the Laws of War (Adam Roberts & Richard Guelff eds., 3d ed. 2000) Arthur H. Robertson, Human Rights in Europe (1978) A.H. Robertson & J.G. Merrills, Human Rights in the World (1989) Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d ed. 2002) Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (2001) Nehemiah Robinson, The Genocide Convention (1960) Paul H. Robinson, Criminal Law Defenses (4 vols. 1984) Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000) Victor Rodriguez, The Chicago Principles of Post-Conflict Justice: A Vision Since and on the Latin American Post-Conflict Experiences (2010) Herwig Roggeman, Die Internationalen Strafgerichtshöfe (1998) Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (1995) Bernard V.A. Roling, The Tokyo Trials and Beyond: Reflections Of A Peacemonger (Antonio Cassese ed., 1993) Judgments of the Member from India (B.V.A. Rolling & C.F. Ruter eds., 1977) Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (Cesare P.R. Romana et al. eds., 2004) Governance Without Government: Order and Change in World Politics (James H. Rosenthal & Ernst-Otto Czempield eds., 1992) Charles E. Rousseau, Droit International Public (1980) Jean-Jacques Rousseau, Du Contrat Social (Ronald Ginsley ed., 1972) Pierre Roussel et al., La Grèce et L’Orient: Des Guerres Mediques à la Conquête Romaine (2d. ed., 1938) The Low Countries in Early Modern Times (Herbert H. Rowen ed., 1972) G.C. Rozankis, The Concept of Jus Cogens in The Law of Treaties (1976)



table of authorities

xliii

Joseph Roz, The Concept of a Legal System: An Introduction to the Theory of Legal Systems (1970) Alfred P. Rubin, The Law of Piracy (1998) John Gerard Ruggie, Constructing The World Polity: Essays on International Institutionalization (1998) Multilateralism Matters: The Theory and Practice of an Institutional Forum 405 (John G. Ruggie ed., 1993) Rudolph J. Rummel, Death by Government (1994) Steven Runciman, The Sicilian Vespers: A History of the Mediterranean World in the Later Thirteenth Century (1958) Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002) Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (2010) Christoph Safferling, Towards an International Criminal Procedure (2001) Jean Salmon, Manuel de Droit Diplomatique (1994) Yves Sandoz, Commentary on the 1977 Additional Protocols (1986) Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules from FDR’s Atlantic Charter to George W. Bush’s Illegal War (2005) George Santayana, The Life of Reason (1905) Marco Sassoli & Antoine A. Bouvier et. al., How Does Law Protect in War: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (2005) Responding to Money Laundering: An International Perspective (Ernesto U. Savona ed., 1997) William A. Schabas, An Introduction to the International Criminal Court (4th ed. 20011) —— Genocide in International Law: The Crimes of Crimes (2000) —— The UN Criminal Tribunals: The Former Yugoslavia, Rwanda, and Sierra Leone (2006) —— The International Criminal Court: A Commentary on the Rome Statute (2010) William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2012) Hjalmar Horace Greely Schacht, The End of Reparations (Lewis Gannett trans., 1979) Michael P. Scharf: Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997) Michael P. Scharf & William A. Schabas, Slobodan Milosevic on Trial: A Companion (2002)

xliv

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Michael Scharf, Universal Jurisdiction and the Crimes of Aggression, 53 Harv. Int’l L.J. 357 (2010). The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni, (Michael P. Scharf and Leila Nadya Sadat eds., 2008) The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Michael P. Scharf and Leila Nadya Sadat eds., 2008) Walter Schiffer, The Legal Community of Mankind (1954) Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts (1987) Droit des Conflits Armés, (Dietrich Schindler & Jiří Toman eds., 1996) Eberhard Schmidt, Militärstrafrecht (1936) The Law of Armed Conflict into the Next Millennium (Michael Schmitt & Leslie Green eds., 1998) Kosovo and the Challenge of humanitarian intervention (Albrecht Schnabel & Ramesh Thakur eds., 2000) Klaus Schwaighofer, Auslieferung und Internationales Strafrecht (1988) George Schwarzenberger, International Law (1968) —— The Dynamics of International Law (1976) —— International Law and Order (1971) —— Power Politics (2d ed. 1951) Torture as Tort (Craig Scott ed., 2001) Classics of International Law (James B. Scott ed., F. Kelsey trans., 1925) Raphael Sealey, A History of the Greek City States ca. 700–338 B.C. (1976) The United States and the International Criminal Court (Sarah Sewell & Carl Kaysen eds., 2000) Huang Shao-Jun, An Introduction to International Criminal Law (in ­Chinese) (1992) Shaping Shao, International Criminal Law (in Chinese) (2000) International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed., 2001) Dinah Shelton & Thomas Buergenthal, Protecting Human Rights in the Americas (4th ed. 1995) Helen Silving, The Constituent Elements of Crime (1967) The United Nations Charter: A Commentary (Bruno Simma ed., 1994) Sipri Yearbooks 1975‑1996 Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Alette Smeulers ed., 2010) Bradley F. Smith, Reaching Judgment At Nuremberg (1977) Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (2010)



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A. Sottile, The Problem of The Creation of a Permanent International Criminal Court (1951) Peace and War in Antiquity (Alexander Souter ed., Augustine FitzGerald trans., 1931) United Nations Codification of State Responsibility (Maria Spinedi & Bruno Simma eds., 1987) The Emerging Practice of the International Criminal Court (Carsten Stahn & Göran Sluiter eds., 2009) Gaston Stefani, George Levassier, & Bernard Boulac, Droit Pénal Génèral (11th ed. 1995) Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals (1996) Edward S. Stimson, Conflict of Criminal Laws (1936) Julius Stone, Legal Controls of International Conflict (1954) Julius Stone & Robert Woetzel, Toward a Feasible International Criminal Court (1970) John Strenlaw, The International Politics of the Nigerian Civil War 1967–1970 (1977) Accountability for Atrocities: National and International Responses (Jane Stromseth ed., 2003) Lyal S. Sunga, The Emerging System of International Criminal Law (1997) A.H.J. Swart, International Strafrecht (1973) International Criminal Law in the Netherlands (Bert Swart & André Klip eds., 1997) Etudes et Essais sur le Droit International Humanitaire et sur les principes de la Croix-Rouge en L’Honneur de Jean Pictet (Christophe Swinarski ed., 1984) Yuk Tanaka, Hidden Horrors: Japanese War Crimes in World War II (1996) Gebru Tareke, The Ethiopian Revolution: War in the Horn of Africa (2009) Bayard Taylor, A History of Germany: From the Earliest Times to the Present Day (1907) Lawrence Taylor, A Trial of Generals (1981) Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10 (1949) —— The Anatomy of The Nuremberg Trials (1992) —— The Nuremberg Trials: a Personal Memoir (1992) —— Nuremberg and Vietnam: An American Tragedy (1970) Ruti G. Teitel, Transitional Justice (2000) Ruti Teitel, Transitional Justice (2008) Tertullian, Apology (1931)

xlvi

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Ann Thomas, The Concept of Aggression in International Law (1972) Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008) Arnold J. Toynbee, Armenian Atrocities: The Murder of a Nation (1915) —— A Study of History (1947) Aron N. Trainin, Hitlerite Responsibility Under Criminal Law (1942) (Rothstein trans., 1945) Maurice Travers, Le Droit Pénal International et sa Mise en œuvre en Temps de Paix et en Temps de Guerre (1922) Trial of Major War Criminals Before the International Military Tribunal (1948) Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1948) Otto Triffterer, Dogmatische Untersuchungen zur Entwicklung des Materiellen Völkerstrafrechts seit Nurnberg (1966) Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 2d ed. 2008) Ann Tusa & John Tusa, The Nuremberg Trial (1984) Sun Tzu, The Art of War (Samuel B. Griffith trans., 1971) Verso un Tribunale Permanente Internazionale sui Crimini L’Umanita Precedenti Storici e Prospettive di Istituzione (P. Ungari & M.P. Pietrosanti Malintoppi eds., 1998) L’Union Interparliamentaire, Compte Rendu de la xxvii Conference Tenue a Rome en 1948 (1949) The U.N. and Cambodia 1991–1995 (The U.N. Blue Book Series, Volume II, 1995) United Nations Publications, Commentary on the Convention on Psychotropic Substances (1971) —— Commentary on the Single Convention on Narcotic Drugs (1961) United Nations War Crimes Commission, History of United Nations War Crimes Commission (1948) U.S. Dep’t of the Army, Field Manual 27–10: The Law of Land Warfare (1956) Rosanne Van Alebeek, The Immunities of States and Their Officials in International Criminal Law and International Human Rights Law (2008) Martin van Creveld, The Transformation of War (1991) International Criminal Law: A Collection of International and European Documents (Christine Van den Wyngaert ed., 1996) Christine Van den Wyngaert, The Political Offense Exception to Extradition: the Delicate Problem of Balancing the Rights of the Individual and the International World Public Order (1980)



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P. Van Dijk, A.W. Heringa & G.J. Van Hoof, Theory and Practice of the European Convention on Human Rights (3d ed. 1998) Comparative Legal Cultures (Csaba Varga ed., 1992) International Dimensions of Human Rights (Karel Vasak ed., 1982) Giuliano Vassalli, Formula di Radbruch e Diritto Penale [The Radbruch Formula and Criminal Law] (2001) —— La Giustizia Internazionale Penale (1995) Francisco Villagrán-Kramer, El Largo Brazo de la Justicia Penal Internacional (2001) Izidors Vizulis: The Molotov-Ribbentrop Pact of 1939: The Baltic Case (1990) Otto von Gierke, Das deutsche Genossenschaftsrecht (1913, reprinted 1954) —— National Law and the Theory of Society 1500 to 1800 (Ernest Barker trans., 1934, reprint 1957) Reflection on the Criminal Court (A.M. von Hebel et al. eds., 1999) August von Knierem, The Nuremberg Trials (1959) Hellmuth von Weber, Internationale Strafgerrichtsbarkeit (1934) Man’s Inhumanity to Man (L.C. Vorah & Michael Bohlander eds., 2002) Max Weber, Theory of Social and Economic Organization (1947) International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Joseph H.H. Weiler, Antonio Cassese & Marina Spinedi ed., 1989) Lloyd Weinreb, Natural Law and Justice (1987) H.G. Wells, The Outline of History (3d ed. 1921) Ben Whitaker, Slavery: Report of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (1984) Marjorie Millace Whiteman, Digest of International Law (1968) Marieke Wierda & Richard May, International Criminal Evidence (2002) Martin Wight, The Balance of Power and International Order, in The Bases of International Order (A. James ed., 1973) —— Diplomatic Investigations (H. Butterfield & M. Wight ed., 1968) —— International Theory: The Three Traditions (G. Wight & B. Porter eds., 1991) —— Power Politics (H. Bull & C. Hobraad eds., 1979) —— Systems of States (H. Bull ed. 1977) Henry Wigmore, A Panorama of World Legal Systems (1936) Allan M. Williams, The European Community: The Contradiction of Integration (2d ed. 1994) Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002) The United Nations and Transnational Organized Crime (Phil Williams & Ernesto U. Savona ed., 1996)

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Sharon A. Williams, The International and National Protection of Movable Cultural Property: a Comprehensive Study (1978) Richard W. Williamson, Policy Analysis Brief: Sudan and the Implications for Responsibility to Protect (2009) James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (1982) Westel W. Willoughby, Opium as an International Problem: the Geneva Conferences (1925) William Winthrop, Military Law and Precedents (2d ed. 1895) Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (Robert Wolfe ed., 1984) C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (J. Drake trans., 1934) Karol Wolfke, Custom in Present International Law (1993) Arthur Woods, Dangerous Drugs: The World Fight Against Illicit Traffic in Narcotics (1931) British Documents on Foreign Policy, 1919–1939, Third Series (E.L. Woodward et al. eds., 1949–55) Rene A. Wormser, The Law: The Story of Lawmakers and the Law we have Lived by, from the Earliest to the Present Day (1949) Wang Xiumei, International Criminal Law (in Chinese) (2002) Oran B. Young, Governance in World Affairs (1992) Yoshiaki Yoshimi, Comfort Women (Suzanne O’Brien trans., 2002) J. K. Zawodny, Death in the Forest: The Story of the Katyn Forest Massacre (1962) Zhang Zhihui, International Criminal Law (in Chinese) (1999) Franklin E. Zimring & Gordon J. Hawkins, Crime Is Not the Problem (1997) —— Deterrence (1973) Articles The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty‑Five Years Later, 8 Temp. Int’l & Comp. L.J. 1 (1994) Kenneth W. Abbott, Oran B. Young & Anne-Marie Burley, International Law and International Relations Theory: Building Bridges, 86 Proceedings of the American Society of International Law 167 (1992) Mohamed Abdul-Aziz, International Perspective on Transfer of Prisoners and Execution of Foreign Penal Judgments, in 2 International Criminal Law 533 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



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George Abi-Saab, Cours Général de Droit International Public, 207 Recueil de Cours de l’Académie de Droit International 15 (1996) Gerald Abrahams, Retribution: An Inquiry into the Possiblity of an International Criminal Law, 92 Law J. 38 (1942) Abraham Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure and Interference with Aircraft, 13 Colum. J. Transnat’l L. 381 (1974) Ronald D. Abramson & Stephen B. Huttler, Legal Response to the Illicit Movement of Cultural Property, 5 L. & Pol’y Int’l Bus. 932 (1973) Steven Ackerman, Torture and Other Forms of Cruel and Unusual Punishment in International Law, 11 Vand. J. Transnat’l L. 653 (1978) Robert Ago, Le Délit International, 68 II Recueuil des Cours de l’Académie de Droit International de La Haye 417 (1939) M. Ayo Ajomo, Hijacking or Unlawful Seizure of Aircraft, 7 Nigerian L.J. 13 (1973) Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333 (1999) Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 Am. J. Int’l L. 501 (1996) —— The Yugoslav Tribunal At Crossroads: The Dayton Peace Agreement and Beyond, 18 Hum. Rts. Q. 259 (1996) Carlos Alcorta, La Doctrina del Derecho Penal Internacional, 2 Rev. Argentina de Derecho Int’l 271 (1931) Raquel Aldana-Pindell, In vindication of Justiciable Victims’ Rights to Truth and Justice for State Sponsored Crimes, 35 Vand. J. Transnat’l. L. 1399 (2002) G. Glover Alexander, International Criminal Law, 5 J. Comp. Legis. & Int’l L. 90 (1923) —— International Criminal Law, 3 J. Comp. Legis. & Int’l L. 237 (1921) Iris Almeida, Compensation and Reparations for Gross Violations of Human Rights, 14 Nouvelles Études Pénales 399 (1998) Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 Am. Crim. L. Rev. 1359 (2009) Alexander Korthals Altes, Submarine Antiquites: A Legal Labyrinth, 4 Syracuse J. Int’l L. & Comm. 77 (1976) Jose E. Alvarez, International Organizations: Then and Now, 100 Am. J. Int’l L. 324 (2006) Diane Marie Amann, Message as Medium in Sierra Leone, 7 ILSA J. Int’l & Comp. L. 237 (2001) Diane Marie Amann & M.N.S. Sellers, The United States of America and the Inter‑ national Criminal Court, 50 Am. J. Comp. L. (Vol. L. Supp.) 381 (2002) Bienvenido C. Ambion, Establishment of the Proposed International Criminal Court, 30 Philippine L.J. 370 (1955)

l

table of authorities

—— Organization of a Court of International Criminal Jurisdiction, 29 Phillipine L.J. 345 (1950) Kai Ambos, Article 25: Individual criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 475 (Otto Triffterer ed., 1999) —— Individual Criminal Responsibility in International Criminal Law: A Juris‑ prudential Analysis—From Nuremberg to The Hague, in 1 Substantive and Procedural Aspects of International Criminal Law 1 (Gabrielle Kirk MacDonald & Olivia Swaak-Goldman eds., 2000) —— The Right of Non-Self-Incrimination of Witnesses Before the ICC, 15 Leiden J. Int’l L. 155 (2002) —— Völkerrechtliche Bestrafungspflichten bei schweren Menschenrechtsverletzun‑ gen, 37 Archiv des Völkerrechts 318 (1999) —— The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus, J. Int’l. Crim. Just. (2010) Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an International Context, 75 Ind. L.J. 809 (2000) Kai Ambos & Steffen Wirth, The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000, 13 Crim. L. F. 1 (2002) American Bar Association Task Force on an International Criminal Court, New York Bar Association Joint Report with Recommendations to the House of Delegates: Establishment of an International Criminal Court, 27 Int’l L. 270 (1993) —— Sierra Leone: Action Needed to End Use of Child Combatants, AI Index AFR 51/075/2000, Aug. 8, 2000 —— Abolitionist and Retentionist Countries, available at: http://www.amnesty .org/en/death-penalty/abolitionist-and-retentionist-countries Ennio Amodio & Eugenio Selvaggi, An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure, 63 Temp. L. Rev. 1211 (1989) Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 950 (1966) —— The Morality of Deterrence, U. Chi. L. Rev. 649 (1970) John R. Anderson & Paul L. Woodard, Victim and Witness Assistance: New State Laws and the System’s Response, 68 Judicature 221 (1985) A. Andries, C. Van den Wyngaert, E. David, & J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la repression des violations graves de droit international humanitaire, Revue de Droit Pénal et de Criminologie 1133 (1994) Kofi Annan, The Effectiveness of the International Rule of Law, in Kosovo and the Challenge of humanitarian intervention 222 (Albrecht Schnabel & Ramesh Thakur eds., 2000)



table of authorities

li

George J. Annas, Medical Remedies and Human Rights: Why Civil Rights Lawyers Must Become Involved in Medical Decision-making, 2 Hum. Rts. 151 (1972) George Antoniou & Nicoleta Iliescu, La Répression de la Capture Illicite d’Aéronefs, 47 Rev. Int’le de Droit Pénal 265 (1976) Gail Appleson, Karadzic Drops Human Rights Case Defense, Reuters News Service, Mar. 4, 1997 Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits), 81 Am. J. Int’l. L. 77 (1987) Cécile Aptel, Some Innovations in the Statute of the Special Tribunal for Lebanon, 5 J. Int’l Crim. Just. 1107 (2007) Carmen M. Argibay, Pirateria Aerea el Derecho Penal Argentino, 1969 Revista Juridica de Buenos Aires 229 (1969) Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court 93 Am. J. Int’l L. 22 (1999) Anna Asher, The Legal Regime of Erga Omnes Obligations and International Law, 46 Am. J. Int’l L. 131 (1994) Thrkkaya Ataov, Hitler and the “Armenian Question” (Monograph, Ankara University, 1992) Balthazar Ayala, Three Books on the Law of War, in Classics of International Law (James B. Scott ed., 1917) Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nations Norms on the Responsibilities of Transnational Corporations as a Har‑ binger of Corporate Social Responsibility in International Law, 37 Colum. Hum. Rts. L. Rev. 287 (2006) Peter Baehr, How to Deal with the Past, 14 Nouvelles Études Pénales 415 (1998) George Baer, Sanctions and Security: The League of Nations and the Italian-Ethiopian War, 1935–1936, 27 Int’l Org. 165 (1973) Ian W. Baldwin, Notes Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute CivilianContractor Misconduct, 94 Iowa L. Rev. 287 (2008) Jennifer L. Balint, An Empirical Study of conflict, Conflict Victimization and Legal Redress, 14 Nouvelles Etudes Penales 101 (Christopher C. Joyner, special ed. & M. Cherif Bassiouni, general ed., 1998) —— The Place of Law in Addressing International Regime Conflicts, 59 L. & Contemp. Probs. 103 (1996) —— Conflict, Conflict Victimization, and Legal Redress, 1945–1996, 59 L. & Contemp. Probs. 231 (1996) Fernando Felipe Basch, The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and its Dangers, 23 Am. U. Int’l L. Rev. 195 (2007)

lii

table of authorities

M. Cherif Bassiouni, An Appraisal of the Growth and Developing Trends of Inter‑ national Criminal Law, 45 Rev. Int’le de Droit Pénal 405 (1974) —— Crimes Against Humanity: The Case for a Specialized Convention, 9 Wash. U. Global Stud. L. Rev. 575 (2010) —— Perspectives on International Criminal Justice, 50 Va. J. Int’l. L. 269 (2010) —— The Discipline of International Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation, in International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Making of the International Criminal Court, in 3 International Criminal Law 117 (M. Cherif Bassiouni ed., 3d ed., 2008) —— The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Crimonology 711 (2008) —— International Criminal Justice in Historical Perspective, in International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Principles of Legality in International and Comparative Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values and Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008) —— An Appraisal of Human Experimentation in International Law and Practice: The Need for Regulation of Human Experimentation, 72 J. Crim. L. & Criminology 1597 (1981) —— Accountability for International Crimes and Serious Violations of Fundamen‑ tal Human Rights, 59 Law & Contemp. Probs. (M. Cherif Bassiouni, special ed., 1996) —— Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights, in Post-Conflict Justice 3 (M. Cherif Bassiouni ed., 2002) —— Assessing Conflict Outcomes: Accountability and Impunity, in 1 The Global Community: Yearbook of International Law and Jurisprudence 2007 5 (Giuliana Ziccardi Capaldo ed., 2008) —— Bush Missed the Mark in Making Case for War, Chi. Trib. 9 March 2003 —— Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000) —— The Commission of Experts Established Pursuant to Security Council Reso‑ lution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 1 (1994)



table of authorities

liii

—— A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Crimi‑ nality, Including the Establishment of an International Criminal Court, 15 Nova L. Rev. 353 (1991) —— Crimes Against Humanity: The Need for a Specialized Convention, 31 Col. J. Trans. L. 457 (1994) —— Crimes Against Humanity, in 1 International Criminal Law: Sources, Subjects, and Contents 437 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Critical Reflections on International and National Control of Drugs, 18 Denv. J. Int’l L. & Pol’y 11 (1990) —— Das “Vermächtnis von Nürnberg”: eine historische Bewertung fünfzig Jahre danach [Nuremburg: Historical Assessment Fifty Years Later], in Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürnberger Prozessen (Gerd Hankel & Gerhard Stuby eds., 1995) —— Death as a Penalty in the Shari’a, in The Death Penalty: Condemned 65–84 (Int. Commission of Jurists, 2000) —— Discipline of International Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Draft Statute International Tribunal, 9 Nouvelles Études Pénales 1 (1993) —— Draft Statute International Criminal Tribunal (French and Spanish translations) 10 Nouvelles Études Pénales 1 (1993) —— The Duty to Prosecute and/or Extradite: Aut Dedere Aut Judicare, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 35 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal, in Human Rights: An Agenda for the Next Century 347 (Louis Henkin & John Lawrence Hargrove ed., 1994) —— Enslavement as an International Crime, 23 N.Y.U. J. Int’l L. & Pol. 445 (1991) —— Enslavement: Slavery, Slave-Related Practice, and Trafficking in Persons, in 1 International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Establishing an International Criminal Court: Historical Survey, 149 Mil. L. Rev. 49 (1995) —— Explanatory Note, 71 Revue Internationale de Droit Pénal 1 (2000) —— Extradition, Law and Practice of the United States, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 269 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Evolution of International Humanitarian Law and Arms Control Agreements, in A Manual on International Humanitarian Law and Arms Control Agreements 1 (2000)

liv

table of authorities

—— From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11 (1997) —— A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990) —— The Future of Human Rights in the Age of Globalization in 40 Denver J. Int’l L. & Pol’y 22 (2012). —— General Report on the Juridical Status of the Requested State Denying Extra‑ dition, in Proceedings of the Eleventh International Congress of Comparative Law, 30 Am. J. Comp. L. (1982) —— Historical Survey: 1919–1998, in The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) —— The History of the Draft Code of Crimes Against the Peace and Security of Mankind, 27 Isr. L. Rev. 1 (1993), reprinted in Commentaries on the Interna‑ tional Law Commission’s 1991 Draft Code of Crimes Against the Peace and Secu‑ rity of Mankind, 11 Nouvelles Etudes Penales 1 (1993) —— Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235 (1993) —— Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000) —— Indagini e Procedimenti Penali Internazionali: Da Versailles a Roma, 22 La Legislazione Penale 817 (2002) —— The Institutionalization of Torture under the Bush Administration, 37 Case W. Res. J. Int’l L. 389 (2006) —— International Aspects of Drug Abuse: Problems and a Proposal, 9 J. Marshall J. Prac. & Proc. 3 (1975) —— International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63 (1996) —— International Crimes: The Ratione Materiae of International Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 129 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The International Criminal Court: Observations and Issues before the 1997‑98 Preparatory Committee and Administrative and Financial Implications, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1997) —— International Criminal Justice in the Era of Globalization: Rising Expecta‑ tions, in 6 The Global Community: Yearbook of International Law and Jurisprudence 2005, at 3–14 (Giuliana Ziccardi Capaldo ed., 2006) —— International Criminal Justice in Historical Perspective, in 3 International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



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lv

—— International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice, in The Oxford Companion to International Criminal Justice 131 (Antonio Cassese ed., 2009) —— International Law and the Holocaust, 9 Cal. W. Int’l. L.J. 201 (1979) —— International Institute of Higher Studies in Criminal Sciences, in The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program (In honor of Adolfo Beria di Argentine) 209 (M. Cherif Bassiouni ed. 1995) —— International Narcotics Control System: A Proposal, 46 St John’s L. Rev. 713 (1972) —— International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203 (2006) —— International Recognition of Victims’ Rights, in 3 International Criminal Law: International Enforcement 633 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Introduction to the Genocide Convention, in 1 International Criminal Law: Crimes (M. Cherif Bassiouni ed., 1986) —— Introduction to International Humanitarian Law, in 1 International Criminal Law: Sources, Subjects, and Contents 269 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Introduction to Proceedings of the International Conference on Extradition Held at International Institute of Higher Studies in Criminal Sciences (Siracusa), 62 Revue Internationale de Droit Penal (1991) —— Introduction to Recognition of Foreign Penal Judgments, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 511 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Introduction to Transfer of Criminal Proceedings, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 519 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Investigating International Trafficking in Women and Children for Commer‑ cial Sexual Exploitation (International Human Rights Law Institute, DePaul University College of Law, 2001) —— Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 25 Sec. Dialogue 409 (1994) —— Issues Pertaining to the Evidentiary Part of International Criminal Law, in 3 International Criminal Law: International Enforcement 579 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Justice and Peace: The Importance of Choosing Accountability Over Realpolitik, 35 Case W. Res. J. Int’l L. 191 (2003) —— Les Crime relevant du prècepte de Qesas, 4 Revue Internationale de Criminologie et de Police Technique 485 (1989) —— Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002)

lvi

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—— The Making of the International Criminal Court, in 3 International Criminal Law: International Enforcement 117 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Mixed Models of International Criminal Justice, in 3 International Criminal Law: International Enforcement 155 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Modalities of International Cooperations in Penal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Need for International Accountability, in 3 International Criminal Law: International Enforcement 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell Int’l L.J. 443 (1999) —— The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 711 (2008) —— The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, 8 Transnat’l L. & Cont. Probs. 199 (1998) —— The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, in 1 International Criminal Law: Sources, Subjects, and Contents 493 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Nuremberg Forty Years After: An Introduction, 18 Case W. Res. J. Int’l L. 261 (1986) —— The “Nuremberg Legacy”: Historical Assessment Fifty Years Later, in War Crimes: The Legacy of Nuremberg 291 (Belinda Cooper ed., 1998) —— Observations Concerning the 1997–98 Preparatory Committees Work, 13 Nouvelles Études Pénales 5 (1997) —— Observations on the Structure of the (Zutphen) Consolidated Text, in 13bis Nouvelles Etudes Pénales (Leila Sadat Wexler ed. 1998) —— The Penal Characteristics of Conventional International Criminal Law, 15 Case W. Res. J. Int’l L. 27 (1983) —— Penalties and Sentences, in 3 International Criminal Law: International Enforcement 601 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 Ga. St. U. L. Rev. 541 (2006) —— Perspectives on International Terrorism, in International Terrorism: Multilateral Conventions 1937–2001 (M. Cherif Bassiouni ed., 2001) —— Perspectives on International Terrorism, in 1 International Criminal Law: Sources, Subjects, and Contents 697 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Philosophy and Policy of International Criminal Justice, in Man’s Inhumanity to Man 63 (L.C. Vorah & Michael Bohlander eds., 2003)



table of authorities

lvii

—— Policy Considerations on Inter-State Cooperation in Criminal Matters, in Principles and Procedures for a New Transnational Criminal Law 807 (Albin Eser & Otto Lagodny ed., 1992) —— Policy Perspectives Favoring the Establishment of the International Criminal Court, 52 Colum. J. Int’l Aff. 795 (1999) —— The “Political Offense Exception” Revisited: Extradition Between the U.S. and the U.K. A Choice Between Friendly Cooperation Among Allies and Sound Law and Policy, 15 Denv. J. Int’l L. & Pol’y 255 (1987) —— Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, 38 Cornell Int’l L.J. 327 (2005) —— Post-war Justice, Justifying War, Chi. Trib. Mar. 30, 2003 —— Principles of Legality in International and Comparative Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Privilege Against Self-Incrimination: A Historical Analysis and Contem‑ porary Appraisal, in Law In The United States of American and in Social and Technological Revolution (John N. Hazard & Wenceslas J. Wagner eds., 1974) —— The Problems with the Team Around Bush, Chi. Trib., January 5, 2003, Sec. 2 —— Proposed Guiding Principles for Combating Impunity for International Crimes, in Post-Conflict Justice 255 (M. Cherif Bassiouni ed., 2002) —— The Proscribing Function of International Criminal Law in the Process of Inter‑ national Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982) —— Protection of Diplomats Under Islamic Law, 74 Am. J. Int’l L. 609 (1980) —— Qesas Crimes, in Islamic Criminal Justice System 203 (M. Cherif Bassiouni ed., 1982) —— Ratification and National Implementing Legislation, 71 Revue Internationale De Droit Pénal 41–81 (M. Cherif Bassiouni ed., 2000) —— Recent United Nations Activities in Connection with the Establishment of a Permanent International Criminal Court and the Role of the Association Inter‑ national de Droit Pénal and the Instituto Superiore Internazionale di Scienze Criminali, 67 Rev. Int’le de Droit Penal 127 (1996) —— Reflections on Criminal Jurisdiction in International Protection of Cultural Property, 10 Syracuse J. Int’l L. & Comm. 281 (1983) —— The Regulation, Control, and Prohibition of the Use of Certain Weapons in the Context of War, in 1 International Criminal Law: Sources, Subjects, and Contents 377 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Repression of Breaches of the Geneva Conventions Under the Draft Additional Protocol to the Geneva Conventions of August 12, 1949, 8 Rutgers-Cam. L.J. 185 (1977) —— Rumors of War: Waving a Big Stick, Chi. Trib., November 10, 2002

lviii

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—— Searching for Justice in the World of Realpolitik, 12 Pace Int’l L. Rev. 213 (2000) —— Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9 (1996) —— Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University) —— States of Emergency and States of Exception: Human Rights Abuses and Impunity Under Color of Law, in Non-Derogable Rights and States of Emergency 125 (Daniel Prémont ed., 1996) —— The Subjects of International Law: Ratione Personae, in 1 International Criminal Law: Sources, Subjects, and Contents 41 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values & Violence: Intangible Acts of Terrorism 233 (Ibrahim A. Karawan, Wayne McCormack & Stephen E. Reynolds eds., 2008) —— Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299 (2004) —— The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991) —— The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L. 784 (1994) —— United States Policies and Practices on the Execution of Foreign Penal Sen‑ tences, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 555 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001) —— Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 153 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Universal Jurisdiction Unrevisited: The International Court of Justice Decision, in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 12 Palestine Y.B. Int’l L. 27 (2002–03). —— Universal Jurisdiction; Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001) —— Work Paper on International Control of Drugs, Abidjan World Peace Through Law Conferences (26–31 August 1973) —— World Public Order and Extradition: A Conceptual Evaluation, in Aktuelle Probleme des Internationalen Strafrechts 10 (D. Oehler & P.G. Potz eds., 1970)



table of authorities

lix

—— World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002) M. Cherif Bassiouni & Gamal Badr, The Shari’ah: Sources, Interpretation and RuleMaking, 1 UCLA J. Islamic & Near Eastern L. 135 (2002) M. Cherif Bassiouni, Thomas G. Baffes & John T. Evrard, Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J. Crim. L. 1597 (1981) M. Cherif Bassiouni & Christopher Blakesley, The Need for an International Crimi‑ nal Court in the New International World Order, 25 Vand. J. Transnat’l L. 151 (1992) M. Cherif Bassiouni & Daniel Derby, An Appraisal of Torture in International Law and Practice: The Need for an International Convention for the Prevention and Suppression of Torture, 48 Rev. Int’le de Droit Pénal 17 (1977) M. Cherif Bassiouni & Daniel Derby, Final Report on the Establishment of an Inter‑ national Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments, 9 Hofstra L. Rev. 52 (1981) M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggres‑ sion: From its Origins to the ICC, in 1 International Criminal Law: Sources, Subjects, and Contents 207 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) M. Cherif Bassiouni & Marcia McCormick, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University) M. Cherif Bassiouni & Daniel Rothenberg, An Assessment of Justice Sector and Rule of Law Reform in Afghanistan and the Need for a Comprehensive Plan (ISISC) Winfried Baumgart, Zür Ansprache Hitler’s vor den Führen der Wehrmacht am 22 August 1939 : Eine Ouellenkritische Untersuchung, Vierteljahrshefte Für Zeitgeschichte 120 (1968) Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, in 1, 2 A Treatise on International Criminal Law 65 (M. Cherif bassiouni & Ved P. Nanda eds., 1973) Richard R. Baxter & Thomas Buergenthal, Legal Aspects of the Geneva Protocol of 1925, 64 Am. J. Int’l L. 853 (1970) Sara Sun Beale, A Response to the Critics of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1481 (2009) Steven W. Becker, Cave Janus: Increased Cooperation Between Law Enforcement and Intelligence Agencies After September 11, 2001, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 71 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Siegfried Beer, Aspekte der britischen Militärgerichtsbarkeit, in Keine “Abrechnung”: NS-Verbrechen, Justiz und Gesellschaft in Europa nach 1945 (Claudia Kuretsidis-Haider and Winfried R. Garscha, eds., 1998)

lx

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Hans-Jörg Behrens, The Trial Proceedings, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 238 (Roy S. Lee ed., 1999) Hans-Jörg Behrens & Donald K. Piragoff, Article 69: Evidence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 889 (Otto Triffterer ed., 1999) Beirut Protestors Denounce Syria, BBC News, Feb. 21, 2005 Mark R. Beissinger, The Party and the Rule of Law, 28 Colum. J. Transnat’l L. 41 (1989) Olympia Bekou, Rule 11BIS:An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence, 33 Fordham Int’l L. J. 723 (2010) A.D. Belinfante, Les Principes de Droit Pénal International et les Conventions Inter‑ nationales, 2 Nederlands Tijdschrift voor Internationaal Recht 243 (1955) Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Confer‑ ence, 5 Global Governance 1 (Jan.–Mar. 1999) Paolo Benvenuti, La Clausola Martens e la Tradizione Classica del Diritto Naturale nella Codificazione del Diritto dei Conflitti Armati, Scritti degli allievi in memoria di Giuseppe Barile 173 (1993) Lynn Berat & Yossi Shain, Retribution or Truth-telling in South Africa? Legacies of the Transitional Phase, 20 L. & Soc. Inquiry 1 (1995) Paul Schiff Berenau, The Globalized Jurisdiction, 151 U. Penn. L. Rev. 311 (2002) Louis Rene Beres, Genocide and Genocide-Like Crimes, in 1 International Criminal Law: Crimes 271 (M. Cherif Bassiouni ed., 1986) Morten Bergsmo & Jelena Pejić, Article 15: Prosecutor, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 359 (Otto Triffterer ed., 1999) —— Article 16: Deferral of investigation or prosecution, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 373 (Otto Triffterer ed., 1999) Morten Bergsmo & Frederik Harhoff, Article 42: The Office of the Prosecutor, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 627 (Otto Triffterer ed., 1999) Morton Bergsmo & Pieter Kruger, Article 53: Initiation of an investigation, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 701 (Otto Triffterer ed., 1999) —— Article 54: Duties and powers of the Prosecutor with respect to investiga‑ tions, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 715 (Otto Triffterer ed., 1999)



table of authorities

lxi

Antonio Beristain, Las Drogas y su Leislacion en España, 1973 Anuario de Derecho Penal y Ciencias Penales 41 (1973) Nadia Bernaz and Remy Prouveze, International and Domestic Prosecutions, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 269 (2 vols., M. Cherif Bassiouni ed., 2010) Wendy S. Betts, Scott N. Carlson & Gregory Grisvold, The Post-Conflict Transi‑ tional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int’l L. 371 (2001) Charles I. Bevans, International Conventions in the Field of Narcotic Drugs, 37 Temp. L.Q. 41 (1963) Fiona Beveridge, The Lockerbie Affair, 41 Int’l & Comp. L.Q. 907 (1992) Steve Beytenbrod, Defining Aggression: An Opportunity to Curtail the Criminal Activities of Non-State Actors, 36 Brookly J. Int’l L. 647 (2011) Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 249 (1999) —— Human Rights and the Magic of Jus Cogens, 19 Eur. J. Int’l L. 491 (2008) Christopher L. Blakesley, Comparing the Ad-Hoc Tribunal for Crimes Against Humanitarian Law in the Former Yugoslavia and the Project for an International Criminal Court: An Appraisal, 67 Rev. Int’le de Droit Pénal 139 (1996) —— Extraterritorial Jurisdiction, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 85 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 Fletcher Forum World Aff. 77 (1992) Stephanos Bibas & William W. Burke-White, International Idealism Meets Domestic-Criminal-Procedure Realism, 59 Duke L.J. 637, 694 (2010) Jeffrey L. Bleich, Complementarity, 13 Nouvelles Etudes Pénales 231 (1997) Neils Blokker & Claus Kress, A Consensus Agreement on the Crime of Aggression, 12 Leiden J. Int’l L. 889, 893 (2010) Matthew Bloom, A Comparative Analysis of the United States’ Response to Extradi‑ tion Requests From China, 33 Yale J. Int’l L. 177 (2008) Juan Pablo Bohoslavsky and Veerle Opgenhaffer, The Past and Present of Corpo‑ rate Complicity: Financing the Argentine Dictatorship, 23 Harv. Hum. Rts. J. 157 (2010) Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, in Post-Conflict Justice 345 (M. Cherif Bassiouni ed., 2002) —— The International Criminal Tribual for Rwanda, in Post-Conflict Justice 487 (M. Cherif Bassiouni ed., 2002)

lxii

table of authorities

Roman Boed, The International Criminal Tribunal for Rwanda, in 3 International Criminal Law: International Enforcement 103 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1 (2002) Michael Bohlander, The General Part : Judicial Developments, in 3 International Criminal Law: International Enforcement 515 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Ne Bis in Idem, in 3 International Criminal Law: International Enforcement 539 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Referring an Indictment from the ICTY and ICTR to Another Court—Rule 11bis and the Consequences for the Law of Extradition, 55 Int’l & Comp. L. Q. 219 (2006) John Bolton, The Global Prosecutors: Hunting War Criminals in the Name of Uto‑ pia, Foreign Aff. (Jan/Feb 1999) Adriaan Bos, The Identification of Custom in International Law, 25 Ger. Y.B. Int’l L. 9 (1982) Giorgio Bosco, Verso l’istituzione di una Corte Penale Internazionale, 250 Rivista di Studi Politici Internazionali 223 (1998) Henri D. Bosly, Actualite du Tribunal International Penal, 1–2 Annales de Droit de Louvain 3 (1995) Frédéric Bostedt & Joakim Dungel, The International Criminal Tribunal for the Former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law, 7 Chinese J. Int’l L. 389 (2008) Nancy Zucker Boswell, Combating Corruption: Focus on Latin America, 3 Sw. J. L. & Trade Am. 179 (1996) Pierre Bouzat, Introduction, 52 Revue Internationale de Droit Pénal 331 (1984) Owen Bowcott, Africans call for slavery reparations, Guardian Unlimited (Jun. 29, 2001) ——, Charles Taylor sentenced to 50 years in prison for war crimes, Guardian, May 30, 2012. Greg Brabec, The Fight For Transparency: International Pressure to Make Swiss Banking Procedures Less Restrictive, 21 Temp. Int’l & Comp. L.J. 231 (2007) Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 816 (1997) —— Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129 (1999) Helen Brady, Appeal and Revision, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 575 (Roy S. Lee ed., 2001)



table of authorities

lxiii

—— Disclosure of Evidence, in The ICC: Elements of Crimes and Rules of Procedure and Evidence 403 (Roy Lee ed. 2001) Helen Brady & Mark Jennings, Appeal and Revision, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 294 (Roy S. Lee ed., 1999) James T. Brand, Crimes Against Humanity and the Nürnberg Trials, 28 Or. L. Rev. 93 (1949) Stephan Breitenmoser, et al., Human Rights v. Extradition: The Soering Case, 11 Mich. J. Int’l L. 845 (1990) Bruce Broomhall, Looking Forward to the Establishment of an International Crimi‑ nal Court: Between State Consent and the Rule of Law, 8 Crim. L.F. 317 (1997) —— Article 51: Rules of Procedure and Evidence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 679 (Otto Triffterer ed., 1999) Bartram S. Brown, The International Criminal Tribunal for the Former Yugoslavia, in 3 International Criminal Law: International Enforcement 69 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855 (1999) Marcel Brus, Bridging the Gap Between State Sovereignty and International Gov‑ ernments: The Authority of Law, in State Sovereignty and International Governance 3 (Gerard Kreijen et al. eds., 2002) Aaron J. Buckley, The Conflict in Cambodia and Post-Conflict Justice, in PostConflict Justice 637 (M. Cherif Bassiouni ed., 2002) Pamela H. Bucy, Corporate Criminal Liability: When Does It Make Sense?, 46 Am. Crim. L. Rev. 1437 (2009) Roman Boed, The International Criminal Tribunal in Rwanda, in 3 International Criminal Law: International Enforcement 103 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Marianne Holdgaard Bukh, Prosecution Before Danish Courts of Foreigners Sus‑ pected of Serious Violations of Human Rights or Humanitarian Law, 6 Eur. Rev. Pub. L. 339 (1994) Hedley Bull, The Importance of Grotius in the Study of International Relations, in Hugo Grotius and International Relations 65 (H. Bull, B. Kingsbury & A. Roberts eds. 1990) —— The Grotian Conception of International Society, in Diplomatic Investigations (H. Butterfield & M. Wight ed. 1968) —— Martin Wight and the Theory of International Relations, 2 Brit. J. Int’l Stud. 101 (1976) Peter Bums, An International Criminal Tribunal: The Difficult Union of Principles and Politics, 5 Crim L.F. 341 (1994) H. James Burgwyn, General Roatta’s war against the partisans in Yugoslavia: 1942, 9

lxiv

table of authorities

J. Modern Italian Stud. 314 (2004) William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008) John F. Burns and Kirk Semple, Hussein is Sentenced to Death by Hanging, N.Y. Times, Nov. 6, 2006 Jose A. Cabranes, International Law and Control of the Drug Traffic, 7 Int’l L. 761 (1973) Jean-Christian Cady & Nicholad Booth, Internationalized Courts in Kosovo: An UNMIK Perspective, in Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia 59 (Cesare P.R. Romana et al. eds., 2004) Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in 1 The Global Community: Yearbook of International Law and Jurisprudence 2007 5 (Giuliana Ziccardi Capaldo ed., 2008) Giuliana Ziccardi Capaldo & Michele Nino, Globalization of International Law Enforcement Mechanisms : Issues of Legality and Legitimacy, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 47 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christian M. Capece, The Ottawa Treaty and its Impact on U.S. Military Policy and Planning, 25 Brooklyn J. Int’l L. 183 (1999) Tessa V. Capeloto, Reconciliation in the Wake of Tragedy: Cambodia’s Extraor‑ dinary Chambers Undermines the Cambodian Constitution, 17 Pac. Rim L. & Pol’y J. 103 (2008) Steven M. Caplan, The Applicability of the Exclusionary Rule in Federal Court to Evidence Seized and Confessions Obtained in Foreign Countries, 16 Col. J. Transnat’l L. 495 (1977) Burris M. Carnahan, The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons, 105 Mil. L. Rev. 73 (1984) Douglas Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 L. & Contemp. Probs. 197 (1996) Antonio Cassese, On the Use of Criminal Law Notions in Determining State Respon‑ sibility for Genocide, 5 J. Int’l Crim. Just. 875 (2007) —— Anthology: Eichmann: Is Evil So Banal?, 7 J. Int’l. Crim. Just. 645 (2009) Mauro Catenacci, Nullum Crimen Sine Lege, in The International Criminal Court: Comments on the Draft Statute 159 (Flavia Lattanzi ed., 1998) Joel Cavicchia, The Prospects for an International Criminal Court in the 1990s, 10 Dick. J. Int’l L. 223 (1992) Adolfo Ceretti, Collective Violence and International Crimes, in The Oxford Companion to International Criminal Justice 1 (2009)



table of authorities

lxv

Chad confirms former president Habre’s conviction, Agence France Presse, Aug. 19, 2008 Charles Taylor war crimes trial resumes with blood diamond expert’s testimony, The Assoc’d Press, Jan. 7, 2008 Charles Taylor Trial, The Economist, Jan. 9, 2008 Johnathan I. Charney, Universal International Law, 87 Amer. J. Int’l’L 529 (1993) Alejandro Chehtman, Developing Bosnia and Herzegovina’s Capacity to Process War Crimes, 9 J. Int’l. Crim. Justice 547 (2011) Trevor Pascal Chimimba, Establishing an Enforcement Regime, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 345 (Roy S. Lee ed., 1999) Christine Chinkin, The Protection of Victims and Witnesses, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Courts Vol. I, 455 (G.K. MCDonald & O. Swaak-Goldman eds. 2000) Christine M. Chinkin, United Kingdom House of Lords, (Spanish Request for Extradition): Regina v. Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), 93 Am. J. Int’l L. 703 (1999) Gordon A. Christenson, Jus Cogens: Guarding Interests Fundamental to Interna‑ tional Society, 28 Va. J. Int’l L. 585 (1988) George Christenson, The World Court and Jus Cogens, 81 Am. J. Int’l L. (1987) Demostenes Chryssikos, Commentary on the United Nations Draft Model Law on Extradition, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 377 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Commentary on the United Nations Draft Model Law on Mutual Assistance in Criminal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 405 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christine H. Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. J. Int’l Hum. Rts. 459 (2008) Andrew Clapham, Extending International Criminal Law beyond the Individual to Corporate and Armed Opposition Groups, 6 J. Int’l. Crim. Just. 899 (2008) —— Non-State Actors, in Post-Conflict Peacebuilding: A Lexcion 200 (Vincent Chetail, ed., 2009) Jennifer J. Clark, Zero to Life: Sentencing Appeals at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 96 Geo. L.J. 1685 (2008) Roger S. Clark, Apartheid, in 1 International Criminal Law: Sources, Subjects, and Contents 599 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Article 106: Supervision of enforcement of sentences and conditions of impris‑ onment, in Commentary on the Rome Statute of the International

lxvi

table of authorities

Criminal Court: Observer’s Notes, Article by Article 1177 (Otto Triffterer ed., 1999) —— Article 121: Amendments, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1265 (Otto Triffterer ed., 1999) —— Article 122: Amendments to provisions of an institutional nature, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1273 (Otto Triffterer ed., 1999) —— Article 126: Entry into force, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1289 (Otto Triffterer ed., 1999) —— The Crime of Aggression and the International Criminal Court, in 1 International Criminal Law: Sources, Subjects, and Contents 243 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12 Crim. L.F. 291 (2001) —— Offenses of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg, 57 Nordic J. Int’l L. 49 (1988) Roger S. Clark & Otto Triffterer, Exclusion of Jurisdiction over Persons under Eighteen, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 493 (2d ed., 2008) Kathleen Claussen, Up To The Bar? Designing the Hybrid Khmer Rouge Tribunal in Cambodia, 33 Yale J. Int’l L. 253 (2008) David Cohen, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future, 43 Stan. J. Int’l L. 1 (2007) —— Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (Aug. 2003) Roger Cohen, Taming the Bullies of Bosnia, N.Y. Times Mag., Dec. 17, 1995 Stanley Cohen, State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past, 20 L. & Soc. Inquiry 7 (1995) James R. Coker, The Status of Visiting Military Forces in Europe: NATO-SOFA, A Comparison, in 2 A Treatise on International Criminal Law 115 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Mary Colley, Effect of Efforts to Control Illicit Art Traffic on Legitimate Interna‑ tional Commerce in Art, 8 Ga. J. Int’l & Comp. L. 462 (1978) Nancy Amoury Combs, Plea Bargains in International Criminal Prosecutions, in 3 International Criminal Law: International Enforcement 559 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



table of authorities

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Comment, Draft International Counterfeiting Code: Neorealism as a Vehicle for Analyzing the Effect of Nonsignatories’ Perceptions on the Development of an Anti-Counterfeiting Norm, 15 Vand. J. Transnat’l L. 803 (1982) Comment, The Genocide Convention Revisited: A New Case for Ratification, 2 B.U. Int’l L.J. 241 (1983) Comment, The Right to Financial Privacy Versus Computerized Law Enforcement: A New Fight in an Old Battle, 86 Nw. U. L. Rev. 1169 (1992) Comment, Toward an International System of Drug Control, 8 U. Mich. J. L. Ref. 103 (1974) Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Etudes Penales (M. Cherif Bassiouni ed. 1993) Luigi Condorelli, Consuetudine Internazionale, Digest 3 (1988) Conception et Principes du Droit Pénal Économique et des Affaires y Compris la Protection du Consommateur, 54 RIDP 17-865 (1983) Constitution et Procdure d’un Tribunal Appropripour Juger de la Responsabilité des Auteurs des Crimes de Guerre, Present a la Conference Preliminaire de Paix par la Commission de Responsabilites des Auteurs de la Guerre et Sanctions, 111 La Paix de Versailles (1930) Antonio Converti, The Rights of the Accused, in The International Criminal Court: Comments on the Draft Statute 219 (Flavia Lattanzi ed., 1998) Asrid Reisingger Coracini, The International Criminal Court’s Exercise of Jurisdic‑ tion Over the Crime of Aggression—at Last . . . in Reach . . . Over Some, 2 Goettingen J. Int’l L. 745 (2010) Declan Costello, International Terrorism and the Development of the Principle Aut Dedere Aut Judicare, 10 J. Int’l L. et Econ. 483 (1975) Court Advances Extradition of Fujimori, Chi. Trib., May 31, 2002 Court of Bosnia and Herzegovina, Verdicts of Section I, available at: http://www .sudbih.gov.ba/?opcija=sve_presude&odjel=1&jezik=e Cover-Up and Denial of Genocide: Australia, the USA, East Timor, and the Aborigi‑ nes, 34 Critical Asian Studies 2, 163 (2002) William B. Cowles, Trials of War Criminals (non-Nuremberg), 42 Am. J. Int’l L. 299 (1948) David Crane, Special Court for Sierra Leone, in 3 International Criminal Law: International Enforcement 195 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) James Crawford, Prospects for an International Criminal Court, 48 Current Legal Probs. 300 (1995) —— The ILCs Draft Statute for an International Criminal Tribunal, 88 Am J. Int’l L. 140 (1940) La Création d’une Jurisdiction Pénale Internationale et la Coopération Internation‑ ale en Matière Pénale, 45 Rev. Int’le de Droit Penal 435 (1974)

lxviii

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The Criminal Justice Systems Facing the Challenge of Organized Crime: Prepara‑ tory for the XVIth International Congress of Penal Law, 67 Revue Internationale de Droit Pénal 417 (1996) The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic I, General Part, 68 Revue Internationale de Droit Pénal 479 (1997) The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic III, Procedural Part, 69 Revue Internationale de Droit Pénal (1998) The Criminal Justice Systems Facing the Challenge of Organized Crime: XVIth International Congress of Penal Law, Resolutions, 70 Revue Internationale de Droit Pénal 749 (1999) Criminalité d’Affaires, 53 RIDP 21–523 (1982) John R. Crook, The U.N. Compensation Commission—A New Structure to Enforce State Responsibility, 87 Am. J. Int’l L. 205 (1993) Barbara Crossette, A tortuous road to nation-building, Int’l Herald Trib. Mar. 20, 2008 Robert Cryer, The Doctrinal Foundations of International Criminalization, in 1 International Criminal Law : Sources, Subjects, and Contents 107 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Wynne Cougill, 2007 Annual Report, Documentation Center Cambodia 1 (2007) Vahakn N. Dadrian, Documentation of the Armenian Genocide in Turkish Sources, in 2 Genocide: A Critical Bibliographic Review 86 (Israel W. Charney ed., 1991) —— Genocide as a Problem of National and International Law: The World War I rmenian Case and its Contemporary Legal Ramifications, 14 Am. J. Int’l L. 127 (1989) European Union Rule of Law Mission in Kosovo, Special Prosecution Office Statistical Booklet (28 June 2011) Jose Luis Guzman Dalbora, The Treatment of International Crimes in Chilean Jurisprudence: A Janus Face, 10 Int’l. Crim. L. Rev. 535 (2010) Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110 (1982) —— It’s a Bird, it’s a Plane, it’s Jus Cogens!, 6 Conn. J. Int’l L. 1 (1990) —— National Prosecution for International Crimes, in 3 International Criminal Law: International Enforcement 285 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Mirjan Damaska, Problematic Features of International Criminal Procedure, in The Oxford Companion to International Criminal Justice 176 (Antonio Cassese ed. 2009) Yael Danieli, Justice and Reparations: Steps in the Healing Process, 14 Nouvelles Études Pénales 303 (1998) Allison Marston Danner, Joint Criminal Enterprise, in 3 International Criminal Law: International Enforcement 483 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



table of authorities

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—— Allison Marston Danner & Jenny S. Martinez, Guilty Associations : Joint Criminal Enterprise, Command Responsibility, and the Developlement of Inter‑ national Criminal Law, 93 Cal. L. Rev. 75 (2005) P. d’Argent, la loi du 10 février 1999 relative à la répression des violations graves de droit international humanitaire, Journal des Tribunaux 549 (1999) Jean Y. Dautricourt, The Concept of International Criminal Court Jurisdiction‑ Definition and Limitations of the Subject, in 1 A Treatise on International Criminal Court 636 (M. Cherif Bassiouni & V. P. Nanda eds., 1973) —— Le Droit International Pénal, 37 Rev. de Droit Pénal et de Criminologie 243 (1957) Éric David, La loi belge sur les crimes de droit international humanitaire, 668 RBDI (1995) —— The Belgian Experience, in 3 International Criminal Law: International Enforcement 359 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) ——, The Belgian Experience, in 3 International Criminal Law 359 (M. Cherif Bassiouni, ed., 3d ed. 2008) K.E. Dawkins, Crimes (Internationally Protected Persons and Hostages) Act 1980, 9 N.Z. U. L. Rev. 399 (1981) István Deák, Postworld War II Political Justice in a Historical Perspective, 149 Mil. L. Rev. 137 (1995) Sylvia de Bertodano, Current Developments in Internationalized Courts, 1 J. Int’l Crim. Just. 226 (April 2003) —— Problems Arising from the Mixed Composition and Structure of the Cambo‑ dian Extraordinary Chambers, 4 J. Int’l Crim. Just. 285 (2006) Chris Decherd, Cambodia’s King Signs Law Paving the Way for Tribunal to Put Khmer Rouge on Trial, AP, Aug. 10, 2001 John Decker, A Critique of the Draft International Criminal Code, 52 Revue Internationale de Droit Pénal 365 (1984) Michael DeFeo, Hostage Taking and Kidnapping as Forms of Terror Violence, in 1 International Criminal Law: Sources, Subjects, and Contents 751 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Régis de Gouttes, Vers un Espace Judiciare Pénal Pan-Européen?, 22 Recueil Dalloz Sirey 154 (1991) —— Variations sur L’Espace Judiciare Pénal Européen, 33 Recueil Dalloz Sirey 245 (1990) Silvia A. Fernández de Gurmendi, The Role of the International Prosecutor, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 175 (Roy S. Lee ed., 1999) Margaret McAuliffe de Guzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22 Hum. Rts. Q. 335 (2000) —— Article 21: Applicable Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 1999)

lxx

table of authorities

André de Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibil‑ ity, The Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia, 72 British Yearbook of International Law 255 (2002) Albert de La Pradelle, Une Revolution in le Droit Pénal International, 13 Nouvelle Rev. de Droit Int’l Privé 360 (1946) Daniel H. Derby, An International Criminal Court for the Future, 5 Transnat’l L. & Cont. Probs. 307 (1995) —— The International Prohibition of Torture, in 1 International Criminal Law: Sources, Subjects, and Contents 621 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— A Framework for International Criminal Law, in 1 International Criminal Law: Crimes 33 (M. Cherif Bassiouni ed., 1986) Raghida Dergham, Daniel Bellemare in a Race with the Culprits, Dar al hayat, Apr. 4, 2008 Hamilton DeSaussure, Laws of Air Warfare: Are There Any? 12 A.F. L. Rev. 242 (1970) Jules Deschênes, Article 38: The Presidency, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 611 (Otto Triffterer ed., 1999) —— Article 40: Independence of the judges, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 619 (Otto Triffterer ed., 1999) —— Article 41: Excusing and disqualification of judges, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 625 (Otto Triffterer ed., 1999) Desi Bouterse, 20 November 2000, in 12 Yearbook of Int’l Humanitarian L. 677 (2010) Emmerick de Vattel, Le Droit des Gens, (The Law of Nations), bk II, in Classics of International Law (Charles G. Fenwick, trad. 1916) Franciscus de Vitoria, De Indis et de Jure Belli, in Classics of International Law (James B. Scott ed., 1917) Laura A. Dickinson, The ICTY at Ten: A Critical Assessment of the Major rulings of the International Criminal Tribunal Over the Past Decade: The Relationship between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003) —— Mercenarism and Private Military Contractors, in 1 International Criminal Law: Sources, Subjects, and Contents 355 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003)



table of authorities

lxxi

Differences on the Composition of a Special Tribunal for Burundi, Hirondelle News Agency, Nov. 26, 2007 Yoram Dinstein, International Criminal Law, 5 Isr. Y.B. Hum. Rts. 55 (1975) —— Criminal Jurisdiction Over Aircraft Hijacking, 7 Isr. L. Rev. 195 (1972) —— Human Rights in Armed Conflict: International Humanitarian Law, reprinted in 2 Theodor Meron, Human Rights in International Law 356 (1984) Rodney Dixon & Helen Duffy, Article 72: Protection of national security informa‑ tion, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 937 (Otto Triffterer ed., 1999) Rodney Dixon, Crimes Against Humanity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 937 (Otto Triffterer ed., 1999) —— Article 7: Introduction/General Remarks, in Otto Triffterer, Commentary on The Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 123 (2d. ed., 2008) Katherine L. Doherty & Timothy L.H. McCormack, “Complementarity” as a Cata‑ lyst for Comprehensive Domestic Penal Legislation, 5 U.C. Davis J. Int’l L. & Pol’y 147 (1999) David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. Rev. 1623 (1992) Nicholas R. Doman, Aftermath of Nuremberg—The Trial of Klaus Barbie, 60 Colo. L. Rev. 449 (1989) Susan Dominus, Their Day in Court, N.Y. Times Mag., Mar. 30, 2003 David Donat-Cattin, Article 68: Protection of the victims and witnesses and their participation in the proceedings, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 869 (Otto Triffterer ed., 1999) —— Article 75: Reparations to victims, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 965 (Otto Triffterer ed., 1999) —— Crimes Against Humanity, in The International Criminal Court: Comments on the Draft Statute 49 (Flavia Lattanzi ed., 1998) Henri F. Donnedieu de Vabres, La Codification du Droit Pénal International, 19 Rev. Int’le de Droit Pénal 21 (1948) —— Le Procès de Nuremberg devant les principes modernes du droit pénal Inter‑ national, 70 Recueil Des Cours De L’Académie De La Haye 481 (1947) —— Le jugement de Nuremberg et le principe de legalité des delits et des peines, 26 Revue de Droit Pénal et de Criminologie 813 (1947) —— Le Procès de Nuremberg et le Principe de le Legalitè et des Peines, 26 Revue de Droit Pénal et de Criminologie 813 (1947) —— La répression du génocide, in Recueil Dalloz (1948) —— La Répression Internationale des Délits du Droit des Gens, 2 Nouvelle Rev. de Droit Int’l Privé 7 (1935)

lxxii

table of authorities

Draft Convention for the Prevention and Suppression of Torture, 48 Rev. Int’le de Droit Pénal 262 (1977) Draft Statute for an International Commission of Criminal Inquiry and a Draft Stat‑ ute for an International Criminal Court, in Report of the 60th Conference of the International Law Association (1983) Draft Statute for an International Criminal Court, Work Paper, Abidjan World Conference on World Peace Through Law, Aug. 26 (1973) Draft Statute for an International Criminal Court, Foundation for the Establishment of an International Criminal Court (Wingspread Conference, Sept. 1971) Gerald I.A.D. Draper, Human Rights and the Law of War, 12 Va. J. Int’l L. 326 (1972) Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, N.Y.U. L. Rev. (2000) —— Immunities and Exceptions, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 231 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Will Dunham, Wars Don’t Fuel African HIV Crisis—Study, Reuters, June 28, 2007 Ben J. Dunn, Trial of War Criminals, 19 Aust. L.J. 359 (1946) Pierre-Marie Dupuy, Observations sur le crime international de l’Etat, 84 Rev. Générale de Droit Int’le Public 449 (1980) L.H. Dupriez, Répression Internationale du Faux Monnayage, 10 Rev. de Droit Int’le et de Législation Comparée 511 (1929) Henry W. Edgerton, Corporate Criminal Responsibility, 36 Yale L.J. 827 (1927) Editorial, Sell Diamonds for Love, Not War, Chi. Trib, Dec. 15, 2001, at Z6 Hans Ehard, The Nuremberg Trial against the Major War Criminals and Interna‑ tional Law, 43 Am. J. Int’l L. 223 (1949) Andreas Eichmüller, Die Strafverfolgung von NS-Verbrechen durch westdeutsche Justizbehörden seit 1945: Eine Zahlenbilanz, 56 Vierteljahreshefte für Zeitgeschichte 621 (2008) Mark S. Ellis, The International Criminal Court and its Implication for Domestic Law and National Capacity Building, 15 Fla. J. Int’l L. 151 (2002) Moustafa I. El-Kayal, Comparative Study of Narcotics and the Law in the United Arab Republic and the United States, 20 DePaul L. Rev. 859 (1971) Richard John Erickson, Protocol I: A Merging of the Hague et Geneva Law of Armed Conflict, 19 Va. J. Int’l L. 557 (1979) Albin Eser, Article 31: Grounds for excluding criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 537 (Otto Triffterer ed., 1999) —— Commentary: The Need for a General Part, 11 Nouvelles Etudes Pénales 43 (M. Cherif Bassiouni ed., 1993)



table of authorities

lxxiii

Craig Etcheson, Accountability Beckons During a Year of Worries for the Khmer Rouge Leadership, 6 ILSA J. Int’l & Comp. L. 507 (2000) —— A “Fair and Public Trial”: A Political History of the Extraordinary Chambers, in Just. Initiative, 7 (Open Society Justice Initiative, 2006) European Union endorses compensation for racism and slavery, SABCNews.com, March 20, 2001 Alona E. Evans, Aircraft Hijacking: Its Cause and Cure, 63 Am. J. Int’l L. 695 (1969) —— Aircraft Hijacking in the United States Law and Practice, 47 Rev. Int’le de Droit Pénal 44 (1976) —— Aircraft Hijacking: What is Being Done? in International Terrorism and Political Crimes 219 (M. Cherif Bassiouni ed., 1975) Malcolm D. Evans, International Wrongs and National Jurisdiction, in Remedies in International Law 173 (1998) Tony Evans & Peter Wilson, Regime Theory and the English School of International Relations: A Comparison, 21 Millennium: Journal of Int’l Studies 329 (1992) Timothy C. Evered, An International Criminal Court: Recent Proposals and Ameri‑ can Concerns, 6 Pace Int’l L. Rev. 121 (1994) Extradited Fujimori Back in Peru, BBC Sept. 22, 2007 Ramiro Garcia Falconi, The Codification of Crimes Against Humanity in the Domes‑ tic Legislation of Latin American States, 10 Int’l. Crim. L. Rev. 453 (2010) Richard A. Falk, The Interplay of Westphalia and Charter Conceptions of Interna‑ tional Legal Order, in International Law: A Contemporary Perspective 116 (R. Falk, F. Kratochwil & S. Mendovitz eds. 1985) —— A New Paradigm for International Legal Studies: Prospects and Proposals, in International Law: A Contemporary Perspective 651 (R. Falk, F. Kratochwil & S. Mendovitz eds. 1985) Richard A. Falk & Quincy Wright, On Legal Tests of Aggressive War, 66 Am. J. Int’l L. 560 (1972) Douglas Farah, Al Qaeda Cash Tied to Diamond Trade; Sale of Gems From Sierra Leone Rebels Raised Millions, Sources Say, Wash. Post, Nov. 2, 2001 Tom J. Farer, Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict,” 71 Colum. L. Rev. 37 (1971) Shneur-Zalman Feller, Jurisdiction over Offenses with a Foreign Element, in 1, 2 A Treatise on International Criminal Law 5 (M. Cherif bassiouni & Ved P. Nanda eds., 1973) William J. Fenrick, Article 28: Responsibility of commanders and other superiors, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 515 (Otto Triffterer ed., 1999) Ward Ferdinandusse, The Dutch Experience, in 3 International Criminal Law: International Enforcement 385 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)

lxxiv

table of authorities

Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int’l L. Rev. 201 (1997) —— An International Criminal Code and Court: Where They Stand and Where They’re Going, 30 Colum. Transnat’l L. 375 (1992) —— Misguided Fears About the International Criminal Court, 15 Pace Int’l L. Rev. 1 (2003) —— Nurnberg Trial Procedure and the Rights of the Accused, XXXIX J. Crim. L. & Criminology No. 2 (1948) —— The Crime Of Aggression; Some Personal Reflections on Kampala, 23 Leiden J. Int’l L. 905 (2010) —— The Crime of Aggression, in Substantive and Procedural Aspects of International Criminal Law The Experience of International and National Courts 59–60 (Gabrielle Kirk McDonald & Olivia Swaak-Godlman eds., 2000) Rolf Einar Fife, Rolf E. Fife, Commentary on Article 77: Applicable Penalties, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 990 (Otto Triffterer ed., 1999) —— Article 80: Non-prejudice to national application of penalties and national laws, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1009 (Otto Triffterer ed., 1999) —— Penalties, in International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 555 (Roy S. Lee ed., 2001) —— Penalties, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 319 (Roy S. Lee ed., 1999) Financial Action Task Force on Money Laundering, The Forty Recommendations (1990) George A. Finch, La Convention sur le Génocide, 21 Rev. Int’le de Droit Pénal 153 (1950) —— Genocide Convention, 43 Am. J. Int’l L. 732 (1949) —— Draft Statute for an International Criminal Court, 46 Am. J. Int’l L. 89 (1952) —— An International Criminal Court: The Case Against Its Adoption, 38 A.B.A. J. 644 (1952) Mark Findlay, Synthesis in Trial Procedures? The Experience of International Crim‑ inal Tribunals, 50 ICLQ 26 (2001) William Finnegan, The Poison Keeper, New Yorker, Jan. 15, 2001 Kevin J. Fitzgerald, The Chemical Weapons Convention: Inadequate Protections from Chemical Warfare, 20 Suffolk Transnat’l L.J. 425 (1997) George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985) Gordon W. Forbes, Some Legal Aspects of the Nuremberg Trial, 24 Can. B. Rev. 584 (1946)



table of authorities

lxxv

Forgiveness, Forgetfulness, or Intentional Overlooking, The New Shorter Oxford English Dictionary On Historical Principles 67 (Lesley Brown ed., 1993) Former Khmer Rouge leader in court, Assoc.’d Press, Apr. 23, 2008 David P. Forsythe, Politics and the International Tribunal for the Former Yugo‑ slavia, in The Prosecution of International Crimes 185 (Roger S. Clark & Madeleine Sann eds., 1996) Thomas M. Franck, To Define and Punish Piracies; The Lessons of the Santa Maria: A Comment, 36 N.Y.U. L. Rev. 839 (1961) Robert Friedlander, The Foundations of International Criminal Law: A Present Day Inquiry, 15 Case W. Res. J. Int’l L. 13 (1983) —— The Enforcement of International Criminal Law: Fact or Fiction, 17 Case W. Res. J. Int’l L. 79 (1985) —— Some Observations Relating to the Draft International Criminal Code Project, 52 Revue Internationale de Droit Pénal 393 (1984) Hakan Friman, Investigation and Prosecution, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 493 (Roy S. Lee ed., 2001) —— Rights of Persons Suspected or Accused of a Crime, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 247 (Roy S. Lee ed., 1999) Hakan Friman & Peter Lewis, Reparation to Victims, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 474 (Roy Lee ed., 2001) Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 J. Int’l Crim. Just. 315 (2009) Mercurio Galasso, Appeal and Revision in Front of the International Criminal Court, in The International Criminal Court: Comments on the Draft Statute 301 (Flavia Lattanzi ed., 1998) Charles Garraway, Criminal Liability and Command Responsibility, in The Legal Regime of the International Criminal Court: Essays in Honour of Professor Ignor Blishchenko 723 (José Doria, Hans-Peter Gasser, M. Cherif Bassiouni eds., 2009) Lech Gardocki, Rapport, Les Crimes Internationaux et le Droit Pénal Interne, 60 Rev. Int’le de Droit Pénal 91 (1989) Pietro Gargiulo, The Relationship Between the ICC and the Security Council, in The International Criminal Court : Comments on the Draft Statute 95 (Flavia Lattanzi ed., 1998) James W. Garner, Punishment of Offenders Against the Laws and Customs of War, 14 Am. J. Int’l L. 70, 91 (1920) J.C. Garnett & M. Wright, Concept of Aggression in International Politics, 3 Int’l Relations 702 (1970)

lxxvi

table of authorities

Hans-Peter Gasser, A Brief Analysis of the 1977 Geneva Protocols, 19 Akron L. Rev. 525 (1986) Rudolf Geiger, The German Border Guard Cases and International Human Rights, 9 Eur. J. Int’l L. 540 (1998) Alberico Gentili, De Jure Belli Libri Tres, in Classics of International Law (James B. Scott ed., 1917) Patty Gerstenblith, Art, Antiquity, and the Law: Preserving our Global Cultural Heritage, 8 Int’l J. Cultural Prop. 327 (1999) —— The Public Interest in Restitution of Cultural Objects, 16 Conn. J. Int’l L. 197 (2001) Orla Guerin, Syria Sidesteps Lebanon Demands, BBC News, March 6, 2005 Kim Ghattas, Lebanon Finds Unity in Street Rallies, BBC News, March 3, 2005 William N. Gianaris, The New World Order and the Need for an International Court, 16 Fordham Int’l L. J. 88 (1992‑93) Geoffrey Gilbert, The Criminal Responsibility of States, 39 Int. & Comp. L.Q. 345 (1990) William C. Gilmore, The Proposed International Criminal Court: Recent Develop‑ ments, 5 Transnat’l L. & Cont. Prob. 263 (1995) Stéphanie Giry, Necessary Scapegoats? The Making of the Khmer Rouge Tribunal, N.Y. Rev. of Books (July 23, 2012) Stefan Glaser, Culpabilité en Droit International Pénal, 99 Recueil des Cours 473 (1960) —— Elément moral de l’infraction pénale internationale, 59 Rev. Générale de Droit Int’le Public 537 (1955) —— L’élément moral des infractions de commission par omission en droit interna‑ tional pénal, 73 Revue Pénal Suisse 263 (1958) —— Les Infractions internationales et leurs sanctions, 29 Rev. de Droit Pénal et de Criminologie 811 (1949) —— Le Principe de la légalité des délits et des peines et les procès des criminels de guerre, 28 Rev. de Droit Pénal et de Criminologie 230 (1948) Juan Luis Modolell Gonzalez, The Crime of Forced Disappearance of Persons According to the Decisions of the Inter-American Court of Human Rights, 10 Int’l. Crim. L. Rev. 475 (2010) A.L. Goodhart, The Legality of the Nuremberg Trials, 58 Jurid. Rev. 1 (1946) Edward Gordon, Appraisals of the ICJ’s Decision. Nicaragua v. United States (Mer‑ its), 81 Am. J. Int’l L. 129 (1987) John B. Gordon, Comment, UNESCO Convention on the Illicit Movement of Art Treasures, 12 Harv. Int’l L.J. 537 (1971) Gill Gott, A Tale of New Precedents: Japanese American Interment as Foreign Affairs Law, 40 B.C.L. Rev. 179 (1998)



table of authorities

lxxvii

John M.A. Goy, Le Régime International de l’Importation, de l’Exportation et du Transfert de Propriété de Biens Culturels, 1970 Annuaire Français de Droit International 605 (1970) Raymond H.M. Goy, International Protection of the Cultural and Natural Heritage, 4 Neth. Y.B. Int’l L. 117 (1973) Bernhard Graefrath, Leave to the Court What Belongs to the Court: The Libyan Case, 4 Eur. J. Int’l L. 184 (1993) Jean Graven, Les Crimes Contre l’Humanité, 76 Recueil des Cours de l’Académie de Droit International de la Haye 433 (1950) Allen B. Green, Convention on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons: An Analysis, 14 Va. J. Int’l L. 703 (1974) Leslie C. Green, An International Criminal Code—Now?, 3 Dalhousie L.J. 560 (1976) —— International Crime and the Legal Process, 29 Int’l & Comp. L.Q. 567 (1980) —— Is There an International Criminal Law?, 21 Alta. L. Rev. 251 (1983) —— New Approach to International Criminal Law, 28 Solic. 106 (1961) —— New Trends in International Criminal Law, 11 Isr. Y.B. Hum. Rts. 9 (1981) —— Superior Orders and Command Responsibility, 1989 Can. Y.B. Int’l L. 167 (1989) Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984) Mary Jo Grotenroth, Interpol Role in International Law Enforcement, in Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) Heinrich Grutzner, International Judicial Assistance and cooperation in Crimi‑ nal Matters, in 2 Treatise on International Criminal Law 189 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Fabricio Guariglia, Article 56: Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 735 (Otto Triffterer ed., 1999) —— Investigation and Prosecution, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 227 (Roy S. Lee ed., 1999) Fabricio Guariglia & Kenneth Harris, Article 57: Functions and powers of the PreTrial Chamber, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 743 (Otto Triffterer ed., 1999) Gilbert Guillaume, Terrorism et Droit International, 215 Hague Rec. 287 (1989)

lxxviii

table of authorities

Amos Guiora, Civilian Targets: Legal Responses to an Illegal Tactic, in 1 International Criminal Law: Sources, Subjects, and Contents 659 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Paul Gully-Hart, The European Aproach to Extradition, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 343 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, 4/1 Eyes ICC 72 (2008) Carl Haensel, The Nuremberg Trials Revisited, 13 DePaul L. Rev. 233 (1964) Gerhard Hafner, Article 120: Reservations, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1251 (Otto Triffterer ed., 1999) Malvina Halberstam, International Maritime Navigation and Installations on the High Seas, in 1 International Criminal Law: Sources, Subjects, and Contents 815 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christopher K. Hall, Article 19: Challenges to the jurisdiction of the Court or the admissibility of a case, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 405 (Otto Triffterer ed., 1999) —— Article 55: Rights of persons during an investigation, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 727 (Otto Triffterer ed., 1999) —— The Jurisdiction of the Permanent International Criminal Court over Viola‑ tions of Humanitarian Law, in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Thomas Hammarberg, Efforts to Establish a Tribunal Against the Khmer Rouge Leaders: Discussions Between the Cambodian Government and the UN, Swedish Institute of International Affairs and the Swedish Committee for Vietnam, Laos, and Cambodia, Stockholm (May 29, 2001) Michael Wahid Hanna, An Historical Overview of National Prosecutions for Interna‑ tional Crimes, in 3 International Criminal Law: International Enforcement 297 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Heidi L. Hansberry, Too Much of Good Thing in Lubanga and Haradinaj: The Dan‑ ager of Expediency in International Criminal Trials, 9 Nw. J. Int’l Hum. Rts. 357 (2011) M.S. Harari et al., Reciprocal Enforcement of Criminal Judgments, 45 Revue Internationale De Droit Penal 585 (1974) Frederik Harhoff & Phakiso Mochochoko, International Cooperation and Judicial Assistance, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 637 (Roy S. Lee ed., 2001) Rafik Hariri, On the Reconstruction of Lebanon: Achievements and Impediments, Speech Before the Los Angeles World Affairs Council, Dec. 18, 1996



table of authorities

lxxix

James D. Harmon, United States Money Laundering Laws: International Implica‑ tions, 9 N.Y.L. Sch. J. Int’l & Comp. L. 1, 25 (1988) Kenneth Harris, Article 70: Offences against the administration of justice, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 917 (Otto Triffterer ed., 1999) John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Crimi‑ nal Liability, 46 Am. Crim. L. Rev. 1329 (2009) Farooq Hassan, The Theoretical Basis of Punishment in International Criminal Law, 15 Case W. Res. J. Int’l L. 39 (1983) John N. Hazard, Why Try Again to Define Aggression? 62 Am. J. Int’l L. 701 (1968) Marc Henzelin, La Compétence Pénale Universelle: Une Question Non Résolue par l’Arrêt Yerodia, 4 Revue Génerale de Droit International Public 819 (2002) —— L’Immunité pénale des chefs d’Etat en matiere financiere: Vers une exception pour les actes de pillage de resources et de corruption?, in 12 Revue suisse de droit international et de droit européen 179 (2002) Peter J. Henning, Corporate Criminal Liability and the Potential for Rehabilitation, 46 Am. Crim. L. Rev. 1417 (2009) Berta Esperanza Hernandez, Money Laundering and Drug Trafficking Controls Score a Knockout Victory Over Bank Secrecy, 18 N.C.J. Int’l L. & Comm. Reg. 235 (1993) Sandra Hertzberg & Carmela Zammuto, The Protection Of Human Rights In The Criminal Process Under International Instruments And National Constitutions, 4 Nouvelles Etudes Penales (1981) Etelle Higonnet, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l & Comp. L. 347 (2006) W. Hofacker, Die Leipziger Kriegsverbrecher prozess, ZSTW 649 et seq. (1922) Mark J. Hoffman, Normative Approaches, in International Relations: A Handbook of Current Theory 27 (M. Light & A.J.R. Groom eds. 1985) Warren Hoge, British Court Rules Pinochet Extraditable for Trial in Spain, N.Y. Times, Oct. 8, 1999 Dana Michael Hollywood, The Search for Post-Conflict Justice in Iraq, 33 Brook. J. Int’l L. 59 (2007) John T. Holmes, The Principle of Complementarity, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 41 (Roy S. Lee ed., 1999) John Hooper, Italian court finds CIA agents guilty of kidnapping terrorism suspect, Guardian, Nov. 4, 2009 Solis Horwitz, The Tokyo Trial, 465 Int’l Reconciliation 473 (1950) Alexandra Hudson, “Death Threats” to witnesses against Liberia’s Taylor, Reuters, Mar. 20, 2008

lxxx

table of authorities

Human Rights Observatory, Human Rights Trials in Chile and the Region (2010) Human Rights Watch, Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya (May, 2012) Hum. Rts. Watch, Coercion and Intimidation of Child Soldiers to Participate in Vio‑ lence (Apr. 2008) —— “Even a ‘Big Man’ Must Face Justice” Lessons from the Trial of Charles Taylor” (July 2012) —— A Human Rights Agenda for a New Kosovo (Feb. 2008) —— Humanitarian Law Violations in Kosovo I (Oct. 1998) —— Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo (Aug. 1999) —— Indonesia: Courts Sanction Impunity for East Timor Abuses (Aug. 2004) —— Indonesia’s Court for East Timor a “Whitewash” (Dec. 2002) —— The Jury Is Still Out: A Human Rights Watch Briefing Paper on Sierra Leone, July 11, 2002 —— Justice for Atrocity Crimes (2012) —— Kosovo Criminal Justice Scorecard (Mar. 2008) “Letter to the Bangladesh Prime Minister regarding the International Crimes (Tribunals) Act” (May 18, 2011) —— Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina (Feb. 2006) —— Not on the Agenda: The Continuing Failure to Address Accountability in Kos‑ ovo Post-March 2004 (May 2006) —— Under Orders: War Crimes in Kosovo (Oct. 2001) —— Weighing the Evidence: Lessons from the Slobodan Milosevic Trial (Dec. 2006) —— World Report 2002: Sierra Leone Human Rights Developments (2002) —— World Report Children’s Rights: child Soldiers (2002) —— World Report 2011 Stacy Humes-Schulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 (2008) Impunity Reigns, The Economist, Apr. 10, 2008 Infractions D’Omission et Responsabilité Pénale pour omission 55 RIDP 453-1040 (1984) International Central for Transitional Justice, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (2005) Int’l Ctr. for Transitional Justice, The Special Court for Sierra Leone: The First Eigh‑ teen Months 1 (2004) —— Post-Conflict Reintegration Initiative for Development & Empowerment, ExCombatant Views of the Truth and Reconciliation Commission and the Special Court for Sierra Leone 13 (Sept. 12, 2002) —— Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor (June 2005)



table of authorities

lxxxi

—— Too Much Friendship, Too Little Truth: Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste (January 2008) International Criminal Court —— Report on Preliminary Examination activities, 13 December 2011 —— Update on Situation in Palestine, 3 April 2012 International Criminal Tribunal for the Former Yugoslavia —— Key Figures of ICTY Cases, Jan. 11, 2012 —— Statement of the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia on the arrest of Radovan Stanković, Jan. 21, 2012 The International Criminal Court: Observations and Issues before the 1997–98 Pre‑ paratory Committee and Administrative and Financial Implications, 13 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed. 1997) Int’l Crisis Group, After Milosevic: A Practical Agenda for Lasting Balkans Peace, Balkans Report No. 108, Apr. 2, 2001 —— Kosovo’s First Month, Europe Briefing No. 47, Mar. 18, 2008 —— Kosovo: No Good Alternatives to the Ahtisaari Plan, Europe Report No. 182, May 14, 2007 —— Sierra Leone: Time for a New Military and Political Strategy, Africa Report No. 28, April 11, 2001 —— Sierra Leone: Managing Uncertainty, Africa Report No. 35, Oct. 24, 2001 International Protection of Victims, 7 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed., 1988) Gordon Ireland, Ex Post Facto from Rome to Tokyo, 21 Temp. L.Q. 27 (1947) Neha Jain, A Separate Law for Peacekeepers: The Clash Between the Security Coun‑ cil and the International Criminal Court, 16 Eur. J. Int’l L. 239 (2005) —— Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 J. Int’l. Crim. Just. 1013 (2009) Charles Chernor Jalloh, Special Court for Sierra Leone: Achieving Justice?, 32 Mich. J. Int’l L. 395, 412 (2011) Sandra L. Jamison, A Permanent International Criminal Court: A Proposal that Overcomes Past Objections, 2 Denv. J. Int’l L. & Pol’y 419 (1995) Mark Janis, Jus Cogens: An Artful Not a Scientific Reality, 3 Conn. J. Int’l L. 370 (1988) Kathleen M. Jennings, The Struggle to Satisfy: DDR Through the Eyes of ExCombatants in Libers, 14 Int’l Peacekeeping 204 (April 2007) Mark Jennings, Article 78: Determination of the Sentence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 985–998 (Otto Triffterer ed., 1999) —— Article 79: Trust Fund, in Commentary on the Rome Statute of the International Criminal Court 1005 (Otto Triffterer ed., 1999) Sir Robert Jennings, Sovereignty and International Law, in State Sovereignty and International Governance 21 (Gerard Kreijen et al. ed., 2002)

lxxxii

table of authorities

Hans-Heinrich Jescheck, Development, Present State and Future Prospects of International Criminal Law, 52 Revue Internationale de Droit Pénal 337 (1981) —— Etat Actuel et Perspectives d’Avenir des Projets in le Domaine du Droit Inter‑ national Pénal, 35 Rev. Int’le de Droit Pénal 83 (1964) D.H.N. Johnson, The Draft of Code of Offenses Against the Peace and Security of Mankind, 4 Int’l Comp. L.Q. 445 (1955) A.J. Jongman & A.P. Schmid, Contemporary Conflicts: A Global Survey of High and Lower Intensity Conflicts and Serious Disputes, 7 PIOOM Newsletter & Progress Report 14 (Winter 1995) Mugambi Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, 26 St. Louis U. Pub. L. Rev. 249 (2007) Christopher C. Joyner & Robert A. Friedlander, International Civil Aviation, in 1 International Criminal Law: Sources, Subjects, and Contents 831 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lock‑ erbie: What Lessons for International Extradition Law?, 14 Mich. J. Int’l L. 222 (1993) Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analy‑ sis of the Peace Process and Human Rights Enforcement in a Civil War Situation, 30 Denv. J. Int’l L. & Pol’y 325 (2002) Nidal Nabil Jurdi, The Subject-Matter Jurisdiction of the Special Tribunal for Leba‑ non, 5 J. Int’l Crim. Just. 1125 (2007) Paul W. Kahn, Nuclear Weapons and the Rule of Law, 31 N.Y.U. J. Int’l L. & Pol. 349 (1999) Menno T. Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001) Suzanne Katzenstein, Hybrid Tribunals: Searching for Justice in East Timor, 16 Harv. Hum. Rts. J. 245 (1993) Hans-Peter Kaul, Towards a Permanent International Criminal Court: Some Obser‑ vations of a Negotiator, 18 Hum. Rts. L.J. 169 (1997) ——Kampala June 2010—A First Review of the ICC Review Conference, 2 Goettingent J. Int’l L. 649 (2010) Scott Keefer, International Control of Biological Weapons, 6 ILSA J. Int’l L. 107 (1999) Michael K. Keegan & Daryl A. Mundis, Legal Requirements for Indictments, Essays on ICTY Procedure and Evidence 123 (May, Tolbert, Hocking, Roberts, Bing Jia, Mundis & Oosthuizen eds., 2001) Joseph Keenan, Observations and Lessons From International Criminal Trials, 17 U. Kansas City L. Rev. 117 (1949) Barry Kellman, Biological Terrorism: Legal Measures for Preventing Catastrophe, 24 Harv. J.L & Pub. Pol. 417 (2001)



table of authorities

lxxxiii

Barry Kellman & David S. Gualtieri, Barricading the Nuclear Window: A Legal Regime to Curtail Nuclear Smuggling, 96 U. Ill. L. Rev. 667 (1996) Hans Kelsen, Will the Judgmnt in the Nuremberg Trial Constitute a Precedent in International Law?, 1 Int’l L.Q. 153 (1947) Robert Kennedy, Libya v. United States: The International Court of Justice and the Power of Judicial Review, 33 Va. J. Int’l L. 899 (1993) David Kenner, Who’s the Boss? The Myth of Grand Bargaining Over the Tribunal Returns, Now Lebanon, Apr. 12, 2008 Robert Keohane, Compliance with International Commitments: Politics within a Framework of Law, in American Society of International Law Proceedings 180 (1992) Karim A.A. Khan, Article 34: Organs of the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 589 (Otto Triffterer ed., 1999) Wondwossen L. Kidane, The Ethiopian “Red Terror” Trials, in Post-Conflict Justice 667 (M. Cherif Bassiouni ed., 2002) Ben Kiernan, Bringing the Khmer Rouge to Justice, 1 Hum. Rts. Rev. 3 (2000) Felly Kimenyi, Talks to Try Burundian Genocide Suspects Begin, The New Times, Apr. 18, 2008 Otto Kirchheimer, Criminal Omissions, 55 Harv. L. Rev. 615 (1942) Adolphus G. Kiribi-Whyte, Appeal Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court vol. I, 421–428 (G. K. McDonald & O. Swaak-Goldman eds. 2000) Philippe Kirsch & John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 Am. J. Int’l L. 2 (1999) —— The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, 28 Fordham Int’l L.J. 292 (2005) —— The International Criminal Court: From Rome to Kampala, 43 J. Marshall L. Rev. 515 (2010) Katheryn Klein, Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the Joint Tribunal in Cambodia, 4 Nw. U. J. Int’l Hum. Rts. 549 (2006) Fannie Klein & Daniel Wilkes, United Nations Draft Statute for an International Criminal Court—An American Evaluation, in International Criminal Law 526 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965) James I.K. Knapp, Mutual Legal Assistance Treaties as a Way to Pierce Bank Secrecy, 20 Case W. Res. J. Int’l L. 405 (1988) Geert-Jan Alexander Knoops, The Responsibility of Peacekeepers, in 3 International Criminal Law: International Enforcement 495 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Charles C. M. Kolb, The Fourth Amendment Abroad: Civilian and Military Perspec‑ tives, 17 Va. J. Int’l L. 515 (1977)

lxxxiv

table of authorities

Louis Kos-Rabcewicz-Zubkowski, La Création d’une Cour Pénale Internationale et L’Administration Internationale de la Justice, 1977 Can. Y.B. Int’l L. 253 —— The Creation of an International Criminal Court, in International Terrorism and Political Crimes 519 (M. Cherif Bassiouni ed., 1975) Nicholas Koumjian, Preface, in 16 Annotated Leading Cases of International Criminal Tribunals: Timor Leste the Special Panels for Serious Crimes 2003–2005, 13 (Andre Klip and Goran Sluiter, eds. 2009) Alex Kozinski, Death, Lies & Videotape—The Ceausescu Show Trial and the Future of Romania, 77 Am. Bar Ass’n J. 70 (1991) Otto Kranzbuhler, Nuremberg Eighteen Years Afterwards, 14 DePaul L. Rev. 333 (1965) Herbert Kraus, The Nuremberg Trials of the Major War Criminals: Reflections after Seventeen Years, 13 DePaul L. Rev. 233 (1964) Claus Kreb & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179, 1181 (2010) Claus Kress, Article 86: Gen‑ eral obligations to cooperate, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1051 (Otto Triffterer ed., 1999) —— Witnesses in Proceedings Before the International Criminal Court, in International and National Prosecutions of Crimes Under International Law (Fisher, Kres & Luder eds., 2001) —— On the Outer Limits of Crimes Against Humanity: The Concept of Organi‑ zation within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 Leiden J. Int’l. L. 855 (2010) Claus Kress & Kimberly Prost, Article 87: Requests for cooperation: general provi‑ sions, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1055 (Otto Triffterer ed., 1999) —— Article 89: Surrender of persons to the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1071 (Otto Triffterer ed., 1999) Neil J. Kritz, Progress and Humility: The Ongoing Search for Post-Conflict Justice, in Post-Conflict Justice 55 (M. Cherif Bassiouni ed., 2002) —— Reluctant Nation Building: Securing the Rule of Law in Post-Taliban Afghani‑ stan: Questions, Answers & Comments 17 Conn. J. Int’l L. 261 (2002) Joanna Kyriakakis, Prosecuting Corporations for International Crimes: The Role for Domestic Courts, in International Criminal Law and Philosophy (Larry May and Zachary Hoskins eds., 2010) —— Corporate Criminal Liability and the ICC Statute: The Comparative Law Chal‑ lenge, 41 Neth. Int’l. L. Rev. 333 (2009) John H. Langbein & Lloyd L. Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L.J. 1549 (1978)



table of authorities

lxxxv

Maximo Langer, The Displomacy of Universal Jurisdiction: The Role of Political Branches in the Transnational Prosecution of International Crimes, 105 Am. J. Int’l L. 1 (2011). Maximo Langer and Joseph W. Doherty, Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms, 36 Yale J. Int’l. L. 241 (2011). La Création d’une Jurisdiction Pénale Internationale et la Coopération Internation‑ ale en Matière Pénale, 45 Rev. Int’le de Droit Pénal 435 (1974) La phase préparatoire du process pénal en droit comparé, 56 Revue Internationale de Droit Pénal (1985) La Phase décisoire du process pénal en droit comparé, 57 Revue Internationale de Droit Pénal (1986) La Phase exécutoire du process pénal en droit pénal compare, 61 Revue Internationale de Droit Pénal (1990) Chante Lasco, Repairing the Irreparable: Current and Future Approaches to Repa‑ rations, 10 Hum. Rts. Brief 18 (2003) Flavia Lattanzi, The Complementary Character of the Jurisdiction of the Court with Respect to National Jurisdictions, in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Sir Elihu Lauterpacht, Sovereignty—Myth or Reality, 73 International Affairs 137 (1997) Hersch Lauterpacht, Insurrection et Piraterie, 4 Rev. Générale de Droit Int’le Public 513 (1939) James A. Leach, The Case for Establishing an International Criminal Court (Occasional Paper No. 1, Parliamentarians for Global Action 1992) Roy S. Lee, The Rome Conference and its Contributions to International Law, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 1 (Roy S. Lee ed., 1999) Marc Leepson, Book Review, Chi. Trib., Feb. 23, 1992, at Sec. 14, p. 3 Robert Legros, Droit Pénal International 1967, 48 Rev. de Droit Pénal et de Criminologie 259 (1968) Les Sociétés Commerciales et le Droit Pénal 58 RIDP 17 (1987) Bernard Leroy, M. Cherif Bassiouni & Jean-Francios Thony, The International Drug Control System, in 1 International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Howard S. Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders, 30 Revue de Droit Militaire et de Droit de la Guerre 183 (1991) Yeun‑Li Liang, The Establishment of an International Criminal Jurisdiction: The First Phase, 46 Am. J. Int’l L. 73 (1952) Richard B. Lillich & John M. Paxman, State Responsibility for Injuries to Alien Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217 (1977)

lxxxvi

table of authorities

David K. Linnan, Iran Air Flight 665 and Beyond: Free Passage, Mistaken SelfDefense, and State Responsibility, 16 Yale J. Int’l L. 245 (1991) Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in Inter‑ national Justice, 12 Crim. L. F. 185 (2001) —— East Timor and Accountability for Serious Crimes, in 3 International Criminal Law: International Enforcement 257 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Indonesia and Accountability for Serioius Crimes in East Timor, in 3 International Criminal Law: International Enforcement 399 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Putting Cambodia’s Extraordinary Chambers into Context, 11 Singapore Y.B. Int’l Law (2007) Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, B.U. Int’l L.J. 1 (1984) —— Genocide, in 1 International Criminal Law: Sources, Subjects, and Contents 403 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Towards an International Criminal Court, 3 San Diego Just. 1 (1995) Adam Liptak, Supreme Court Seeks Clarification on Jurisdiction in a Human Rights Case, N.Y. Times, Mar. 6, 2012 Frederick M. Lorenz, Civil-Military Cooperation in Restoring the Rule of Law: Case Studies from Mogadishu to Mitrovica, in Post-Conflict Justice 840 (M. Cherif Bassiouni ed., 2002) Vaughn Lowe, Lockerbie—Changing the Rules During the Game, 1992 Cambridge L.Q. 408 (1992) Erik Luna, The Curious Case of Corporate Criminality, 46 Am. Crim. L. Rev. 1507 (2009) Neil MacFarquhar, U.N. Council Endorses Gaza Report, N.Y. Times, Oct. 17, 2009, at A4 Bryan F. MacPherson, An International Criminal Court: Applying World Law to Individuals (The Center for U.N. Reform Education 1992) M.K.A. Malache, De la Piraterie, 26 Revue Égyptienne de Droit International 124 (1970) William T. Mallison & R.A. Jabri, Juridical Characteristics of Belligerent Occupa‑ tion and the Resort to Resistance by the Civilian Population: Doctrinal Develop‑ ment and Continuity, 42 Geo. Wash. L. Rev. 185 (1974) Linda A. Malone, Enforcing International Criminal Law Violations with Civil Reme‑ dies: The U.S. Alien Tort Claims Act, in 3 International Criminal Law: International Enforcement 421 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Kahan Report, Ariel Sharon and the Sabra-Shatilla Massacres in Leba‑ non: Responsibility Under International Law for Massacres of Civilian Popula‑ tions, 1985 Utah L. Rev. 373 (1985)



table of authorities

lxxxvii

Richard W. Mansbach, The Great Globalization Debate, in The Global Community: Yearbook of International Law and Jurisprudence 2007 21 (Giuliana Ziccardi Capaldo ed., 2008) F. Mantovani, Lineamenti Della Tutela Penale del Patrimonio Artistico, 19 Rivista Italiana Di Diritto e Procedura Penale 55 (1976) Antonio Marchesi, Article 2: Relationship of the Court with the United Nations, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 65 (Otto Triffterer ed., 1999) —— Article 14: Referral of a situation by a State Party, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 353 (Otto Triffterer ed., 1999) Stephen P. Marks, Forgetting the Policies and Practices of the Past: Impunity in Cambodia, 17 Fletcher F. 18 (1994) Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Transnat’l L. 73 (1995) Jaime Masaveu, La Pirateria y el Corso: un Estedio de Orientation Penal, 29 Criminelia 282 (1963) Michael J. Matheson, United Nations Governance of Post-Conflict Societies: East Timor and Kosovo, in Post-Conflict Justice 523 (M. Cherif Bassiouni ed., 2002) Jamie Mayerfeld, Who Shall be Judge?: The United States, the International Crimi‑ nal Court, and the Global Enforcement of Human Rights, 25 Hum. Rts. Q. 93 (2003) Julie Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act, 9 Emory Int’l L. Rev. 553 (1995) Etienne-Richard Mbaya, The Compatibility of Regional Human Rights Systems with International Standards, in Human Rights in Perspective 66 (Asbjorn Eide & Bernt Hagtvet eds., 1992) Margaret McAuliffe de Guzman, Article 21: Applicable Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 435 (Otto Triffterer ed., 1999) —— The Road from Rome: The Developing Law of Crimes Against Humanity, 22 Hum. Rts. Q. 335 (2000) Stephen C. McCaffrey, Criminalization of Environmental Protection, in 1 International Criminal Law: Sources, Subjects, and Contents 1013 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Jason McClurg, New Defense Counsel Appointed for Charles Taylor, 23 Int’l Enforcement L. Rep. 366 (2007) —— Witnesses Begin Testifying as Charles Taylor’s War Crimes Trial Resumes, 24 Int’l Enforcement L. Rep. (2008)

lxxxviii

table of authorities

Timothy L.H. McCormack & Gerry J. Simpson, A New International Criminal Law Regime, 42 Neth. Int’l L. Rev. 177 (1995) Hilaire McCoubrey, Humanitarianism in the Laws of Armed Conflict, in International Humanitarian Law: The Regulation of Armed Conflicts 1 (1990) Gabrielle K. McDonald, Trial Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court Vol. I, 554 (G.K. McDonald & O. Swaak-Goldman eds. 2000) Myres McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. Legal Ed. 253 (1967) Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1 (1959) Gerald P. McGinley, The ICJ’s Decision in the Lockerbie Cases, 22 Ga. J. Int’l & Comp. L. 577 (1992) Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sov‑ ereignty, 18 Eur. J. Int’l L. 903 (2007) John J. Mearshimer, The False Promise of International Institutions, 19 Int’l Security 5 (1994) Frederic Megret, Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons Learned from Domestic Compensation Schemes, 36 Brooklyn J. Int’l L. 123 (2010) Garth Meintjes, Domestic Amnesties and International Accountability, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed., 2001) Chantal Meloni, Command Responsibility: Mode of Liability for the Crimes of Sub‑ ordinates or Separate Offence of the Superior?, 5 J. Int’l Crim. Just. 619 (2005) John Mendelsohn, War Crimes Trials and Clemency in Germany and Japan, in Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 226 (Robert Wolfe ed., 1984) Theodor Meron, On a Hierarchy of International Human Rights, 80 Am. J. Int’l L. 1 (1986) —— International Criminalization of Internal Atrocities, 89 Am. J. Int’l L. 554 (1995) Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004) Guenael Mettraux, The Definition of Crimes Against Humanity and the Question of a “Policy” Element, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 142 et seq. (2010)



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Pillar III, Review of the Criminal Justice System, February 1, 2000 to July 31, 2000 71 (2000) —— Kosovo’s War Crimes Trials: A Review 12 (2002) —— Parallel Structures in Kosovo 2006–2007 (2007) —— Kosovo’s War Crimes Trials : An Assessment Ten Years on 1999–2009 (2010) —— War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina, Progress and Obstacles 10 (2005) William Orme, UN Ends Efforts To Try Khmer Rouge, Chi. Trib., Feb. 9, 2001 Mark J. Osiel, Ever Again, Legal Remembrance of Administrative Massacre, 144 U. Pa. L. Rev. 463 (1995) Reynald Ottenhof, Considerations sur la Forme le Style, et la Methode d’Elaboration du Projet de Code Pénal International, 52 Revue Internationale de Droit Pénal 385 (1984) Kazuomi Ouchi, The Threat or Use of Nuclear Weapons: Discernible Legal Policies of the Judges of the International Court of Justice, 13 Conn. J. Int’l L. 107 (1998) Hugh R. Overholt, The Use of Lasers as Antipersonnel Weapons, 1998–Nov. Army Law. 3 Herbert L. Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964) Pablo Galain Palermo, The Prosecution of International Crimes in Uruguay, 10 Int’l. Crim. L. Rev. 601 (2010) Vernon Valentine Palmer, Mixed Legal Systems . . . and the Myth of Pure Laws, 67 La. L. Rev. 1205, 1207 (2007) Raul C. Pangalangan, Article 25: Individual criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 192 (Otto Triffterer ed., 1999) Otto Pannenbecker, The Nuremberg War Crimes Trial, 14 DePaul L. Rev. 348 (1965) Pablo F. Parenti, The Prosecution of International Crimes in Argentina, 10 Int’l. Crim. L. Rev. 491 (2010) Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Comp. L. Rev. 411 (1989) John J. Parker, An International Criminal Court—The Case for its Adoption, 38 A.B.A. J. 641 (1952) Karen Parker & Lyn B. Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l Comp. L. Rev. 411 (1989) W. Hays Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973) Monrad G. Paulsen & Michael I. Sovern “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969 (1956) Jordan J. Paust, Customary International Law: Its Nature, Sources and Status as Law of the United States, 12 Mich. J. Int’l L. 59 (1990)

xciv

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—— Protection of National Security Interests, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 270 (Roy S. Lee ed., 1999) Mario Pisani, Aut Dedere Aut Punire, 30 L’ Indice Penale 241 (No. 2, 1966) William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Founda‑ tion, 17 Yale J. Int’l L. 1 (1992) Michael Plachta, The Lockerbie Case: The Role of the Security Council in Enforc‑ ing the Principle Aut Dedere Aut Judicare, 12 European Journal of International Law 125 (2001) —— Cooperation in Criminal Matters in Europe: Different Models and Approaches, in 2 International Criminal Law : Multilateral and Bilateral Enforcement Mechanisms (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Ellen S. Podgor, Educating Compliance, 46 Am. Crim. L. Rev. 1523 (2009) Mauro Politi, The Establishment of an International Criminal Court at a Cross‑ roads: Issues and Prospects After the First Session of the Preparatory Committee, 13 Nouvelles Etudes Pénales 115 (1997) Yvette Politis, The Regulation of an Invisible Enemy: The International Commu‑ nity’s Response to Land Mine Proliferation, 22 Boston College Int’l & Comp. L. Rev. 465 (1999) Barry J. Pollack, Time to Stop Living Vicariously: A Better Approach to Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1393 (2009) Frederick Pollock, Criminal Responsibility: The Defense of Superior Orders, in The Work of the League of Nations, 35 Law Q. Rev. 195 (1919) P. Poncela, L’Humanité une victime peu présentable, 1991, No. 34, 1987 Rev. Des Science Criminelle, 275 Dominique Poncet & Alain Maculoso, Confiscation, Restitution et Allocation de Valeurs Patrimoniales: Quelques Considerations de Procedure Penale, 221 La Semaine Judicaire 123 (2001) Jennifer L. Poole, Post-Conflict Justice in Sierra Leone, in Post-Conflict Justice 563 (M. Cherif Bassiouni, ed. 2002) Pope Pius XII, Address to the Sixth International Congress of Penal Law (1954) Nicholas M. Poulantzas, Hijacking v. Piracy: A Substantial Misunderstanding Not a Quarrel Over Semantics, 23 Revue Hellénique de Droit International 80 (1970) Jean Pradel, Procédure pénale compare dans les systèmes modernes: Rapports de synthèse des colloques de l’ISISC, 15 Nouvelles Etudes Pénales (1998) The Prevention and Suppression of Torture, 48 Revue Internationale de Droit Pénal (1977) Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001)

xcvi

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Peter E. Quint, The Border Guard Trials and the East German Past—Seven Argu‑ ments, 48 Am. J. Comp. L. 541 (2000) Max Radin, International Crimes, 32 Iowa L. Rev. 33 (1946) Radovan Karadzic Proven Guilty of Atrocities, Associated Press (Sept. 27, 2000) Manuel Rama‑Montaldo, Acerca de Algunos Conceptos Basicos Relativas al Derecho Penal Internacional y a una Jurisdiction Penal Internacional, in El Derecho Internacional en un Mundo en Transformacion (Manuel Rama-Montaldo ed., 1995) Jaya Ramji, Reclaiming Cambodian History: The Case for a Truth Commission, 24 Fletcher F. World Aff. 137 (2000) Kenneth Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785 (1988) S. Rama Rao, Article 112: Assembly of States Parties, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1201 (Otto Triffterer ed., 1999) Steven R. Ratner, Accountability for the Khmer Rouge: A (Lack of ) Progress Report, in Post-Conflict Justice 613 (M. Cherif Bassiouni ed., 2002) —— The United Nations Group of Experts for Cambodia, 93 Am. J. Int’l L. 948 (1999) Kelly Razzouk, The Special Tribunal for Lebanon: Implications for International Law, 1 Global Community: Y.B. Int’l L. & Jurisprudence, 219–54, (2008) Caitlin Reiger and Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, in Prosecution Case Studies Series (International Center for Transitional Justice, March 2006) Reigning In Impunity for International Crimes and Serious Violations of Funda‑ mental Human Rights: Proceedings of the Siracusa Conference 17‑21 September 1997, 14 Nouvelles Etudes Penales (Christopher C. Joyner special ed., & M. Cherif Bassiouni general ed., 1998) W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke J. Comp. & Int’l L. 175 (1995) Bertil A. Renborg, Principles of International Control of Narcotic Drugs, 37 Am. J. Int’l L. 436 (1943) Research Shows Estimates of Bosnian War Death Toll Were Inflated, Assoc’d Press, June 21, 2007 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/2009/893, March 17, 2009 Luc Reydams, Universal Jurisdiction over Atrocities in Rwanda: Theory and Prac‑ tice, 1 Eur. J. Crime Cr. L. Cr. J. 18 (1996) Darryl Robinson, The Elements for Crimes Against Humanity, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 57 (Roy S. Lee ed., 2001)

xcviii

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Patrick L. Robinson, Rough Edges in the Alignment of Legal Systems in the Pro‑ ceedings at the ICTY, 3 J. Int’l Crim. Just. 1037 (2005) Paul H. Robinson, Imputed Criminal Liability, 93 Yale L.J. 613 (1984) —— Rules of Conduct and Principles of Adjudication, 57 U. Chi. L. Rev. 729 (1990) Naomi Roht-Arriaza, Amnesty and the International Criminal Court, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed., 2001) —— State Responsibility to Investigate and Prosecute Grave Human Rights Viola‑ tions in International Law, 78 Calif. L. Rev. 451 (1990) —— Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress, in Impunity and Human Rights in International Law and Practice 24 (Naomi Roht-Arriaza ed., 1995) Bernard V.A. Röling, The Nuremberg and the Tokyo Trials in Retrospect, in 1 A Treatise on International Criminal Law 600 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) —— On Aggression, on International Criminal Law, on International Criminal Juris‑ diction, 2 Nederlands Tijdschrift voor International Recht 167 (1955) John W. Rolph, Perfecting an International Code of Crimes, 39 Fed. B. News & J. 528 (1992) Petr S. Romashkin, Aggressia Tiagchaishee Prestuplenie Protiv Mira I Che‑ lovechestva, 1 Sov. Gos. I Pravo 55 (1963) Simone Romero, Chileans Order Peru’s Ex-Chief Home For Trial, N.Y. Times, Sep. 22, 2007 Natalino Ronzitti, Pirateria, 33 Encyclopedia del Diritto 911 (1983) E.J. Roucounas, Aspects Juridiques de la Protection du Patrimoine Mondial Culturel et Naturel, 25 Revue Hellénique de Droit International 42 (1972) Henry Rousso, L’épuration en France une histoire inachevée, 33 Revue d’histoire 78 (1992) Alfred P. Rubin, An International Criminal Tribunal for the Former Yugoslavia, 6 Pace Int’l L. Rev. 7 (1994) Wiebke Ruckert, Article 4: Legal status and powers of the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 89 (Otto Triffterer ed., 1999) Wiebke Rückert & Georg Witschel, Genocide and Crimes Against Humanity in the Elements of Crimes, in International and National Prosecution of Crimes Under International Law: Current Developments (Horst Fischer, Claus Kress, & Sascha Rolf Lüder eds., 2002) Medard R. Rwelamira, Composition and Administration of the Court, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 153 (Roy S. Lee ed., 1999) Hanna Saba, The Quasi Legislative Activities of Specialized Agencies, 111 Recueil des Cours de l’Académie de droit international de La Haye 281 (1964)



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Susana SáCouto and Katherine Cleary, Victim’s Participation in the Investigations of the International Criminal Court, 17 Transnat’l L. & Contemp. Probs. 73 (2008) Layla Nadya Sadat, Competing and Overlapping Jurisdictions, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 201 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The French Experience, in 3 International Criminal Law: International Enforcement 329 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Nuremberg Paradox, 58 Am. J. Comp. L. 151 (2010) Giuseppe Sagone, Pour un Droit Pénal International, 5 Rev. Int’le de Droit Pénal 363 (1928) Per Saland, International Criminal Law Principles, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 189 (Roy S. Lee ed., 1999) Quintiliano Saldana, Projet de Code Pénal International, 1 Congrès International de Droit Pénal (1926) Stephen A. Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 VA. J. Int’l L. 741 (1980) S. Boutros Samann, Définition de l’Agression, 24 Rev. Égyptienne de Droit Int’l 187 (1968) Claes Sandgren, Corruption of Foreign Public Officials, in 1 International Criminal Law: Sources, Subjects, and Contents 963 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Yves Sandoz, Penal Aspects of International Humanitarian Law, in 1 International Criminal Law : Sources, Subjects, and Contents 293 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Reflection on Impunity and the Need for Accountability, 14 Nouvelles Études Pénales 381 (1998) Lidia Santarelli, Muted violence: Italian war crimes in occupied Greece, 9 J. Modern Italian Stud. 280 (2004) Charles S. Saphos, Something is Rotten in the State of Affairs Between Nations: The Difficulties of Establishing the Rule of International Criminal Law Because of Public Corruption, 19 Fordham Int’l L.J. 1947 (1996) Ben Saul, Was the Conflict in East Timor ‘Genocide’ and Why Does It Matter?, 2 Melb. J. Int’l L. 477 (2001) Lucinda Saunders, Rich & Rare are the Gems They War: Holding DeBeers Account‑ able for Trading Conflict Diamonds, 24 Fordham Int’l L.J. 1402 (2001) Ernesto Savona, International Scientific and Advisory Professional Council, in The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program (In honor of Adolfo Beria di Argentine) 249 (M. Cherif Bassiouni ed., 1995)

c

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—— Mafia Money Laundering Versus Italian Legislation, Eur. J. Crim. Pol’y & Res. (June 1993) William A. Schabas, Article 29: Non-applicability of Statute of Limitations, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 523 (Otto Triffterer ed., 1999) —— Article 63: Trial in the Presence of the Accused, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 803 (Otto Triffterer ed., 1999) —— Article 66: Presumption of Innocence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 833 (Otto Triffterer ed., 1999) —— Article 67: Rights of the Accused, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 845 (Otto Triffterer ed., 1999) —— Article 76: Sentencing, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 845 (Otto Triffterer ed., 1999) —— International Criminal Tribunals: A Review of 2007, 6 Nw. J. Int’l Hum. Rts. 382 (2008) —— International Sentencing: From Leipzig (1923) to Arusha (1996), in 3 International Criminal Law: International Enforcement 613 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Penalties, in The International Criminal Court: Comments on the Draft Statute 273 (Flavia Lattanzi ed., 1998) —— The Rwanda Case: Sometimes It’s Impossible, in Post-Conflict Justice (M. Cherif Bassiouni ed., 2002) Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620 (1984) Michael P. Scharf, Getting Serious About an International Criminal Court, 6 Pace Int’l L. Rev.103 (1994) —— The Jury is Still Out on the Need for an International Criminal Court, 1 Duke J. Comp. & Int’l L. 135 (1991) —— The Lockerbie Model of Transfer of Proceedings, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 525 (M. Cherif Bassiouni, ed., 3d rev. ed. 2008) —— Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti? 31 Tex. Int’l L.J. 1 (1996) —— The Tools for Enforcing International Criminal Justice in the New Millenium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000) David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law: International Enforcement 219 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



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——, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law 219 (M. Cherif Bassiouni, ed., 3d ed. 2008) R. Schlesinger, Comparative Criminal Procedure: A Plea for Utilizing Foreign Expe‑ rience, 26 Buffalo L.Rev. 361 (1977) Andreas Schloenhardt, Transnational Organzied Crime and International Crimi‑ nal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 939 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Angelika Schlunk, Article 58: Issuance by the Pre-trial Chamber of a warrant of arrest or a summons to appear, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 753 (Otto Triffterer ed., 1999) Alex P. Schmid, Early Warning of Violent Conflicts: Causal Approaches, in Violent Crime & Conflicts 47 (ISPAC 1997) Elana Schor, U.S. Removes Oil Giant from Burma Sanctions, The Guardian, July, 23, 2008 Esther Schrader & Henry Weinstein, U.S. Enters a Legal Gray Zone: Strike in Yemen Raises Thorny Questions of Assassination and the Definition of War, L.A. Times, November 5, 2002 Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. Pa. L. Rev. 1497 (1974) Georg Schwarzenberger, Civitas Maxima?, 29 Y.B. World Affairs 337 (1975), reprinted in Georg Schwarzenberger, The Dynamics of International Law 107 (1976) —— The Judgment of Nuremberg, 21 Tul. L. Rev. 329 (1947) —— The Problem of International Criminal Law, 3 Cur. Legal Probs. 263 (1950) Romana Schweiger, Late Justice for Burundi, 55 Int’l & Comp.L.Q. 6531 (2006) Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178 (1946) Ryan M. Scoville, Note, Toward an Accountability-Based Definition of “Mercenary”, 37 Geo. J. Int’l L. 541 (2006) Jill M. Sears, Confronting the ‘Culture of Impunity:’ Immunity of Heads of State from Nuremberg to Ex Parte Pinochet, 42 German Ybk. Int’l L. 125 (1999) Ahmed Seif El-Dawla, Effects of Contemporary International Obligations for Com‑ bating the Financing of Terrorism on Interstate Cooperation in Criminal Mat‑ ters, in 1 International Criminal Law: Sources, Subjects, and Contents 779 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Senegal May Finally Try Habre, Reuters, July 24, 2008 Serb Outrage at Kosovo War Crimes Ruling, CNN.com, Apr. 4, 2008 Andrea Sereni, Individual Criminal Responsibility, in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Michael Shea, Expanding Judicial Scrutiny of Human Rights in Extradition Cases After Soering, 17 Yale J. Int’l L. 85 (1992)

cii

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Ivan Shearer, Recognition and Enforcement of Foreign Criminal Judgments, 47 Aust. L. J. 585 (1973) Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary Interna‑ tional Law Prohibit the Use of Nuclear Weapons in all Circumstances?, 20 Fordham Int’l L. J. 181 (1996) Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int’l L. 291 (2006) Barrett Sheridan, Trials Without Borders, Newsweek, Jan. 10, 2008 Shocking Footage at Taylor Trial, BBC News, Jan. 7, 2008 Sami Shubber, Is Hijacking of Aircraft Piracy in International Law? 1968 Brit. Y.B. Int’l L. 193 (1968–69) Kuniji Shibahara, Article 61: Confirmation of the Charges Before Trial, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 783 (Otto Triffterer ed., 1999) Valeri Shupilov, General Comments on the Draft International Criminal Code, 52 Revue Internationale de Droit Pénal 373 (1984) Sierra Leone ex-combatants make peace with victims, Agence France-Presse, Apr. 5, 2008 Sierra Leone Truth And Reconciliation Commission Calls for Reparations, UN News Service Oct. 28, 2004 Ronli Sifris, Weighing Judicial Indepenence Against Judicial Accountability: Do the Scales of the International Criminal Court Balance?, 8 Chi.-Kent J. Int’l Comp. L. 88, 107 (2008) Kenneth R. Simmonds, Law and Human Experimentation, 10 U. of Ghana L.J. 81 (1973) Nagendra Singh, Armed Conflict and Humanitarian Laws of Ancient India, in Etudes et Essais sur le Droit International Humanitaire et sur les principes de la Croix-Rouge en L’Honneur de Jean Pictet (Christophe Swinarski ed., 1984) Param-Preet Singh, Hum. Rts. Watch, Narrowing the Impunity Gap: Trials before Bosnia’s War Crimes Chamber, v.19 (Feb. 2007) S. Prakash Sinha, The Position of the Individual in an International Criminal Law, in 1 A Treatise on International Criminal Law 122 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Tuiloma Neroni Slade & Roger S. Clark, Preamble and Final Clauses, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 421 (Roy S. Lee ed., 1999) Stefaan Smis, The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 27 Georgia J. Int’l & Comp. L. 345 (1999) Jennifer M. Smith, An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity, 97 Geo. L.J. 1111 (2009) Louis B. Sohn, Generally Accepted International Rules, 61 Wash. L. Rev. 1973 (1986)



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—— The New International Law: Protection of the Rights of Individuals Rather Than States, 32 Am. U. L. Rev. 1 (1982) An Sok, The Khmer Rouge Tribunal: What It Means for Cambodia, in Just. Initiatives, 25 (Open Society Justice Initiative, 2006) Paul B. Spiegel et al., Prevalence of HIV infection in conflict-affected and displaced people in seven sub-Saharan African countries: a systematic review, 369 Lancet 2187 (2007) Paul Spurlock, The Yokahama War Crimes Trials: The Truth About a Misunder‑ stood Subject, 36 A.B.A.J. 387 (1950) F. Staempfli, Die Internationale Bekämpfung der Geldfalschungen und die Schweiz, 45 Schweizerische Zeitschrift für Strafrecht 478 (1931) Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l. L. 952 (2001) Christopher Staker, Article 81: Appeal Against Decision of Acquittal or Conviction or Against Sentence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1015 (Otto Triffterer ed., 1999) —— Article 82: Appeal Against other Decisions, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1029 (Otto Triffterer ed., 1999) W.B. Stanford, Introduction to Aeschylus, The Oresteia (Robert Fagles trans., 1977) Michael Steiner, For Example Kosovo: Seven Principles for Building Peace, Address at the London School of Economics, (Jan. 27 2003) Adam Steinfield, Nuclear Objections: The Persistent Objector and the Legality of the Use of Nuclear Weapons, 62 Brooklyn L. Rev. 1625 (1996) Brigitte Stern, La Cour Penale Internationale in le projet de la Commission du Droit International, in International Legal Issues Arising Under the United Nations Decade of International Law 79 (1995) Bryan Stevenson, Capital Punishment in the United States of America, in International Commission of Jurists 47 (2000) David Stoelting, Enforcement of International Criminal Law, 34 Int’l L. 669 (2000) Gerhardt A.M. Strijards, Article 3: Seat of the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 71 (Otto Triffterer ed., 1999) —— Article 103: Role of States in Enforcement of Sentences of Imprisonment, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1059 (Otto Triffterer ed., 1999) Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor, 95 Am. J. Int’l L. 46 (2001)

civ

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—— Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor, U. NSW L.J. 16 (2001) Jane Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l L. 251 (2007) Eric Stover, Mychelle Balthazard and K. Alexa Koenig, Confronting Duch: Civil party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia, 93 Int’l Rev. Red Cross 1 (2011) Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002) Francisco Suarez, On War, in Classics of International Law (James B. Scott ed., 1917) Mark A. Summers, Diplomatic Immunity: Ratione Personae: Did the International Court of Justice Create a New Customary Law Rule in Congo v. Belgium?, 16 Mich. St. J. Int’l L. 459 (2007) Tracie A. Sundack, Note, Republic of Philippines v. Marcos: The Ninth Circuit Allows a Former Ruler to Invoke the Act of State Doctrine Against a Resisting Sovereign, 38 Am. U.L. Rev. 225 (1988) Jacob W.F. Sundberg, The Crime of Piracy, in 1 International Criminal Law: Sources, Subjects, and Contents 799 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Leonard B. Sutton, Jurisdiction Over Diplomatic Personnel and International Orga‑ nizations Personnel for Common Crimes and for Internationally Defined Crimes, in 2 A Treatise on International Criminal Law 97 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Bert Swart, The European Union and the Schengen Agreement, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 243 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Symposium, International Protections of Victims, 7 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1988) Symposium, The Ratification of the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1167 (1993) Imre Szabo, Historical Foundations of Human Rights and Subsequent Develop‑ ments, in International Dimensions of Human Rights (Karel Vasak ed., 1982) Immi Tallgren, Article 20: Ne bis in idem, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 419 (Otto Triffterer ed., 1999) C.S. Thomas & M.J. Kirby, The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 22 Int’l & Comp. L.Q. 163 (1973) —— Thematic Prosecution of International Sex Crimes (Morten Bergsmo, ed. 2012) Larry Thompson, The Blameless Corporation, 46 Am. Crim. L. Rev. 1323 (2009)



table of authorities

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E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (1975) Firew Kedebe Tiba, The Mengitsu Genocide Trial in Ethiopia, 5 Int’l Crim. Just. 513, 515 (2007) Craig Timberg, Sierra Leone Special Court’s Narrow Focus, Wash. Post, Mar. 26, 2008 Birte Timm, The Legal Position of Victims in the Rules of Procedure and Evidence, in International and National Prosecution of Crimes Under International Law 289 (Horst Fischer, Claus Kress & Rold Lüder eds., 2002) Peggy Tobolowski, Victim Participation in the Criminal Justice Process:  Fifteen Years After the President’s Task Force on Victims of Crime, New Eng. J. Crim. & Civil Confinement  21 (1999) David Tolbert, Article 43: The Registry, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 637 (Otto Triffterer ed., 1999) —— Article 50: Official and Working Languages, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 675 (Otto Triffterer ed., 1999) Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, 48 Int’l Comm’n Jurists Rev. 38 (1992) Top aide testifies Taylor ordered soldiers to eat victims, CNN.com, Mar. 13, 2008 Criton G. Tornaritis, The Individual as a Subject of International Law and Interna‑ tional Criminal Responsibility, in 1, 2 A Treatise on International Criminal Law 103 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Aron N. Trainin, Le Tribunal Militaire International et le Proces de Nuremberg, in 17 Revue Internationale de Droit Pénal 263 (1946) Greg Travalio, Terrorism, State Responsibility, and the Use of Military Force, 4 Chi. J. Int’l L. 97 (2003) Stefan Trechsel, The Protection of Human Rights in Criminal Procedure, 49 Revue Internationale de Droit Pénal 541 (1968) Giles Tremlett, Spanish court opens investigation of Guantánamo torture allegations, Guardian, Apr. 29, 2009 Otto Triffterer, Article 1: The Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 51–64 (Otto Triffterer ed., 1999) —— Article 27: Irrelevance of Official Capacity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 501 (Otto Triffterer ed., 1999) —— Article 32: Mistake of Fact or Mistake of Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 555 (Otto Triffterer ed., 1999) —— Article 33: Superior Order and Prescription of Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 573 (Otto Triffterer ed., 1999)

cvi

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—— Article 71: Sanctions for Misconduct Before the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 925 (Otto Triffterer ed., 1999) —— Article 74: Requirements for the Decision, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 953 (Otto Triffterer ed., 1999) —— Rapport, Les Crimes Internationaux et le Droit Pénal Interne, 60 Rev. Int’le de Droit Pénal 31 (1989) U.N. Race Conference On Thin Ice, CBSNews.com, July 25, 2001 The Unconstitutional Detention of Mexican and Canadian Prisoners by the United States Government, 12 Vand. J. Trans. L. 67 (1979) The United Nations Convention Against Transnational Organized Crime, 71 Revue Internationale de Droit Pénal 253 (2000) United Press International, Former Tunisian president Ben Ali on trial, Jan. 3, 2012 United States Inst. of Peace, Kosovo Final Status: Options and Cross-Border Requirements, Special Report 91, July, 2002 Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, 14 Nouvelles Études Pénales 349 (1998) Christine Van den Wyngaert, L’Espace Judiciare Européen: Vers une Fissure au Sein du Conseil de L’Europe?, 61 Rev. Droit Pénal et de Crim. 511 (1981) —— L’Espace Judiciare Européen Face à L’Euro-Terrorisme et la Sauvegarde des Droits Fondamentaux, 3 Rev. Int’le de Criminologie et de Police Technique 289 (1980) —— Projet de Code Penal International, 51 Revue Internationale de Droit Pénal (1980) —— Rethinking the Law of International Cooperation: The Restrictive Function of International Human Rights Through Individual-Oriented Bars, in Principles and Procedures for a New Transnational Criminal Law 489 (Albin Eser & Otto Lagodny eds., 1992) Damien Vandermeersch, Compètence universelle et immunités en droit inter‑ national humanitaire la situation belge, in Le Droit Pènal a l’epreuve de l’internationalisation 227 (Marc Henzelin & Robert Roth eds., 2002) —— La répression en droit belge des crimes de droit international, 68 Revue International de Droit Pénal 1093 (1997) —— Les poursuites et le jugement des infractions de droit international human‑ itaire en droit belge, in H.D. Bosly et al., Actualités du Droit International Humanitaire 123 (2001) W.J. Ganshof van der Meersch, Justice et Droit International Pénal, 42 Rev. de Droit Pénal et de Criminologie 3 (1961) Beth Van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 Colum. J. Transnat’l L. 505 (2011)



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Elies van Sliedregt, Modes of Liability, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 223 (2010) Elizabeth Santalla Vargas, An Overview of the Crime of Genocide in Latin American Jurisdictions, 10 Int’l. Crim. L. Rev. 441 (2010) Giuliano Vassalli, Copevolezza, Encyclopedia Guiridica Treccani (vol. 6 1988) —— In tema di Diretto Internazionale Penal, 56 Giustizia Penale 257 (1951) —— Mandato d’arresto e principio d’egnaglianza, 3 Il Giusto Processo 129 (2002) Jacques Verhaegen, Les Impasses du Droit International Pénal, 38 Rev. de Droit Pénal et de Criminologie 3 (1957) J. Verhoeven, Vers un ordre répressif universel? Quelques observations, Annuaire français de droit international 55 (1999) John K. Villa, A Critical View of Bank Secrecy Act Enforcement and Money Launder‑ ing Statutes, 37 Cath. U. L. Rev. 489 (1988) Charles Villa-Vicenio, Why Perpetrators Should Not Always be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 217 (2000) R.J. Vincent, Order in International Politics, in Order and Violence: Hedley Bull and International Relations 38 (J.D.B. Miller & R. J. Vincent eds. 1990) Dimitri Vlassis, Challenges in the Development of International Criminal Law: The Negotiations of the United Nations Convention Against Transnational Orga‑ nized Crime and the United Nations Convention Against Corruption, in 1 International Criminal Law: Sources, Subjects, and Contents 907 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Herman Von Hebel, The Elements of War Crimes, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 109 (Roy S. Lee ed., 2001) Herman von Hebel & Darryl Robinson, Crimes within the Jurisdiction of the Court, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 79 (Roy S. Lee ed., 1999) Alfred von Staden & Hans Bollaard, The Erosion of State Sovereignty: Towards a post-territorial world?, in States Sovereignty and International Governance 176 (Gerard Kreijen et al. eds., 2002) Lal Chand Vohrah, Pre-Trial Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court vol. I, 530 (G.K. McDonald & O. Swaak-Goldman eds., 2000) Ian G. Waddell, International Narcotic Control, 64 Am. J. Int’l L. 310 (1970) Patricia M. Wald, Challenges Judging Genocide, in Just. Initiatives 85 (Open Society Initiative, 2006)

cviii

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Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did they Provide an Outline for International Legal Proce‑ dure, 37 Colum. J. Transnat’l L. 851 (1999) Evan Wallach & I. Maxine Marcus, Command Responsibility, in 3 International Criminal Law : International Enforcement 459 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) James Walston, History and Memory of the Italian Concentration Camps, 40 Historical J. 169 (1997). Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Receuil des Cours de l’Academie de La Haye (RCADI) 9 (1994) Ruth Wedgewood, The Constitution and the ICC, in The United States and the International Criminal Court (Sarah Sewell & Carl Kaysen eds., 2000) —— Fiddling in Rome: America and the International Criminal Court, 6 Foreign Aff. 20 (1998) Prosper Weil, Towards Normative Relativity in International Law?, 77 Am. J. Int’l L. 413 (1983) Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St Mary’s L. J. 857 (1995) Zhu Wen-qi, Article 36: Qualifications, Nomination and Election of Judges, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 599 (Otto Triffterer ed., 1999) Leila Sadat Wexler, First Committee Report on Jurisdiction, Definition of Crimes and Complementarity, 13 Nouvelles Etudes Penales 163 (1997) —— The Interpretation of the Nuremberg Principles by the French Court of Cassa‑ tion: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 259 (1994) Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15–July 17, 1998, 13ter Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998) Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998) —— The Proposed International Criminal Court—An Appraisal, 29 Cornell Int’l L.J. 665 (1996) Nicholas J. Wheeler, Pluralist or Solidarist Conceptions of International Society: Bull and Vincent on Humanitarian Intervention, 21 Millennium: Journal of Int’l Studies 463 (1992) Eric Wielbelhaus-Brahm, Truth Commissions and Other Investigative Bodies, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 477 (2 vols., M. Cherif Bassiouni ed., 2010) Martin Wight, An Anatomy of International Thought, 13 Rev. Int’l Stud. 221 (1987)



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—— Western Values in International Relations, in Martin Wight, Diplomatic Investigations 89 (1968) Sharon A. Williams, Article 11: Jurisdiction Ratione Temporis, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 323 (Otto Triffterer ed., 1999) —— Article 12: Preconditions to Exercise of Jurisdiction, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 329 (Otto Triffterer ed., 1999) —— Article 13: Exercise of Jurisdiction, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 343 (Otto Triffterer ed., 1999) —— Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 383 (Otto Triffterer ed., 1999) Richard W. Williamson, Policy Analysis Brief: Sudan and the Implications for Responsibility to Protect (Stanley Foundation, 2009) Elizabeth Wilmshurst, Jurisdiction of the Court, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 127 (Roy S. Lee ed., 1999) Edward M. Wise, Extradition: The Hypothesis of a Civitas Maxima and the Maxim Aut Dedere Aut Judicare, 62 Revue Internationale de Droit Pénal 109 (1991) —— General Rules of Criminal Law, 25 Denv. J. Int’l L. & Pol’y. 313 (1997) —— The International Criminal Court: A Budget of Paradoxes, 8 Tulane J. Int’l Comp. L. 267 (2000) —— The Obligation to Extradite or Prosecute, 27 Israel L. Rev. 268 (1993) —— Prolegomenon to the Principles of International Criminal Law, 16 N.Y. L.F. 562 (1970) —— Some Problems of Extradition, 15 Wayne L. Rev. 709 (1969) —— Terrorism and the Problems of an International Criminal Law, 19 Conn. L. Rev. 799 (1987) Michail Wladimiroff, The Rights of Suspects and Accused, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court vol. I, 426 (G.K. McDonald & O. Swaak-Goldman eds. 2000) M.C. Wood, Convention on the Prevention and Punishment of Crimes Against Inter‑ nationally Protected Persons, Including Diplomatic Agents, 23 Int’l & Comp. L.Q. 791 (1974) Nicholas Wood, Kosovo War Crimes Trial Splits West and Prosecutors, Int’l Herald Trib., Apr. 8, 2007 Ben Atkinson Wortley, Pirata Non Mutat Dominium, 1947 Brit. Y.B. Int’l L. 258 (1974) Quincy Wright, The Legality of the Kaiser, 13 Am. Pol. Sci. Rev. 121 (1919)

cx

table of authorities

—— Proposal for an International Criminal Court, 46 Am. J. Int’l L. 60 (1952) —— The Scope of International Criminal Law: A Conceptual Framework, 15 Va. J. Int’l L. 561 (1975) e XI Congrès International de Droit Pénal, La Répression de la Capture Illicite d’Aéronefs, 47 Rev. Int’le de Droit Pénal 1 (1976) Ellen A. Yearwood, Data Bank Control, in Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) Lionel Yee, The International Criminal Court and The Security Council, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 143 (Roy S. Lee ed., 1999) Mark W. Zacher, Multilateral Organizations and the Institution of Multiateralism: The Development of Regimes for Nonterrestrial Spaces, in Multilateralism Matters: The Theory and Practice of an Institutional Forum 405 (John G. Ruggie ed., 1993) Bruce A. Zagaris, Constructing a Hemispheric Initiative Against Transnational Crime, 19 Fordham Int’l L.J. 1888 (1996) —— Developments in International Judicial Assistance and Related Matters, 18 Denv. J. Int’l L. & Pol’y 339 (1990) —— Dollar Diplomacy: International Enforcement of Money Movement and Related Matters—A United States Perspective, 22 Geo. Wash. J. Int’l L. & Econ. 465 (1989) —— United States Treaties on Mutual Assitance in Criminal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 385 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— U.N. Special Tribunal Releases Suspects in Hariri’s Death Due to Lack of Evi‑ dence, 25 Int’l Enforcement L. Rep. 284 (2009) Bruce Zagaris & Sheila M. Castilla, Constructing an International Financial Enforcement Subregime: The Implementation of Anti-Money Laundering Policy, 19 Brook. J. Int’l L. 872 (1993) Bruce Zagaris & Scott B. MacDonald, Money Laundering, Financial Fraud, and Technology: The Perils of an Instantaneous Economy, 26 Geo. Wash. J. Int’l L. & Econ. 62 (1992) Bruce Zagaris & Constantine Papavizass, Using the Organization of American States to Control International Narcotics Trafficking and Money-Laundering, 57 Rev. Int’l de Droit Pénal 119 (1986) Bruce Zagaris & Elizabeth Virginia, Asset Forfeiture, International and Foreign Law: An Emerging Regime, 5 Emory Int’l L. Rev. 446 (1991) Mark S. Zaid, The U.S. War Crimes Act of 1996, in 3 International Criminal Law: International Enforcement 407 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Andreas Zimmerman, Article 5: Crimes Within the Jurisdiction of the Court, Commentary on the Rome Statute of the International Criminal Court 97 (Otto Triffterer ed., 1999)

TABLE OF ABBREVIATIONS The abbreviations which follow are referred to in footnotes throughout the book. Others are in accordance with The Bluebook: A Uniform System of Citation (17th Rev. Ed. 2000). 1899 Hague Convention

Convention With Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, T.S. No. 403, 26 Martens Nouveau Recueil (ser. 2) 949, reprinted in 1 Am. J. Int’l L. 129 (1907) (Supp.), 1 Friedman 221, Schindler/Toman 57 1907 Hague Convention Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, 3 Martens Nouveau Recueil (ser. 3) 461, reprinted in 2 Am. J. Int’l L. 90 (1908) (Supp.), 1 Friedman 308, 1 Bevans 631 1919 Commission Report Report Presented to the Preliminary Peace Conference by the ommission on the Responsibilities of the Authors of the War and on Enforcement of Penalties (Conference of Paris 1919 Carnegie Endowment for International Peace, Division of International Law), Pamphlet No. 32 (1919), reprinted in 14 Am. J. Int’l L. 95 (1920) (Supp.), 1 Friedman 842 1948 Genocide Convention Convention on the Prevention and Punishment of  (also Genocide the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277,  Convention) reprinted in 45 Am. J. Int’l L. 7 (1951) (Supp.) 1949 Geneva Conventions Conventions signed at Geneva, Aug. 12, 1949: (a) Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I), 75 U.N.T.S. 31, 6 U.S.T. 3114, T.I.A.S. No. 3362. (b) Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II), 75 U.N.T.S. 85, 6 U.S.T. 3217, T.I.A.S. No. 3363. (c) Convention Relative to the Treatment of Prisoners of War (Geneva Convention III), 75 U.N.T.S. 135, 6 U.S.T. 3316, T.I.A.S. No. 3364. (d) Convention Relative to the Protection of Civilian

cxii

table of abbreviations

Persons in Time of War (Geneva Convention IV), 75 U.N.T.S. 287, 6 U.S.T. 3516, T.I.A.S. No. 3365 1950 ILC Report Report of the International Law Commission, U.N. GAOR, 5th Sess., U.N. Doc. A/CNA/25 (1950) 1974 Definition of Definition of Aggression (United Nations General  Aggression Assembly Resolutions), Dec. 14, 1974, G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. (No. 31) at 142, U.N. Doc. A/9631 (1974) 1977 Protocol I Protocol Additional to Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, U.N. Doc. A/32/144 Annex I, reprinted in 16 I.L.M. 1391, Schindler/Toman 551 1977 Protocol II Protocol Additional to Geneva Convention of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for sig‑ nature, Dec. 12, 1977, U.N. Doc. A/32/144 Annex II, reprinted in 16 I.L.M. 1391, Schindler/Toman 619 Draft Code of Crimes Against the Peace and Security of Crimes of Mankind, May 6-July 26, 1996, Report of the ILC, GAOR Supp. No. 10, U.N. Doc. A/51/10 1996 ICC PrepCom Report Report of the Preparatory Committee on the Establish‑ ment of an International Criminal Court, Vol. I, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996) 9/11 The terrorist attacks of September 11, 2001, on the World Trade Center in New York, and the Pentagon, outside of Washington, D.C. Annexes to Final Report Annexes to the Final Report, U.N. SCOR, 49th Sess.,  of Yugoslavia U.N. Doc. S/1994/674/ Add.2 (1994) (See also Final  Commission of Experts Report, Committee of Experts) Annex II to 1919 Memorandum of Reservations Presented by the  Commission Report Representatives of the United States to the Report of the Commission on Responsibilities, Annex II Apr. 4, 1919, reprinted in 14 AM. J. INT’L L. 127 (1920) Apartheid Convention International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, U.N. G.A. Res. 3068 (XXVIII), 28th Sess., U.N. GAOR Supp. No. 30 at 75, U.N. Doc. A/9030 (1973), reprinted in 13 I.L.M. 50 (1974) ASP Assembly of States-Parties to the International Criminal Court Bassiouni & Wise, Aut M. Cherif Bassiouni & Edward M. Wise, Aut



table of abbreviations

 Dedere Aut Judicare Bassiouni, Crimes  Against Humanity Bassiouni, Draft Code Bassiouni, From  Versailles to Rwanda Bassiouni, General  Principles Bassiouni, International  Extradition Bassiouni, Human Rights  Compendium Bassiouni, International  Humanitarian Law 1 Bassiouni, ICL 2 Bassiouni, ICL 3 Bassiouni, ICL Bassiouni, ICL  Conventions Bassiouni, Negotiating the  Treaty of Rome Bassiouni, Post-Conflict  Justice Bassiouni, Statute  of the Icc Bassiouni, Terrorism  Conventions Bassiouni, Terrorism

cxiii

Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995) M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2d rev. ed. 1999) M. Cherif Bassiouni, A Draft International Criminal Code & Draft Statute for an International Criminal Tribunal (1987) M. Cherif Bassiouni, From Versailles to Rwanda in 75 Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 1 (1996) M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768–818 (1990) M. Cherif Bassiouni, International Extradition: United States Law and Practice (4th ed. 2002) M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice (1994) A Manual on International Humanitarian Law and Arms Control Agreements (M. Cherif Bassiouni ed., 2000) International Criminal Law: Crimes (M. Cherif Bassiouni ed., 2d rev. ed. 1999) International Criminal Law: Procedural and Enforcement Mechanisms (M. Cherif Bassiouni ed., 2d rev. ed. 1999) International Criminal Law: Enforcement (M. Cherif Bassiouni ed., 2d rev. ed. 1999) M. Cherif Bassiouni, International Criminal Conventions and their Penal Provisions (1997) M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court,32 Cornell Int’l L.J. 443 (1999). Post-Conflict Justice (M. Cherif Bassiouni ed., 2002) The Statute of the International Criminal Court: A Documentary History International Terrorism: Multilateral Conventions 1937–2001 (2002) International Terrorism: A Compilation of

cxiv  Documents

table of abbreviations

U.N. Documents (1972–2001) (M. Cherif Bassiouni ed., 2002, 2 vols.) Bassiouni & Nanda A Treatise on International Criminal Law  Treatise (M. Cherif Bassiouni & V.P. Nanda eds., 1973, 2 vols.) Bassiouni, Universal M. Cherif Bassiouni, Universal Jurisdiction for Inter Jurisdiction national Crimes: Historical Perspectives and Contem‑ porary Practice, 42 VA. J. Int’l L. 81 (2001) Bassiouni, Yugoslavia M. Cherif Bassiouni (with the Collaboration  Tribunal Bevans of Peter Manikas), Treaties and other International Agreements of the United States of America, 1776–1949 (C.F. Bevans ed., 1970, 13 vols.) BSP British and Foreign State Papers CCL 10 Allied Control Council Law No. 10, Dec. 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Jan. 31, 1946, reprinted in 1 Ferencz 488, 1 Friedman 908 CE Council of Europe Commission of Experts on Commission of Experts Established Pursuant to  Former Yugoslavia Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, S.C. Res. 780, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/780 (1992) EU European Union The Eichmann Case Attorney Gen. of Israel v. Eichmann, 36 I.L.R. 18, 39, (Isr. Dist. Ct.-Jerusalem 1961), aff’ d, 36 I.L.R. 277 (Isr. Sup. Ct. 1962) Eur. Ct. H.R. European Court of Human Rights Eur. T.S.-(Also) E.T.S. European Treaty Series ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 218 U.N.T.S. 221, E.T.S. No.5 Far Eastern Commission Activities of the Far Eastern Commission, Report by  Report the Secretary General, February 26-July 10, 1947, 16 DEP’T ST. BuLL. 804–06 (1947) Far East Military Trials held in connection with the post-World  Proceedings War II Far East Military Activities conducted by: (a) the United States, as special military trials; and (b) other coun­ tries including Great Britain, Soviet Union, China, Netherlands, Australia and other Commonwealth nations Final Report, Commission Final Report of the Commission of Experts Established



table of abbreviations

 of Experts

Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, Annex, U.N. Doc. S/1994/674 (27 May 1994) (See also, Annexes to Final Report of Yugoslavia Commission of Experts) Foreign Sovereign Immunities Act, 28 u.s.c. §§ 1602–11 (1994) General Assembly (U.N.) General Assembly Official Records

FSIA

cxv

G.A. (U.N.) GAOR  (see also U.N. GAOR) G.A. Res. (U.N.) General Assembly Resolution  (see also U.N. G.A. Res.) Hudson International Legislation (Michael Hudson ed., 1972) ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) ICC Draft Statute Report of the Preparatory Committee on the Estab‑ lishment of an International Criminal Court, A/ Conf.183/2/ Add.1 (1998) ICC Statute Rome Statute of the International Criminal Court, A/ Conf.183/9, July 17, 1998 I.C.J. International Court of Justice I.C.J. Reports International Court of Justice Reports I.C.J. Statute Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1179 ICL International Criminal Law ICRC International Committee for the Red Cross ICTR International Criminal Tribunal for Rwanda ICTR Statute International Tribunal for Rwanda, S.C Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994) ICTY International Criminal Tribunal for Yugoslavia ICTY Statute International Criminal Tribunal for Yugoslavia, S.C. Res. 808, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/808 (1993) IHL International Humanitarian Law IHRL International Human Rights Law ILC International Law Commission ILC’s Nuremberg Affirmation of the Principles of International Law

cxvi  Principles

I.L.M. IMO IMT (Also Nuremberg  Charter, Nuremberg  Trials, and London  Charter)

IMTFE (see also Tokyo  Trials and Tokyo  Charter) IMTFE IMTFE Proclamation Law of the Charter Leipzig Trials

LIA Lieber Code

table of abbreviations Recognized by Nuremberg Principles the Charter of the Nuremberg Tribunal, Dec. 11, 1946, U.N. G.A. Res. 95(1), U.N. GAOR (Part II) at 188, U.N. Doc. A/64/ Add. 1(1946), reprinted in 2 Friedman 1027; Schindler/Toman 833 International Legal Materials International Maritime Organization The International Military Tribunal at Nuremberg, created by the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945; Charter of the International Military Tribunal, 59 Stat. 1544, 1546, 82 U.N.T.S. 279, 284 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, E.A.S. No. 472, reprinted in 39 Am. J. Int’l L. 257 (1945) (Supp.), 1 Ferencz 454, 1 Friedman 883, Schindler/ Toman 823 International Military Tribunals for the Far East Special Proclamation: Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, at 3, 4 Bevans 20 Charter for the International Military Tribunal for the Far East, Apr. 26, 1946, T.I.A.S. No. 1589, at 11, 4 Bevans 27. (See also Tokyo Charter below) Special Proclamation: Establishment of a Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, at 3, 4 Bevans 20 Refers to: (a) London Agreement and the Charter; (b) Indictments, Proceedings and Judgment of the International Military Tribunal at Nuremberg The trials of German war criminals after World War I held before the German Supreme Court (Reichsgericht) Sitting at Leipzig. See generally Claud Mullins, The Leipzig Trials (1921); see also 16 Am. J. Int’l L. 696 et seq. (1922) London International Assembly, The Punishment of War Criminals: Recommendations of the London International Assembly (1944) U.S. Dept. of War, Instructions for the Government of the Armies of the United States in the Field, Gen-



LNTS London Charter LRTWC Martens MLAT Moscow Declaration

MOU Müller-Rappard &  Bassiouni, European  Inter-State  Cooperation NGO Nuremberg Indictment Nuremberg Judgment Nuremberg Principles

table of abbreviations

cxvii

eral Orders No. 100 (1863), reprinted in 1 Friedman 158 League of Nations Treaty Series See IMT Law Reports of Trials of War Criminals Martens Nouveau Recueil Général des Traités Mutual Legal Assistance Treaty The Moscow Conference, Oct. 19–30, 1943 (Declaration of German Atrocities, Nov. 1, 1943), 1943 FoR. REL. (I) 749, reprinted in 38 Am. J. Int’l L. 3 (Supp.); 3 Bevans 816 Memorandum of Understanding European Inter-State Cooperation in Criminal Matters (Ekkehart Miiller­ Rappard & M. Cherif Bassiouni eds., 2d rev. ed. 1992)

Non-Governmental Organization 1 IMT 27 1 IMT 171 Principles of the Nuremberg Tribunal1950, Report of the ILC, (Principles of International Law Recognized in the Tribunal), July 29, 1950, U.N. GAOR, 5th Sess., Supp. (No. 12) 11, U.N. Doc. A/1316 (1950), reprinted in 4 Am. J. Int’l L. 126 (1950) (Supp.); 2 Ferencz 235 Nuremberg Proceedings Trial of the Major War Criminals Before the International Military Tribunal (Secretariat of the International Military Tribunal ed., 1947) OAS Organization of American States OAU Convention OAU Convention for the Elimination of Mercenaries in Africa, OAU Doc. Cm/433/Rev.L. (1972) OLA United Nations Office of Legal Affairs Tadíc Case The Prosecutor v. Tadic, Opinion and Judgment, Case No. IT-94-1-T, 7 May 1997 Parry’s The Consolidated Treaty Series (C. Parry ed., 1969 & Supp., 231 vols.) P.C.I.J. Permanent Court of International Justice PCIJ Statute Statute of the Permanent Court of International Justice, 1926 P.C.I.J. (Ser. D) No.1 Post-Charter Legal Refers to:  Developments (a) Affirmation of Nuremberg Principles; (b) Genocide Convention; (c) ILC Nuremberg Principles; (d) U.N. Non­ Applicability of Statutory

cxviii

table of abbreviations

Limitations to War Crimes; (e) Resolutions on War Criminals, Dec. 15, 1970, U.N. G.A. Res. 2583 (XXIV), reprinted in 1 Friedman 754; (f ) Apartheid Convention; (g) International Co-operation in Extradition; (h) European Non-Applicability of Statutory Limitations to War Crimes Potsdam Conference The Berlin (Potsdam) Conference (Protocol of Proceedings), Aug. 2, 1945, 1945 FoR. REL. Conference of Berlin (Potsdam II) 1499, reprinted in 3 Bevans 1207; 39 Am. J. Int’l L. 245 (1945) (Supp.) ICC Preparatory The Preparatory Committee on the Establishment  Committee of an International Criminal Court Recueil Des Cours Recueil des Cours de l’Académie de Droit International de la Haye Red Cross Report 1 International Committee of the Red Cross, Report on the International Committee of the Red Cross on its Activities During the Second World War (1948) ICC Ad Hoc Committee Report of the Ad Hoc Committee on the Estab‑ lishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc A/50/22 Report of Robert H. Jackson U.S. Dep’t of State, Pub. No. 3080, Report of Robert H. Jackson Res. (U.N.) Resolution Resolution on Aggression Resolution on the Definition of Aggression, G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631 (1975) RIDP Revue Internationale de Droit Penal S.C. (U.N.) Security Council SCOR(U.N.) Security Council Official Records Stat. United States Statutes at Large Subsequent Proceedings Proceedings by the Allied Powers held pursuant to  (see also CCL NO. 10 Control Council Law No.lO, (Punishment of Per Trials) sons Guilty of War Crimes, Crimes Against Peace and Against Humanity), Dec. 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, Jan. 31, 1946, reprinted in 1 Ferencz 488, 1 Friedman 908. The Proceedings involved 12 Trials: (a) The Einsatzgruppen Case; (b) The I.G. Farben Case; (c) The Flick Case; (d) The High Command Case; (e) The Hostage Case;



table of abbreviations



(f) The Justice Case; (g) The Krupp Case; (h) The Med‑ ical Case; (i) The Milch Case; G) The Ministries Case; (k) The Pohl Case; (1) The Rusha Case (U.S.) Treaties and Other International Acts Series International Military Tribunal for the Far East: (a) Proclamation by the Supreme Commander for the Allied Powers, Jan. 19, 1946, T.I.A.S. 1589, reprinted in 4 Bevans 20, 1 Ferencz 522 (1975), Friedman 894; (b) Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. 1589, reprinted in 1 Ferencz 523, 1 Friedman 895 (See also IMTFE) International Military Tribunals for the Far East; Trial of the Major War Criminals, Proceedings of the International Military Tribunal for the Far East at Tokyo; reprinted (excerpts) in 4 Bevans 20; 2 Ferencz 522 (1975); compiled in The International Military Tribunals for the Far East (R. John Pritchard & Sonia M. Zaide eds., 1981, 21 vols.) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39I 46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, draft reprinted in 23 I.L.M. 1027 (1985), with final changes in 24 I.L.M. 1027 Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles), June 28, 1919, 11 Martens Nouveau Recueil (ser 3) 323, reprinted in 2 Bevans 43, 1 Friedman 417 (U.S.) Treaty Series United Nations United Nations International Drug Control Program UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted Nov. 14, 1970, 823 U.N.T.S. 23, reprinted in 10 I.L.M. 289 United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948) United Nations Document

T.I.A.S. Tokyo Charter

Tokyo Trials  (see also IMTFE)

1984 Torture Convention

1919 Treaty of Versailles

T.S. U.N. UNDCP UNESCO

UNWCC

U.N. Doc.

cxix

cxx

table of abbreviations

U.N.T.S. Universal Declaration

United Nations Treaty Series Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III) United States United States Treaty Series World War I World War II

u.s. U.S.T. WWI WWII

Introduction to the second Edition International Criminal Law (ICL) made its debut on the U.S.’s academic scene in the late 1960’s through the works of the late Professors Gerhard O.W. Mueller and Edward M. Wise, and I followed in their footsteps, as did many others since then. In the last two decades ICL has grown significantly. An example of this is the expansion in course offerings in the subject. In the 1970’s only three American law schools regularly offered a course in ICL (New York University, Wayne State and DePaul), presently more than 30 do. The number of law schools offering basic and graduate courses on ICL in Europe and elsewhere surpasses those offered in the U.S. Another indicator of the field’s growth are the hundreds of books and articles published annually on ICL published in more than 30 languages, many of which contain doctoral dissertations and masters’ theses. Last, but not least, is the establishment of several international and mixed-model tribunals in the last two decades, which are described in Chapters VI and VIII, and the International Criminal Court, which is described in Chapter VII.1 ICL is the primary international legal regime that addresses the atrocities of war and other forms of inter-social conflict in the hope of providing accountability, which in turn is expected to lead to the prevention of conflict and to the enhancement of peace prospects. But this is not an easy task. Between the end of WWII and 2008 there were 313 conflicts which resulted in an estimated 92 to 101 million casualties.2 In 126 of these conflicts, amnesties were grated, and few prosecutions were initiated.3 Based on these numbers it is hard to conclude that ICL has had a significant deterrent effect. For deterrence to work more perpetrators must be brought to account, and clearly amnesties must be eliminated for the perpetrators of core international crimes and for those individuals

1   M. Cherif Bassiouni, 1–3 The Legislative History of the International Criminal Court (2005). 2 M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and PostConflict Justice 3, 11 (M. Cherif Bassiouni, ed., 2010). 3 See Chapter XII for a quantitative survey of the post WWII tribunals from the IMT to the STL. These individuals were prosecuted for the major international crimes: “Crimes Against Peace”, which was only applied during the post-WWII proceedings; “War Crimes” and “Crimes Against Humanity”, which have been prosecuted since WWII; and “Genocide” which has been applied since 1995. In some instances, as before the Extraordinary Chambers in the Courts of Cambodia, national crimes are also brought against the defendants. National prosecutions have been few, but they have been on the increase recently. The caselaw and treaties in this book are current through July 2012.

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responsible for bringing about these situations. The deterrent value of ICL must be enhanced to limit human harm, material destruction and the disruption of peace. It is shocking that less than one percent of the victims of these crimes have received any form of redress or compensation.4 But international criminal justice (ICJ) has always been controlled by realpolitik, as discussed in Chapters XI and XII.5 The latter has only allowed so much of the former to take place, and then always under controlled conditions. Since the 1960’s, ICL has also developed in response to the increased number of inter-state and cross-boundary crimes such as: drug, human and arms trafficking; “terrorism”; piracy; and what falls into the ever-growing realm of “organizedcrime” activities. National responses to these and other forms of criminality in this transitional era from internationalization to globalization have given a notable impulse to ICL. Suffice it to mention that there are more than 3,000 bilateral extradition treaties in effect, and there has been a significant growth in multilateral treaties criminalizing certain types of conduct and addressing modalities of international cooperation in penal matters at the national, regional and international levels. The growth and expansion of international and national human rights protections have also impacted ICL through the criminalization of violations of fundamental human rights, providing for victims’ rights (including accountability),6 and by means of establishing standards for fairness and due process for international and national criminal proceedings as discussed in Chapter IX. All of that leads to the conclusion that ICL is alive and well, and by all appearances is here to stay, though no one knows how it will evolve in the era of globalization.7 To understand ICL it is necessary to track its origins and growth. The early writers on ICL were European—they came from the discipline of criminal law, and their methodological approaches to ICL reflected it.8 They saw it as essentially consisting of the theories and applications of inter-state conflicts of 4 Bassiouni, supra note 1. 5 See M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l L. 269 (2010); M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Real‑ politik, 22 Ga.St.U.L.Rev. 541 (2006); M. Cherif Bassiouni, Justice and Peace: The Importance of Choosing Accountability Over Realpolitik, 35 Case W. Res. J. Int’l L. 191 (2003); M. Cherif Bassiouni, Searching for Justice in the World of Realpolitik, 12 Pace Int’l L. Rev. 213 (2000). 6 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005); M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev 203 (2006). 7 M. Cherif Bassiouni, The Future of Human Rights in the Age of Globalization, 40 Denver J. Int’l L. & Pol’y 22 (2012). 8 See Henri F. Donnedieu De Vabres, Introduction a l’Etude du Droit Penal International (1922); Henri F. Donnedieu De Vabres, Les principes Modernes du Droit Penal International (1928); Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910). See also Chapter I, note 1.



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criminal jurisdiction. This was in large part a result of: colonial states extending their criminal jurisdiction beyond their borders; cross-boundary anarchists’ violent attacks which started to be referred to as “terrorism”; and, the opium trade from China into Europe. These and other cross-boundary criminal manifestations of crime contributed to the growth of extraterritorial national criminal legislation in European states. In the wake of WWI a number of European international law experts started writing about the criminal responsibility of the German Kaiser, war crimes, and the emerging doctrine of “crimes against the laws of humanity”9—all of which resulted from the provisions of the 1919 Treaty of Versailles and the 1923 Leipzig Trials,10 which are discussed in Chapter VI. Individual international criminal responsibility for international crimes thus emerged, but was only perfected after WWII. As discussed in Chapter VI, during WWII the Allies agreed, on the basis of the 1942 Declaration of St. James and the work of the London International Assembly, to proclaim the 1943 “Moscow Declaration” on war crimes responsibility. This led to the London Conference of the Four Major Allies who on August 8, 1945 produced a treaty containing the Charter of the International Military Tribunal Charter (IMT), which was located at Nuremberg. After the IMT came the International Military Tribunal for the Far East (IMTFE) in 1946, established by virtue of an order issued by Supreme Allied Commander for the Far East, General Douglas MacArthur, which was situated in Tokyo. In turn, each one of these institutions led the way for national prosecutions by Allied Powers in their respective zones of occupation in Europe and in the Far East.11 These efforts were driven by a few individuals, many of whom were lawyers and members of the military, who did not arrive at the need for establishing international criminal justice from an academic or doctrinal perspectives, but from the simple perspective of common sense justice.12    9 M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application, ch. 1 (2011). 10 M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l L. & Pol’y 244; Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (2004); Gerd Hankel, Die Leipziger Prozesse (2003); Claude Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (1921). 11   See Chapter XII for more information. 12 Justice Jackson expressed as much at his eloquent opening statement at Nuremberg, when he explained that the IMT, “is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times aggressive war.” Transcript of Robert Jackson’s Opening Statement, Nov. 21, 1945, in 2 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946 98 (1947). For the U.S., the leading figures in the prosecution of Nazi criminals were Justice Robert Jackson and Brigadier-General Telford Taylor. See Robert H. Jack-

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These tribunals and their jurisprudence were the source of many writings in Europe, the United States, and elsewhere on the emerging discipline of ICL. But they were subject specific. Still, there was no connection between the writings of penalists and internationalists on these topics. The two had not yet found a theoretical or even a practical basis for convergence. They dealt with the post WWII experiment and the crimes for which a number of persons were prosecuted in several states. Much of these writings’ focus was on international criminal responsibility and related aspects which brought about a paradigm shift from existing conceptions of state sovereignty that led to the recognition of the individual as a subject of international law. It was that paradigm shift that led to the development of the field of international human rights law. Thus, the individual went from an object to a subject of international law, and from being a subject of international criminal responsibility to being the subject of internationally proclaimed human rights—both being directly applicable to states. In other words, states could no longer shield individuals from international criminal responsibility for certain international crimes and they cannot infringe upon certain fundamental human rights of individuals, whether domestically or internationally. But since then the struggle between international criminal justice and realpolitik has been ongoing.13

son, The Nurnberg Case (1971); Report of Robert H. Jackson, United States ­Representative to the International Conference on Military Trials (1949); Telford Taylor, The Anatomy of The Nuremberg Trials (1992). 13 Since the end of WWI, realpolitik has not blatantly or openly opposed international criminal justice. Instead realpolitik has resorted to coopting and controlling ICJ, thus giving ICJ enough latitude to operate in order to satisfy the demands of the international community and what is referred to as international civil society, while at the same time controlling the process. In that respect, the amount of space left to ICJ in a particular situation depends on the forcefulness of the constituencies pushing for it. Accordingly, the amount of pressure exerted on the realpolitik system to implement ICJ in different situations accounts for the differences in standards and levels of accountability in post-conflict justice situations. Two pertinent examples of this are the recent ICC referrals by the Security Council (S.C.) of the situations in Libya and the Darfur, Sudan. When it suited their interests, the S.C. referred these matters for investigation, but when political interest waned there was no interest on the part of the S.C. to enforce the arrest warrants issued by the ICC. In assessing the impact of realpolitik, it is important to remember that it can only be effective in so far as it does not obviously control the situation in order not to attract public attention. The question is where the line is drawn between the ideals of ICJ on the one side and what is politically acceptable in any given context on the other. The British historian E.P. Thompson remarked in his analysis of repressive 18th century English laws and courts that: “If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion, by actually being just.” E.P. Thompson, Whigs and Hunters: The Origin of the Black Act 263 (1975). Thompson’s analysis is relevant to the realpolitik of international affairs and the selective application of ICJ. See also supra note 5.



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The post-WWII recognized international crimes of aggression, genocide, war crimes and crimes against humanity were the subject of many academic writings and debates, but these came mostly from an international law perspective, and these discussions remained largely unconnected from the overall nature of the emerging discipline of ICL. It was not until well into the 1950s that this new discipline started to take some doctrinal shape as a discipline of its own, though with much opposition by both internationalists and penalists who approached it from their respective disciplines, and thus from different methodological perspectives.14 Though proponents of ICL from these two disciplines wrote about the same or related subject, it was a truncated approach which emphasized different aspects of ICL, reflecting the different approaches and separate methods and goals of the two major respective disciplines and their related legal regimes as described in Chapter I. The beginning of a merger of these two disciplines did not start until the 1970s, and even then it was tentative.15 In Europe, it was still the penalists who were at the forefront of ICL, while in the U.S. and the U.K. it was mostly internationalists who led the way. But none of the proponents of ICL relied on a doctrinal framework or a methodology that combined the approaches of international law, comparative criminal law and procedure, and international human rights law. Instead, the new emerging discipline was a juxtaposition of different subjects whose exposition reflected alternatively, one or the other of the two principle disciplines and their respective legal norms. In short, as described in Chapter I, the process could be characterized as a rapprochement between two major disciplines with differing methodological approaches and with a limited area of common interests deriving from certain commonly shared values and commonly shared value-oriented goals of justice and peace. But that rapproche‑ ment works best with respect to what is now referred to as “core international crimes” (aggression, genocide, war crimes and crimes against humanity), and not

Along a different but related track, the UN’s Human Rights Council (HRC) has established a number Commissions of Inquiries (CoI), Fact Finding Missions and Special Procedure mandates since 2005, but other than adopting resolutions pertaining to their reports, there have been few actions taken to implement their recommendations. Without being too much of a skeptic one can conclude that there is enough activity and movement in the direction of ICJ to satisfy those who demand it, though obviously this is not enough to make ICJ an effective system, as discussed in Chapters X, XI and XII. Proponents of ICJ remain hopeful that all such developments will produce an accretion affect which will be difficult to ignore in the future. In the meantime a balance seems to have been established between proponents of ICJ and those of realpolitik. See supra note 5. 14 For a critic of ICL, see Georg Schwarzenberger, The Problem of International Criminal Law, 3 Cur. Legal Probs. 263 (1950). 15 This was reflected in 1 A Treatise on International Criminal Law: Crimes and Punishment (M. Cherif Bassiouni and Ved Nanda, 1973); 2 A Treatise on International Criminal Law: Jurisdiction and Cooperation (M. Cherif Bassiouni and Ved Nanda, 1973).

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with respect to what is called “transnational crimes” (drug, human and arms trafficking, organized crime activities, cyber-crime, “terrorism” and piracy). There is, however, a more effective rapprochement between internationalists and penalists with respect to international cooperation in penal matters (extradition, international legal assistance, etc.), which apply to all international and transnational crimes, as discussed in Chapter V on the “indirect enforcement system”, and inter-state cooperation at the bilateral level and as between states and international judicial institutions, as discussed in Chapters VI, VII and VIII on the “direct enforcement system”, the ICC and mixed-model tribunals. Parallel to these doctrinal developments, ICL also developed out of the jurisprudence of international criminal tribunals, namely the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the six mixed-model tribunals, as discussed in Chapters VI and VIII. This jurisprudence, however, emerged out of ad hoc institutions with ad hoc statutes, and the exigencies of wars. It was essentially pragmatic, not to say experiential, and it did not emerge from a doctrinal framework or follow a particular legal method. Instead, it reflected pragmatic responses needed to address ad hoc exigencies by ad hoc institutions. They were all in some respects conditioned by the political will of the major powers that directed these institutions by controlling their structures, personnel, and resources as well as by selecting their judges. The last 50 years have witnessed a plethora of scholarly and practical writings on ICL, which is evident in the Table of Authorities in this book. Still, it is hard to find anything more than the outlines or sketches of a theory of ICL in some of these writings. To some extent, this is explained by the inherent difficulty of combining multiple disciplines into a single new one, as discussed in Chapter I. In my previous writings, I attempted to shape such a discipline into something more coherent than what my colleagues and fellow travelers of ICL wrote about. But it was not an easy undertaking and this Second Edition continues to offer a doctrinal framework for ICL that reflects a mixed methodology combining the different disciplines comprising the subject. My goal is to contribute to making ICL a distinct discipline that merges, combines, and relies upon multiple disciplines and their respective legal regimes, even when they are not compatible with one another. This approach will therefore not satisfy the purists among penalists and internationalists whose respective methods remain separate and distinct. The approach I bring to this discipline is a flexible, multi-disciplinary one, which borrows from the multiple sources of ICL in order to form a more or less cohesive whole that is capable of evolving as time progresses and whose common denominators are certain common values and interests and the shared value-oriented goals of justice and peace. Chapter I covers the sources of ICL and their application to the different components of ICL. While some may see this as lacking in coherence, it is unfortu-



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nately the nature of the beast. ICL is neither fish nor fowl but both, depending upon which component of ICL is examined. Moreover, because ICL has been shaped by the experiences of international criminal tribunals, it defies the congruence necessary to a coherent doctrinal framework that can satisfy the methods of the different legal disciplines of which it is composed. Beyond this, Chapter I identifies the values and policies of ICL, a topic which is also covered in Chapters X and XI. Chapter II identifies the subjects of that discipline, something which penalists refer to as the ratione personae. It necessarily includes the responsibility of these subjects, and thus it includes the question of non-applicability of the international law of immunities, including for heads of state, diplomats, and officials on missions. It emphasizes the expanding policies of command responsibility and group criminal responsibility. From a domestic criminal law perspective these questions fall in the general part, which is discussed in Chapter IV. However, because of the mechanisms by which certain persons became subjects of ICL that question also had to be included in Chapter II. Lastly, this chapter contains a section on victims as subjects of ICL, which is a new topic of inquiry for ICL proponents. Victims are usually included in the human rights and public international law literature, and are only slowly becoming part of ICL as well. Chapter III covers international crimes, which for penalists is the ratione mate‑ riae of criminal law. This is probably the most complex aspect of ICL because of the haphazard manner in which international crimes have developed since the 17th century, when piracy was first recognized as an international crime. I address this topic on the basis of a theory I developed in my prior writings which categorizes and classifies international crimes. It is based on an empirical study of 271 conventions between 1815 and 2007, which have been catalogued in 27 categories of crimes16 based on ten penal characteristics.17 Penalists may find 16 (1) Aggression; (2) Genocide; (3) Crimes against humanity; (4) War crimes; (5) Unlawful possession, use, emplacement, stockpiling and trade of weapons, including nuclear weapons; (6) Nuclear terrorism; (7) Apartheid; (8) Slavery, slave-related practices, and trafficking in human beings; (9) Torture and other forms of cruel, inhuman or degrading treatment; (10) Unlawful Human Experimentation; (11) Enforced disappearance and extrajudicial execution; (12) Mercenarism; (13) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (14) Aircraft hijacking and unlawful acts against international air safety; (15) Threat and use of force against internationally protected persons, and United Nations personnel; (16) Taking of civilian hostages; (17) Use of Explosives; (18) Unlawful use of the mail; (19) Financing of terrorism; (20) Unlawful traffic in drugs and related drug offenses; (21) Organized crime and related specific crimes; (22) Destruction and/or theft of national treasures; (23) Unlawful acts against certain internationally protected elements of the environment; (24) International traffic in obscene materials; (25) Falsification and counterfeiting; (26) Unlawful interference with international submarine cables; and, (27) Corruption and bribery of foreign public officials. See Chapter III. 17 They are: (1) Explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime; (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like; (3) Criminalization of the proscribed conduct; (4) Duty or right to prosecute; (5) Duty or right to

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fault with it, but it reflects what is and not what should have been. The fundamental problem is that there is neither an international legislative policy nor any coherence or continuity in the process of formulating international crimes. Each of the 27 categories has evolved separately from the others, with very little cross-over experience in the legislative process that characterized each one of them. Consequently, it is impossible to describe these crimes other than in a way that reflects their ad hoc historical evolution. An evolution that reflects real‑ politik. How else can one explain the exclusion of social and political groups from the Genocide Convention? The answer is that in 1948 Stalinist purges were ongoing which targeted social and political groups that opposed the regime and are estimated to have resulted in 20 million deaths in the USSR. There was no way the Genocide Convention would criminalize the USSR’s conduct. Why the convention was not amended after since its inception also raises questions of a political nature, as does that fact that the ICC’s definition of genocide was similarly not expanded.18 Throughout that description however, I have attempted to explain the reasons for this evolution. In the end I offer my views on the classification of these crimes with the hope that it will bring future order to an area that developed without any order. Since there is no international criminal code that deals systematically with these crimes, they can only be addressed in a way that reflects their de facto existence in ICL, which, as stated above, is not predicated on a legislative policy or method, but on historical necessity, political opportunity, and in some cases thanks to the dedication and commitment of a few whose tenacity made a difference. Among them are: Henri Dunant, who in 1862 set in motion what would become the Geneva Conventions; Vespasian Pella, who at the League of Nations brought about the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism and a second Convention for the Creation of an International Criminal Court to enforce the first; Justice Robert Jackson, who was a prime architect of the IMT; Raphael Lemkin, persevered in bringing about the Genocide Convention; more recently a group of jurists who are pushing for a Convention on Crimes Against Humanity;19 and last but not least are the efforts of the Association Internationale de Droit Pénal (International Association of Penal Law) which since 1924 has been a constant promoter of the establishment punish the proscribed conduct; (6) Duty or right to extradite; (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance); (8) Establishment of a criminal ­jurisdictional basis; (9) Reference to the establishment of an international criminal court or international tribunal with penal characteristics; (10) No defense of superior orders. See Chapter III. 18   See M. Cherif Bassiouni, 1 The Legislative History of the International Criminal Court:  Introduction, Analysis, and Integrated Text of the Statute, Elements of Crimes and Rules of Procedure and Evidence (2005). 19   Forging a Convention for Crimes Against Humanity (L. Sadat, ed., 2011). 



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of a permanent international criminal court.20 These are only a few examples. But history is at times forgetful of past individual efforts, particularly when new contributors seek to appropriate greater credit for newer developments. Past contributors must be recognized because not only is it proper to do so but because it is part of the phenomenology of the discipline’s evolution—ICL is still more driven by individuals than by states or international structures. In fact, ICL is still a discipline in which an individual can make a difference—and that we must applaud and encourage. The table of authorities lists so many of them. Chapter III also discusses principles of legality, which penalists consider within the general part of domestic criminal law. But that question was necessarily included in this chapter because it relates so closely to the manner in which the definition of international crimes is formulated. The principles of legality also address the question of penalties, but the topic of penalties is included in the discussion of the general part of ICL in Chapter IV since no ICL convention contains specific penalties, which are left for domestic criminal legislation. It should be noted that ICL conventions are drafted by diplomats and internationalists, and only very few penalists participate in the process. This explains why ICL conventions contain so few criminal law provisions. But that is also due to the fact that the drafters of ICL conventions rely on the “indirect enforcement system” described in Chapter V. Under that system states are expected to incorporate ICL conventions into their domestic criminal laws and thereby conform the requirements of the ICL conventions to their domestic legal requirements. Chapter IV deals with the general part of ICL, which, according to penalists, includes principles of criminal responsibility and conditions of exoneration from criminal responsibility. Because of the assumption that states will address these questions when they domesticate ICL conventions into their national legislation, these questions are not usually addressed in ICL conventions. But these questions arise before international and mixed model tribunals, as described in Chapters VI, VII and VIII. Since there is no international criminal code, these questions can be gleaned from the contents of statutes establishing international criminal tribunals and from these respective tribunals’ jurisprudence. Yet these statutes have scarce provisions on the general part, and the jurisprudence of these tribunals is, as stated above, far from satisfactory on this topic. The overall situation is probably due to the fact that the internationalists who drafted these statutes had scant knowledge of comparative criminal law and the judges on these tribunals have also been, for the most part, internationalists, and whose experience in comparative criminal law has been limited. Even the statute of the 20 José Luis de la Cuesta and Reynald Ottenhof, Introductory note: the association internationale de droit penal and the establishment of the international criminal court, 81  Revue internationale de droit pénal 13 (2010).

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International Criminal Court (ICC), which is discussed in Chapter VII, reveals weaknesses in its general part. Even though, as stated above, no ICL convention contains penalties, international criminal tribunals have necessarily meted out penalties. While some of the statutes establishing international criminal tribunals refer to penalties, these provisions lack specificity. This raises questions about their compliance with the principles of legality, which is also discussed in Chapter III. The judgments of these tribunals reflect the practice of penalties in ICL. The section on penalties in Chapter IV also refers to the norms and standards of international human rights law applicable to penalties, including the limitations on “cruel, inhuman and degrading punishment or treatment” prohibited by such norms. But it does not go into the specifics of these limitations because this would have expanded the scope of this section beyond its intended purpose, which is limited to the description of penalties. Chapter V addresses the “indirect enforcement system”, which is the principal method of enforcement of ICL. The “indirect enforcement system” presupposes that ICL norms are to be enforced by states through their domestic criminal laws, and prescribes the cooperation of states in penal matters. The modalities of such cooperation are the same as those employed by states in bi-lateral inter-state cooperation in penal matters with respect to domestic criminal law violations. The “indirect enforcement system” thus reveals the vulnerabilities of ICL, as it depends on national criminal justice systems. The more effective international cooperation in penal matters can be between states and international tribunals, including the ICC, the more effective ICL enforcement will become. Mutatis mutandi, the less effective national cooperation becomes, the less effective ICL enforcement will be. There is another enforcement system in ICL, the “direct enforcement system”, which is addressed in Chapter VI. It describes the history and evolution of international criminal justice up to the ICC, which is, however, separately discussed in Chapter VII as a “hybrid” direct enforcement mechanism. The development of the direct and hybrid enforcement institutions discussed in Chapter VI, namely the ICTY and the ICTR, and Chapter VII concerning the ICC evidences these institutions’ benefit from each other’s experiences. Those who pioneered the ICTY and ICTR, and the six mixed model tribunals21 deserve credit as they sailed into uncharted waters and affirmed the existence of international justice. There are those, including myself, who have raised questions about doctrine, methods, costs and other matters, but that should not be interpreted as diminishing 21 They are the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Panels for Serious Crimes (East Timor), the War Crimes Chamber in the Courts of Bosnia and Herzegovina, the “Regulation 64” Panels (Kosovo), and the Special Tribunal for Lebanon.



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the accomplishments that were made in only two decades. Those who worked to bring about these institutions, and those that make them work deserve our praise and recognition, notwithstanding some critical assessments.22 Without these institutions and their operators at all levels, ICL would not be where it is, and we could not build on these experiences for the future. Chapter VIII addresses a new development in ICL, namely, enforcement through hybrid systems of international and national criminal justice. They are referred to as “mixed model” tribunals. These institutions are created in part by international law, but they function as domestic legal institutions. At present there have been six such mixed model courts. These institutions also developed 22 ICL prosecutions since WWII include the International Military Tribunal at Nuremberg, where 22 Germans were tried by the 4 Major Allies and the International Military Tribunal for the Far East at Tokyo, where 28 Japanese were tried. It also includes proceedings by the 4 Major Allied Powers in their respective Zones of Occupation in Germany pursuant to Control Council Law No. 10 and their own military codes. The U.S. conducted 12 notable trials against 185 individuals at Nuremberg, which they referred to as the Subsequent Nuremberg Proceedings; others trials were held at Dachau and other places. In total, the U.S. convicted 1,814 Germans in the American Zone. The USSR convicted as many as 45,000 in the Soviet Zone, although the numbers are not exactly clear. The U.K. convicted 1,085 in the British Zone. Finally, France convicted 2,107 in the French Zone. In the post-WWII period domestic prosecutions were also carried out including 541 in the U.K., 271 in France, 275 in Australia, 35 in The Netherlands, 25 in Poland, 11 in Norway, 5 in Canada, 2 in China, and 1 in Greece. In the Far East, the various Allies conducted independent trials against Japanese under their military codes, including: U.S. led trials in Yokohama and the Philippines convicted 1,229 Japanese; Chinese trials convicted 504; British trials convicted 777; Dutch trials convicted 969; French trials convicted 198; Philippine trials convicted 133; and Australian trials convicted 844. Since the end of the Cold War there have been three direct enforcement tribunals and six mixedmode tribunals. Of the direct enforcement tribunals, the ICTY indicted 161 individuals, the ICTR indicted 91 individuals, and the ICC indicted 28 individuals. Of the mixed-model tribunals, the Special Panels for Serious Crimes (East Timor) tried 87 individuals (but indicted 392); the Regulation 54 Panels (Kosovo) tried 37 through 2009, the SCSL tried 9 (but indicted 13); the ECCC indicted 5 and is investigating 5 more; the War Crimes Chamber in Bosnia and Herzegovina indicted 191; and the STL indicted 4 and is investigating an unknown additional number. See Chapter XII for more information. Any discussion of ICJ prosecutions would be incomplete without mentioning its selectiveness. While the above mentioned prosecutions were justified none of the Allies were prosecuted, despite evidence of their criminality. See Alfred Maurice de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945 (1989). This is why these prosecutions were characterized as victor’s justice or victor’s vengeance. Not a single western Allied soldier was investigated or prosecuted for the firebombing of Dresden or Tokyo, for the nuclear attacks on Hiroshima and Nagasaki, or the crimes committed by Soviet ground forces such as the Katyn Massacre. This pattern continued throughout the Cold War: no French official or soldier was ever prosecuted for crimes in French Indochina or Algeria; no American official or soldier was ever prosecuted for crimes in Vietnam or for arming and training Latin American forces implicated in violations; no Soviet official or soldier was ever prosecuted for crimes in Afghanistan. In the post-Cold War era, the international community has pointedly avoided prosecuting U.S. or British citizens for crimes in Afghanistan or Iraq, and despite some public outrage avoided any serious consideration of the extraordinary rendition process by which individuals are kidnapped, disappeared and tortured. Likewise, it has failed to investigate the implications of the sale of “blood diamonds” that fueled the Sierra Leonean civil war or the coltan and other previous minerals that sustain the ongoing war in the Congo, and stem the sale of small arms around the world. See notes 5 and 13 above on realpolitik.

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in an ad hoc manner, with little similarity to one another. Yet, in some way, each one of them adds to the experience of the other. Chapter IX deals with the procedural aspects of ICL. It necessarily follows the “direct enforcement system”, because these procedures are applicable to international criminal tribunals. In fact, these procedures derive in part from the statutes of these tribunals, though their provisions contain scant procedural norms, with the exception of the ICC. These procedural rules are therefore the product of judicially made rules. The sources of these procedural rules derive from international human rights norms and the world’s constitutional provisions. Cumulatively, they encompass what is commonly referred to as “international due process of law”. They are contained in Section Β of Chapter IX. In Section C the evidentiary rules that have been developed by these tribunals are also examined. These rules of procedure and evidence have been essentially judge-made, and they represent whatever experience these judges have with comparative criminal procedure and comparative criminal evidence. They reveal that a greater weight has been given in the procedural and evidentiary practices of these institutions to weigh the adversary-accusatorial system that characterizes the common law’s experience and how little reliance there has been on the Romanist-Civilist system, frequently referred to as the “inquisitorial system”. Chapters I, VIII and X address the question of complementarity between the international and national systems of criminal justice. The combined descriptions of the new concept of complementarity outline the future of ICL. Chapters I and X reveal the intricate interaction between international law and domestic criminal law, as do Chapters VI and VII on the experiences of the “direct enforcement system”. Chapter X deals with international criminal justice in the age of ­globalization.23 It includes issues of accountability and the struggle of the international community to combat impunity for jus cogens crimes. It also describes contemporary modalities of accountability as alternatives to criminal prosecution, and addresses the values and goals of international criminal justice. It therefore complements Chapters I, XI and XII. Chapters XI and XII expand on the scope of Chapter X, and give an overview of history of international criminal justice and an assessment of its future in the age of globalization. More specifically, Chapter XII provides a review of the historical stages of ICL and a quantitative analysis of the number of prosecutions since WWII, which also serves as an indication of ICL’s deterrent capacity. My own concluding thoughts are that ICL is still in its early stages, and requires a doctrinal framework and methodology even though this is necessarily tenuous 23 Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (2003); Ulrich Sieber, Legal Order in a Global World: The Development of a Fragmented System of National, International and Private Norms, 14 Max Plank Yearbook of United Nations Law 1 (2010).



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at this stage of the discipline’s development.24 Attempting to do that is fraught with limitations. But, as with every other legal discipline, there has to be a starting point and this book seeks to accomplish that. Its readers will have to judge the degree to which it achieves this goal. Hopefully, it will stimulate others to expand upon it and to refine it. Until such time comes, it is the best I can offer after 50 years of academic work in this field. In the end, we are always students and we are always learning, and this is not the end of that process. When I started my long journey in the study of ICL skepticism was the order of the day. ICL existed only because some of us taught it and wrote about it. The idea of an international criminal court was deemed utopian—now it is a reality. Tragically every few years events occur that require us to reassess what we have done in the past and what needs to be done to face new exigencies. Human atrocities never seem to reach an end and the reach of criminality expands with globalization—who would have thought a few decades ago that we could witness two million woman and young girls being trafficking for sexual bondage?25 The progress made by ICL over the last two decades outpaces what occurred over the century since writings on the subject appeared. And it is expected that it will continue to grow at an exponential rate. The future of ICL will be driven by the demands for ICJ through international civil society and victims in search of accountability. All that said, the specifics of how ICL will develop and the shape it will take in the age of globalization is an open question. As in the past, events 24 Antonio Cassese, International Criminal Law (2d ed. 2008); 1–3 International Criminal Law (M. Cherif Bassiouni ed., 3d ed. 2008); Ilias Bantekas and Susan Nash, International Criminal Law (2007); Gerhard Werle, Principles of International Criminal Law (2005); Robert Cryer, Prosecuting International Crimes: Selectivity in the International Criminal Law Regime (2005). See also, Chapter I, note 1 for authors listed. 25 Thematic Prosecution of International Sex Crimes (Morten Bergsmo, ed. 2012); In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, DePaul University College of Law, 2002); M. Cherif Bassiouni, Enslavement: Slavery, SlaveRelated Practices, and Trafficking in Persons for Sexual Exploitation, in International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni et al, Addressing International Human Trafficking in Women and Children for Commercial Sexual Exploitation in the 21st century, 81 Revue Internationale de Droit Pénal 417 (2010); Alexis A. Aronowitz, Overcoming the Challenges to Accurately Measuring the Phenomenon of Human Traf‑ ficking, 81 Revue Internationale de Droit Pénal 493 (2010); Johnny McGaha, Systemizing Local and Regional Cooperation Efforts to Combat Sex Slavery, 81 Revue Internationale de Droit Pénal 513 (2010); Antonietta Confalonieri, The Role of the Victim in Administrative and Judicial Proceedings, 81 Revue Internationale de Droit Pénal 529 (2010); Edna Eerz, Women as Victims and Survivors in the Context of Transnational Human Trafficking for Commercial Sex Exploitation, 81 Revue Internationale de Droit Pénal 563 (2010); Duren Banks, The U.S. Human Trafficking Reporting System: Utility and Limitations, 81 Revue Internationale de Droit Pénal 589 (2010); Linda Smith and Samantha Healy Vardaman, The Problem of Demand in Combating Sex Trafficking, 81 Revue Internationale de Droit Pénal 607 (2010); In Modern Bondage: Sex Trafficking in the Americas (David Guinn and Elissa Steglich, eds., 2003); International Human Rights Law Institute, In Modern Bondage: Sex Trafficking in the Americas: Central America, the Caribbean and Brazil (2d ed., 2005); Study on Trafficking in Women, Children and Adolescents for Commercial Sexual Exploitation in Brazil: National Report (Maria Lucia Leal and Maria de Fatima Leal, eds. 2003).

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will drive ICL and not legal doctrine. A prime example of this is the impact of 9/11 on international cooperation in the prevention and suppression of terrorism, and more tragically how that single event drove the U.S., until then a champion of human rights, to institutionalize the policy and practice of torture.26 In the same tragic vein is the complete impunity given by the U.S. to perpetrators of this dehumanizing international crime. This was a step backward that I hope the U.S. and the international community will remedy this situation in the not too distant future. We should not tolerate impunity for international crimes, no matter who commits them. Fortunately there are countervailing examples, such as the establishment of the ICC. That should give us hope. ICL is a genie that has now been released out of its bottle. It will not and indeed can not be put back in. Its future can only be growth as evidenced by the developments described above. But those who will become the new leaders of this discipline will have to be vigilant in the protection of “due process” and the integrity of the “rule of law”. More importantly they should always remember the human values we seek to advance and pass the torch to the next generation. Hopefully this book will provide a basis for others to further advance ICL by enhancing international criminal justice and thus contributing to world peace and security. This is why I conclude the Introduction to the Second Edition with three quotes that I believe should be at the foundation of ICL’s values. From Prophet Mohammed: If you see a wrong, right it; with your hand if you can, or with your words, or in your heart, and that is the weakest of faith. From Pope Paul VI: If you want peace, work for justice. From the Talmud: The world rests on three pillars: on truth, on justice and on peace. Rabban Simeon ben Gamaliel (Abot 1,18) A Talmudic Commentary adds to this saying: The three are really one. If justice is realized, truth is vindicated and peace results.  

M. Cherif Bassiouni Siracusa, June 28, 2012

26 M. Cherif Bassiouni, The Institutionalization of Torture by the Bush Administration: Is Anyone Responsible? (2010).

M. Cherif Bassiouni M. Cherif Bassiouni is Emeritus Professor Law at DePaul University, where he has taught since 1964, and President Emeritus of the International Human Rights Law Institute, which he helped found in 1990. He was one of the founders in 1972 of the International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy, and served as its President since 1988. He is the Honorary President of the International Association of Penal Law after having served three terms as President from 1989–2004. He was a Guest Scholar at The Woodrow Wilson International Center for Scholars in Washington, D.C. in 1972, Visiting Professor of Law, New York University Law School in 1971, Fulbright-Hays Professor of International Criminal Law, The University of Freiburg, Germany in 1970, nonresident Professor of Criminal Law at the University of Cairo from 1996 to 2006, and is a frequent lecturer at universities in the U.S. and abroad. His legal education was in Egypt, France, Switzerland and the United States where he received the following degrees: LL.B. University of Cairo; J.D. Indiana University; LL.M. John Marshall Law School; S.J.D. George Washington University. In addition, he received several honorary degrees from: Doctor of Law honoris causa University of Ghent, Ghent, Belgium (2011); Case Western Reserve University, USA (LL.D.) (2010); Catholic Theological Union, USA (Doctor of Humane Letters) (2009); National University of Ireland, Galway, Ireland (LL.D.) (2001); Niagara University, USA (LL.D.) (1997); Docteur d’Etat en Droit honoris causa, University of Pau, France (1986); Dottore in Giurisprudenza honoris causa, University of Torino, Italy (1981). He is the author of 23 and editor of 44 books on International Criminal Law, Comparative Criminal Law, Human Rights, and U.S. Criminal Law; and the author of 265 articles published in law journals and books in the U.S. and other countries. These publications have been written in Arabic, English, French, Italian and Spanish. Some of them have been cited by the International Court of Justice; the International Criminal Tribunal for the Former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the United States Supreme Court; the United States Circuit and Federal District Courts and various State Supreme Courts. Several of his works have been translated into: Arabic, Chinese, Farsi, French, German, Hungarian, Italian, Portuguese and Spanish. He recently served as Chair of the Bahrain Independent Commission of Inquiry established pursuant to Royal Order of the King of Bahrain (29 June 2011), and since 1975, he served in the following United Nations positions: Chair, then member of the United Nations Independent International Commission of Inquiry for Libya (2011). Independent Expert, Commission on Human Rights

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in Afghanistan, (2004–06); Independent Expert on The Rights to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (1998–2000); Chairman, Drafting Committee, United Nations Diplomatic Conference on the Establishment of an International Criminal Court (1998); Vice-Chairman, General Assembly’s Preparatory Committee on the Establishment of an International Criminal Court (1996–98); Vice-Chairman, General Assembly’s Ad Hoc Committee on the Establishment of an International Criminal Court (1995); Chairman of the United Nations Commission of Experts Established Pursuant to Security Council 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia (1993-94), and the Commission’s Special Rapporteur on Gathering and Analysis of the Facts (1992–1993); Consultant to the Sixth and Seventh United Nations Congress on Crime Prevention (1980 and 1985); Consultant to the Committee on Southern African, Commission on Human Rights (1980–81); Co-chairman of the Independent Committee of Experts on drafting the Convention on the Prevention and Suppression of Torture (1978); Honorary Vice-President, Fifth United Nations Congress on Crime Prevention (1975). He also served, between 1973–1980, as a consultant to the U.S. Departments of State and Justice on projects relating to international traffic in drugs (1973) and international control of terrorism (1975 and 1978–79) and as a consultant to the Department of State on the defense of the U.S. hostages in Iran (1979–80). Among some of the distinctions and awards he has received are: Nomination to the Nobel Peace Price (1999); Special Award of the Council of Europe (1990); the Adlai Stevenson Award of the United Nations Association (1993); Defender of Democracy Award, Parliamentarians for Global Action (1998); the Saint Vincent DePaul Humanitarian Award (DePaul University 2000); the Hague Prize for International Law (2007); the Via Sapientiae Award (DePaul University 2009); the World Peace Through Law Award (Washington University School of Law 2009); George Washington University Distinguished Alumni Scholar Award (2010–2011); Bradford O’Neill Medallion for Social Justice, Dominican University (2011); Wolfgang Friedmann Award (Columbia School of Law 2012). He received the following medals from Austria, Egypt, France, Germany, Italy and the United States: Order of Merit of the Republic, Italy (Cavaliere di Gran Croce) (2006); Ordre des Palmes Académiques, Republic of France (Commander) (2006); Grand Cross of the Order of Merit, Federal Republic of Germany (2003); Legion d’Honneur (Officier), France (2003); Order of Lincoln, Illinois, USA (2001); Grand Cross of the Order of Merit of the Austrian Republic (1990); Order of Scientific Merit (First Class), Egypt (1984); Order of Merit of the Republic, Italy (Grand’Ufficiale) (1977); Order of Merit of the Republic, Italy, (Commendatore) (1976); Order of Military Valor, Egypt (1956).

Chapter one

The Discipline of ICL Section 1. The Sources of ICL 1.1. The Components of ICL International Criminal Law (ICL) is a complex legal discipline consisting of several components bound by their functional relationship in the pursuit of value-oriented goals. These goals include the prevention and suppression of international criminality, enhancement of accountability and reduction of impunity, and the establishment of international criminal justice. Each of these components derives from one or more legal disciplines and their respective branches, including international law, national criminal law, comparative criminal law and procedures, and international and regional human rights law. These legal disciplines are distinguished on the basis, inter alia, of their subjects, contents, scope, values, goals, and methods. Thus, they cannot be easily reconciled. Nevertheless, the different components that make up ICL constitute a functional whole, even though lacking in the doctrinal cohesiveness and methodological coherence found in other legal disciplines whose relative homogeneity gives them a more defined systemic nature. Thus, there is something that can be called the system of ICL, which derives from the functional relationship that exists between the different components of this discipline and the value-oriented goals it seeks to achieve. This is evident in the scholarly writings on ICL.1

1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (2 vols., M. Cherif Bassiouni ed., 2010); M. Cherif Bassiouni, The Institutionalization of Torture in the Bush Adminitration: Is anyone Responsible? (2010); Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Simon Chesterman & Angelina Fisher eds., 2010); Victor Rodriguez, The Chicago Principles of Post-Conflict Justice: A Vision Since and on the Latin American Post-Conflict Experiences (2010); Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (2010); Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Alette Smeulers ed., 2010); William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010); Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (2010); Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009); Sévane Garibian, Le Crime Contre L’humanité au Regard des Principles Fondateurs de L’etat Moderne (2009); Prosecuting Heads of State (Ellen Lutz and Caitlin Reiger eds., 2009); Gebru Tareke, The Ethiopian Revolution: War in the Horn of Africa (2009); M. Cherif Bassiouni, International Criminal Law (vols. 1–3, M. Cherif Bassiouni ed., 3d rev. ed. 2008); The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Michael P. Scharf and Leila

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Nadya Sadat eds., 2008); Ruti Teitel, Transitional Justice (2008); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wke of World War II (2008); Rosanne Van Alebeek, The Immunities of States and Their Officials in INternational Criminal Law and International Human Rights Law (2008); Guénaël Mettraux, The Law of Command Responsibility (2009); Mark Osiel, Making Sense of Mass Atrocity (2008); Wojciech Materski, Katyn, A Crime Without Punishment (Anna M. Cienciala and Natalia S. Lebedeva eds., 2008); Jeffrey Ian & Dawn L. Rothe, The Ironies of Controlling State Crime (2008); Values & Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008); Heraldo Muñoz, The Dictator’s Shadow: Life Under Augusto Pinochet (2008); Manfred Noawk & Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (2008); John Jackson, Maximo Langer & Peter Tillers, Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honor of Professor Mirian Damaska (2008); Cryer & Boister, The Tokyo International Military Tribunal: A Reappraisal (2008); Anthony Aust, Modern Treaty Law and Practice (2d. ed. 2007); M. Cherif Bassiouni, Introduction au Droit Pénal International (2002); Crimes Internationaux et Juridictions Internationaux (Antonio Cassese & Mireille Delmas-Marty eds. 2002); Juridictions Nationales et Crimes Internationaux (Antonio Cassese & Mireille Delmas-Marty eds., 2002); Nuremberg Warns: From Nazism to Terrorism (in Russian) (A.I. Cukhanova ed., 2002); Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts: Ansästze einer Dogmatisierung (2002); The Individual as Subject of International Cooperation in Criminal Matters (Albin Eser, Otto Lagodny & Christopher Blakesley eds., 2002); Le Droit Pénal à l’Épreuve de l’Internationalisation (Marc Henzelin & Robert Roth eds., 2002); Herwig Roggeman, Die Internationalen Strafgerichtshöfe (1998); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002); Wang Xiumei, International Criminal Law (in Chinese) (2002); Geert-Jan G.J. Knoops, Defenses in Contemporary International Criminal Law (2001); Francisco VillagránKramer, El Largo Brazo de la Justicia Penal Internacional (2001); Droit Pénal International (Hervé Ascensio, Emmanuel Decaux, & Alain Pellet, eds., 2000); 1, 2 Substantive and Procedural Aspects of International Criminal Law (Gabrielle Kirk-MacDonald & Olivia Swaak-Goldman eds., 2000); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Nina H.B. Jørgensen, The Responsibility of States for International Crimes (2000); International Criminal Law, Cases and Materials (Jordan Paust, M. Cherif Bassiouni et al. eds., 2d rev. ed. 2000); Shaping Shao, International Criminal Law (in Chinese) (2000); M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011); M. Cherif Bassiouni, Le Fonti e Il Contenuto Del Diritto Penale Internazionale: Un quadro Teorico, (1999); Zhang Zhihui, International Criminal Law (in Chinese) (1999); Alicia Gil Gil, Derecho Penal Internacional (1999); International Law: Classic and Contemporary Readings (Charlotte Ku & Paul F. Diehl eds., 1998); Mednarodno Kazensko Pravo (in Slovenian) (Ljubo Bavcon ed. 1997); Guillermo Fierro, La Ley Penal y el Derecho Internacional (2d ed. 1997); Lyal S. Sunga, The Emerging System of International Criminal Law (1997); International Criminal Law in the Netherlands (Bert Swart & André Klip eds., 1997); International Criminal Law: A Collection of International and European Documents (Christine Van den Wyngaert ed., 1996); Noliva Kofele-Kale, International Law of Responsibility for Economic Crimes (1995); International Criminal Law and Procedure (John Dugard & Christine Van den Wyngaert eds., 1996); André Huet & Renée Koering-Joulin, Droit Pénal International (1994); Farhad Malekian, The Concept of Islamic International Criminal Law (1994); Huang Shao-Jun, An Introduction to International Criminal Law (in Chinese) (1992); Eric David, I-III Elements de Droit Pénal International (1992); Haidong Li, Die Prinzipien des Internationalen Strafrechts (1991); M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987); M. Cherif Bassiouni, International Crimes Digest/Index of Int’l instruments 1815–1985 (2 vols. 1985); Mohammed Hassanein Ebeid, Al-Jarima Al-Dawlia (1979); Claude Lombois, Droit Pénal International (2d ed. 1979); Stefan Glaser, Droit International Pénal Conventionnel (vol. 1, 1971 & vol. 2, 1978); Bart De Schutter, La Belgique et le Droit International Pénal (1975); 1, 2 A Treatise on International Criminal Law (M. Cherif Bassiouni & Ved P. Nanda eds., 1973); International Criminal Law (G.O.W. Mueller & Edward



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3

M. Wise ed., 1965); Dietrich Oehler, Internationales Strafrecht (1973); A.H.J. Swart, International Strafrecht (1973); Stanislaw Plawski, Etude des Principes Fondamentaux du Droit International Pénal (1972); Joseph Kohler, Internationales Strafrecht (1971); Aktuelle Probleme des Internationalen Strafrechts (Dietrich Oehler & Paul G. Potz eds., 1970); Otto Triffterer, Dogmatische Untersuchungen zur Entwicklung des Materiellen Völkerstrafrechts seit Nurnberg (1966); Stefan Glaser, Crimes Internationaux (1957); Antonio Quintano-Ripoles, Tratado de Derecho Penal Internacional y Penal Internacional Penal (1957); George Dahm, Zur problematik des Völkerstrafrechts (1956); Stefan Glaser, Introduction à l’Étude du Droit International Pénal (1954); Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane Nach Volkerstrafrechts (1952); Joseph B. Keenan & Brendan F. Brown, Crimes Against International Law (1950); Nino Levi, Diritto Penale Internazionale (1949); Rolando Quadri, Diritto Penale Internazionale (1944); Francesco Cosentini, Essai d’un Code Pénal International Dressé sur la Base Comparative des Projets et Textes Récents des Codes Pénaux (1937); Hellmuth Von Weber, Internationale Strafgerrichtsbarkeit (1934); Carlos Alcorta, Principios de Derecho Penal Internacional (1931); Emil S. Rappaport, Le Problème du Droit Pénal Interétatique (1930); Henri F. Donnedieu De Vabres, Les Principes Modernes du Droit Pénal International (1928); Vespasian V. Pella, La Criminalité Collective des Etats et le Droit Pénal de l’Avenir (1925); Henri F. Donnedieu De Vabres, Introduction à l’Étude du Droit Pénal International (1922); Maurice Travers, Le Droit Pénal International et sa Mise en œuvre en Temps de Paix et en Temps de Guerre (1922); Salvatore Adinolfi, Diritto Internazionale Penale (1913); Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910). See also Kai Ambos, The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus, J. Int’l. Crim. Just. (2010); M. Cherif Bassiouni, Crimes Against Humanity: The Case for a Specialized Convention, 9 Wash. U. Global Stud. L. Rev. 575 (2010); M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l. L. 269 (2010); Nadia Bernaz and Remy Prouveze, International and Domestic Prosecutions, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 269 (2 vols., M. Cherif Bassiouni ed., 2010); Juan Pablo Bohoslavsky and Veerle Opgenhaffer, The Past and Present of Corporate Complicity: Financing the Argentine Dictatorship, 23 Harv. Hum. Rts. J. 157 (2010); Jose Luis Guzman Dalbora, The Treatment of International Crimes in Chilean Jurisprudence: A Janus Face, 10 Int’l. Crim. L. Rev. 535 (2010); Ramiro Garcia Falconi, The Codification of Crimes Against Humanity in the Domestic Legislation of Latin American States, 10 Int’l. Crim. L. Rev. 453 (2010); Juan Luis Modolell Gonzalez, The Crime of Forced Disappearance of Persons According to the Decisions of the InterAmerican Court of Human Rights, 10 Int’l. Crim. L. Rev. 475 (2010); Claus Kress, On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 Leiden J. Int’l. L. 855 (2010); Joanna Kyriakakis, Prosecuting Corporations for International Crimes: The Role for Domestic Courts, in International Criminal Law and Philosophy (Larry May and Zachary Hoskins eds., 2010); Guenael Mettraux, The Definition of Crimes Against Humanity and the Question of a “Policy” Element, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 142 et seq. (2010); Fabiola Girao Monteconrado, Marcos Zilli, and Maria Thereza Rocha de Assis Moura, International Criminal Law and Transitional Justice in Brazil, 10 Int’l. Crim. L. Rev. 509 (2010); Pablo Galain Palermo, The Prosecution of International Crimes in Uruguay, 10 Int’l. Crim. L. Rev. 601 (2010); Pablo F. Parenti, The Prosecution of International Crimes in Argentina, 10 Int’l. Crim. L. Rev. 491 (2010); Jordan J. Paust, The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes, 43 John Marshall L. Rev. (2010); Leila Nadya Sadat, The Nuremberg Paradox, 58 Am. J. Comp. L. 151 (2010); Elies van Sliedregt, Modes of Liability, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 223 (2010); Elizabeth Santalla Vargas, An Overview of the Crime of Genocide in Latin American Jurisdictions, 10 Int’l. Crim. L. Rev. 441 (2010); Eric Wielbelhaus-Brahm, Truth Commissions and Other Investigative Bodies, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 477 (2 vols., M. Cherif Bassiouni ed., 2010); Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 Am. Crim. L. Rev. 1359 (2009); Sara

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Sun Beale, A Response to the Critics of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1481 (2009); Pamela H. Bucy, Corporate Criminal Liability: When Does It Make Sense?, 46 Am. Crim. L. Rev. 1437 (2009); Antonio Cassese, Anthology: Eichmann: Is Evil So Banal?, 7 J. Int’l. Crim. Just. 645 (2009); Adolfo Ceretti, Collective Violence and International Crimes, in The Oxford Companion to International Criminal Justice 1 (2009); John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1329 (2009); Peter J. Henning, Corporate Criminal Liability and the Potential for Rehabilitation, 46 Am. Crim. L. Rev. 1417 (2009); Neha Jain, Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 J. Int’l. Crim. Just. 1013 (2009); Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge, 41 Neth. Int’l. L. Rev. 333 (2009); Erik Luna, The Curious Case of Corporate Criminality, 46 Am. Crim. L. Rev. 1507 (2009); Geraldine Szott Moohr, The Balance Among Corporate Criminal Liability, Private Civil Suits, and Regulatory Enforcement, 46 Am. Crim. L. Rev. 1459 (2009); Valerie Oostervelt, The Special Court for Sierra Leone’s Consideration of Gender-Based Violence: Contributing to Transitional Justice?, 10(1) Human Rts. Rev. 73 (2009); Ellen S. Podgor, Educating Compliance, 46 Am. Crim. L. Rev. 1523 (2009); Barry J. Pollack, Time to Stop Living Vicariously: A Better Approach to Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1393 (2009); Jennifer M. Smith, An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity, 97 Geo. L.J. 1111 (2009); Larry Thompson, The Blameless Corporation, 46 Am. Crim. L. Rev. 1323 (2009); Ian W. Baldwin, Notes Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct, 94 Iowa L. Rev. 287 (2008); M. Cherif Bassiouni, The Discipline of International Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation, in International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, The Making of the International Criminal Court, in 3 International Criminal Law 117 (M. Cherif Bassiouni ed., 3d ed., 2008); M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Crimonology 711 (2008); M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, Principles of Legality in International and Comparative Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values and Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008); M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in International Criminal Law: Sources, Subjects, and Contents 207 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Christopher L. Blakesley, Extraterritorial Jurisdiction, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 85 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Tessa V. Capeloto, Reconciliation in the Wake of Tragedy: Cambodia’s Extraordinary Chambers Undermines the Cambodia Constitution, 17 Pac. Rim L. & Pol’y. J. 103 (2008); Andrew Clapham, Extending International Criminal Law beyond the Individual to Corporate and Armed Opposition Groups, 6 J. Int’l. Crim. Just. 899 (2008); Roger S. Clark, Apartheid, in International Criminal Law: Sources, Subjects, and Contents 599 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Roger S. Clark, The Crime of Aggression and the International Criminal Court, in International Criminal Law: Sources, Subjects, and Contents 243 (M. Cherif Bassiouni ed., 3d rev. ed 2008); Roger S. Clark & Otto Triffterer, Exclusion of Jurisdiction over Persons under Eighteen, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 493 (2d ed., 2008); Kathleen Claussen, Up to the Bar? Designing the Hybrid Khmer Rouge Tribunal in Cambodia, 33 Yale J. Int’l. L. 253 (2008); David Crane, The Special Court for Sierra Leone, in 3 International Criminal Law 195 (M. Cherif Bassiouni ed., 3d ed. 2008); Robert Cryer, The Doctrinal Foundations of International Criminalization, in International Criminal Law: Sources, Subjects, and Contents 107 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Anthony A. D’Amato, National Prosecutions for International Crime, in International Criminal Law: International Enforcement 285 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Daniel Derby, The International Prohibition of Torture, in International Criminal Law: Sources, Subjects, and Contents 621 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Rodney Dixon, Article 7: Introduction/



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General Remarks, in Otto Triffterer, Commentary on The Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 123 (2d. ed., 2008); Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, 4/1 Eyes ICC 72 (2008)f; Bernard Leroy, M. Cherif Bassiouni & Jean-Francois Thony, The International Drug Control System, in International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Suzannah Linton, Indonesia and Accountability for Serious Crimes in East Timor, in 3 International Criminal Law 399 (M. Cherif Bassiouni ed., 3d ed., 2008); Matthew Lippman, Genocide, in International Criminal Law: Sources, Subjects, and Contents 403 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Stephen C. McCaffrey, Criminalization of Environmental Protection, in International Criminal Law: Subjects, Sources, and Contents 1013 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Tanaz Moghadam, Revitalizing Universal Jurisdiction: Lessons from Hybrid Tribunals Applied to the Case of Hissene Habre, 39 Colum. Hum. Rts. L. Rev. 471 (2008); Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 457 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Leila Nadya Sadat, The French Experience, in International Criminal Law: International Enforcement 329 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); William A. Schabas, Crimes Against Humanity: The State Plan or Policy Element, in The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni 347 (Leila Nadya Sadat & Michael P. Scharf eds., 2008); William A. Schabas, State Policy as an Element of International Crimes, 98 J. Crim. & Criminology 953 (2008); David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law 399 (M. Cherif Bassiouni ed., 3d. ed., 2008); Ulrich Sieber, The Forces Behind the Harmonization of Criminal Law, in Les Chemin de L’Harmonization Penale 385 (Mireille Delmas-Marty, Mark Pieth, and Ulrich Sieber eds., 2008); Gwynne Skinner, Nuremberg’s Legacy Continues: The Nuremberg Trials’ Influence on Human Rights Litigation in United States Courts under the Alien Tort Statute, 71 Alb. L. Rev. 321 (2008); Jacob W.F. Sundbert, The Crime of Piracy, in International Criminal Law: Subjects, Sources, and Contents 799 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Otto Triffterer, Irrelevance of Official Capacity, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 501 (2d ed. 2008); Otto Triffterer, Mistake of Fact or Mistake of Law, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 555 (2d ed. 2008); Otto Triffterer, Superior Orders and Prescriptions of Law, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 573 (2d ed. 2008); Beth Van Schaak, Crimen sine lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 Geo. L. J. 119 (2008); Evan Wallach & I. Maxine Marcus, Command Responsibility, in International Criminal Law: International Enforcement 459 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Leila Sadat Wexler, The French Experience, in International Criminal Law: International Enforcement (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Bruce A. Zagaris, United States Treaties on Mutual Assistance in Criminal Matters, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 385 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome Statute of Justice, 18 Crim. L.F. (2007); Antonio Cassese, The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise, J. Int’l. Crim. Just. 109 (2007); David Cohen, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future, 43 Stan. J. Int’l. L. 1 (2007); Kathleen M. Jennings, The Struggle to Satisfy: DDR Through the Eyes of Ex-Combatants in Libers, 14 Int’l. Peacekeeping 204 (April 2007); Jason McClurg, New Defense Counsel Appointed for Charles Taylor, 23 Int’l. Enforcement L. Rep. 366 (2007); David L. Nersessian, Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity, 43 Stan. J. Int’l. L. 254 (2007); Jonas Nilsson, The Principle nullum crimen sine lege, in Rethinking International Criminal Law: The Substantive Part 37 (Olaoluwa Olusanya ed., 2007); William A. Schabas, Complementarity Thoughts, 18 Crim L.F. (2007); David Scheffer, Atrocity Crimes Framing the Responsibility to Protect, 40 Case W. Res. J. Int’l. L. 111 (2007); David Scheffer, The Merits of Unifying Terms: “Atrocity Crimes” and “Atrocity Law,” in 2 Genocide Studies and Prevention 91 (2007); Daniel M. Singerman, It’s Still Good to Be the King: An Argument for Maintaining the Status Quo in Foreign Head of State Immunity, 21 Emory Int’l. L. Rev. 413 (2007); Carsten Stahn, Complementarity: A Tale of Two Notions, 18 Crim. L.F. (2007); Jane

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Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l. L. 251 (2007); Firew Kebede Tiba, Notes and Comments, The Mengitsu Genocide Trial in Ethiopia, 5 J. Int’l. Crim. Just. 513 (2007); Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, J. Int’l. Crim. Just. 5 (2007); Mohamed El Zeidy, The Gravity Threshold Under the Statute of the International Criminal Court, 18 Crim. L.F. (2007); Mohamed Elewa Badar, Just Convict Everyone!: Joint Preparation: from Tadic to Stakic and Back Again, 6 Int’l. Crim. L. Rev. 293 (2006); M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 Case W. Res. J. Int’l. L. 389 (2006); M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 Ga. St. U.L. Rev. 541 (2006); Michael Bohlander, Referring an Indictment from the ICTY and ICTR to Another Court—Rule 11bis and the Consequences for the Law of Extradition, 55 Int’l. & Comp. L. Q. 219 (2006); Antonio Cassese, Balancing the Prosecution of Crimes Against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case Before the ECHR, 4 J. Int’l. Crim. Just. 410 (2006); Sylvia de Bertodano, Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers, 4 J. Int’l. Crim. Just. 285 (2006); Federica Gioia, State Sovereignty, Jurisdiction, and “Modern” International Law: The Principle of Complementarity in the International Criminal Court, 19 Leiden J. Int’l. L. 1095 (2006); Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 Crim. L.F. 255 (2006); Ethel Higonnet, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l. & Comp. L. 347 (2006); Katheryn Klein, Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the Joint Tribunal in Cambodia, 4 Nw. U.J. Int’l. Hum. Rts. 549 (2006); Jens Meierhenrich, Analogies at War, 11 J. Conflict & Sec. L. 1 (2006); Frank Meyer, Complementing Complementarity, 6 Int’l. C. L. Rev. 549 (2006); Ray Murphy, Gravity Issues and the International Criminal Court, 17 Crim. L.F. 281 (2006); Vincent O. Nmehielle & Charles Chernor Jalloh, The Legacy of the Special Court for Sierra Leone, 30 Fletcher F. World Aff. 107 (2006); J. Peter Pham, A Viable Model for International Criminal Justice: The Special Court of Sierra Leone, 19 N.Y. Int’l. L. Rev. 37 (2006); Caitlin Reiger & Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, in Prosecution Case Studies Series (2006); Ryan M. Scoville, Note, Toward an Accountability-Based Definition of “Mercenary,” 37 Geo. J. Int’l. L. 541 (2006); Mohamed El Zeidy, Some Remarks on the Question of the Admissibility of a Case during Arrest Warrant Proceedings before the International Criminal Court, 19 Leiden J. Int’l. L. 1 (2006); Mark A. Summers, Immunity or Impunity? The Potential Efect of Prosecution of State Officials for Core International Crimes in States Like the United States that are not Parties to the Statute of the International Criminal Court, 3 Brook J. Int’l. L. 462 (2006); Christian Tomuschat, The Legacy of Nurembert, 4 J. Int’l. Crim. Just. 830 (2006); M. Cherif Bassiouni, Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, 38 Cornell Int’l. L.J. 327 (2005); Enrique Carnero Rojo, The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From “No Peace Without Justice” to “No Peace Without Victor’s Justice,” 18 Leiden J. Int’l. L. 829 (2005); Allison Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Resopnsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75 (2005); Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Nw. U. L. Rev. 539 (2005); Karen Engle, Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, 99 Am. J. Int’l. L. 424 (2005); Megan A. Fairlie, Establishing Admissibility at the International Criminal Court: Does the Buck Stop with the Prosecutor, Full Stop?, 39 Int’l. Lawyer 817 (2005); Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Criminal Justice, 26 Mich. J. Int’l. L. 1013 (2005); V. Haan, The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia, 5 Int’l. Crim. L. Rev. 167 (2005); Theordo Meron, Revival of Customary Humanitarian Law, 99 Am. J. Int’l. L. 817 (2005); Guenael Mettraux, International Crimes and the ad hoc Tribunals, 292 (2005); Aly Mokhtar, Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects, 26 Statute L. Rev. 41 (2005); Hector Olasolo, The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor, 5 Int’l. C.L. Rev. 121 (2005); Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum. L. Rev. 1751 (2005); Carsten Stahn, Complementarity, Amnesties, and Alterantive Forms of Justice: Some Interpretive Guidelines for the International Criminal Court, 3 J. Int’l. C. Just. 695 (2005); Lijun Yang, On the Principle of Complementarity in the Rome Statute of the International Criminal Court, 4 Chinese J. Int’l. L. 121 (2005); Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l. L. 407 (2004); Mohamed



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Elewa Badar, From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 San Diego Int’l. L.J. 73 (2004); Markus Benzing, The Complementarity Regime of the International Criminal Court: International Justice Between State Sovereignty and the Fight Against Impunity, 7 M.P. Y.B. UN L. 591 (2004); William W. Burke-White, Complementarity in Practice: The International Criminal Court as Part of a System of Multilevel Global Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l. L. 557 (2004); Jean-Christian Cady & Nicholad Booth, Internationalized Courts in Kosovo: An UNMIK Perspective, in Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia 59 (Cesare P.R. Romana et al. eds., 2004); Andre Klip, Complementarity and Concurrent Jurisdiction, 39 Nouvelles Etudes Penales 173 (2004); David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int’l. L. 85 (2004); Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004); Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 Wash. U.L.Q. 1001 (2004); S. Powles, Joint Criminal Enterprise Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 J. Int’l. Crim. Just. 606 (2004); Mohamed Shahabuddeen, Does the Principle of Legality Stand in the Way of Progressive Development Law?, 2 J. Int’l. Crim. Just. 1007 (2004); Sienho Yee, The Tu Quoque Argument as a Defense to International Crimes, Prosecution, or Punishment, 3 Chinese J. Int’l. L. 87 (2004); Kelly D. Askin, Reflections on Some of the Most Significant Achievements of the ICTY, 37 New Eng. L. Rev. 903 (2003); David Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (International Center for Transnational Justice, Aug. 2003); Sylvia de Bertodano, Current Developments in Internationalized Courts, 1 J. Int’l. Crim. Just. 226 (2003); Laura A. Dickinson, The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003); Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l. Crim. Just. 86 (2003); Victor Prusin, “Fascist Criminals to the Gallows!”: The Holocaust and Soviet War Crimes Trials, 1945–February 1946, 17 Holocaust and Genocide Studies 1 (2003); Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. Int’l. L. 111 (2003); William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New Engl. L. Rev. 1015 (2003); Kai Ambos, Current Issues in International Criminal Law, 14 Crim. L.F. 225 (2003); Mark A. Summers, Development of a Principle of Universal Jurisdiction That Would Obligate All States to Prosecute War Criminals?, 21 B.U. Int’l. L.J. 63 (2003); Ruti Teitel, Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 69 (2003); Raquel Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes, 35 Vand. J. Transnat’l. L. 1399 (2002); Kai Ambos & Stefan Wirth, The Current Law of Crimes Against Humanity, 13 Crim. L.F. 1 (2002); Kent Anderson, An Asian Pinochet?—Not Likely: The Unfilfilled International Law Promise in Japan’s Treatment of Former Peruvian President Alberto Fujimori, 38 Stan. J. Int’l. L. 177 (2002); Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. 39 (2002); M. Cherif Bassiouni, Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights, in Post-Conflict Justice 3 (M. Cherif Bassiouni ed., 2002); M. Cherif Bassiouni, Proposed Guiding Principles for Combating impunity for International Crimes, in Post-Conflict Justice 255 (M. Cherif Bassiouni ed., 2002); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l. L. 81 (2002); M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l. L. & Pol’y. 344 (2002); Aaron J. Buckley, The Conflict in Cambodia and Post-Conflict Justice, in Post-Conflict Justice 637 (M. Cherif Bassiouni ed., 2002); Antonio Cassese, When May Senior State Officials Be Tried for International Crimes?: Some Comments on the Congo v. Belgium Case, 13 EJIL 853 (2002); John Dugard, Possible Conflicts of Jurisdiction with Truth Commissions, in 1 The Rome Statute of the International Criminal Court: A Commentary 667 (Antonio Cassese, Paola Gaeta & John R.W.D. Jones eds., 2002); Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Hum. Rts. Q. 573 (2002); Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analysis of the Peace Process and Human Rights Enforcement in a Civil War Situation, 30 Denv. J. Int’l. L. & Pol’y. 325 (2002); Susan Lamb, Nullum crimen, nulla poena sine lege, in International Criminal Law, in A. Cassese, P. Gaeta &

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J. Jones, The Statute of the International Criminal Court 733 (2002); Frederick M. Lorenz, Civil-Military Cooperation in Restoring the Rule of Law: Case Studies from Mogadishu to Mitrovica, in Post-Conflict Justice 840 (M. Cherif Bassiouni ed., 2002); Michael J. Matheson, United Nations Governance of Post-Conflict Societies: East Timor and Kosovo, in Post-Conflict Justice 523 (M. Cherif Bassiouni ed., 2002); Frederic Megret, The Politics of International Criminal Justice, 13 Eur. J. Int’l. L. 1261 (2002); Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the Internatoinal Criminal Tribunals for Yugoslavia and for Rwanda, 43 Harv. Int’l. L.J. 237 (2002); Kelly Creque O’Neille, A New Customary Law of head of State Immunity?: Hirohito and Pinochet, 38 Stan. J. Int’l. L. 289 (2002); Steven A. Ratner, Accountability for the Khmer Rouge: A (Lack of) Progress Report, in Post-Conflict Justice 613 (M. Cherif Bassiouni ed., 2002); Mohamed El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Mich. J. Int’l. L. 869 (2002); Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? 95 Am. J. Int’l. L. 7 (2001); Luis Benavenides, The Universal Jurisdiction Principle: Nature and Scope, 1 Annuario Mexicano de Derecho Internacional 19 (2001); Wendy S. Betts, Scott N. Carlson & Gregory Grisvold, The Post-Conflict Justice Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int’l. L. 371 (2001); Curtis A. Bradley, Universal Jurisdiction and U.S. Law, U. Chi. Legal F. 323 (2001); Richard A. Falk, Accountability for War Crimes and the Legacy of Nurembert, in War Crimes and Collective Wrongdoing: A Reader 113 (Aleksandar Jokic ed., 2001); P. Gaeta, War Crimes Trials Before Italian Criminal Courts: New Trends, in International and National Prosecution of Crimes Under International Law 751 (H. Fischer et al., eds., 2001); G. Greenwood, Belligerent Reprisals in the Jurisprudence, in International and National Prosecutions of Crimes Under International Law 549 (H. Fischer et al., eds., 2001); Jimmy Gurule, United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions, 35 Cornell Int’l. L. J. 1 (2001–2); Maria Kelt & Herman von Hebel, What are Elements of Crimes?, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 16 (Roy S. Lee ed. 2001); Maria Kelt and Herman von Hebel, General Principles of Criminal Law and Elements of Crimes, in The International Criminal Court; Elements of Crimes and Rules of Procedure and Evidence 38 (Roy S. Lee ed. 2001); Nicola Lacey, In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory, 64 Mod. L. Rev. 350 (2001); Susan H. Lin, Aliens Beware: Recent U.S. Legislative Efforts to Exclude and Remove Alien Human Rights Abusers, 15 Emory Int’l. L. Rev. 733 (2001); Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 Crim. L.F. 185 (2001); Trevor W. Morrison, Fair Warning and the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L. Rev. 455 (2001); Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Mil. L. Rev. 20 (2001); Lucinda Saunders, Rich & Rare are the Gems They War: Holding DeBeers Accountable for Trading Conflict Diamonds, 24 Fordham Int’l. L. J. 1402 (2001); Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l. L. 952 (2001); Jansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor, 95 Am. J. Int’l. L. 46 (2001); Hansjorg Strohmeyer, Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor, U. New South Wales L.J. 16 (2001); Michael Plachta, The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare, 12 European J. Int’l Law 125 (2001); M. Cherif Bassiouni, Policy Considerations on Inter-State Cooperation in Criminal Matters, in Principles and Procedures for a New Transnational Criminal Law 807 (Albin Eser & Otto Lagodny ed., 1992); M. Cherif Bassiouni, The Penal Characteristics of Conventional International Criminal Law, 15 Case W. Res. J. Int’l L. 27 (1983); Robert Friedlander, The Foundations of International Criminal Law: A Present Day Inquiry, 15 Case W. Res. J. Int’l L. 13 (1983); Leslie C. Green, Is There an International Criminal Law? 21 Alta. L. Rev. 251 (1983); G.O.W. Mueller, International Criminal Law: Civitas Maxima, 15 Case W. Res. J. Int’l L. 1 (1983); Farooq Hassan, The Theoretical Basis of Punishment in International Criminal Law, 15 Case W. Res. J. Int’l L. 39 (1983); M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982); Leslie C. Green, New Trends in International Criminal Law, 11 Isr. Y.B. Hum. Rts. 9 (1981); Hans-Heirich Jescheck, Development, Present State and Future Prospects of International Criminal Law, 52 Revue Internationale de Droit Pénal 337 (1981); Leslie C. Green, International Crime and the Legal Process, 29 Int’l &



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To understand the system of ICL, it is first necessary to identify its several components, determine the sources of law applicable to each of them, and assess the functional relationship that links them. The penal aspects of international law derive from “conventions,” “customs,” and “general principles of law,” all of which are among the sources of this legal discipline as enunciated in Article 38 of the International Court of Justice’s (ICJ) statute.2 These sources of law are, however, subject to the “principles of legality” which derive from “general principles of law” as applied in ICL.3 The penal aspects of international law include: international crimes, elements of Comp. L.Q. 567 (1980); Leslie C. Green, An International Criminal Code—Now?, 3 Dalhousie L.J. 560 (1976); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 Va. J. Int’l L. 561 (1975); Yoram Dinstein, International Criminal Law, 5 Isr. Y.B. Hum. Rts. 55 (1975); M. Cherif Bassiouni, An Appraisal of the Growth and Developing Trends of International Criminal Law, 45 Revue Internationale de Droit Pénal 405 (1974); Robert Legros, Droit Pénal International 1967, 48 Revue de Droit Pénal et de Criminlogie 259 (1968); Hans-Heinrich Jescheck, Etat Actuel et Persceptives d’Avenir des Projets dans le Domaine du Droit International Pénal, 35 Revue Internationale de Droit Pénal 83 (1964); Leslie C. Green, New Approach to International Criminal Law, 28 Solic. 106 (1961); W.J. Ganshof van der Meersch, Justice et Droit International Pénal, 42 Revue de Droit Pénal et de Criminologie 3 (1961); Jean Y. Dautricourt, Le Droit International Pénal, 37 Revue de Droit Pénal et de Criminolgie 243 (1957); Jacques Verhaegen, Les Impasses du Droit International Pénal, 38 Revue de Droits Pénal et de Criminologie 3 (1957); A.D. Belinfante, Les Princips de Droit Pénal International et les Conventions Internationles, 2 Nederlands Tijdschrift voor Internationaal Recht 243 (1955); Stefan Glaser, Element Moral de l’Infraction Internationale, 59 Revue Génèrale de Droit International Public 537 (1955); Guiliano Vassalli, In tema di Diretto Internazionale Pénal, 56 Guistizia Penale 257 (1951); Stefan Glaser, Les Infractions Internationales et Leurs Sanctions, 29 Revue de Droit Pénal et de Criminologie 811 (1949); Henri F. Donnedieu de Vabres, La Codification du Droit Pénal International, 19 Revue Internationale de Droit Pénal 21 (1948); Stefan Glaser, Le Principe de la Legalitè des Delits et des Peines et les Procès des Criminels de Guerre, 28 Revue de Droit Pénal et de Criminologie 230 (1948); Henri F. Donnedieu de Vabres, Le Proces de Nuremberg Devant les Princips Modernes du Droit Pénal International, 7 Recueil Des Cours 481 (1947); Henri F. Donnedieu de Vabres, Le judgment de Nuremberg et le principe de le Legalitè et des Peines, 26 Revue de Droit Pénal et de Criminologie 813 (1947); Albert de La Pradelle, Une Revolution Dans le Droit Pénal international, 13 Nouvelle Revue de Droit International Privé 360 (1946); Max Radin, International Crimes, 32 Iowa L. Rev. 33 (1946); Gerald Abrahams, Retribution: An Inquiry into the Possibility of an International Criminal Law, 92 Law J. 38 (1942); Roberto Ago, Le Delit International, 68 Recueil des Cours de l’Academie de Droit International de la Haye 419 (1939); Henri F. Donnedieu de Vabres, La Repression Internationale des Delits du Droit des Gens, 2 Nouvelle Revue de Droit International Privé 7 (1935); Vespasian V. Pella, Plan d’un Code Repressif Mondial, 12 Revue Internationale du Droit Pénal 348 (1935); Carlos Alcorta, La Doctrina del Derecho Pénal Internacional, 2 Revisita Argentina de Derecho Internacional 271 (1931); Guiseppe Sagone, Pour un Droit Pénal International, 5 Revue International de Droit Pénal 363 (1928); Quintiliano Saldana, Projet de Code Pénal International; 1 Congrès International de Droit Pénal (1926); G. Glover Alexander, International Criminal Law, 5 J. Comp. Legis. & Int’l L. 90 (1923); G. Glover Alexander, International Criminal Law, 3 J. Comp. Legis. & Int’l L. 237 (1921). 2 See Statute of the International Court of Justice, art. 38, para. 1 [hereinafter ICJ Statute]. Among the many authors who have dealt with the sources of international law, see Oppenheim’s International Law 22 et seq. (Robert Jennings & Arthur Watts eds., 9th ed. 1992); Ian Brownlie, Principles of Public International Law 512–15 (3d ed. 1979); Georges Abi-Saab, Cours Général de Droit International Public, 207 Recueil de Cours de l’Académie de Droit International 15 (1996). 3 See infra Chapter III, section 2; Bassiouni, Crimes Against Humanity, supra note 1, at 296–358.

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international criminal responsibility, the procedural aspects of the “direct enforcement system” of ICL,4 and certain aspects of the enforcement modalities of the “indirect enforcement system” of ICL.5 The scope of these penal aspects of international law has expanded, leading to overlaps with the international law aspects of national criminal law. This is particularly evident in areas that historically have been the domain of national criminal law, such as the “general part”6 of domestic criminal law, which rises to the level of “general principles of law” and is applied in international judicial proceedings, or the “direct enforcement system,” as discussed in Chapter VII. The international aspects of national criminal law consist of extraterritorial jurisdictional norms, conflicts of criminal jurisdiction between states and between a state and an international legal organ,7 and the international sources of law applicable to modalities of international cooperation in penal matters, or the “indirect enforcement system.”8 The latter are embodied in multilateral and bilateral treaties, customary international law, and national norms which apply to national legal proceedings, as discussed in Chapter V. Increasingly, comparative criminal law and procedure furnishes international law through “general principles of law,” which are identified from national laws with norms of the “general part” and the “procedural part” of domestic criminal law,9 and which apply to the “direct enforcement system.” Thus, the substantive and procedural norms, which are applicable to proceedings before international legal institutions such as the ICTY, ICTR, and ICC, derive from such “general principles” of law.10 Thus, a degree of cross-fertilization exists between the penal 4 See infra section 2; see infra Chapter VI. 5 See infra section 2; see infra Chapter V.   6 The term “parts” is used herein by reference to national criminal law doctrine where criminal law is divided into two and sometimes three parts, namely, the “general part” which includes the principles upon which criminal responsibility is based and conditions of exoneration from criminal responsibility (see Chapter IV), the “special part” which contains the definition of the crimes (see Chapter III), and sometimes a separate “part” on penalties (see Chapter IV, section 7). Criminal procedure is usually codified separately, or it is referred to as the “procedural part” (see Chapter IX).   7 See M. Cherif Bassiouni, International Extradition: United States Law and Practice 425 (5th rev. ed. 2007) [hereinafter Bassiouni, International Extradition]; Extraterritorial Jurisdiction in Theory and Practice (Karl M. Meessen ed., 1996); Christopher Blakesley, Extraterritorial Jurisdiction, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 85 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL].   8 See infra Chapter V.   9 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990) [hereinafter Bassiouni, General Principles]. 10 For a discussion of general principles of criminal procedure and evidence, see infra Chapter IX. See also, La phase préparatoire du process pénal en droit comparé, 56 Revue Internationale de Droit Pénal (1985); La Phase décisoire du process pénal en droit comparé, 57 Revue Internationale de Droit Pénal (1986); La Phase exécutoire du process pénal en droit pénal compare, 61 Revue Internationale de Droit Pénal (1990); Jean Pradel, Procédure pénale compare dans les    



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aspects of international law and national criminal law. This process of crossfertilization contributes to the harmonization of substantive and procedural norms in international and national criminal justice systems. International law provides ICL’s sources of law with the ratione materiae,11 ratione personae,12 and international enforcement obligations which apply to the “direct enforcement system,”13 and to the “indirect enforcement system.”14 Additionally, collateral sources of ICL derive from international and regional human rights law, comparative criminal law and procedure, and international and comparative criminology. International and regional human rights law apply essentially to procedural rights in international criminal proceedings,15 to penalties, and to the treatment of detainees in international criminal proceedings.16 Rules of procedure and evidence which rise to the level of “general principles of law” as derived from national legal systems apply in proceedings before international judicial bodies, as discussed in Chapter IX. Rules of procedure and evidence, such as legal presumptions, burden of proof, and quantum of evidence, determine the outcome of proof of guilt.17 These rules are sometimes outcome-determinative and may thus be deemed substantive in some national legal systems. Consequently, these national legal systems consider these rules part of the “general part,” as opposed to the “procedural part” of national criminal law.18 systèmes modernes: Rapports de synthèse des colloques de l’ISISC, 15 Nouvelles Études Pénales (1998); see also Richard May & Marieke Wierda, International Criminal Evidence (2002) [hereinafter May & Weirda]. 11 See infra Chapter III. 12 See infra Chapter II. 13 See infra Chapter VI. 14 See infra Chapter V. 15 See infra Chapter IX; see also Anne F. Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994) [hereinafter Bassiouni, Human Rights Compendium]. But see Human Rights in Global Politics (Tim Dune & Nicholas Wheeler eds., 1999); Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997); Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals (1996); Robert B. Lillich & Hurst Hannum, International Human Rights: Problems of Law, Policy and Practice (3d ed. 1995); Human Rights in International Law: Legal and Policy Issues (Theodor Meron ed., 1984). 16 This aspect of ICL is not sufficiently covered by experts and is found in large part in the writings of criminologists and human rights specialists. See e.g., Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000); United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Herman J. Burgers & Hans Danelius eds., 1988); Daniel Derby, The International Prohibition of Torture, in 1 International Criminal Law: Sources, Subjects, and Contents 621 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. See generally Bayefsky, supra note 15, and Bassiouni, Human Rights Compendium, supra note 15. 17 See May & Wierda, supra note 10; see also infra, Chapter IX. 18 See, e.g., Ferrando Mantovani, Diritto Penale: Parte General (2001); Hans-Heinrich Jescheck & Thomas Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (1996); Antonio

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The “general part” of ICL19 applies essentially to proceedings before international judicial bodies, namely, in the context of the “direct enforcement system.” However, some of these norms have become part of customary international law and also apply to national proceedings involving certain international crimes.20 These norms derive from “general principles of law” and include: elements of criminal responsibility,21 factors which exonerate from criminal responsibility, elements of crimes,22 “principles of legality,”23 and ne bis in idem.24 Thus, for example, customary international law norms concerning command responsibility, the defense of obedience to superior orders, and the immunities of heads of state and diplomats apply to international and national criminal proceedings involving international crimes, particularly jus cogens international crimes.25 National criminal law norms also have an impact on the ratione personae of ICL due to the expanding scope of international criminal responsibility, particularly with respect to jus cogens crimes.26 Similarly, certain legal concepts, such as conspiracy, which is essentially a common law concept are gradually being recognized in civilist legal systems, make their way into ICL.27 “General principles” of law deriving from national legal systems also serve to interpret the scope of international legal obligations,28 including, for example, the meaning and content of the maxim aut dedere aut judicare.29

Pagliaro, Principi di Diritto Penale: Parte Generale (1996); Jean Pradel, Droit Pénal Comparé (1995); Gaston Stefani, George Levassier, & Bernard Boulac, Droit Pénal Génèral (11th ed. 1995). 19 See supra note 7. 20 For example: command responsibility, non-applicability of the defense of obedience to superior orders, non-applicability of immunities of heads of state and diplomats for certain international crimes. See infra Chapter IV. 21 See Principles and Procedures for a New Transnational Criminal Law (Albin Eser & Otto Lagodny eds., 1992). 22 See supra note 18; infra Chapter IV. 23 See infra Chapter III, section 9. For nullem crimen sine lege, see Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (2002). 24 See Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002); Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1 (2002). 25 See infra Chapter III, section 8. 26 This applies in particular to criminal responsibility of organizations and individual responsibility for participation in organizations deemed criminal. See infra Chapter II, section 5. 27 The IMT and IMTFE included “conspiracy” even before that concept was received, under different aspects in Civilist legal systems. At that time, it was due to American influence in the framing of the statutes of the IMT and the IMTFE. Later, the concept found its way into the statutes of the ICTY, ICTR, and ICC. 28 See Bassiouni, General Principles, supra note 9. 29 See infra Chapter V.



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As established by the foregoing discussion, it seems evident that some of these sources of law that apply to different legal disciplines serve to develop the criminal component of international law, while other sources relate to the development of the international component of national criminal law. In some respects, these developments overlap, making it difficult to distinguish them in relationship to their original sources of law. In the end, they complement each other in a functional inter-relationship, as discussed below. 1.2. The Different Sources of Law and Their Application to ICL’s Components The sources of ICL that apply to its different components are not always, as mentioned above, entirely distinct from one another because they overlap in many respects. Nevertheless, as discussed below in section 1.4, they tend to be complementary. (a) The “special part” of ICL, the ratione materiae (Chapter III), is established by international law. Nevertheless, the elements of these crimes are not always sufficiently established in international law to satisfy the “principles of legality” as recognized in the world’s major criminal justice systems.30 They are therefore supplemented by “general principles” derived from national legal systems. (b) The basis for international criminal accountability and ratione personae (Chapter II) is established by international law and supplemented by “general principles of law,” which derive from national legal systems. (c) The “general part” of ICL, which includes the elements of criminal responsibility and factors exonerating from criminal responsibility, is established by “general principles of law,”31 which are a source of international law but which are derived from national legal systems. They are applied by internationally created judicial bodies that adjudicate international criminal responsibility (Chapter IV). In national criminal proceedings, even when concerning international crimes, it is only the national legal system’s “general part” which applies, except for such customary international law rules which are specifically relevant to international crimes.32 (d) The “procedural part” of ICL, meaning those rules of procedure and evidence applicable in international criminal proceedings, has mixed sources. With respect to international criminal justice bodies, the legislative authority or treaty creating such a body may establish them or they

30 See infra Chapter III, section 2. 31 Bassiouni, General Principles, supra note 9. 32 See supra note 21.

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chapter one may be derived from international norms and standards of due process originating in international and regional human rights law. Some of these norms and standards of international and regional human rights law also apply to national criminal proceedings, irrespective of whether these proceedings involve international or national crimes. Otherwise, national proceedings involving international crimes are subject to the laws of the forum state. (e) The “sanctions part” of ICL depends on whether the proceedings are conducted by an internationally created body or before national criminal proceedings. In the latter case, it is the law of the forum state that controls, subject, however, to international human rights norms and standards, and, where applicable, regional human rights norms and the jurisprudence of bodies such as the European Court of Human Rights,33 the Inter-American Court of Human Rights,34 and the Inter-American Commission of Human Rights.35 Internationally established judicial bodies are subject to international human rights norms and standards, and may also incorporate relevant national criminal justice sanctions standards, either through “general principles of law” or by analogy to the national legal system on whose territory that body exercises its jurisdiction.36 (f ) Enforcement of penal sanctions is subject to the national laws of the enforcing state, even when an international judicial body has pronounced the sanction. If, however, an international body has its own system of sanctions enforcement, the legislative authority establishing that body provides for the applicable rules of enforcement. If it does not, then the relevant body establishes its own norms.37 In any event, international human rights norms and standards and, where applicable, regional human rights norms and standards shall apply to the enforcement of penal

33 See Clare Ovey & Robin C.A. White, Jacobs & White, European Convention on Human Rights (3d ed. 2002); Donna Gomien, Judgments of the European Court of Human Rights, 1959–95 (1996); The European Union and Human Rights (Nanette A. Neuwahl & Allan Rosas eds., 1995); David J. Harris, Michael et al., Law of the European Convention on Human Rights (1995); Mark Janis, Richard Kay & Anthony Bradley, European Human Rights Law: Text and Materials (1995); The European System for the Protection of Human Rights (R. St. J. Macdonald et al. eds., 1993). 34 See generally Thomas Buergenthal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (4th rev. ed. 1995); Scott Davidson, The Inter-American Human Rights System (1997). 35 Davidson, supra note 34. 36 This is the case with respect to the ICTY. See M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia 689 (1996) [hereinafter Bassiouni, Yugoslavia Tribunal]; see also infra Chapter VI. 37 This is the case with respect to the ICTY and ICTR. See Bassiouni, Yugoslavia Tribunal, supra note 36; Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for Rwanda (1997).



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sanctions, whether carried out by national legal systems or by internationally created bodies. (g) International cooperation in penal matters, which is the essential enforcement feature of ICL, is reflected in a number of modalities.38 Irrespective of whether prosecution and adjudication are by an internationally created body or by a national legal one, they derive from mixed sources of international and national law. Because the modalities of enforcement are the same for international crimes and domestic crimes (namely, extradition or surrender, judicial assistance and cooperation, transfer of criminal proceedings, transfer of sentenced persons, recognition of foreign penal judgments, freezing and seizing of assets, intelligence and law enforcement information-gathering and information-sharing, and regional and sub-regional “judicial spaces”), it is the laws of the enforcing state, or of the requested state, that apply, except if an existing multilateral or bilateral treaty provides otherwise. Relevant norms of customary international law also apply in domestic legal proceedings. Thus, it can be concluded that the legal architecture of ICL consists of different component blocks, which are functionally related even while lacking cohesion and coherence, as is the case with respect to the different legal systems from which these components originate. 1.3. Assessing the Sources of Law Applicable to ICL and the Doctrinal Framework of ICL ICL is a blend of several legal disciplines that differ as to their nature, values, goals, contents, methods, subjects, and techniques. Consequently, ICL is a complex discipline that requires a reconciliation of its sources of law within a doctrinal framework. However, a doctrinal framework reflecting the polyvalent nature of ICL is difficult to formulate because the disciplines from which its components originate are inherently different. The only way ICL can be doctrinally framed is by reconciling its functional goals of prevention and suppression of international criminality as an extension of the same goals of national criminal law in the prevention and suppression of national criminality. The sources of international law, as enunciated in Article 38 of the ICJ Statute, are conventions, customs, general principles, and the writings of the most distinguished publicists.39 These sources reflect the peculiarities of a discipline whose fundamental premise, though evolving, is based on a consensual relationship between co-equal sovereign states. International law comprises norms

38 See infra section 2 & Chapter V. 39 See supra note 2.

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and practices that apply to states and international organizations irrespective of national boundaries, but only some of these norms are peremptory and supersede national laws.40 The enforcement of international law relies essentially on the voluntary cooperation of states. With respect to ICL, international law enforcement mechanisms aim at enhancing states’ compliance with international legal norms by means that rely on the international interdependence of state interests and on some forms of inducement to compliance and coercive measures. The latter is evident with respect to the sanctions power of the Security Council under Chapter VII of the United Nations Charter, whose purposes are to preserve and maintain international peace and security. The processes of international law reflect the delicate balance between the principles of national sovereignty and the need to regulate the multifaceted relations and interests of states with one another and with those of the international community. Inter-state processes, however, are primarily designed for states, and as a result they are not particularly well suited to the needs of ICL, whose subjects are individuals.41 Moreover, inter-state processes regulate state-to-state relations rather than national legal processes, whereas ICL’s norms are directed towards persons and are essentially dependent on the cooperation of national criminal justice systems.42 National criminal justice systems, their diversity notwithstanding, work on the premise that a legislative authority exists that has the power to bind its subjects, namely individuals and private legal entities, and rely on coercive means to enforce legal proscriptions. These powers extend to the national territory, and only extraterritorially in a very limited context.43 Enforcement of national criminal law rests first with a law enforcement and prosecutorial apparatus designed to prevent and control unlawful behavior, and second with a judiciary that adjudicates guilt in accordance with pre-established, specific laws and procedures. Thus, the method, scope, content, and processes of national criminal justice systems significantly differ from and cannot be co-mingled with those of international law. This is evident in part in the ratione personae of ICL because, as stated below,44 international law (which is the source of international crimes) has historically regulated the conduct of states and international organizations and has therefore had some difficulty adjusting its enforcement mechanisms to individuals short of resorting to the “direct enforcement system.”45 40 See infra Chapter III, section 3. 41 See infra Chapter II, sections 1–3. 42 See infra Chapter V. 43 For extraterritorial criminal jurisdiction, see Bassiouni, International Extradition, supra note 7, ch. VI, at 425; Christopher Blakesley, Extraterritorial Jurisdiction, supra note 7, at 96 et seq. 44 See infra Chapter II. 45 See infra Chapter VI.



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Since the establishment of the International Military Tribunal (IMT) pursuant to the London Charter of 1945, international criminal law has clearly applied to individuals irrespective of the dictates of national law. Thus, individuals are the ratione personae par excellence of international criminal law. In addition, the London Charter and the IMT’s Judgment established the principle of group criminal responsibility,46 though neither has advanced the concept of state criminal responsibility,47 which had its contemporary beginnings in the post-World War I imposition of reparations on Germany.48 Since then, however, the concept of state criminal responsibility has been arrested,49 except with respect to the imposition of sanctions by the Security Council. Since Nuremberg, ICL has constantly expanded in scope, content, application, and enforcement, reaffirming the principle of individual criminal responsibility for conduct proscribed under international law,50 as well as the concept of criminal responsibility of organizations. The latter, however, has not developed to the same extent as that of individual criminal responsibility.51 Although this discussion is not meant to focus on the comparative aspect of international and national criminal law, it is appropriate to note that the two legal systems differ in, inter alia, the following aspects: (a) different higher sources of law to which the actual sources of law of that system are subject (such as jus cogens52 for international law and constitutional principles and norms for criminal law);53

46 See infra Chapter II, section 5. 47 See infra, Chapter II, section 6. 48 See Hjalmar Horace Greely Schacht, The End of Reparations (Lewis Gannett trans., 1979); John Maynard Keynes, The Economic Consequences of the Peace (1920). 49 See infra Chapter II, section 6. 50 See, e.g., M. Cherif Bassiouni, The “Nuremberg Legacy:” Historical Assessment Fifty Years Later, in War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1998); M. Cherif Bassiouni, Das “Vermächtnis von Nürnberg:” eine historische Bewertung fünfzig Jahre danach, in Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürenberger Prozessen, (Ger Hankel & Gerhard Stuby eds., 1995); M. Cherif Bassiouni, Nuremberg Forty Years After: An Introduction, 18 Case W. Res. J. Int’l L. 261 (1986); cf. Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane Nach Volkerstrafrechts (1952). For recent U.N. developments, see Draft Code of Crimes Against the Peace and Security of Mankind: Titles and Texts of Articles on the Draft Code of Crimes Against Peace and Security of Mankind Adopted by the International Law Commission at its Forty-Eighth Session (1996), U.N. GAOR Int. Law Comm. 48th Sess., U.N. Doc. A/CN.4/L.532 (1996). The Draft Code of Crimes was adopted by the General Assembly in 1996 without modifications. In particular, see the statutes of the ICTY, ICTR, and ICC. See also e.g., infra Chapter VI. 51 See infra Chapter II. 52 See infra Chapter III, section 3. 53 See Pradel, supra note 10; see also infra Chapter IX.

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chapter one (b) different hierarchy in the sources of law (e.g., in international law, conventional law ranks above the writing of publicists and in most domestic criminal law, constitutional law ranks above statutes, and statutes rank above judicial decisions, but not above constitutional principles and norms); (c) the applicability and binding nature of the actual sources of law differ (i.e., international law obligations bind states in different ways, and thus while treaties are an unquestioned basis of binding legal obligations, states vary in their approaches to the binding nature of customary international law; in national criminal law, legal obligations bind all individuals and organizations that fall within the purview of the law in question); (d) applicability of the law and identification of its content differs (in international law, a custom can be in the making before it becomes enforceable; during this formative stage it may be difficult to ascertain its full content, and yet it may create rights and responsibilities, whereas in national criminal law, once enacted, there is no doubt as to the identification and content of the law); (e) the nature and binding legal effect of judicial decisions differs (in international law, the decisions of the ICJ bind only the parties to a given dispute, which are states, while in national criminal law, judicial decisions of the highest courts bind all subjects of the courts’ jurisdiction until changed statutorily or by other judicial decisions. It is still unclear whether decisions of the ICTY, ICTR, and ICC are binding only on these respective tribunals, or whether they constitute judicial precedent applicable to one another. It is also unclear as to whether these tribunals are the final authority in deciding issues involving their competence, based on the theory of competence de la competence, or whether the ICJ can still exercise its jurisdiction in connection with competence issues and other issues of general international law); (f ) the interaction between actual sources of law and their binding legal effect and content differs; (g) each system is distinguished by the subjects of the actual sources of law; (h) the reach and extent of the respective sources of law of each system differs as to its subjects and temporal and spatial applications; (i) different mechanisms of conflict resolution exist between the applicable sources of law; (j) different exemptions and immunities applicable to certain acts or to certain actors exist (i.e., state immunity applies in national legal systems as does the Act of State doctrine for acts of other states and their officials, while in international law, as well as in national law, the immunities of heads of state, diplomats, and certain officials of international organizations apply. However, international law also limits these substantive



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and procedural immunities, particularly with respect to international crimes);54 (k) the degree of specificity contained in legal norms varies depending upon the relevant source of law (thus the “principles of legality” which apply in national criminal justice systems do not apply to ICL with the same rigor);55 (l) each system maintains different enforcement methods and techniques arising out of their respective laws; (m) the social and political dynamics of the two systems differ significantly, particularly as to their respective impacts.56 The foregoing considerations, in addition to those arising from the interaction between ICL and national criminal law, as discussed below in section 2, make ICL more than the sum total of its different components, making it a complex discipline and a discipline in its own right. 1.4. Complementarity57 The inter-relationship between the components of ICL is akin to a pattern of overlapping norms lacking a systematic framework. International and national norms applicable to ICL are, however, to some extent complementary, in the sense that the two sources of law cross-fertilize one another. Moreover, this cross-fertilization produces a process of harmonization, which, although slow, ultimately leads to rapprochement and eventually to unification. Model national laws and model bilateral treaties developed by the United Nations serve that purpose.58 The ICC, which requires the adoption of national legislation, also serves that purpose. If nothing else, the state parties will all have the same normative formulation with respect to the crimes of “genocide,” “crimes against humanity,” and “war crimes.”59 More indirectly, national implementing legislation on 54 See infra Chapter II, section 4. 55 See infra Chapter III, section 9. 56 See infra section 3. 57 The term “complementarity” entered the English language in 1911, meaning, “a complementary relationship or situation; specifically in physics, the capacity of the wave and particle theories of light together to explain all phenomena of a certain type, although each separately accounts for only some of the phenomena.” Oxford English Dictionary (2002). 58 See Model Treaty on Extradition, G.A. Res. 45/116, U.N. Doc. A/RES/45/116 (14 December 1990); amended by G.A. Res. 52/88 (12 December 1997); Model Treaty on Mutual Assistance in Criminal Matters, G.A. Res. 45/117, U.N. Doc. A/RES/45/117 (14 December 1990); amended by G.A. Res. 53/112 (9 December 1998); Model Treaty on the Transfer of Proceedings in Criminal Matters, G.A. Res. 45/118, U.N. Doc. A/RES/45/118 (3 April 1991); Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released, G.A. Res. 45/119, U.N. Doc. A/RES/45/119 (3 April 1991). 59 See infra Chapter VII, section 4.4.

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cooperation between states-parties and the ICC are likely to influence, if not shape, the future of modalities of international cooperation in penal matters, including substantive and procedural norms, thus enhancing complementarity. Similarly, the rules of procedure of the ICC, which derive from comparative criminal procedure, will bring about a greater harmonization between the criminal procedures of states.60 Complementarity is essentially considered a jurisdictional concept and not a normative one. The term connotes a systemic relationship between different jurisdictional authorities exercising competence over international crimes, whether national or international judicial organs. As a jurisdictional concept, complementarity presupposes what it presently lacks: substantive and procedural legal content.61 The jurisdictional concept of complementarity is based on the unarticulated premise of the existence of concurrent jurisdictional competence, whether it is horizontally or vertically related. This includes the relationship between co-equal authoritative legal processes, such as states, and between these processes and those of an inter-national one, such as the ICC,62

60 See, e.g., Chapter IX (discussing the procedural area); William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008). For a discussion of complementarity as a check on state power, see Ronli Sifris, Weighing Judicial Independence Against Judicial Accountability: Do the Scales of the International Criminal Court Balance?, 8 Chi.-Kent J. Int’l Comp. L. 88, 107 (2008). 61 However, Articles 17 and 18 of the ICC Statute provides this content with respect to the relationship between the ICC and state-parties. It does not apply between state-parties, between the ICC and non-state-parties, or between state-parties and non-state-parties, because the ICC is a treaty binding upon the states that have ratified or acceded to it. See Mark S. Ellis, The International Criminal Court and its Implication for Domestic Law and National Capacity Building, 15 Fla. J. Int’l L. 151, 155–157 (2002); Katherine L. Doherty & Timothy L.H. McCormack, “Complementarity” as a Catalyst for Comprehensive Domestic Penal Legislation, 5 U.C. Davis J. Int’l L. & Pol’y 147, 149 (1999); see also infra note 62. 62 The 1995 Ad Hoc Committee of the ICC and 1996 PrepCom of the ICC selected the term, which is a transposition from the french term “complementarité,” to describe the relationship between the ICC and national systems. See M. Cherif Bassiouni, Observations Concerning the 1997–98 Preparatory Committee’s Work, 13 nouvelles Études Pénales 5, 21 (1997); Jeffrey L. Bleich, Complementarity, 13 Nouvelles Études Pénales 231 (1997); Mauro Politi, The Establishment of an International Criminal Court at a Crossroads: Issues and Prospects after the First Session of the Preparatory Committee, 13 Nouvelles Études Pénales 115, 141–47 (1997); Leila Sadat Wexler, First Committee Report on Jurisdiction, Definition of Crimes and Complementarity, 13 Nouvelles Études Pénales 163, 174 (1997). For a discussion of the principle of “complementarity,” see generally John T. Holmes, The Principle of Complementarity, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999). For additional commentary on Complementarity, see Leila Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium 119 (2002); Crimes Internationaux et Juridictions Internationales (Antonio Cassese & Mireille Delmas-Marty eds., 2002); Juridictions Nationales et Crimes Internationaux (Antonio Cassese & Mireille Delmas-Marty eds. 2002); Sharon A. Williams, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 51 (Otto Triffterer ed., 1999), at 383–94; see infra Chapter VII, sections 2.2, 4.1; infra Chapter X.



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and a supra-national one, such as the IMT, IMTFE, ICTY, and ICTR. Moreover, complementarity must also contemplate the relationship between inter-national legal processes created by treaty, such as the ICC, and non-state parties, as well as between these non-state parties and state parties. Obviously, the regulation of such relations requires the establishment of jurisdictional priorities and rules, or at least guidelines for the resolution of jurisdictional conflicts, all of which are presently lacking (though certain to evolve in the future). More importantly, the substantive content of complementarity must include the assumption of jurisdiction, so that the deference between jurisdictions does not create a jurisdictional vacuum. Failure to provide for an obligation to exercise jurisdiction by any competence will result in complementarity becoming a way for states to avoid their obligations under the principle aut dedere aut judicare. If that were to develop, complementarity would not help to achieve the goal of accountability for international crimes, particularly jus cogens crimes. Another area that the legal literature on complementarity has not been explored is the effect of ne bis in idem, which is when one jurisdiction exercises its competence in a given case and over a certain person, and another one subsequently seeks to exercise its independent competence.63 If complementarity is to be understood as an outcome of a civitas maxima,64 which places upon states certain international obligations65 such as the duty to prosecute or extradite because its goal is accountability, then surely the substantive and procedural norms of ICL, as well as its enforcement techniques must become, at least, more harmonized. Thus, the jurisdictional concept of complementarity can be an indirect stimulus to the harmonization and eventual unification of ICL’s substantive and procedural norms. In turn, uniformization of international and national norms defining international crimes will reinforce the complementary relationship between international and national judicial organs, as well as between national judicial organs. This concept is the most likely path for ICL’s integration into a comprehensive system. In other words, as the different components of ICL, because of an extrinsic process, become more internally harmonized and externally more integrated, ICL will achieve the systemic cohesion and coherence it now lacks. This will not be due to any traditional doctrinal formulation, but to the conditioning exigencies of converging state interests and internationally-recognized values. The doctrine of ICL will therefore develop as a consequence of its evolution, as opposed to being the source of its formation. In other words, it will be an evolution akin to that of the common law as contrasted with the civilist and Germanic codification traditions.

63 See infra Chapter VII, section 6.4. 64 See infra section 3.4. 65 See infra Chapter V.

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Consequently, globalization and its exigencies, spurred by the needs for greater international cooperation in penal matters,66 not doctrinal concepts, will determine ICL’s future development. The history of ICL is one driven by facts, characterized by practical experiences, dominated by pragmatism, and constantly gripped by the conflicting demands of realpolitik on the one hand, and those of justice on the other.67 Section 2. The Peculiarities of ICL Enforcement Regimes Because ICL consists of different components deriving from separate legal disciplines, as discussed above, the enforcement of ICL has evolved through different legal regimes whose systemic characteristics are described below. These regimes tend to overlap, despite reliance upon the same legal techniques.68 For instance, as stated above, ICL enforcement embodies two legal regimes: the “direct enforcement system”69 and the “indirect enforcement system.”70 However, a legal regime that applies to inter-state cooperation in the enforcement of domestic criminal law violations also exists.71 That regime is the paradigm for the “indirect enforcement system,” and in some respects it is also the paradigm of the “direct enforcement system.” The “direct enforcement system” is a regime applicable to international judicial institutions which have the power of enforcing their orders and judgments without going through states or any other legal authority. The only two comprehensive examples of such a regime are the IMT and the IMTFE.72 Other internationally created institutions like the ICTY, ICTR, and ICC are, for the reasons mentioned below, less comprehensive because they depend on other institutions for the enforcement of their orders and judgments. The ICTY and the ICTR also fall into the category of the “direct enforcement system” because they are international judicial bodies.73 Similarly, the ICC also partakes of both categories.74

66 See infra Chapter V, section 5. 67 See infra secs. 3 and 4; Chapter VIII. 68 See infra Chapters V, VI. 69 See infra Chapter VI. 70 See infra Chapter V. 71 Id. 72 See infra Chapter VI. 73 The ICTY and ICTR can resort to the Security Council to request that body’s sanctioning authority in cases of non-compliance by states; they rely on the “indirect enforcement system.” Consequently, the Security Council’s powers are not strictly enforcing powers, meaning powers to execute the orders and judgments of the ICTY and ICTR. Rather, they are sanctions or coercive powers applicable in cases of non-compliance. 74 The ICC relies strictly on the “indirect enforcement system.” See ICC Statute, pt. 9, arts. 86–102; infra Chapter VII.



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Since the year 2000, a new hybrid form of quasi-direct enforcement has developed, namely that of the mixed-model tribunals.75 These mixed-models have been established in the courts of Kosovo, Bosnia and Herzegovina, Sierra Leone, Timor-Leste, Cambodia and Lebanon. Probably the only thing these tribunals have in common is the fact that they were established pursuant to a Security Council resolution, or an agreement between the Secretary General of the UN and the government of a given state or both. Each agreement varies from the others. The applicable substantive law is usually ICL, particularly with respect to the definitions of genocide, crimes against humanity and war crimes though they are not always consistent. This of course adds to the uncertainty of customary international law norms but more so with respect to crimes against humanity which unlike war crimes and genocide lacks a unifying convention.76 Consequently, the jurisprudence of these tribunals will vary and their contribution to the clarity of customary international law norms is questionable. The procedures of these mixed-model tribunals also varies. There appears to be an effort to include international due process norms and standards in these procedural norms, but again the diversity that exists makes a questionable contribution to customary international law. It is hard to say that these mixed-model tribunals are anything more than hybrid systems dictated by political circumstances and by economic considerations after the costly experiences of the ICTY, ICTR and ICC.77 Indeed, all of these mixed-model tribunals have proven to be much less costly than the ICTY, ICTR and ICC; but they are also limited in duration and limited in scope. These entities have been deemed to be part of the direct enforcement system although they only partake of some of the characteristics of that system. The “indirect enforcement system” is the legal regime whereby the enforcement of ICL is accomplished through national legal systems.78 Consequently, it is also the regime that applies to international judicial bodies which do not have the legal authority or capability of directly enforcing their orders and judgments without going through the authority of states. It is, however, the regime that applies to the enforcement of ICL obligations, whether they derive from customs or conventions.79 Contemporary international judicial bodies lack direct enforcement systems, which have to go through the intermediation of states to enforce their orders and judgments, rely on national laws and national legal institutions.80 Thus, in 75 See infra Chapter VIII. 76 See Bassiouni, Crimes Against Humanity, supra note 1, at 218–22. 77 M. Cherif Bassiouni, Perspectives on International Criminal Jusitce, 50 Va. J. Int’l L. 269, 308–10 (2010). Through the end of 2011 the ICTY has had a cumulative budget of approximately $1.8 billion, the ICTR approximately $1.7 billion and the ICC $1.1 billion (€830 million). 78 See infra Chapter V. 79 See infra Chapter III. 80 See infra Chapter V.

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this situation, the enforcement of international judicial orders and judgments will be as effective as the national legal institutions on whose intermediation the execution of the international mandates depend.81 With respect to the general enforcement of ICL conventions, these conventions contain obligations requiring states to undertake enforcement through their national legal systems. Such undertakings include the duty to criminalize the proscribed conduct, prosecute its violators, extradite accused or convicted perpetrators of these crimes to states seeking to prosecute or execute sentences of conviction, and provide legal assistance to states investigating the commission of these crimes.82 Furthermore, to strengthen that system, ICL also provides for universal jurisdiction with respect to certain international crimes.83 “Inter-state cooperation in penal matters” is the legal regime applicable between states for the enforcement, at the inter-state level, of their respective domestic criminal laws.84 In this regime, states rely on bilateral and multilateral relations, as well as on their respective national legislation. The techniques, or modalities as they are called in this book,85 which states utilize in connection with their cooperation with respect to domestic criminal law enforcement, are the same as those employed by states with respect to the enforcement of ICL legal obligations and the enforcement of international judicial bodies’ orders and judgments. Additionally, although the “indirect enforcement system,” a regime peculiar to the enforcement of ICL, may utilize the same modalities employed in inter-state enforcement of domestic criminal violations,86 the commonality of these modalities should not confuse the distinction that exists. The difference between these regimes derives from the nature of the crimes, i.e. national and international, as well as from the divergent legal authority issuing orders or 81 Id. 82 See infra Chapter III. 83 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001); The Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001); Menno T. Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Universal Jurisdiction (Stephen Macedo ed., 2003). 84 See infra Chapter V. 85 The eight modalities which are common to these enforcement regimes are: extradition, legal assistance, transfer of execution of penal sentences, recognition of foreign penal judgments, transfer of criminal proceedings, seizure and forfeiture of assets derived from criminal conduct, intelligence and law enforcement information-gathering and information-sharing, and regional and sub-regional “judicial spaces.” They are discussed in Chapter V. International cooperation between law enforcement and intelligence agencies, which is an administrative prevention and enforcement modality, is so far regulated neither by treaty nor by national legislation. It should be noted ICL’s enforcement, which is dependent upon these eight modalities, will be as good as these modalities will be made to work effectively at the level of the states whose enforcement cooperation is requested. 86 See infra Chapter V.



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judgments. These differences reflect the applicable source of law from which different legal obligations flow.87 Thus, jus cogens international crimes impose certain legal obligations on states irrespective of specific treaty obligations or national legislation.88 Alternatively, this is not the case with respect to domestic crimes arising under the national laws of a given state, since these crimes do not give rise to international enforcement obligations. In addition to the two models of indirect and direct enforcement, a third model has developed under the ICC statute, which is referred to as the “complementarity” model.89 To a large extent, this model is an extension of the indirect enforcement model because it relies on national prosecution. However, it is mandated by the ICC statute which is an international institution. The ICC is at this point in time the epitome of the direct enforcement system even though it is created by treaty and relies on its state parties’ cooperation. Nevertheless, it is also the product of states who accede to the treaty and accept the jurisdiction of the ICC as an extension of their national jurisdiction. Thus, complementarity is the foundation of the ICC’s jurisdiction. National jurisdiction remains the primary jurisdiction and only when it is “unable or unwilling” as stated in Article 17 of the ICC statute does the ICC become competent to assume jurisdiction. Admittedly, the relationship between each state party and the ICC is a direct relationship which in some respect places the ICC in a vertical jurisdictional relationship to national legal systems. This means that it is the ICC that ultimately determines whether a state party is “unable or unwilling” or has fulfilled its obligations to investigate and prosecute. In addition, that vertical relationship requires states to cooperate with the ICC using the same modalities as are employed in the indirect enforcement system, giving the ICC, however, a kind of fast track priority over similar modalities employed by states in connection with bilateral relations. Nevertheless, state systems prevail in their legal determinations in connection with such modalities, and national laws apply.90 The ICC complementarity system which now involves the 12191 state parties to the ICC statute derives from the international legal system established by the ICC statute, which should not really be regarded as different from any other international treaty obligation undertaken by a state when it becomes a party to an ICL convention. Therefore, the complementarity system may be said to be a boost to the indirect enforcement system. Like ICL conventions which require states to enact national legislation incorporating the prohibited international crime into domestic law, the ICC statute

87 See infra Chapter V. 88 See infra Chapter III, section 3. 89 See infra Chapter VII. 90 See infra Chapters VII and IX. 91 See The States Parties to the Rome Statute, ICC, available at http://www.icc-cpi.int/Menus/ ASP/states+parties/ (last visited May 10, 2012).

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requries the adoption of national legislation to implement the statute and that applies to the crimes contained in Articles 6, 7 and 8 which relate to namely genocide, crimes against humanity and war crimes. Aggression has been defined at the last review conference held in Kampala, Uganda, from May 31 to June 11, 2010, in resolution RC/Res. 6 of 11 June 2010 which was adopted and inserted into the ICC statute as Article 8bis, but is not in effect.92 The difference between ICL conventions and the complementarity regime of the ICC statute is that ICL conventions obligate states to include the prohibition in their domestic criminal law and to prosecute or extradite as discussed above.93 The complementarity model is not obligatory to a state party. But if a state party elects to exercise that option, that state party has to apply the substantive law of the ICC namely the definition of the crimes, but it applies its national general part of criminal law as well as procedural law. Some non-state parties have also developed national legislation incorporating the three crimes contained in the ICC statute Articles 6, 7 and 8, namely genocide, crimes against humanity and war crimes as a way of indirectly carrying out the complementarity goals of the ICC statute but also having the benefit of not being subject to the ICC’s hierarchical decision of determining whether a given non-state party has effectively carried out these obligations. Whereas, in the indirect enforcement model, ICL conventions require states to engage either in prosecution or to provide for extradition to a state willing to do so; in the ICC complementarity model, this is optional with a state party, but if that state party wishes to exercise that right, it has to apply the substantive law contained in the statute, which the statute in any event requires state parties to make part of their national implementing legislation. It is noteworthy that states which are non-state parties to the ICC are also carrying out legislative activity similar to the complementarity action of states parties, and in this way, the ICC contributes to the enforcement of ICL limited to these three crimes and also enhances national prosecution of these crimes. There are additional benefits to those national legal systems which attempt to implement the substantive provisions of the ICC statute. These benefits include the strengthening of the principle of individual criminal responsibility, a review and update of other related provisions of domestic criminal codes, increased governmental pressure to pursue the domestic counterpart of the international crimes provided for in the ICC statute as citizens become more aware of the issues and potential to bring offenders to justice.94 92 See Rome Statute of the International Criminal Court, art. 8bis, http://www.icc-cpi.int/NR/ rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf. The language defining the crime of aggression draws on the United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974. 93 See infra Chapter V. 94 Open Society Justice Initiative, International Crimes, Local Justice, 28, 2011.



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Section 3. The Policies and Values of ICL and Their Systemic Development The words of Montesquieu concerning the decent conduct of nations are most appropriate in opening this section: Le droit des gens et naturellement fondé sur ce principe que les diverses nations doivent se faire dans la paix le plus de bien et dans la guerre le moins de mal qu’il est possible, sans nuir à leurs véritables intérêts.95

The four factors which condition the values and policies of ICL are: (1) the mutual interests of states in cooperating to prevent and suppress international and domestic criminality, (2) the demands of national sovereignty, (3) the impulse for humanistic and humanitarian values, and (4) the need for world order. These factors reflect the selfish or narrow political interests of states, the values and aspirations of international civil society, and the international community’s perceived need for world order.96 The somewhat contradictory nature of a number of these factors engenders a tension reflected in the policies and practices of ICL, while also illustrating a lack of consistency, continuity, and cohesiveness among these policies and practices. The social and political dynamics of these factors make it equally difficult to assess the impact on ICL’s history and to predict their future impact, and thus ICL’s evolution. Empirical observation leads to the conclusion that ICL is particularly susceptible to unpredictable events, making ICL, more than any other legal discipline, one that is driven by facts as opposed to policy.97 For the same 95 “International law is founded on the principle that nations, in times of peace, should do each other the greatest good, and in times of war, the least of harm possible without harming their real interests.” Charles de Secondat Montesquieu, De L’Esprit des Lois, Livre I, c.3, 1748 (La Pléiade ed., 1974). 96 See infra section 4 (discussing, in expanded form, these values and policies). 97 For example, the extraordinary human tragedies of World War II brought about the IMT and the IMTFE, but no investigatory or adjudicatory institution was established between 1945 and 1992. It was the Security Council in 1992, which established, pursuant to Resolution 780, the Commission of Experts to Investigate Violations of International Humanitarian Law in the former Yugoslavia. This led, in 1993, to the establishment of the ICTY, through Security Council Resolution 808 (Feb. 1993). See Bassiouni, Yugoslavia Tribunal, supra note 36; Morris & Scharf, supra note 37; M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L. 784–805 (1994); M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279–340 (1994); M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, in PostConflict Justice 429 (M. Cherif Bassiouni ed., 2002); Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000). Then, as a result of the genocide in Rwanda, the Security Council, in 1994, established the ICTR by Resolution 955. See Morris & Scharf supra note 37; William Schabas, The Rwanda Case: Sometimes It’s Impossible, in Bassiouni, Post-Conflict Justice, supra, at 499.

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reasons ICL, unlike other legal disciplines, cannot be appraised on the basis of any traditional legal method. As a result of its unique values and policies, ICL has not evolved in a linear, cohesive, consistent, or logical fashion. Instead, it has developed in bits and pieces through different experiences which may or may not be linked to one another. Therefore, although ICL’s historical evolution can be identified and appraised from different perspectives, the more appropriate method is the functional approach, which assesses ICL through its twin enforcement methods, the “direct enforcement system” and the “indirect enforcement system,” and through its common values and goals of preventing and suppressing international criminality. 3.1. The Historical Evolution of the “Direct Enforcement System” The evolution of the “direct enforcement system” can be considered part of the same historical continuum as the “indirect enforcement system”.98 Thus, one can identify certain historical precursors to the IMT and the IMTFE in the same way that these two institutions can be considered precursors of the ICTY and ICTR. In turn, it can be said that these four institutions are the historical foundation of the ICC. But while the historic links between the IMT, IMTFE, ICTY, ICTR, and ICC are relatively easy to identify, the historical links These events and the tragedies that occurred between 1945 and 1995 led to the establishment of the ICC in 1998 by the treaty of Rome. Yet some governments, in particular the United States, pulled back from their commitment to international criminal justice, and opposed the ICC. See The United States and the International Criminal Court, 64 Law & Contemp. Probs. (Madeline Morris, special ed., 2001); Benjamin B. Ferencz, Misguided Fears About the International Criminal Court, 15 Pace Int’l L. Rev. 1 (2003); Ruth Wedgewood, The Constitution and the ICC, in The United States and the International Criminal Court (Sarah Sewell & Carl Kaysen eds., 2000); John Bolton, The Global Prosecutors: Hunting War Criminals in the Name of Utopia, Foreign Aff. (Jan/Feb 1999); Bartram S. Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855 (1999); Diane Marie Amann & M.N.S. Sellers, The United States of America and the International Criminal Court, 50 Am. J. Comp. L. (Vol. L. Supp.) 381 (2002); Jamie Mayerfeld, Who Shall be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights, 25 Hum. Rts. Q. 93 (2003). The events of 9/11 have brought about an increase in inter-state cooperation with respect to intelligence-gathering and information-sharing, and law enforcement cooperation. Paradoxically, it has not necessarily enhanced institution-building and norm-development in inter-state cooperation in penal matters. See M. Cherif Bassiouni, Legal Controls of International Terrorism: A PolicyOriented Perspective, 43 Harv. Int’l L.J. 83 (2002). 98 See infra Chapter VI; see also, M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL]; M. Cherif Bassiouni, Introduction to International Humanitarian Law, in 1 Bassiouni, ICL, supra note 16, at 269; William A. Schabas, International Sentencing: From Leipzig (1923) to Arusha (1996), in 3 Bassiouni, ICL, at 611; M. Cherif Bassiouni, International Crimes: The Ratione Materiae of International Criminal Law, in 1 Bassiouni, ICL, supra, at 129.



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between preceding experiences and the IMT and the IMTFE are more difficult to establish.99 It may suit the purposes of those fashioning the history of ICL to consider earlier sporadic experiences as being on the same continuum,100 but that is essentially the product of ICL’s protagonists’ desire to give historical substance to this discipline. Indeed, these few and far between experiences preceding the IMT and IMTFE cannot be deemed to be part of a linear and progressive evolution on a path whose legal expectations lead to the establishment of an international criminal justice system. But then, as Robert Jackson noted to the President of the United States in his report on the Nuremberg trials,101 if Nuremberg was not the embodiment of a custom, it was the emergence of a custom, in that he relied on the words of the French philosopher Blaise Pascal, “Every custom has its origin in a single act.”102 A more accurate reading of history is that postWorld War I expectations of international criminal justice are the direct precursors of the IMT. Even so, as with so many historic events, it was a fortuitous event that brought Robert Jackson into the position of Chief U.S. Prosecutor, one with access to two Presidents of the United States, in a war in which the U.S. was the dominant power among the victorious allies. As is the case with many   99 The post-World War I efforts to establish an international criminal justice system arising out of the Treaty of Versailles (1919), did not materialize. Neither the German emperor nor persons accused of war crimes pursuant to Articles 227, 228, and 229 of that Treaty were prosecuted before international tribunals. Instead, the German Supreme Court prosecuted twenty-two persons in Leipzig in 1923 as a substitute to the international judicial body as provided by this treaty provision. The Leipzig prosecutions also took place in accordance to German law. Notwithstanding this outcome, these prosecutions can be deemed a precedent or a legal precursor to the IMT. Legal historians, including this writer, also refer to the far more distant precedent of Peter von Hagenbach, who was tried in 1474 before a tribunal consisting of the twenty-six representatives of states comprising the Holy Roman Empire. Another historic prosecution for international crimes of war is the trial of Conradin von Hohenstaufen in 1268, though it was not before an international tribunal. See George Schwarzenberger, International Law 462–66 (1968); Bayard Taylor, A History of Germany: From the Earliest Times to the Present Day 187 (1907); Wolfgang Menzel, Germany from the Earliest Period 629 (1900); A.G. de Barante, Histoire des Ducs de Bourgogne de la Maison de Valois, 1364–1477, 16 (1839); M. Cherif Bassiouni, World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002); M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 Bassiouni, ICL, supra note 98, at 29; Schabas, International Sentencing, supra note 1, at 611. 100 Another such episode, though not judicial, is the case of Napoleon Bonaparte, judged by the political consensus of the allies who defeated him, first at Waterloo in 1815 and then a few months later at Fontainebleau. After the first defeat the allies decided that his punishment for war in Europe was his exile to the Island of Elbe, and after the second defeat following his 100 Days Campaign, he was sentenced without trial to his permanent exile on the Island of St. Helena. See Gary Bass, Stay the Hand of Vengeance 38 (2000). 101 Report of Robert H. Jackson to the President, Dep’t of St. Bull, June 10, 1945, at 1071 et. seq. 102 See Bassiouni, World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, supra note 99.

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international, as well as national, legal developments, it is the influence of individuals that brings about certain outcomes with durable consequences. Still, it is usually because certain circumstances exist which, when combined with the decisive leadership roles of influential persons, produce these outcomes and their consequences. Thus, it was not until World War II’s terrible experiences, especially that of the Jewish Holocaust,103 and the experiences of the IMT and Subsequent Proceedings, that a universal conscience was awakened among different people across the globe, though not all with the same degree of awareness.104 Yet, even at present, after more than 250 conflicts have occurred between the end of World War II and now, causing anywhere between 70 and 170 million casualties,105 there is reluctance and even opposition by some states to the establishment of the ICC and to the pursuit of international criminal justice.106 3.2. The Evolution of ICL Norm-Development ICL norm development is separate from, though related to, the historical evolution of international enforcement mechanisms through the “direct enforcement system.” The latter reinforces the scant history of norm enforcement briefly described above. In that respect, there is greater support for the proposition of historical accretion of ICL norms. The starting point is in the fifth century B.C.E. China with the writings of Sun Tzu on the Art of War,107 who recommended the humane treatment of the sick, the wounded, prisoners, and civilians and respect for religious institutions in the occupied countries. Although motivated by political realism more than humanitarian considerations, Sun Tzu nonetheless helped advance the protection of persons and places which, several centuries later, international humanitarian law deemed to be protected persons and

103 See Encyclopedia of Genocide (2 vols., Israel Charney ed., 1999). 104 See Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002). 105 See M. Cherif Bassiouni, The Need for International Accountability, in 3 Bassiouni, ICL, supra note 98, at 3. There were two reported studies in the PIOOM Newsletter and progress report in 1994 and 1995: A.J. Jongman & A.P. Schmid, Contemporary Conflicts: A Global Survey of High and Lower Intensity Conflict and Serious Disputes, 7 PIOOM Newsletter and Progress Report 14 (Winter 1995) (Interdisciplinary Research Program on Causes of Human Rights violations, Leiden, The Netherlands), and Study, 6 PIOOM Newsletter 17 (1994); The International Institute of Strategic Studies: 2000 Chart of Armed Conflict (2000); see also, Jennifer L. Balint, An Empirical Study of Conflict, Conflict Victimization and Legal Redress, 14 Nouvelles Études Pénales 101 (Christopher C. Joyner special ed. & M. Cherif Bassiouni, general ed. 1998). 106 As of May 2012, 121 states have ratified the treaty establishing the ICC, while the United States actively opposes it. For an updated list of ICC States-Parties, see The State Parties to the Rome Statute, ICC, http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited May 10, 2012). For U.S. opposition, see supra note 97. 107 Sun Tzu, The Art of War (Samuel B. Griffith trans., 1971).



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targets during armed conflicts.108 In India, a century after Sun Tzu, the Book of Manu109 was found to contain the same admonitions. Other civilizations have also embraced the same ideals.110 What is particularly telling is that the ideals expressed in China, India, and South America were independent of one another and not the product of the migration of ideas. Thus, some other reason must exist to explain this apparent coincidental convergence of values and policies. Similarly, in Europe these ideals developed independently of any intellectual linkage to those developed in the other civilizations mentioned above. European civilizations, however, benefited from cross-fertilization. Herodotus, for example, recounts the wars between Athens and Sparta, and between them and the Persians, deploring the conduct of barbarians almost on the same basis as some of the values and ideals contained in the earlier and more distant civilizations referred to above.111 Independently of what had developed in the practices of Greece and later in Rome, Islamic civilization in the seventh century C.E. expressed and practiced these same ideals.112 They were transformed into specific prescriptions arising out of Prophet Mohammed’s Sunna,113 and pursued by his first two successors, Abu Bakr and Omar Ibn el Khattab.114 These Muslim prescriptions found their way into Western European (Christian) thought and practice. This occurred as a result of almost 300 years of Muslim occupation in Spain and southern Italy, influencing the writings of Vitoria,115 Suarez,116 Ayala,117 and Gentili,118 who were among the founders of European international

108 See M. Cherif Bassiouni, Evolution of International Humanitarian Law and Arms Control Agreements, in M. Cherif Bassiouni, A Manual on International Humanitarian Law and Arms Control Agreements 1 (2000). 109 Nagendra Singh, Armed Conflict and Humanitarian Laws of Ancient India, in Études et Essais sur le Droit International Humanitaire et sur les principes de la Croix-Rouge en L’Honneur de Jean Pictet (Christophe Swinarski ed., 1984). 110 See Bassiouni, International Humanitarian Law, supra note 108, at 10–15. 111 Coleman Phillipson, 1 The International Law and Custom of Ancient Greece and Rome 59 (1911); Pierre Roussel et al., La Grèce et L’Orient: Des Guerres Mediques à la Conquête Romaine (2d. ed. 1938); see also Homer, The Odyssey Bk. I, 11, 260–63 (Richmond Lattimore ed. & trans., 1967). The same humanitarian perspectives appeared in Roman thinking, see Marcus Tullius Cicero, De Officiis lib. III, ch. xxii (1483). 112 See Bassiouni, International Humanitarian Law, supra note 108, at 16. 113 See M. Cherif Bassiouni (with Gamal Badr), The Shari’ah: Sources, Interpretation and RuleMaking, 1 UCLA J. Islamic & Near Eastern L. 135, 150 (2002). 114 Siyar al-Shaybani (1335–1336), translated in English Majid Khadduri, War and Peace in the Law of Islam (1955); see also Bassiouni, International Humanitarian Law, supra note 108, at 9. 115 Franciscus de Vitoria, De Indis et de Jure Belli, in Classics of International Law (James B. Scott ed., 1917). 116 Francisco Suarez, On War, in Classics of International Law supra note 115. 117 Balthazar Ayala, Three Books on the Law of War, in Classics of International Law, supra note 115. 118 Alberico Gentili, De Jure Belli Libri Tres, in Classics of International Law, supra note 115.

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law. These progenitors, and later Hugo Grotius119 and others like Puffendorf,120 Burlemaqui,121 and de Vattel,122 produced a historic synthesis between what the Romans called jus in bello and jus ad bellum, which combined the values of natural law in their Platonian/Aristotelian ethical sense,123 and their Christian counterpart expressed in the writings of St. Augustine and St. Thomas Aquinas,124 giving rise to the Code of Chivalry in Europe’s Middle Ages125 and subsequently the development of contemporary international humanitarian law.126 These examples are merely fragments of the evolution of human and social values which led to contemporary international humanitarian law and human rights law.127 The former started thanks to Henri Dunant after he witnessed the carnage of the Battle Solferino.128 In 1864, the first Geneva Convention for the Amelioration of the Conditions of the Wounded in Armies of the Field was adopted.129 As a result, an international accretion of norm-making, embodied in fifty-nine international conventions on the humanization of armed conflict, developed.130 Despite the advancement of contemporary normative proscriptions beyond what any predecessor could have contemplated, these conventions of the past illustrate the humanitarian and humanistic values which are discerned in different civilizations going as far back as 7,000 years ago. The evolution of normative IHL has developed at a more pronounced pace than the willingness of governments to accept the need for establishing a permanent universal system of international criminal justice.131 This is due in part to states’ jealously held conceptions of sovereignty, and their dearly held practices of political realism. Thus, the political interests of states still favor ad hoc approaches, evidenced in the ICTY and ICTR, which best reconcile the goals of 119 Hugo Grotius, De Jure Belli Ac Pacis (1625). 120 Samuel Puffendorf, De Jure Naturae et Gentium Libri III (1672). 121 Jean Jacques Burlemaqui, Principes du Droit Naturel et Politique (1748). 122 Emmerich de Vattel, Le Droit des Gens (1758). 123 Aristotle, Nicomachean Ethics (T. Irwin, trans. 1985); Aristotle, Ethics I and Politics I (W.D. Ross, trans. 1954); see also Cicero, De Republica and De Legibus (C.W. Keyes, trans., 1928). 124 Thomas Aquinas, Summa Theologica (1485); see also Alessander Passerin D’Entrèves, Natural Law: An Introduction to Legal Philosophy (2d ed., 1970); Lloyd Weinreb, Natural Law and Justice (1987). 125 See Maurice H. Keen, The Laws of War in the Late Middle Ages (1965); Honoré Bonet, Tree of Battles (ca. 1387). 126 See M. Cherif Bassiouni, The Evolution of International Humanitarian Law and Arms Control Agreements, in Bassiouni, International Humanitarian Law, supra note 108, at 1. 127 See Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989). 128 Jean Henri Dunant, Un Souvenir de Solferino (1862). 129 Convention for the Amelioration of the Conditions of the Wounded in Armies in the Field [First Red Cross Convention, 18 Martens Nouveau Receuil Ser. 1 607]; see also 1 Am. J. Int’l L. (1907). 130 See Bassiouni, International Humanitarian Law, supra note 108, at 83. 131 See Sadat, supra note 62.



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international criminal justice and the pursuit of political ends.132 Further evidence of the schism that exists between humanitarian and humanistic values on the one hand and political realism on the other, is governments’ continued opposition towards the recognition of victims’ rights to justice and to redress.133 Moreover, there is a persistent gap between international humanitarian law and international human rights law.134 The latter still remains substantially prescriptive rather than proscriptive.135 This brief historical excursus reveals the tension between norm development, which reflects the commonly shared values, aspirations of peoples irrespective of their diversity, and the political interests of states. It reveals that enduring human values, though shared by so many, are not yet powerful enough to overtake even the temporary interests of states, particularly those of more powerful states. This tension is what affects the nature and structure of ICL, and thus its normative development and enforcement capabilities. Nowhere is this theory more evident than in the peculiarities of ICL’s enforcement regimes.136 132 See Bassiouni, Post-Conflict Justice, supra note 97; Gary Bass, supra note 100. 133 The opposition of states has blocked the adoption of international guidelines on victim compensation. It is noteworthy that the opposition is to non-mandatory guidelines which evidences the distance that still has to be traveled to achieve an internationally binding norm. After 1984, when the Basic Principles of Justice for Victims of Crime and Abuse of Power were adopted at a meeting in Ottawa which this writer had the honor of chairing, efforts at developing remedies for victims remained essentially an NGO endeavor. In 1993, the sub-Commission appointed Professor Theo Van Boven as Special Rapporteur on the subject of victims’ reparation. His mandate was then established by the Commission on Human Rights, and lasted until 1998, when the Commission appointed this writer as Independent Expert. In reliance upon Van Boven’s prior work, this writer completed two reports and prepared guidelines, which were embodied in a report to the Commission in 2000. Because of the impending United Nations Conference on Racism, which raised concern among governments that different groups of victims would rely on these principles to make claims against governments, the question was temporarily set aside. But continued interest by certain governments and by international civil society brought the question once again to the fore of the Commission’s attention. The final report of the Independent Expert and the principles were submitted to the Commission on Human Rights in 2000. See The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission Resolution 1999/33, U.N. Doc. E/CN.4/62 (Jan. 18, 2000) (basic principles and guidelines on the right to a remedy and reparation are attached as an annex). The Commission did not act on the guidelines pending further consultations between governments, pursuant to its Resolution, The Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. 2002/44 (April 23, 2002). These consultations, which took place in October 2002, resulted in the following report: The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, Note by the High Commissioner for Human Rights, U.N. Doc. E/CN.4/2003/63 (Dec. 27, 2002). At its 59th session, the Commission adopted a resolution for the finalization of the principles on the basis of governments’ input (based on U.N. Doc. E/CN.4/2003/L.44 (April 14, 2003)). See also Symposium, International Protections of Victims, 7 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1988). 134 See Meron, supra note 127. 135 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the International Protection of Human Rights, 9 Yale J. World Pub. Ord. 193–214 (1982). 136 Discussed supra section 2, and infra Chapters V, VI and VII.

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chapter one 3.3. The Historic Evolution of ICL Enforcement through the “Indirect Enforcement System”

Parallel to the evolution of international criminal justice through the “direct enforcement system”137 is the evolution of International Criminal Law through the “indirect enforcement system.”138 The latter applies to international crimes and the enforcement of orders and judgments of certain international judicial institutions, and also relies on the same modalities of “interstate cooperation in penal matters” applicable to violations of national crimes.139 Essentially, because the “indirect enforcement system” functions as an intermediary between states, and thus impinges minimally, if at all, on sovereignty, that system is making greater strides than its counterpart, the “direct enforcement system.” Another explanation is that the “indirect enforcement system” parallels the “inter-state penal cooperation” regime where states have a greater interest in cooperating than they have at the multilateral level. This evidences that state interests have a stronger influence on ICL enforcement than the more altruistic values embodied in the spirit of multilateral cooperation. State interests also explain why cooperation in penal matters is greater within a regional context, where economic, political, and social affinities between states are stronger. Such is the case, for instance, with the European Union140 and the Council of Europe.141 Thus, European ICL will likely develop significantly in the decades to come. This regional development may well become the locomotive, or at least the model, for ICL on a worldwide level. Significant contributions to the progressive development of ICL will continue to derive from enhanced levels of interstate cooperation in penal matters concerning domestic criminality. This phenomenon will also benefit international cooperation in the prevention and suppression of international crimes.142 Moreover, theories of extra-territorial national criminal jurisdiction, particularly universal jurisdiction,143 will contribute to the complementarity between international and national judicial institutions, as well as between national judicial institutions.

137 See infra Chapter VI. 138 See infra Chapter V. 139 Id. 140 For example, the European Council Framework Decision of 13 June 2002, on the European Arrest Warrant and Surrender Procedures between Member States (2002/584/JHA), which gave effect in all EU states to arrest warrants issued by any prosecuting authority of any one EU state. This directive will enter into effect 17 January 2004. See also Giuliano Vassalli, Mandato d’arresto e principio d’egnaglianza, 3 Il Giusto Processo 129 (2002). 141 For the various CE conventions, see La Cooperation Inter-Étatique Européene en Matière Penale (Ekkehart Müller-Rappard & M. Cherif Bassiouni ed., 2d rev. ed. 1991). 142 See infra Chapter V for the modalities of inter-state cooperation, and Chapter III for the contents of international crimes. 143 See supra note 83. At present 18 states have universal jurisdiction and 5 have universal jurisdiction for aggression. Michael Scharf, Universal Jurisdiction and the Crimes of Aggression, 53 Harv. Int’l. L.J. 357, 359 (2010).



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The confluence of the factors above reflects the interests of states, as well as their mutual and shared interests in international cooperation to prevent and suppress both international and domestic crimes. Further, these factors have brought about a synergy of forces that has led to the make-up of contemporary ICL. Notwithstanding the deficiencies mentioned above and throughout this book, there is a de facto jurisdictional complementarity between international and national judicial institutions enforcing ICL. Additionally, a substantive normative complementarity between international and national legal norms exists which, in time, is bound to become harmonized at first and then integrated in the end.144 Since the different components of ICL are functionally inter-related, progress in any one area brings about overall progress. 3.4. The Underlying Concept of ICL Enforcement: A Civitas Maxima145 The “indirect enforcement system” is predicated on treaty obligations.146 These treaty obligations require states to include ICL prohibitions in their domestic criminal laws, thereby transforming international crimes into domestic crimes. Moreover, ICL treaty obligations contain provisions that impose the duty on signatories to prosecute or extradite, and to provide legal assistance to states seeking to prosecute.147 Because treaties are the source of these obligations, they are only binding on state parties. Non-state parties may, however, be bound by the substance of these obligations if they arise under general international law, particularly if the crimes giving rise to the obligations are jus cogens international crimes.148 The unarticulated premise underlying the obligations to enforce international crimes, in reliance on the “indirect enforcement system,” is that an international community with shared common values exists. It therefore has the same collective interest in upholding these values by enforcing the transgression of norms which embody them. Consequently, the international community collectively and in its singular units, has an obligation to prevent and suppress certain international crimes that adversely affect the values and interests of that community.149 144 See supra section 1.3. 145 This section is based on M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law 28 et seq. (1995). 146 See International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997). 147 Id. 148 See infra Chapter III, section 3. 149 “It implies that international law commands human beings to combine for the repression of everything which is gravely injurious to the bases of social life.” W.E. Hall, A Treatise on International Law 68 (A. Pearee Higgins ed., 8th ed. 1924). This argument assumes, to some extent, the existence of a legal order based on social or moral precepts, much like what exists within states, which are common to all states or, rather, to all humanity. The criminal laws of states are assumed

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The implication becomes embedded in the idea of a moral community consisting of all humanity, or at least of enough of humanity to constitute a certain level of political organization that is capable of tangibly exercising collective action. The idea of the world as a single community, a community of humankind, extends back to the Greek Stoics,150 who were inspired by natural law conceptions.151 The idea of an international community of states, however, as understood in the contemporary world, is not dependent on accepting the existence or desirability of a world government.152 Instead, it primarily expresses a sense of human and social solidarity, as well as a utilitarian value derived from common and mutual interests. Additionally, it postulates certain universal objects and moral imperatives that are believed to prohibit certain conduct by individuals and states.153 Consequently, these universal objects and moral imperatives (which can also very well be based on ethical as well as pragmatic considerations) limit the action of states and impel them to cooperate for the common good and common interest of at least a worldwide community of states, if not a community of humankind. Various names have been used to refer to this hypothesis of an international obligation flowing from the commonly shared values and interests of the international community. For instance, the name popularized by Christian Wolff in the eighteenth century, in reliance on Roman Law, is that of a civitas maxima, a higher body politic.154 Wolff was reviving a Roman legal concept intended to apply to the different nations and tribes that comprised the Roman Empire.155

to reflect commonly shared moral or social values, protect a social interest, and are aimed at securing public order. Thus, it is assumed that international crimes which embody commonly shared values are therefore the legitimate concern of peoples and states throughout the world. 150 On the history of this idea, see Walter Schiffer, The Legal Community of Mankind (1954). 151 See D’Entrèves, supra note 124; Weinreb, supra note 124. 152 See Charles R. Beitz, Political Theory and International Relations 182–83 (1979); Governance Without Government: Order and Change in World Politics (James H. Rosenthal & Ernst-Otto Czempield eds., 1992). 153 This is the basis for jus cogens international crimes. See infra Chapter III, section 8. 154 Wolff’s expression is often translated as “supreme state.” This is the convention adopted in the translation in the Classics of International Law series. C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (J. Drake trans. 1934). See also, e.g., 6 (pt. 2) F. Copleston, A History of Philosophy 134 (1960). For a critical view, see Nicholas Greenwood Onuf, Civitas Maxima: Wolff, Vattel and the Fate of Republicanism, 88 Am. J. Int’l L. 280, 287–96 (1994). 155 For Wolff, the civitas maxima was a formal concept, a fiction, a “postulate of reasoning,” with “no constitutional or political content.” W.K. Hancock, Four Studies of War and Peace in this Century 94 (1961). Wolff was quite satisfied with the existing states-system. See Arthur Nussbaum, A Concise History of the Law of Nations 153–54 (2d ed. 1954); see also Onuf, supra note 154. Nor does Wolff assert a duty to extradite or punish; in fact, he believed that states have no business concerning themselves with crimes committed elsewhere. See Wolff, supra note 154, at 82. On the other hand, he does make the presumed existence and “will” of the international community a basis of international law. Thus, Hersch Lauterpacht linked the expression to the assertion that international law ultimately is based on the “will of the international community,”



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To a greater or lesser extent, it is the belief in the existence of a civitas maxima, a collective duty that transcends the interests of the singular and underlies assertions about a common interest in repressing certain international crimes. Some have even argued that it extends to all crimes, wherever they may occur.156 Certain elements in international relations lend plausibility to the hypothesis of a civitas maxima and to the cluster of ideas about international relations which it encapsulates. On the other hand, some elements also lend plausibility to competing and different reflections of relations between states. The three alternative views to a civitas maxima are the anarchical, “rule of law,” and the consensual views of international relations.157 The first of these schools of thought views the international system as essentially anarchical, a field of perennial conflict and power politics. In that perspective, states are depicted as existing in a Hobbesian state of nature in which each state pursues its own interests, defines its own purposes, limited only by considerations of expediency and prudence.158 Force, mitigated so far as may be not the “will of individual States.” 2 H. Lauterpacht, International Law: Collected Papers 15–16 (E. Lauterpacht ed., 1975). For recurrent references to the concept by Lauterpacht, see the indexes to vols. 2 and 3 of his Collected Papers, s. v. “civitas maxima.” See also H. Lauterpacht, International Law and Human Rights 463 (1950): “recognition and protection of human rights may in itself become a significant contributory factor in the consummation of the organized civitas maxima, with the individual human being in the very centre of the constitution of the world.” 156 See Gerhard O.W. Mueller, International Criminal Law: Civitas Maxima—An Overview, 15 Case W. Res. J. Int’l L. 1 (1983); But for a skeptical perspective, see Edward M. Wise, Terrorism and the Problems of an International Criminal Law, 19 Conn. L. Rev. 799 (1987). 157 The following discussion is a reworking of the three “traditions” or categories of thought about international relations identified by Martin Wight in his lectures on “International Theory” at the London School of Economics in the 1950s. See Martin Wight, International Theory: The Three Traditions (G. Wight & B. Porter eds., 1991); see also Martin Wight, An Anatomy of International Thought, 13 Rev. Int’l Stud. 221 (1987). These lectures have only recently been published and for a long while were known mainly through second-hand accounts, such as Hedley Bull, Martin Wight and the Theory of International Relations, 2 Brit. J. Int’l Stud. 101 (1976) and Brian Porter, Patterns of Thought and Practice: Martin Wight’s ‘International Theory,’ in The Reason of States 64 (M. Donelan ed., 1978). The three categories are only implicit in Wight’s other published works. See Martin Wight, Power Politics (H. Bull & C. Hobraad eds., 1979); Martin Wight, Systems of States (H. Bull ed., 1977); Martin Wight, The Balance of Power and International Order, in The Bases of International Order 85 (A. James ed., 1973); and his essays in Diplomatic Investigations (H. Butterfield & M. Wight ed. 1968). Nonetheless, Wight’s categories had a considerable influence on academic writing about international relations in Britain. See, e.g., Hedley Bull, The Anarchical Society 24–27 (1977); and the papers collected in Diplomatic Investigations, supra; System of States, supra; and The Community of States (J. Mayall ed., 1982). A comparable three-part distinction now seems to be “fairly standard” in categorizing normative thinking about international relations. Lea Brilmayer, Justifying International Acts 29 (1989); see also infra section 4; cf. Joseph S. Nye, Jr., Nuclear Ethics 27–41 (1986); Mark J. Hoffman, Normative Approaches, in International Relations: A Handbook of Current Theory 27 (M. Light & A.J.R. Groom eds., 1985). 158 Thomas Hobbes did not, however, negate the intrinsic power of law as he states in Leviathan: Sive de Materia, forma et Potestate civitatis, Ecclesiastica et civili III (1841), non autoritas sed veritas lex facet. But that applied, as discussed below, to internal society. See infra notes 152–66 and accompanying text.

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by such considerations, is nevertheless the ultima ratio which remains available to states to resort to at will. No moral rules restrain states in their relations with one another, and only those legal rules that they wish to be bound by limit their conduct. Enlightenment, expediency, and prudence are therefore the selfcontrol mechanisms; and why is that not sufficient if states are expected to act in an enlightened and wise manner? This chimeric notion, however, leaves no alternative if one accepts the anarchical view of international relations. This leads to the conclusion that it can only produce chaos and conflict, unless a balance of power exists, as was the case during the Cold War between 1948 and 1989, or with the imposition of control by a single super-power. The alternative is necessarily another view of world order, which some recognize on the basis of the “rule of law.” Those who question that approach suggest binding rules of law are only valid in the context of a national civil society, and thus applicable only to the internal affairs of a state. In a perspective in which there is no worldwide community, a so-called international system based on the “rule of law” is a moral and legal vacuum, or, as in the Hegelian version, the morality of states lies only in self-assertion.159 Nevertheless, this perspective on international relations recognizes that there are some minimum ground rules that by necessity govern interactions between states. These rules do not necessarily govern as “rules of law,” because the rules governing relations between states do not have the quality of law in the same sense as rules governing relations between individuals in civil society. Rules governing international relations are considerably more fragile, if not aleatory, because they are open to interpretation by those who are subject to them, and, as always, likely to give way as soon as countervailing considerations of self interest appear. To such “realists,” as they are called in the parlance of political science, the disjunctive forces in international life predominate so much as to make it implausible to accept international law restraining states in their conduct because there is no given international law and no given international law enforcer. Thus, since there is no international community controlled by the “rule of law,” there is no universal concept of crime.160 Oliver Wendell Holmes subscribed to that view, which retrospectively reflected the reality of a world that had yet to experience the effects of globalization. He stated in 1920 that “the sacredness of human life is a purely municipal idea of no validity outside the jurisdiction”—ergo, no international criminal law except insofar as it reflects the will of the state.161 159 Georg W.F. Hegel, Phenomenology of Spirit (A.V. Miller trans., 1979); Georg W.F. Hegel, Philosophy of Right (S.W. Dyde trans., 1996). 160 “Where no civil society is, there is no crime.” Thomas Hobbes, Leviathan 190 (M. Oakeshott ed., 1957) (1651). 161 Letter from Oliver. W. Holmes to Frederick Pollock (Feb. 1, 1920), in 2 Holmes Pollock Letters 36 (M. Howe ed., 1941). Based on that view, it would be implausible to consider genocide,



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Globalization, however, has certainly changed the context in which this observation is applied.162 Another set of views is a pattern of thought about international relations in which the international system is seen neither as a state of nature nor as the inclusive moral community implicit in the hypothesis of a civitas maxima. Rather, it is viewed as a society of states in which states, not individuals, are its members. Rules of international law exist, but there are agreed upon restraints, voluntarily accepted by states, and thus binding on the conduct of its members by their consent. States, therefore, pursue goals which they set for themselves, and they are constrained by voluntarily enforced prescriptions that make it possible for them to coexist as an amorphous society with a minimum of conflict. In this view of the international society, no universal common good exists that requires states to pursue, collectively or individually, particular substantive aims.163 According to this more recent view of international law, the degree of cohesion normally associated with the idea of a community of states is missing.164 But neither is there such a complete anarchical state of affairs as to render the idea of international law implausible. The exigencies of the twenty-first century have, however, altered this conception, moving it more toward a “rule of law”oriented international society. There are three further observations to be made about these competing views of the nature of international relations. First, they are paradigms, analytical categories like Weberian ideal types,165 and none mutually excludes all characteristics of the others. Elements of each appear in all. Moreover, each can be divided into sub-categories defined in terms of qualifications and involutions suggested by the others. One can come up, for instance, with more or less “realistic” or more or

crimes against humanity, and war crimes as jus cogens international crimes. See Bassiouni, Introduction to International Humanitarian Law, in 1 Bassiouni, ICL, supra note 16, at 269. 162 See infra Chapter VIII. 163 This is the central argument of Terry Nardin, Law, Morality, and the Relation of States (1983). 164 The terms “community” and “society” are said to have “slightly different ranges and flavours in ordinary usage” and no completely “settled resonance or connotation.” John Finnis, Natural Law and Natural Rights 135, 156–57 (1980). They are used here to indicate, like Tonnies’ distinction between Gemeinschaft and Gesellschaft, two polar forms of human association: “community” implies the higher, “society” the lesser, degree of cohesion or solidarity. See also George Schwarzenberger, Power Politics 12–13 (2d ed. 1951); George Schwarzenberger, Civitas Maxima?, 29 Y.B. World Aff. 337 (1975), reprinted in Georg Schwarzenberger, The Dynamics of International Law 107–134 (1976). But, for a different usage of the two terms, compare R.G. Collingwood, The New Leviathan 138–47 (rev. ed. 1992) (1942), where “community: is treated as the looser form of association (almost equivalent to “class”), while “society” is defined as a community whose members share a “social consciousness.” 165 Max Weber, Theory of Social and Economic Organization (1947).

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less “idealistic” or “cosmopolitan” versions of a “society of states;”166 one may also be more or less “progressive” and “humanitarian,” more or less backward-looking, etc., in describing what the idea of an international community implies.167 Second, international relations cannot be adequately described entirely in terms of any one of these three patterns. None provides a completely accurate account of what the international system is actually like; none catches exactly the whole reality or scope of international relations. Each pattern points to certain features, more or less contextually relevant, which is likely to get other features out of focus. It is not a matter of deciding which one is true and all are true to some extent. Only their complementary adequacies and inadequacies supply anything that may explain the fabric of international relations. At different times, for different purposes, one or the other may seem to come closer to describing the actual relations and the conduct of states in particular circumstances. Third, each of these paradigms imparts elements of prescription, as well as description, or a view of how international relations are or ought to be conducted. Readiness to accept one or another as an accurate description turns, to some extent, on beliefs about what international relations should be like, yet each embodies an influential and durable set of ideals or permanent mutual interests, such as the preservation of world order.168 The principles implicit in each, such as national self-assertion, non-intervention, and universal respect for human rights, represent important but ultimately difficult to reconcile aspirations. Thus, in their prescriptive aspect, these paradigms are a way of expressing the implications and the incommensurability of the ends that shape the conduct of states in their international interactions. The pattern of thought which represents the international system as a “society of states” incorporates many of the premises of traditional international law. From its beginnings, what we know as international law has been largely based

166 Wight termed this paradigm the “Rationalist” or “Grotian tradition.” Within this tradition, Grotius himself stands toward the “cosmopolitan” pole. The notion of a “Grotian conception” has sometimes been used more narrowly to refer to the cosmopolitan or solidarist pole of the wider “Grotian tradition.” See, e.g., Hedley Bull, The Grotian Conception of International Society, in Diplomatic Investigations, supra note 157, at 51; Hedley Bull, The Importance of Grotius in the Study of International Relations, in Hugo Grotius and International Relations 65 (H. Bull, B. Kingsbury & A. Roberts eds., 1990). This is a rife source of confusion. On these two senses of “the Grotian conception,” see Tony Evans & Peter Wilson, Regime Theory and the English School of International Relations: A Comparison, 21 Millennium: Journal of Int’l Studies 329 (1992); Nicholas J. Wheeler, Pluralist or Solidarist Conceptions of International Society: Bull and Vincent on Humanitarian Intervention, 21 Millennium: J. Int’l Stud. 463 (1992); R. J. Vincent, Order in International Politics, in Order and Violence: Hedley Bull and International Relations 38, 40–41 (J.D.B. Miller & R.J. Vincent eds., 1990). 167 Wight termed his third paradigm “Revolutionist;” it is exemplified in ideologies of the Reformation and French Revolution, and also in ideologies of Counter-Reformation and CounterRevolution—in all ideologies that preach the imperative of human solidarity. See Bull, supra note 157. 168 Myres McDougal et al., Law and Minimum World Public Order (1961).



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on the idea of a “society of states.” It has been predicated on a rejection of both the ideas that states exist in a Hobbesian “state of nature” and of the medieval view that Europe, where such views originated in some sense, formed a single community.169 In Islam, Ummah represents the notion of the community of people.170 The Islamic concept, contrary to the Western European conception of a “society of states,” is a unitarian one, because it flows from the belief that man’s law must conform to divine law, which derives from the Shari’a.171 Western moral philosophers dealt separately with the sovereign entity, and with those individuals comprising that community. Gierke’s account of Western European natural law thinking172 draws a distinction between three views of the nature of international relations prevalent in early modern Europe that coincide with the three paradigms discussed above: (1) the tendency (sustained by the lingering medieval idea of a universal empire) for the concept of an international society to harden into that of a world-state, with a real group authority attributed to the international legal community; (2) the view of Bodin173 and 169 See Hobbes, supra note 160. For some Western moral philosophers, humanity is understood to mean those within the national community, while for others it has a more universal meaning. Immanuel Kant referred to it as menschheit. He also addressed the duty of humanity in its Latin meaning of humanitas. The values of menschkeit are universal, because they are based on universal reason that harkens back to Aristotle’s concept of ethical reason as constituting universal law. See Aristotle, Ethics, I and Politics, I (W.D. Ross trans., 1954). For Kant, the coalescence of values and reason become the individual’s own personal legitimacy which he refers to as in sich enhält. Reason is elevated to a fact as in das facktum der vernunft. See Immanuel Kant, Groundwork of the Metaphysics of Morals (H.D. Paton trans., 1946). Hegel, however, sees Kant’s metaphysical groundwork as reflecting a perfect world, thus the need to reconcile it with the imperfect world. See Georg W.F. Hegel, Elements of the Philosophy of Right (H.B. Nisbet trans., 1991). Thus, for Hegel, the institutional view of ethical life or sittlichkeit is inspired by the spirit, geist, which goes beyond the reason. These and other views of moral philosophers have inspired and even shaped national criminal justice systems, and now indirectly they influence international criminal justice. See Chapter X, section 2. For a discussion of these views, see Lectures on the History of Moral Philosophy, John Rawls (Barbara Herman ed., 2000). 170 See Muhammad Hamidullah, The Muslim Conduct of State (4th ed. 1961); S. Ramadan, Islamic Law, Its Scope and Equity 42 (1961). 171 See Bassiouni & Badr, supra note 113. 172 Otto von Gierke, National Law and the Theory of Society 1500 to 1800 85–86, 195–98 (Ernest Barker trans., 1934; reprinted in 1957). This is a translation of 4 Otto von Gierke, Das deutsche Genossenschaftsrecht 361–63, 535–41 (Graz, Akademische Druck-u. Verlagsanstalt, 1954) (1913). 173 Jean Bodin, Les Six Livres de La République (1580). Bodin’s Six Livres was first published in French in 1576; in Latin in 1586. The French and Latin texts differ substantially. The only complete English translation, published by Richard Knolles in 1606, is a composite drawn from both the French and the Latin versions. Jean Bodin, The Six Books of a Commonwealth (K. McRae ed., 1962) is a corrected facsimile reprint of Knolles’ translation. Jean Bodin was the first in the Western world to articulate the concept of state sovereignty as representing the unified source of state authority. His rationale was that such a unified source of authority, as reflected in the concept of state sovereignty, was indispensable to the internal legal order and presumably to the legal order applicable to relations between states. Jean Bodin, De Republica (1576). This historical conception is discussed in Sir Robert Jennings, Sovereignty and International Law, in State Sovereignty and International Governance 21–33 (Gerard Kreijen et al. ed., 2002). Professor Jennings also refers in that context to J.L. Brierly, The Law of Nations, 7 (1955).

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Hobbes,174 which rejected in toto the idea of a natural community uniting states; and (3) the idea of an international society involving a system of rights and duties mutually binding on states in their relations with each other, but not with the authority of the whole over its parts.175 It was this third view which ultimately predominated and shaped the development of modern international law.176 But each of these three views corresponds to persistent elements in international relations; each has continuing validity as a partial description of important features of the international system. While one may be dominant at a given moment, a full picture requires taking all three into account. Like the paradigm of a “society of states” in Western European legal thinking, the concepts of traditional international law present a partial and fragmented view of what the world is really like.177 They have come to seem inadequate precisely because they exclude significant developments that make the world appear, more than ever, like a genuine community. It is fashionable to view the contemporary world as undergoing a process of transition from an international system in which the dominant element is the nation-state, to one more nearly predicated on the common good of the global community. In certain respects, this movement toward global integration is a reversal of the break-up of Latin Christendom associated with the Peace of Westphalia (1648), which marked the beginning of the modern state-system. Professor Richard Falk, among others, has referred to a movement from a system order based on “the Westphalian tradition” of territorial sovereignty to a more cohesive form of international order.178 Contemporary international law is thus viewed as embodying two intersecting

174 See Hobbes, supra note 160. 175 Grotius, although inspired, to a large extent, by ideas of human solidarity and Christian unity, is a significant precursor primarily because he tried to strike a middle ground between thinking of Latin Christendom as a single community or super-state and the temptation to conclude that otherwise there could be no moral or legal bonds between separate sovereigns. Hugo de Groot Grotius, supra note 119. 176 See F.H. Hinsley, Sovereignty 186–92 (1966); cf. Bull, The Importance of Grotius, supra note 166, at 71–72. 177 Cf. Anthony Carty, The Decay of International Law (1986). 178 See, e.g., Richard Falk, Revitalizing International Law (1989); Richard Falk, A New Paradigm for International Legal Studies: Prospects and Proposals, in International Law: A Contemporary Perspective 651–702 (R. Falk, F. Kratochwil & S. Mendovitz eds., 1985); Richard Falk, The Interplay of Westphalia and Charter Conceptions of International Legal Order, in International Law: A Contemporary Perspective, supra, at 116–42; Cornelius Murphy, The Search for World Order: A Study of Thought and Action (1985). Professor Thomas Franck states, “The nation of the sovereign equality of states may be said to have made its debut in modern Western civilization with the Peace of Westphalia.” Thomas M. Franck, The Power of Legitimacy Among Nations 113 (1990). See also, Cornelius F. Murphy, Jr., The Grotian Vision of World Order, 76 Am. J. Int’l L. 477 (1982).



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systems, one superseding the other.179 Indeed, we sometimes argue as if a global community were actually in being.180 But, as Professor Thomas Franck explains, contemporary international legal reality is far more complicated than the relatively simple system of the law of states.181 No one coherent pattern of thought captures it all. In many respects, the global community is, at best, an order in posse. To treat it as a fully existing reality is to “take as proven precisely what requires proof: namely the existence of a sense of community and the willingness of particular collectivities to keep their conduct in conformity with the higher good of a universal community.”182 To do this is

179 This idea has been developed in Antonio Cassese, International Law in a Divided World (1986). 180 The picture is sometimes confused, moreover, by a tendency to use the expression “international community” as if it were synonymous with what we have been calling a “society of states.” Thus, writers who dismiss the idea of “a planetary community of individuals” as unrealistic, and who admit that the primary actors in the international system are still states, and that the continued insistence on state sovereignty prevents “far-reaching integration and community actions in many areas,” nonetheless insist that there can be “no serious doubts about the existence of the international community” because states are prepared to recognize, if not common substantive roles, at least certain procedural roles governing the processes by which international law is made. See, e.g., G.M. Danilenko, Law-Making in the International Community 11–15 (1993). In the sense in which we have been using the terms in this book, this proves the existence of an “international society,” but not an “international community.” 181 See Thomas Franck, The Empowered Self: Law and Society in the Age of Individualism (1999); see also, Rein Müllerson, International Law, Rights and Politics (1994); Rosalyn Higgins, Problems & Process: International Law and How We Use It (1994). 182 Charles De Visscher, Theory and Reality in Public International Law 89 (P.E. Corbett trans., rev. ed. 1968). For a variety of reasons whose description is beyond the scope of this book, the idea that an international community exists though difficult to define, particularly as to its participants’ rights and obligations. That such a community is based on certain humanistic values, though undefined, is also well recognized. See, among the many authoritative texts attesting to that, supra note 2. From an IHL perspective, see inter alia, The International Law and Policy of Human Welfare (R.S.T.J. Macdonald, D.H. Johnston, & G.L. Morris eds., 1978). For earlier views, see J.C. Bluntschli, Das moderne Völkerrecht des civilisten staten als Rechtsbuch dargestellt 60 (2d ed. 1872). For a recent contribution to the debate based on social sciences research, see Paul Schiff Berenau, The Globalized Jurisdiction, 151 U. Penn. L. Rev. 311, 459 et seq. (2002). He points out the different perspectives on the notion of community and refers to ninetyfour social sciences definitions of what constitutes a community. Id. at 459. The European Union’s very existence attests to that proposition of certain community of states, but in this case, it is established by treaty. The rights and obligations of its member-states are contained in a treaty to which adherence is voluntary. But the delegated powers of these states to the governing body of the Union, the Commission, and to other organs, including a tribunal to adjudicate legal issues arising out of the treaty, attests to the autonomous multilateral decision-making authority of these bodies which act on behalf of, and in the interest of, the Community. See Allan M. Williams, The European Community: The Contradiction of Integration (2d ed. 1994). Another illustration is the authoritative decision-making powers of the World Trade Organization. Though also treaty-based, its powers derive not from coercive force in the traditional sense, but from the sanctioning force of economic inter-dependence which after all does reflect the existence of a world economic system or at least of a world economic inter-dependency, which in turn, makes it an element of an international community. The same applies to the international legal regime under WIPO, protecting intellectual property.

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not without its dangers.183 A shift of the center of gravity of international law away from states and towards a more abstract international community would decidedly be a progressive development, whether it would bring about a real transformation in the behavior of states is, however, uncertain. What is certain is that the present state of international relations is not yet conducive to such a transformation. To assume the existence and functioning of an international community runs the risk of heightening expectations with corresponding risks that are bound to be disappointing. To encourage the rhetoric of universality may turn out to be a cloak for hegemonic tendencies by states with the power to decide what is and what is not a universal interest binding on all states.184 Section 4. The Changing Nature of International Law and Relations and Their Impact on ICL The assumptions of political scientists and legal “realists” are not entirely without merit; relations between states are in an anarchic state of nature because they are in a constant struggle for power which is unrestrained except by countervailing power.185 But in the age of globalization, these assumptions have been radically altered.186 The rise of multilateralism attests to the new reality that unilateral power alone is no longer the hallmark of international relations; rather, it

183 See, e.g., Prosper Weil, Towards Normative Relativity in International Law?, 77 Am. J. Int’l L. 413, 441–42 (1983); see also, Appendix on The Concept of International Law and the Theory of International Organization, in Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law 199–301 (1979). 184 To cite only historical examples, the misappropriation of cosmopolitan ideals to serve the ends of power or ideology appears, for instance, in the appeals to solidarity by which the Holy Alliance sought to guarantee the existing order against revolution, and in the recurrent tendency to refer to opponents as hostis humani generis (enemies of all mankind), the expression typically applied to pirates. Tertullian, Apology, xxxvii, 8, 170 (1931) indicates that the expression was applied to early Christians as well. William the Silent was assassinated in 1584 pursuant to a decree in which Philip II likewise condemned him as “an enemy of the human race.” See The Proscription of William the Silent, in The Low Countries in Early Modern Times 71, 79 (Herbert H. Rowen ed., 1972). 185 The major post-World War II proponent of the “realist” school was Hans Morgenthau. See Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1985). His theory was based on Metternich’s “realpolitik,” which at the Congress of Vienna in 1815 culminated in the territorial division of Europe and allocation of zones of influence to the major powers that had defeated Napoleon (Austria, England, Russia, and Prussia). The Congress of Vienna regime lasted until World War I. As of the 1960s in the U.S., Henry Kissinger, a student of Metternich’s theory and practice, became the most influential theorist and practitioner of modern “realpolitik.” Contemporary U.S. policy reflects this tendency, and evidences its dangers to a genuine world community, subject to the “rule of law.” See also John J. Mearshimer, The False Promise of International Institutions, 19 Int’l Security 5 (1994). 186 See M. Cherif Bassiouni, The Philosophy and Policy of International Criminal Justice, in Man’s Inhumanity to Man 63 (L.C. Vorah & Michael Bohlander eds., 2002).



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is its exception.187 Multilateral problem solving and collective decision-making by international institutions with rulemaking authority transcending the powers of states, serve as examples of heightened change since the nineteenth and early twentieth centuries.188 These processes and their mechanisms of international cooperation have created a form of international governance without the existence of world government.189 Increased international cooperation, whether through multilateral institutions and their enforcement mechanisms or as a result of bilateral accords voluntarily enforced, has created a web of interlocking reliance between states, which in turn nurtures trust among them. Thus, it has led states to believe, or at least accept, that multilateralism accomplishes more than unilateralism can, and that what is lost in unilateral freedom of action is compensated by what is gained through collective action. The positive aspects of this cost-benefit analysis leads to increased reliance on multilateral institutions, and therefore paves the way for enhanced international cooperation in the future, which necessarily benefits ICL.

187 See, e.g., Andreas Hasenclever, Peter Mayer & Volker Rittberg, Theories of International Regimes (1997); Regime Theory and International Relations (Volker Rittberg ed., 1993). 188 John Gerard Ruggie, Constructing The World Polity: Essays on International Institutionalization (1998); Oran B. Young, Governance in World Affairs (1992). For state sovereignty, see Louis Henkin, International Law: Politics and Values 16–17 (1995); see also, Marcel Brus, Bridging the Gap Between State Sovereignty and International Governments: The Authority of Law, in State Sovereignty and International Governance 3, supra note 173 (quoting T.H. Kooijmans, Internacionaal Publienkrecht In Vogelvlucht (2000)). “Two world views collide: A traditional view of the world consisting of sharply distinguished compartments of the national state, and a view of an interdependent world society with common values and with problems that can only be solved through common efforts and with respect for universal, and supra-national, legal rules.” Id. at 359. The evolution of state sovereignty and its erosion is also discussed by Sir Elihu Lauterpacht, Sovereignty—Myth or Reality, 73 Int’l Aff. 137 (1997). Professor Lauterpacht, in describing the erosion of the concept of absolute sovereignty, raises the question of whether it still exists in reality or whether it has become a myth. Nevertheless, he argues that states still maintain their sovereignty in making laws, and enforcing them. He attributes, in part, the erosion of sovereignty as being voluntary on the part of states. The erosion of state sovereignty is also addressed by Alfred von Staden & Hans Bollaard, The Erosion of State Sovereignty: Towards a post-territorial world?, in States Sovereignty and International Governance, supra note 173, at 176. 189 See Beitz, supra note 152. Professors Myres McDougal and Harold Lasswell and the New Haven School of International Law, which they founded, rely on the proposition that international legal regimes rely more on processes than on fixed norms. As a consequence, international law is more a product of what they call the “world constitutive process of authoritative decisions.” See Myres McDougal et al., The World Constitutive Process of Authoritative Decisions, 19 J. Legal Ed. 253, 255 (1967). Another consequence flowing from collective processes of decision-making which are authoritative, is that they do not rely on coercive measures. Thus, this theory contradicts both the anarchical state, and in part the “realists” school of political science. See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1 (1959). The application of this theory is probably most evident in the law of outer space. See Myres S. McDougal et al., Law and Public Order in Space (1963).

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The formerly monolithic conception in international relations, that state power is what counts, has been tied down incrementally by many Lilliputian strings. The once absolute and indivisible concept of state sovereignty has met the same fate. The concept of state sovereignty has been gradually eroded by treaties and the practice of states that have voluntarily accepted limitations to their hitherto jealously-guarded sovereignty in ways that only decades ago would have been deemed unacceptable.190 Suffice it to recall that forty years ago, the flight of a U.S. spy plane over the then USSR caused that country to shoot the plane down, imprison its pilots for over twenty years, and, at the time, cause a world crisis which portended dangerous military escalation. In short, it was a casus belli because the U-2 over-flight was a violation of the USSR’s territorial sovereignty.191 Today various communications and other satellites cross the physical boundaries of most states nearly every hour without even the hint that it may constitute a breach of sovereignty.192 Similarly, the Internet and cellular telephone communications have broken down the intangible barriers of territorial sovereignty. In these cases technology has undone political concepts, and international law, in turn, has frequently been driven by these new facts. However, the new technology which has reduced national boundaries to irrelevance has also expanded the capabilities and potentialities of international, trans-border, and domestic crimes to the point where crime, regardless its legal source, is arguably without frontier. The only response is for ICL to eliminate enforcement barriers in kind, but to also maintain rules.193 International law, which only a few decades ago was viewed as unenforceable morality, has acquired a strength of its own, leading to much greater voluntary compliance by states than was ever contemplated in the past. Suffice it to look at the progress made by international and regional human rights laws and the jurisprudence of such courts as the European Court of Human Rights194 and the Inter-American Court of Human Rights in this regard, to demonstrate the proposition that the enforcement of regional law need not depend on force.195 Indeed, there are no armed troops or tanks to enforce the decisions of these courts, thus belying the cynical rhetorical statement made by Stalin in the 1950s when he

190 Pondering Postinternationalism: A Paradigm For the Twenty-First Century? (Heidi H. Hobbs, ed. 2000); The Greening of Sovereignty in World Politics (Karen T. Litfin, ed., 1998). 191 See Michael Beschloss, May-Day: Eisenhower, Khrushchev, and the U-2 Affair (1986). 192 With respect to the outer-space regime, see Mark W. Zacher, Multilateral Organizations and the Institution of Multiateralism: The Development of Regimes for Nonterrestrial Spaces, in Multilateralism Matters: The Theory and Practice of an Institutional Forum 405 (John G. Ruggie ed., 1993). 193 In other words, to preserve “due process of law.” 194 See supra note 33. 195 See Buergenthal & Shelton and Davidson, supra note 34.



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asked how many divisions the Pope had.196 The moral power and influence of international and regional human rights law on national legal systems in the last fifty years has been nothing short of extraordinary, and certainly unpredictable.197 As a result, one of the criteria for international criminalization is conduct that is “shocking to the conscience of humankind.” 198 The international community’s value-component is, however, like a kaleidoscope which reflects in different ways the values of many cultures, though only some of them coalesce to be shared by multiple constituents.199 The recognition by states that there are commonly shared interests that transcend individual state interests also reflects the existence of commonly shared values, even though their intangible nature makes them difficult to identify and to assess in terms of their impact on states’ decision-making processes. However, as the coalescence of these values takes shape, its impact is felt, either gradually or all at once, even if only demonstrable by deduction. Thus, after World War II, it was in large part because of the impact of commonly shared values (e.g., revulsion against the crimes committed) that the demand for international criminal justice surged. It was commonly shared values that accounted for the gradual but steady growth of human rights after World War II. Lastly, what a decade ago was called “world public opinion,” is a factor that contributed in no small way to the radical change that occurred in international relations, and, as a result, in international law. At the time some viewed it as a journalistic metaphor; however, since that time, it has become a component of what it is now referred to as international civil society. The increasing influence of international civil society is evident in the growth of non-governmental organizations and in their impact on multilateral organizations and national governments. This impact is particularly noticeable in the areas of human rights, humanitarian law, and the strengthening of peace,200 and has become a driving force of international criminal justice.201 196 An interesting counterpart is President Andrew Jackson’s statement, “[Chief Justice] John Marshall has made his decision, now let him enforce it.” Horace Greeley, The American Conflict (1865) (quoting President Jackson’s response to Chief Justice Marshall’s decision in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). 197 See Meron, supra note 127. 198 See M. Cherif Bassiouni, The Discipline of International Criminal Law, in 1 Bassiouni, ICL, supra note 16, at 3. The other principal criteria are conduct that threatens peace and security and conduct that detrimentally affects internationally protected interests. Id. 199 Akira Iriye, Cultural Internationalism and World Order (1997); Comparative Legal Cultures (Csaba Varga ed., 1992); Comparative Law in Global Perspective (Ian Edge ed., 2001). For the influence of religious values, see Cornelius F. Murphy, Jr., Theories of World Governance: A Study in the History of Ideas (1999), Religion in International Law (Mark Janis & Carolyn Evans eds., 1999); Religion and Global Order (John L. Esposito & Michael Watson eds., 2000). 200 See Thomas Franck, supra note 181. See generally World Politics: Society and Community Beyond the State (Mathias Albert, Luthar Brock & Klaus Dieter Wolf eds., 2001). 201 For a discussion of international criminal justice, see infra Chapters V and VIII.

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To a large extent, the transformation in international relations described above, with attendant consequences in international law and in ICL, is based on the enlightened self-interest of states that recognize that the common interests they share and frequently enforce, jointly or severally, ultimately serve their respective national interests or at least warrant compromises with their narrower national interests. However, it is not only a product of enlightened self-interest that prompts states to more readily comply with the mandates of international law. Rather, other non-coercive, compliance-inducing factors exist in the international community and in the enforcement of ICL.202 These signs of transformation in international relations and international law highlight the increased regard for the individual in the new global order, as well as for the place of collective humanitarian interest in the range of values and policies that make up the discipline of international law and, consequently, of ICL. Such recognition necessarily implies that the individual is part of the international community as a subject of law whose protection and rights are included in the commonly shared values of the international community.203 It also means that humanitarian interests demand protection by states and international organizations, including from states’ depredations. Thus, enforcement becomes a corollary to these rights, including enforcement of ICL. In other words, the shield of human rights protection necessitates the sword of ICL enforcement.204 Consequently, many of the 27 categories of international crimes whose transgression rises to the level of being “shocking to the conscience of humanity” reflect these human values.205 They include: aggression, genocide, crimes against humanity, war crimes, slavery and slave-related practices, apartheid, torture, and unlawful human experimentation.206 Logic leads to the conclusion that the recognition of individual rights, based on commonly shared values of the dignity and self-worth of the human person, also reflect the commonly shared values of humanity.207 Humanity consists of 202 Giuliana Ziccardi Capaldo & Michele Nino, Globalization of International Law Enforcement Mechanisms: Issues of Legality and Legitimacy, in 2 Bassiouni, ICL, supra note 7, at 47. For an international relations perspective, see International Rules: Approaches from International Law and International Relations (Robert J. Beck ed., 1996). For a perspective bridging international relations and international law, see Kenneth W. Abbott, Oran B. Young & Anne-Marie Burley, International Law and International Relations Theory: Building Bridges, 86 Proceedings of the American Society of International Law 167 (1992). 203 See infra section 3. 204 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law, supra note 135. 205 See Bassiouni, The Discipline of International Criminal Law, in 1 Bassiouni, ICL, supra note 16, at 3; Robert Cryer, The Doctrinal Foundations of International Criminalization, in 1 Bassiouni, ICL, supra note 16, at 107. 206 See infra Chapter III for a discussion of these and other international crimes. 207 Admittedly, as discussed above, the identification and assessment of these values is difficult to make. See infra section 3.



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individuals who constitute its units and who are the subjects of rights and obligations. It also includes the sum total of these individual units and their collective historical experiences.208 As a result of the individual’s recognition as a subject of international law, certain rights and obligations emanating from international law are directly applicable to individuals without the intermediation of states, and irrespective of the dictates of states.209 It can therefore be concluded that the same social experience which has developed in national societies has been transmitted to the larger society called the international community, edging, however slowly, toward a universal global society.210 The emergence in international law of subjects other than states211 brought about collective decision-making and collective action through international organizations, thus overcoming the “realists’ ” supposedly insuperable obstacles to collective decision-making. The enhanced confidence among states in international organizations, including their enforcement regimes, represent the future development of international relations and international law.212 The relevancy of international law in stimulating this evolution will depend on the ability of jurists to understand the dynamics of the policies which are at the base of contemporary legal and political concepts of international law in their evolving transformation.213

208 Historical experiences are also made up of the cultural experiences of peoples. 209 In ICL, for example, the Charter of the IMT provided that individuals are bound by certain dictates of international law, which make them responsible irrespective of the dictates of national law. Furthermore, the IMT, IMTFE, ICTY, and ICTR are international institutions that exercise their international criminal jurisdiction irrespective of the approval of states. The ICC, being a treaty-created body, is therefore the emanation of states’ consent. All these international judicial institutions prosecute for crimes established by ICL as stated in section 1 and discussed in infra Chapters II and III. The subjects of international criminal responsibility are also determined by ICL, see infra Chapter II, section 2, as well as the principles of criminal responsibility, infra Chapter II, section 3. 210 See Global Society in Transition: An International Politics Reader (Daniel N. Nelson & Laura Neack eds., 2002). This closes the circle of Holmes’ assertion, supra note 161 and accompanying text. 211 See Chapter II; see also Rosalyn Higgins, Problems and Processes: International Law and How We Use It (1995); The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (Laurence Boisson de Chazournes & Vera GowllandDebbas eds., 2001); Mark Janis, An Introduction to International Law (3d ed. 1999). 212 The new dimensions described above forced the United States, the mightiest nation and only remaining superpower, to bow to the collective pressure of the international community and to heed the demands of international legitimacy when it yielded its claim to use unilateral force against Iraq to a collective determination of the Security Council. S.C. Res. 1441, U.N. SCOR, 4644th mtg., U.N. Doc. S/Res/1441 (8 Nov. 2002). It then resorted to war in March 2003, without regard to legitimacy. See also M. Cherif Bassiouni, Rumors of War: Waving a Big Stick, Chi. Trib., Nov. 10, 2002, at Sec. 2, p. 1. 213 For different views on this question, see The Future of International Relations: Masters in the Making (Ives B. Neumann & Abe Weaver eds., 1997) (for an international relations perspective); Legalization and World Politics (Judith Goldstein, Mikes Kahler, Robert O. Keohane, & Anne-Marie Slaughter eds., 2001); The Role of Law in International Politics: Essays

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ICL is significantly affected by the transformation in the dynamics of international relations and their impact on international law. Thus, ICL assumptions and limitations with respect to enforcement have changed.214 The demand for international criminal justice,215 whether through international or national legal institutions, is palpably increasing due to the pressures of international civil society and a number of governments concerned with the same issues.216 The ICTY and ICTR, as international judicial bodies, have accomplished results totally unimaginable only a decade ago, among them the conviction of a former head of state217 and the prosecution of another.218 All over the world perpetrators of jus cogens international crimes are being pursued, and impunity is no longer tolerated.219 States are no longer free to barter away justice for political settlements.220 Even though states continue to try providing amnesties to perpetrators of these crimes in exchange for ending conflicts, their efforts are fewer and they can no longer be carried out blatantly as they once were.221

in International Relations and International Law (Michael Byers ed., 2000) (for a combined international law and international relations perspective); and Johnathan I. Charney, Universal International Law, 87 Am. J. Int’l L. 529 (1993) (for a more juridical perspective). For an examination of how changes in the dynamics and reality of international politics affect international law, see Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999); Karol Wolfke, Custom in Present International Law (1993). 214 See infra section 2. 215 See Bassiouni, Post-Conflict Justice, supra note 97; Sadat, supra note 62; M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000); M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9–28 (1996); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2542 (1991). 216 As of May 2012, the ICC has 121 States-Parties who have pledged to prosecute perpetrators of genocide, crimes against humanity, and war crimes. See supra note 97. 217 Prosecutor v. Kambanda, Judgment and Sentence, Case No. ICTR-97-23-S (Sept. 4, 1998). 218 Milosevic (Initial) Indictments (IT-02-54): Kosovo (May 24, 1999), Croatia (Oct. 8, 2001), Bosnia (Nov. 22, 2001), available at http://www.un.org/icty/glance/milosevic.htm. Milosevic died in March 2006. See Michael P. Scharf & William A. Schabas, Slobodan Milosevic on Trial: A Companion (2002); Norman Cigar & Paul Williams, Indictment at the Hague: The Milosevic Regime and Crimes of the Balkan Wars (2002); Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002); Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997). 219 Two prime examples are former Chilean head of state Augusto Pinochet (see Regina v. Bow Street Metropolitan Stipendiary Magistrate (No. 1), ex parte Pinochet Ugarte, [1998] 3 W.L.R. 1456 (H.L.), reprinted in 37 I.L.M. 1302 (1998); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272 (H.L.), reprinted in 38 I.L.M. 430 (1999); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.)), and the former head of state of Chad, Hissené Habré (documents on the Habré case can be found at http://www.hrw.org/justice/habre). See also infra Chapter II, section 4, Responsibility of Heads of State and Other Persons Benefiting of Certain International Immunities. 220 See Bassiouni, Post-Conflict Justice, supra note 97. 221 See supra note 219.



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Similarly, national criminal justice systems which tolerated torture until 1984222 and other serious violations of fundamental human rights223 can no longer do so without incurring the legal and moral condemnation of other states and of international civil society. The “realists” cannot account for this radical change, one which occurred without the use of power as they understand it. Surely the power of states did not, or was not able to, stop this change. Another source of power accounts for it. As stated by Victor Hugo, “An invasion of armies can be resisted, but not an idea whose time has come.”224 On another level, the need for enhanced international cooperation to combat international, trans-border, and domestic criminality is also increasing as a result of the globalization of crime.225 If the demands for international criminal justice described above are the product of commonly shared values in addition to utilitarian ones (e.g., the assumption that deterrence will work), then the demands for increased international cooperation to prevent and suppress international, trans-border, and domestic crimes are the product of the perceived common interests of states. It is in the combination of these commonly shared values and perceived common interests that we find the 222 See Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000); United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Herman J. Burgers & Hans Danelius eds., 1988); Daniel Derby, The International Prohibition of Torture, in 1 Bassiouni, ICL, supra note 16, at 621. 223 See The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, supra note 133; Progress Report on the Question of Impunity of Perpetrators of Human Rights Violations, prepared by Mr. Guissé and Mr. Joinet, pursuant to Sub-commission resolution 1992/23, Sub-Commission on Prevention and Protection of all Minorities, 45th Sess., Item 10(a), (19 July 1993) U.N. Doc. E/CN.4/Sub.2/1993/6; Preliminary Report on Opposition to the Impunity of Perpetrators of Human Rights Violations (economic, social and cultural rights), prepared by Mr. Guissé and Mr. Joinet, pursuant to Sub-Commission resolution 1993/37, Sub-Commission on Prevention and Protection of all Minorities, 46th Sess., Item 10(a), (22 June 1994) U.N. Doc. U.N. Doc. E/CN.4/Sub.2/1994/11; Progress Report on the Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights), prepared by Mr. Joinet, pursuant to Sub-Commission resolution 1994/34; Sub-Commission on Prevention and Protection of all Minorities, 47th Sess., Item 10, (28 June 1995) U.N. Doc. E/CN.4/Sub.2/1995/18; Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights), Final Report prepared by Mr. L. Joinet, pursuant to Sub-Commission resolution 1995/35, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 48th Sess., Item 10, (29 June 1996) U.N. Doc. E/CN.4/Sub.2/1996/18. 224 Victor Hugo, Histoire d’un Crime (1852), part II, § 10. 225 See, e.g., Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL supra note 16, at 939; M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); Dimitri Vlassis, Challenges in the Development of International Criminal Law: The Negotiations of the United Nations Convention Against Transnational Organized Crime and the United Nations Convention Against Corruption, in 1 Bassiouni, ICL, supra note 16, at 907; Bernard Leroy, M. Cherif Bassiouni, & Jean-Francois Thony, The International Drug Control System, in 1 Bassiouni, ICL, supra note 16, at 855; In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, DePaul University College of Law, 2002).

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confluence, if not the fusion, of the values and policies of ICL, which in turn have an impact on the nature of the international legal system.226 Section 5. Conclusion As stated in section 1, ICL is a complex legal discipline consisting in the juxtaposition of several components originating in separate legal disciplines which are distinguishable as to their methods, techniques, contents, subjects, enforcement modalities, institutions, structures, values, and policies. Scholars of the different disciplines whose components make up ICL seek to define these components within the doctrinal framework of their respective original discipline. Thus, penalists refer to that component of domestic criminal law and procedure which relates to international matters as criminal international law, which sounds better in French as droit pénal international, while publicists refer to that component of international law which relates to criminal matters as international criminal law, droit international pénal.227 As stated in section 1, the legal sources of these components are international law and domestic criminal law and derivative branches of these disciplines. With respect to international law, these derivative branches include international and regional human rights law, and international organizations law, whereas domestic criminal law includes comparative criminal law and procedure. While these disciplines are by their very nature unrelated, they nevertheless tend to overlap by virtue of their functional application in the overall structure of ICL. Thus, for example, the international and regional law of human rights has become intertwined with domestic and comparative criminal procedure law. Similarly, international law, which compromises “general principles of law” among its sources, relies on comparative law techniques to identify what principles of domestic criminal law and criminal procedure law constitute “general principles of law” and thus apply to ICL. Moreover, international law creates legal obligations that states enforce by way of incorporating these obligations in their domestic legal systems, thus transforming these international legal obligations into domestic legal prescriptions. In turn, the enforcement of international legal obligations through national legal systems has an impact upon such systems. The combined effect of national legal systems enforcing ICL obligations thus has an impact on the international legal system as a whole.

226 See, e.g., Joseph Roz, The Concept of a Legal System: An Introduction to the Theory of Legal Systems (1970). 227 See M. Cherif Bassiouni, Introduction au Droit Pénal International 1 (2002).



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The fact that the different components of ICL are either intertwined or interconnected does not, however, eliminate their separate legal characteristics. The umbilical cord between these components and their original disciplines remains intact, thus imprinting ICL with some of the characteristics of the original disciplines from which these components derive. In addition to their diversity, these components embody the social and political dynamics of their original disciplines. This includes the dynamics which permeate the international legal system as well as those which exist in domestic legal systems. In turn, the interaction of international, national, social, and political dynamics have an impact on ICL, and make it a polyvalent legal system. All of this adds to the complexity of the discipline of ICL. Because ICL is made up of several components which emanate from different legal disciplines encumbered by their respective social and political dynamics, the experiences of ICL do not necessarily accumulate or accrue in a cohesive legal structure. Another analogy to describe the system of ICL is that it consists of different building blocks which come in different sizes and shapes. Some of these blocks may be vertically related, others horizontally. Together, they form a whole, more because of their functional nature than because of their compatibility. However, the functional inter-relationship of these components makes them transcend the doctrinal framework of their original disciplines, while contemporaneously bringing them closer to each other, thus warranting their inclusion in the framework of a separate legal structure. ICL lacks the linear, logical, and cohesive connection which is required by the method of most legal disciplines. Therefore, it is, and will remain for a while, a sui generis legal structure made up of different legal disciplines and their derivative branches, influenced by the particular dynamics of the systems from which they derive. Thus, ICL manifests peculiarities and contradictions not evident in traditional legal disciplines. In time, these components may merge into a cohesive whole, thereby conveying to this sui generis discipline a unique character that blends the characteristics of the original disciplines from which these components derive. Political “realists” will point to the anarchical nature of ICL and its power dependency, while legal “idealists” will emphasize the inherent influence of the law in generating compliance. The fusion of these views will occur when the latter will recognize the limits of the law’s influence on generating compliance, and the former will yield to the acceptance that the inherent values reflected in the law represents a different form of power capable of inducing some to compliance.228 As stated by Professor Louis Henkin: Law is a major force in international relations and a major determinant in national politics. Its influence is diluted, however, and sometimes outweighed by other 228 Louis Henkin, How Nations Behave 337 (2d ed. 1979).

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chapter one forces in a ‘developing’ international society. Failure to appreciate the strengths and weaknesses of the law underlies much misunderstanding about it and many of the controversies about its significance. ‘Realists’ who do not recognize the uses and force of law are not realistic. ‘Idealists’ who do not recognize the law’s limitations are largely irrelevant to the world that is.229

At this juncture, it is appropriate to raise another question, namely whether ICL is an accumulation of sporadic experiences that have not ripened into a system, or whether this accumulation can already be deemed a legal system. In framing the question this way, the answer will necessarily reflect a choice among legal philosophies and political science doctrines. But what complicates the question is that ICL does not fall exclusively in the disciplines of international law and national criminal law or their derivative branches. Instead, as discussed throughout this chapter, it partakes of all of these disciplines. Thus, to conclude that ICL is a system, or a particular type of system, remains difficult unless one accepts a multidisciplinary approach in which various legal and social science disciplines interact. Thus, it can be concluded that a sui generis system of the kind discussed in this chapter indeed exists. The history of great ideas can be analogized to a great river that blends the waters of its many tributaries in a single stream. At times, the river’s waters run deep but slow, at times they run shallow and fast and, at times, they are stagnant. Somehow the river travels on, however, making predictable and unpredictable turns to avoid obstacles facing the continuation of its course. ICL is such a river. In fact, the analogy may be specific to the Amazon River, which in certain places consists of two confluent currents that differ in color, density and temperature, and which uniquely travel side by side at different speeds. ICL has several currents, which manage to flow side by side notwithstanding their different density, temperature, color, and speed. At rare times they seem to all blend together. The short period of time after World War II, with the Nuremberg and Tokyo experiences and other post-World War II prosecutions, serves as an

229 Professor Rein Müllerson, in Rein Müllerson, International Law, Rights and Politics 7 (1994), and quoting Robert Keohane states: International law often deeply penetrates into domestic relations. Robert Keohane rightly observes that in order to deal with issues concerning the compliance of states with their international commitments, ‘[w]e must look at the interaction between international politics and law and domestic politics,’ which he calls ‘institutional enmeshment.’ An international lawyer would have said that for its effective implementation international law should be steadily anchored in the domestic law and institutions. Robert Keohane, Compliance with International Commitments: Politics within a Framework of Law, in American Society of International Law Proceedings 180 (1992). See also H.L.A. Hart & Raz Bulloch Hart, The Concept of Law (2d ed. 1997); Gerald Dworkin, Morality, Harm and the Law (1994); Lon L. Fuller, The Morality of Law (2d ed. 1969); Patrick Devlin, The Enforcement of Morals (1965).



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example.230 However, most of the time ICL does not have that coherence, as evidenced by the Cold War years beginning in 1948 and ending in 1992, when the Security Council established the Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia.231 There is no reason, let alone logic, as to why international criminal justice is unable to move forward at a faster pace,232 or why substantive ICL is not codified,233 or why the “indirect enforcement system”234 is not more effective. But there is evidence that these problems are more noticeably perceived by governments and less tolerated by international civil society—and that is likely to bring about some progress, though not necessarily in all aspects of ICL.235 The insightful words of Pascal are a valid reminder of the role that ICL ought to play in our global society, “Justice without force is impotent. Force without justice is tyrannical. Justice without force is infringed because there is always the means [to overcome it]. One must, therefore, combine justice and force, and, therefore, make strong what is right, and make right what is wrong.”236 These words echo Locke’s that “the Law of Nature would be in vain, if there were no body that . . . had the power to execute that law.”237 However, as Machiavelli concluded in 1537, “There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things.”238 The problems of international criminal justice are many, as is inevitable in the case of anything new. Its present crisis is in its enforcement. Opposition by the U.S. to the ICC is but one example.239 States’ non-enforcement of ICL treaty obligations is too numerous to even cite. Suffice to observe as evidence of this lack of enforcement the increase in incidence of such crimes as trafficking of women and children for commercial sexual exploitation,240 international 230 See Bassiouni, supra note 50. 231 See supra note 89. 232 See infra Chapter VIII. 233 See infra Chapter III. 234 See infra Chapter V. 235 For example, international criminal justice (see infra Chapters V and VIII) and international cooperation in penal matters are likely to be enhanced (see infra Chapter V), but the codification of substantive ICL remains unlikely (see infra Chapter III). 236 Blaise Pascal, Pensées §V, 298 (William F. Trotter trans., 1941). 237 John Locke, Second Treatise of Government ¶7 (Thomas D. Peardon ed., 1952). 238 Niccolo Machiavelli, Il Principe: Le Grandi Opere Politiche (G.M. Anselmi & E. Menetti trans., 1992) (1532), at chap. VI (De principatibus novis qui armis propriis et virtute acquiruntur), reprinted in M. Cherif Bassiouni, Indagini e Procedimenti Penali Internazionali: Da Versailles a Roma, 22 La Legislazione Penale 817 (2002). 239 See supra note 97. 240 See In Modern Bondage, supra note 225; M. Cherif Bassiouni, Investigating International Trafficking in Women and Children for Commercial Sexual Exploitation (International Human Rights Law Institute, DePaul University College of Law, 2001).

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drug-related offenses, and international money laundering, to name only a few. Another example was the ICTY’s long-time inability to obtain custody over Goran Hadzic, who was indicted for the crimes of genocide, crimes against humanity, and war crimes. Hadzic was not arrested until July 2011 because neither the former Yugoslavia, now called the Republic of Serbia and Montenegro, nor NATO forces in Bosnia (the Implementation Force, or IFOR), were willing to arrest and surrender him to the ICTY. However, Radovan Karadzic, the war-time president of Bosnia and Herzegovina, was arrested in July 2008, and on May 26, 2011, Ratko Mladic was arrested in Serbia, after evading arrest for sixteen years. This arrest is a milestone in the ICTY’s history and brings it closer to the successful completion of its mandate. As of March 2012, the ICTY has concluded proceedings against 126 persons, with proceedings continuing against 35 accused.241 The future of international criminal justice242 depends on the five following approaches: 1) Non-enforcement by de facto or de jure amnesties and by general disregard by states of the duties to prosecute or extradite; 2) Continued occasional enforcement, which is more in the nature of anarchic enforcement, depriving international criminal justice of an element of legitimacy, and failing to provide for consistency and predictability which are necessary elements of deterrence; 3) Unidirectional enforcement through the United Nations Security Council by means of economic and military sanctions (including the delegation of unilateral use of force to a member seeking to enforce a Security Council resolution), and also by the Council’s establishment of sub-organs, such as the ICTY and ICTR (even though the enforcement of their respective orders and judgments which are not complied with by a state depend on further action by the Security Council). But this approach has the same characteristics as the second approach in that it is whimsical, and thus lacks the legitimacy of even-handed and consistent application; 4) Incentivized enforcement, through a variety of compliance inducement factors;243 5) Collective enforcement through the ICC, notwithstanding its asymmetrical enforcement model.244

241 See ICTY Press Release, “Tribunal Welcomes the Arrest of Ratko Mladic,” available at http:// www.icty.org/sid/10671. 242 See infra Chapter X. 243 See Gerhard O.W. Mueller & Douglas J. Besherov, Evolution and Enforcement of International Criminal Law, in International Criminal Law 3–36 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965). 244 See infra Chapter VII, section 2.2.



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For the foreseeable future, it is likely that all five approaches will be pursued contemporaneously, and that only the course of world events will determine whether there will be an effective system of international criminal law, or a regression to the status of international relations as it was in the nineteenth century.

chapter two

The Subjects of International Criminal Law: Ratione Personae Section 1. Introduction The subjects of international law have historically been states and intergovernmental organizations. Individuals became subjects of that legal discipline after World War II by virtue of the establishment of their criminal responsibility under international law, irrespective of the dictates of national law. This was accomplished first through the Charter of the IMT, and then the Statute of the IMTFE.1 Subsequently, other substantive and procedural norms of international law affirmed this principle in different ways, though not always specifically.2 Almost contemporaneous with these developments, the international community embarked on the establishment of internationally, and then regionally, protected human rights.3 These rights with respect to some where accompanied by enforcement norms and implementation mechanisms, allowed individuals to claim their rights against states.4 The dual movement of international criminal responsibility of individuals and international protection of individual and collective human rights eroded the barriers of state sovereignty that historically left states with exclusive power over their citizens and non-citizens on their territory. ICL and IHRL have thus created exceptions to this exclusivity of state power over individuals by establishing

1 For a discussion of these and other historical precedents, see Chapter V. 2 Among the explicit norms is encapsulated in Article 1 of the Genocide Convention, which states, “[g]enocide is a crime under international law.” The Apartheid Convention is another instrument that specifically declares genocide a crime under international law. Both apply directly to individuals. 3 See e.g. International Human Rights in the 21st Century: Protecting the Rights of Groups (Gene M. Lyons & James Mayall eds., 2003); Jack Donnelly, Universal Human Rights in Theory and Practice (2d ed. 2003); The Concept of Human Dignity in Human Rights Discourse (David Kretzmer & Eckart Klein eds., 2002); Concepts and Strategies in International Human Rights (George J. Andreopoulos ed., 2002); Anne Bayefsky, How to Complain to the U.N. Human Rights Treaty System (2002); Anne F. Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997); M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994). 4 See Anne Bayefsky, How to Complain to the U.N. Human Rights Treaty System, supra note 3.

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duties and responsibilities that are incumbent on individuals irrespective of the laws and dictates of states, as well as by recognizing rights and privileges that attach to individuals and which states cannot infringe. A discussion of the specifics of this dual evolution of duties and rights under ICL and IHRL respectively is beyond the scope of this book, but it is safe to conclude that individuals are now recognized as subjects of international law, though only with respect to certain areas of that discipline.5 With respect to ICL, individuals are deemed criminally responsible under international law for certain international crimes, namely jus cogens crimes,6 irrespective of what state law provides. Individuals are also subject to international criminal responsibility by virtue of conventional international law, which is mainly accomplished by placing duties upon states who become parties thereto and who are thereby obligated to prosecute or extradite.7 ICL did not, however, limit itself to the recognition of individual responsibility, which could have simply been done by the recognition of individuals as subjects of ICL. Instead, it went beyond that declarative stage and attached the responsibility of certain specific elements that national legal systems embody in the “general part” of their national criminal codes.8 These include: ­non-applicability of heads of state immunity;9 rejection of the defense of “obedience to superior orders”;10 establishment of command responsibility for military and civilian leaders;11 removal of statutes of limitations for certain international crimes;12 and the recognition of certain obligations deriving from the maxim aut dedere aut judicare.13 Of all of these, the non-applicability of heads of state immunities is the one most integrally linked to the establishment of individual criminal responsibility, which explains its inclusion in this chapter on the ratione personae, instead of Chapter IV on the “General Part” of ICL. This chapter discusses the international criminal responsibility of individuals, organizations, and states. The first of these is now well established in ICL. The second is unsettled, as there is some precedent for it and a growing trend to include such a concept of criminal responsibility in domestic legal systems. The

   5 See Criton G. Tornaritis, The Individual as a Subject of International Law and International Criminal Responsibility, in 1 A Treatise on International Criminal Law 103 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973); S. Prakash Sinha, The Position of the Individual in an International Criminal Law, in 1 Bassiouni & Nanda Treatise, supra, at 122.    6 See generally Jordan J. Paust, Nonstate Actor Participation in International Law and the Pretense of Exclusion, 51 Va. J. Int’l L. 977 (2011).    7 See infra Chapter V.    8 See infra Chapter IV for a discussion of the “general part” of ICL.    9 See infra section 4. 10 See infra Chapter IV, section 6.   11 See infra Chapter IV, section 6. 12 See infra Chapter III, section 8. 13 See infra Chapter V, section 2.



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third, state criminal responsibility, had somewhat of a beginning in the reparations regime that followed WWI, but it has been rejected since then, except that it exists de facto in the form of U.N. sanctions. While ICL primarily addresses criminal responsibility of transgressors, ICL is beginning to recognize the rights of victims, who are becoming subjects of this discipline. This development is discussed in section 7 below. Section 2. Doctrinal Considerations Are the subjects of ICL only individuals, or does ICL’s ratione personae also include legal entities such as organizations and states? The answer to this query depends on whether the legal doctrine relied upon in the analysis stems from comparative criminal law or from ICL, and, with respect to comparative criminal law doctrine, whether it derives from the Roman, civil law tradition or from the common law tradition. Traditionally, under the Romanist civil law systems, les personnalités juridiques (legal entities) could not be held criminally responsible; only individuals could. But recently, some changes that extend criminal sanctions to legal entities have occurred in that legal tradition, as evidenced in contemporary national criminal legislation dealing with “organized crimes”14 and “white collar crimes.”15 The common law tradition, which is characterized by pragmatism and is less constrained by doctrinal or dogmatic considerations than the Romanist-civilist and Germanic systems,16 has evolved norms for the responsibility of legal entities that include sanctions akin to those for individual criminal responsibility. Thus, in common law systems, legal entities may receive a fine and their assets may be seized. Decision-makers of these entities can also be held individually responsible for harm caused by the entities.17 Such a form of criminal responsibility can either be based on an expanded concept of conspiracy or on the ground of belonging to a criminal organization.18 These new concepts of corporate criminal responsibility have not yet found their way into ICL, but contemporary

14 See, e.g., Italian Code of Criminal Law, Associazione per Delinquere, Arts. 416–18, Associazione Sovversiva, Article 270 and Associazione per Delinquere di Stampo Mafioso, Article 416 bis; the French Criminal Code Article 265–67, Association de Malfaiteurs. 15 See International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé (Hans de Doelder & Klaus Tiedeman eds., 1996). 16 See, e.g., George Fletcher, Rethinking Criminal Law (1978). 17 For the responsibility of corporate directors and officers in U.S. law, see M. Cherif Bassiouni, Substantive Criminal Law 149–57 (1978). 18 See infra note 27, and for the U.S., see Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961–8 (1984).

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international efforts to deal with “organized crime,”19 “corruption,”20 and “drug trafficking” are moving in this direction.21 The differences between the world’s major legal systems are narrowing on the issue of whether a legal abstraction can commit a crime and can be found criminally responsible.22 Certainly, legal entities as abstractions can neither think nor act as human beings, and what is legally ascribed to them is the resulting harm produced by individual conduct performed in the name or for the benefit of those participating in them or sharing in their benefits. The need to develop a legal theory concerning the criminal responsibility of legal entities such as organizations and states derives from the fact that traditional doctrines of individual

19 See United Nations Convention against Transnational Organized Crime, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Expecially Women and Children, G.A. Res. 55/383, U.N. Doc. A/55/383, 2 Nov. 2000; see also Organized Crime: A Compilation of United Nations Documents, 1975–1998 (M. Cherif Bassiouni & Eduardo Vetere ed., 1999); The United Nations and Transnational Organized Crime (Phil Williams & Ernesto U. Savona ed., 1996). 20 The U.N. has stepped up its efforts to combat public corruption. The UN first recognized in December 2000 in the General Assembly Resolution 55/61 that an effective international legal instrument against corruption independent of the Transnational Organized Crime Convention was necessary to organize efforts to combat corruption. In October 2003, by Resolution 58/4, the UN General Assembly adopted the United Nationals Convention Against Corruption (UNCAC). The UNCAC is the first legally binding international anti-corruption instrument that obligates signatory parties to implement a wide range of anti-corruption measures affecting domestic laws, institutions, and practices, aiming to promote the prevention, criminalization, law enforcement, international cooperation, asset recovery, technical assistance, and information exchange to effectively combat transnational corruption. In accordance with Article 68 of Resolution 58/4, the UNCAC entered into force on December 14, 2005. As of October 2011, the UNCAC has been ratified, accepted, and entered into force by 160 countries as well as the European Union. United National Convention against Corruption, G.A. Res. 58/4 (Oct. 31, 2003), available at http://www.unodc.org/ unodc/en/treaties/CAC/ (last visited March 28, 3011). Additionally, on January 28, 1997, the General Assembly adopted the International Code of Conduct for Public Officials in its Resolution on Action Against Corruption, G.A. Res. 51/59, U.N. Doc. A/RES/51/59 (Dec. 12, 1996). However, the Organization of American States has recently developed a convention against public corruption. See Inter-American Convention Against Corruption, Mar. 29, 1996, OES/SER. K/XXXIV.1 CICOR/ doc. 14/96 rev. 2. For background and an explanation of its provisions, see Bruce A. Zagaris, Constructing a Hemispheric Initiative Against Transnational Crime, 19 Fordham Int’l L.J. 1888 (1996); Nancy Zucker Boswell, Combating Corruption: Focus on Latin America, 3 Sw. J. L. & Trade Am. 179 (1996). For a general discussion, see Charles S. Saphos, Something is Rotten in the State of Affairs Between Nations: the Difficulties of Establishing the Rule of International Criminal Law Because of Public Corruption, 19 Fordham Int’l L.J. 1947 (1996). 21 Report of the World Ministerial Conference on Organized Transnational Crime, U.N. GAOR, 49th Sess., Annex, Agenda Item 96, U.N. Doc. A/49/748 (1994). For a discussion of international control of drugs, see Bernard Leroy, M. Cherif Bassiouni & Jean-François Thony, The International Drug Control System, in 1 International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. 22 Though scholars in these systems are likely to argue, and properly so, that similarities in outcomes do not negate differences in doctrinal bases. See Fletcher, supra note 16; International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé, supra note 15.



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criminal responsibility are not well-suited to dealing with the type of group conduct carried out under the cover of legal enterprise.23 While international law has clearly recognized that individuals are criminally accountable24 and that organizations can also be deemed criminally responsible,25 this concept has not yet been applied to states, though it has been articulated in theory in the ILC’s Draft Article 19 of the Principles of State Responsibility. The ILC, however, abandoned its efforts at establishing a principle of state criminal responsibility. The 2001 approved text of the Principles of State Responsibility do not contain reference to criminal responsibility of states.26 Under international law, states are accountable for wrongful conduct, which may result in the imposition of damages and other sanctions against them. Publicists and penalists argue that states’ sovereignty precludes their criminal accountability and that, as legal abstractions, states cannot be subjected to criminal responsibility in the same way as individuals. Both arguments have validity, but they ignore the need to deter and punish persons who act under color of state authority or through organizations and who use the instrumentalities and capabilities of the state or the organization in question to commit international crimes. The doctrinal debates among and between penalists and publicists offer an abundance of arguments for propositions that conclude for or against the criminal responsibility of legal entities, be they private (organizations) or public (including states and their organs). Nevertheless, all positions now accept, in some form or another, the principle that a private or public legal entity can transgress a norm through its policies or actions for which the national or international law provides, including, at the very least, damages. Damages can be both compensatory and punitive, and other remedies such as seizure and forfeiture of assets are also provided. Thus, the query concerning the international criminal responsibility of legal entities is how to label them, define them, choose applicable penalties, and enforce such penalties.27 It must be noted, however, that since legal entities are abstractions whose policies and operations are made and carried out by individuals, further ­refinement is needed to distinguish between the criminal responsibility of individuals and that of legal entities. Furthermore, a distinction needs to be made between the consequences of imposing criminal responsibility on legal entities for individuals 23 See infra sections 5 and 6. 24 See infra section 3. 25 See infra section 5. 26 See Rep. of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, U.N. Doc. A/56/10 and Corr. 1 (2001); see also Draft Code of Principles of State Responsibility, U.N. GAOR, International Law Commission, 46th Sess., Supp. No. 10, at 3327, U.N. Doc. A/49/10 (1994); Ian Brownlie, State Responsibility: System of the Law of Nations (1983); infra section 6. 27 See International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé, supra note 15.

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who are decision-makers and executors of decisions to commit the proscribed conduct, individuals who are low-level actors, and those who are merely members of the entities whose individual role in the proscribed conduct has not been established. An interrelationship may exist between direct individual criminal responsibility and indirect individual criminal responsibility resulting from criminal acts of a state or an organization, but these two types of international criminal responsibility must be clearly distinguished. Criminal responsibility of states and organizations must necessarily be established through the conduct of individuals, which means, to the extent that such persons’ individual conduct for or on behalf of a state or an organization is deemed criminal, they are also individually accountable. Thus, the argument that state or organizational criminal responsibility derives from that of the individual and vice-versa is tautological. Indeed, individual criminal responsibility is needed to establish the legal entity’s basis of responsibility; yet once that criminal responsibility is established, the result is the derivative responsibility of those individuals who acted for or on behalf of that entity. Furthermore, if the same persons serve as both the source and consequence of the criminal responsibility, the argument favoring an independent basis for direct individual criminal responsibility as opposed to derivative individual criminal responsibility is self-evident. A distinction must therefore be established between direct and derivative individual criminal responsibility. In addition, a distinction should be established as a matter of legal policy between the criminal responsibility of the decision-makers and senior executors who plan and initiate the proscribed conduct, those who carry it out or allow it to occur by purposeful omission when they could have prevented it, and those who are at lower echelons of the process. Lastly the question of the consequences of imposing criminal responsibility on a state arises, because the penalties for state criminal responsibility may apply collectively to persons who are innocent of the state’s proscribed conduct. This raises fundamental questions of justice and fairness and thus argues against indiscriminate criminal sanctions for state or group criminal responsibility that would befall persons whose individual criminal responsibility was not established. It is therefore necessary to distinguish between: i) conduct that gives rise to direct individual criminal responsibility; ii) conduct that gives rise to the criminal or quasi-criminal responsibility of legal entities; iii) conduct that gives rise to derivative individual criminal responsibility as a consequence of the criminal responsibility of legal entities; and iv) the consequences of criminal sanctions against persons whose individual criminal responsibility has not been established. With respect to distinctions between the criminal responsibility of individuals and public and private legal entities, the first distinguishing characteristic is that individual criminal responsibility arises whenever a person, with intent,



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k­ nowledge, or recklessness, engages in conduct deemed violative of an existing norm, irrespective of the resulting harm, or fails to perform a pre-existing legal duty, the result of which also violates an existing norm. These features of individual criminal responsibility are generally recognized in contemporary penal legal systems, regardless of their differences and variations on that theme. Beyond that, an individual may engage in concert of action with others with the requisite mental state to commit, collectively as opposed to individually, the violation of an existing norm. In such instances, when the collective individual conduct (whether by omission or commission) is performed for, on behalf of or under color of authority of a legal entity, that conduct may be ascribable to that legal entity as well as to each individual person who has been a part of the decision-making process or the execution of a decision which constitutes a violation of a particular legal norm. The question then becomes one of apportioning legal responsibility between the individual and the legal entity. This is more a question of legal policy than a question of the principle of who is responsible for what, what sanctions follow, and what the purpose of such sanctions is. These questions do not, however, dispose of many other questions involved in determining responsibility, its typology, the means and methods of ascertaining it, the appropriate sanctions and remedies, and the appropriate enforcement modalities. The resolution of these issues may depend on the nature of each type of transgression rather than on some abstract principle or doctrine of internal or international law, which could hardly be at once broad enough to encompass all types of transgressions and yet specific enough to satisfy the basic and non-derogable principles of legality, nullum crimen sine lege and nulla poena sine lege. As such, this writer asserts that while the ratione personae of international criminal law applies to individuals and legal entities both private and public, all other legal issues pertaining to the penal responsibility of legal entities should depend on the type of transgression and the policies developed to prevent and punish the transgression in question. This will depend on the ratione materiae of each international crime because of the diverse nature and consequences of such crimes. In that respect, there is another potential conflict between international and national law when the former establishes a prohibition and the latter commands, permits, or condones that very conduct. In response to such a potential conflict, ICL has developed specific norms on the “defense of obedience to superior orders”28 and “command responsibility.”29 But more generally,

28 See Nico Keijzer, Military Obedience (1978); Leslie Green, Superior Orders in National and International Law (1976); Ekkhart Muller-Rappard, L’Ordre Supérieur Militaire et la Responsibilité Pénale du Subordonné (1965); Yoram Dinstein, The Defense of “Obedience to Superior Orders” in International Law (1965); Leslie Green, Superior Orders and Command Responsibility, 1989 Can. Y.B. Int’l L. 167 (1989). 29 See infra Chapter IV, section 6.

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ICL purports to be hierarchically superior to national law with respect to jus cogens crimes from which states cannot derogate.30 Section 3. International Criminal Responsibility of Individuals 3.1. Basis of Responsibility All criminal justice systems of the world recognize the concept of individual criminal responsibility for the violation of a norm that carries penal consequences. Consequently, individual criminal responsibility is a general principle of law, whether under national criminal law or under ICL. Because the difference between national criminal law and ICL is essentially related to the source of applicable law, it follows that if ICL can develop normative proscriptions, they can be applied to individuals who are the proper subjects of individual criminal responsibility. Whether ICL can impose such normative proscriptions directly and not through the mediation of states brings up a separate question relating to enforcement techniques. The question of individual criminal responsibility under ICL raises several issues. The first is whether individuals are the proper subjects of criminal responsibility under the applicable law, and in that respect, the answer is positive. The second issue is whether ICL can impose direct criminal responsibility upon individuals without going through the mediation of states, since states embody in their national criminal legislation the proscriptions arising under ICL. This issue goes to the very nature of ICL, and whether its sources of law and their binding legal effects allow it to penetrate the shield of state sovereignty. As discussed above, ICL’s sources permit such a penetration, though to what extent will depend upon the specific source of law under which the normative proscriptions arise, i.e., jus cogens, conventions, customs, or general principles. The third issue relates to the first two, but is essentially one of enforcement techniques, namely, whether ICL can directly enforce its normative proscriptions against individuals without going through the criminal justice processes of states. In that respect, as discussed above, ICL has established precedents that have settled this issue in favor of a dual approach, the “direct” enforcement system and the “indirect” enforcement system.31 The concept of individual criminal responsibility arising directly under ICL and subject to direct enforcement appeared in the post World War II Nuremberg and Tokyo Charters, and was relied upon in the prosecutions before the IMT

30 See infra Chapter III, section 3. 31  See infra Chapters VI and V, respectively.



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and IMTFE.32 Article 6 of the Nuremberg Charter established the principle of individual criminal responsibility.33 The IMT held that: “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”34 Subsequently, the U.N. General Assembly on December 11, 1946 formulated what became known as the “Affirmation of the Nuremberg Principle,”35 and confirmed the principle of direct individual criminal responsibility under ICL, irrespective of the dictates of national law. These precedents were reinforced with the establishment of the ICTY36 and ICTR.37 The principle of individual criminal responsibility for commission of international crimes is embodied in Articles 7(1) and 23(1) of the ICTY Statute and in Articles 6(1), 22(1) of the ICTR Statute.38 Furthermore, the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind provides in Article 2: 1.  A crime against the peace and security of mankind entails individual responsibility. 2. An individual shall be responsible for the crime of aggression in accordance with article 16. 3. An individual shall be responsible for a crime set out in article 17, 18, 19 or 20 if that individual: (a) intentionally commits such a crime; (b) orders the commission of such a crime, which in fact occurs or is attempted;

32 See M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11 (1997); Kai Ambos, Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis—From Nuremberg to The Hague, in 1 Substantive and Procedural Aspects of International Criminal Law 1 (Gabrielle Kirk MacDonald & Olivia Swaak-Goldman eds., 2000). 33 The same principle was established in the Tokyo Charter, Special Proclamation by the Supreme Commander for the Allied Powers in Tokyo. 34 Nazi Conspiracy and Aggression, Opinion and Judgment of the IMT 66 (1947); see also 1 Trial of the Major War Criminals Before the International Military Tribunal 171, 223 (1947). 35 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. Doc. A/236 (Dec. 1, 1946), at 1144. 36 See Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159, art. 5 [hereinafter ICTY Statute]. 37 See Statute of the International Criminal Tribunal for Rwanda, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M., art. 3 [hereinafter ICTR Statute]. 38 See ICTY Statute, supra note 36; ICTR Statute, supra note 37; see also M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996); Roman Boed, The International Criminal Tribunal for Rwanda, in 3 International Criminal Law: International Enforcement 103 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL].

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chapter two (c) fails to prevent or repress the commission of such a crime in the circumstances set out in article 6; (d) knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its ­commission; (e) directly participates in planning or conspiring to commit such a crime, which in fact occurs; (f ) directly and publicly incites another individual to commit such a crime, which in fact occurs; (g) attempts to commit such a crime by taking action commencing the execution of a crime, which does not in fact occur because of circumstances independent of his intentions.39

Finally, the ICC Statute in Article 2540 provides only for individual criminal responsibility. It states: Article 25 Individual Criminal Responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i)  Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

39 See Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR International Law Commission 48th Sess., U.N. Doc. A/CN.4/L.532 (July 8, 1996) [hereinafter ILC Draft Code of Crimes]; ICTY Statute, supra note 36; ICTR Statute, supra note 37; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1, U.N. GAOR, 5 Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996) [hereinafter 1996 PrepCom Report]. 40 See The Rome Statute of the International Criminal Court (ICC), 17 July 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute]; see also The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999).



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(ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f ) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

While these precedents and contemporary legal developments establish both the principle of individual criminal responsibility under ICL and the ability of ICL to directly enforce this principle without going through the mediation of states, other issues arise. These issues are connected to the legal content of individual criminal responsibility. National criminal justice systems differ as to what constitutes criminal responsibility, what conditions constitute exonerations, and all the questions arising under the general part of national criminal law. Thus, it is neither sufficient nor satisfactory that certain ICL instruments propound the principle of individual criminal responsibility before international bodies without addressing the questions of the general part. Understandably, this is a difficult task, but without a general part, attribution of individual criminal responsibility under ICL raises questions about whether it is contrary to the requirements of the principles of legality. It is in this respect that one can see the difficulty of making a transition from the “indirect” system to the “direct” enforcement system in ICL. But that difficulty is not inherent in the discipline of ICL, but rather a consequence of the international legislative process through which ICL develops, a process whose participants are diplomats and not experts in international criminal law and comparative criminal law and procedure. This weakness in the international legislative process is discussed below. Lastly, the fact that ICL operates through the “direct,” as well as the “indirect,” enforcement systems raises another set of questions as to the jurisdictional standards required to determine when ICL’s established basis of responsibility will be enforced by national criminal justice systems and when jurisdiction will vest in either a permanent or ad hoc international investigatory and adjudicatory body. The primacy of such direct enforcement mechanisms is not entirely settled. With respect to the ICTY and ICTR, the Security Council, which created these bodies as the functional equivalents of subsidiary organs of the Council, established the primacy of these Tribunals over national criminal justice systems. But this was possible because the Security Council established these bodies pursuant to its powers under Chapter VII of the United Nations Charter. In stark contrast to this, because the ICC was established by a treaty, its jurisdictional power rests

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upon the notion of complementarity of effective national criminal justice. In its development, ICL has been plagued by an absence of an international legislative policy, and this is the reason why these questions and others have not yet been satisfactorily addressed. 3.2. International Criminal Responsibility of Non-State Actors The criminal prosecution of non-state actors is not a new category in ICL, because international criminal responsibility is individual.41 However, because “crimes against humanity” requires a policy element as mentioned above, it is necessary to include groups that constitute non-state actors as qualifying for the legal capacity to formulate such a policy, which is a prerequisite for individual criminal responsibility. Since World War II, non-state actors have demonstrated their capacity for harm in conflicts of a non-international, purely internal character. In the many conflicts that have occurred since World War II,42 non-state actors have frequently exercised the same type of dominion and control over territories and populations as state actors have. They have also paralleled the organizational power structure of the state, albeit in a more indiscriminate and typically less structured manner. Partaking in the characteristics of a state or a state’s structure and exercising dominion and control over a territory or people makes such non-state actors the functional equivalents of state actors. The involvement of non-state actors in international crimes is particularly evident with respect to “crimes against humanity.”43 Up through World War II, victimization of civilians on a massive scale was fundamentally the product of “state action or policy.” It was perpetrated by agents of the state on the basis of a policy developed and carried out by several segments of the state’s public apparatus. This included elements of the armed forces, police forces, paramilitary units, and other elements of the civilian bureaucracy. In some cases, civilians were enlisted to carry out, in whole or in part, the commission of these crimes. But since World War II, however, non-state actors have assumed primary responsibility for victimizing civilians on a large scale. Non-state actors 41 It has been noted that for over 250 years individual criminal responsibility existed for various types of crime in international law. See Paust, supra note 6. 42 See, e.g., M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9 (1996); see also Jennifer Balint, The Place of Law in Addressing International Regime Conflicts, 59 Law & Contemp. Probs. 103 (1996); Jennifer Balint, Conflict, Conflict Victimization, and Legal Redress, 1945–1996, 59 Law & Contemp. Probs. 231 (1996). 43 See Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2d rev. ed. 2001); Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002) (describing many cases which are more appropriately characterized as “crimes against humanity” than genocide); see also Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006).



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have included paramilitary units, armed civilian bands, and, most ­shockingly, children, even younger than sixteen. In the conflict in the former Yugoslavia, most of the crimes falling within the meaning of “crimes against humanity” had been committed by paramilitary groups and armed civilian bands.44 In the Rwanda conflict, Hutu civilians were incited to kill Tutsi civilians. On numerous occasions, it was “child soldiers,” children under the age of eighteen, who committed the worst crimes.45 In other criminal conflicts, like the one in Liberia, armed civilian bands, many of which were manned by children under eighteen, committed “crimes against humanity.”46 These and other conflicts revealed new facts, which the Nuremberg Charter neither contemplated nor to which Article 6(c) applied. The analogy to the pre-Charter situation is striking. At that time, international humanitarian law had not specifically anticipated the crimes the Nazi regime perpetrated. Thus, the adoption of Article 6(c) of the Nuremberg Charter, “Crimes Against Humanity,” was driven by the evidence arising out of Nazi conduct.47 The analogy to post-World War II victimization by non-state actors is self-evident. “Crimes Against Humanity,” as formulated in the Nuremberg Charter’s Article 6(c), did not contemplate nor apply to non-state actors. But the need for an extension of those norms became apparent in the conduct of belligerents in Yugoslavia and Rwanda. Thus, Post-Charter developments,48 particularly Article 4 of the ICTY Statute, Article 3 of the ICTR Statute, and Article 7 of the ICC Statute, evolved the underlying norms of Article 6(c) to apply to non-state actors. This evolution was facilitated by the removal of the pre-requisite warconnecting link between “crimes against humanity,” “crimes against peace” and “war crimes.”49 Just as the extension of “crimes against humanity” was made in Article 6(c) of the Charter as an emanation of “war crimes,”50 so was the extension of “crimes against humanity” from state actors to non-state actors in PostCharter developments.51 The first of these extensions was the application of extant norms of the law of armed conflict to civilians who are nationals of the 44 See Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 47th Sess., Annex, U.N. Doc. S/1994/674 (May 27, 1994); Annexes to the Final Report, U.N. SCOR, 47th Sess., U.N. Doc. S/1994/674/Add.2 (Dec. 28, 1994) (see particularly Annex I on paramilitary groups). 45 See Boed, supra note 38. 46 See Children in Armed Conflict, Interim Report of Special Representative of the SecretaryGeneral, Mr. Olara A. Otunnu, Submitted Pursuant to General Assembly Resolution 52/107, U.N. Doc. E/CN.4/1998/119 (March 12, 1998); Report of the Working Group on a Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts on its Fourth Session, U.N. Doc. E/CN.4/1998/102 (March 24, 1999). 47 See M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 115–27, 136–46 (2011). 48 See generally id. at 167–295. 49 See generally id. at 40–42, 136–46, 167–83. 50 See generally id. at 136–46. 51  See generally id. at 40–42, 167–69.

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perpetrating state.52 The second extension from the Article 6(c) formulation is found in Article 4 of the ICTY Statute, Article 3 of the ICTR Statute, and Article 7 of the ICC Statute, whose applications cover non-state actors.53 While these latest extensions were driven by the new realities of violent conflicts in the post-World War II era, they were nevertheless limited and predictable extensions. The non-state actors who are now covered by these extensions are those who have the same legal characteristics of state actors. Thus, these nonstate actors must have some of the characteristics of state actors, which include the exercise of dominion or control over territory or people, or both, and the ability to carry out a “policy” similar in nature to that of “state action or policy.” Thus, descriptive terms as “widespread or systematic” acts directed against a civilian population, contained in Article 3 of the ICTR Statute and Article 7 of the ICC Statute, refer not only to the nature of the act, but also characterize the manner in which the large-scale victimization occurred. This characterization relates to the underlying “policy” that coordinated such crimes. It is therefore that underlying “policy” that constitutes the international or jurisdictional element that distinguishes “crimes against humanity” committed by non-state actors from crimes within the domestic jurisdiction of the state where the crimes in question occurred.54 It should be noted, however, that the 1948 Genocide Convention also applies specifically to non-state actors.55

52 See supra note 49. For an discussion of the impact of holding corporations criminally liable, see Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nations Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility in International Law, 37 Colum. Hum. Rts. L. Rev. 287 (2006). 53 A question that arises is whether the existence of an international tribunal should be a necessary condition for establishing international criminal responsibility. If the answer is in the positive, then individual criminal responsibility would have no meaning without it. In looking at the historical development of ICL, however, it becomes apparent that this is not the case. The principle was affirmed even before the establishment of the ICTY, the ICTR, and the ICC, and the statutes establishing these institutions make no reference to the international penal tribunals in establishing the principle of individual criminal responsibility. What may be inferred, then, is that the existence of an international tribunal is a sufficient, but not a necessary, condition for the principle of individual criminal responsibility. If one is to accept this position, ICL can be regarded as an important branch of international law which promotes this driving principle alongside ICL: prosecution and punishment of offenders. See M. Cherif Bassiouni, The New Wars and the Crisis of Compliance With the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 711 (2008). 54 In a recent report by Human Rights Watch on Palestinian suicide bombers, it was argued that non-state actors engaging in such conduct committed “crimes against humanity.” This conclusion was probably reached on the basis of the ICC’s Article 7. However, in this writer’s opinion, this conclusion was a stretch of what Article 7 was intended to cover. It is certainly not valid on the basis of existing law. This progressive position risks including in the category of “crimes against humanity” organized crime groups like the mafia, and other similar groups. See Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL, supra note 21, at 939. 55 See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. IV, 78 U.N.T.S. 277, 28 I.L.M. 763 (entered into force Jan. 12, 1951).



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Section 4. Criminal Responsibility of Heads of State and Other Persons Benefiting from International Immunities 4.1. Introduction The international regime of immunities is an outgrowth of the Westphalian conception of international relations, which is predicated on the co-equal sovereignty of states. Traditionally, the representatives of sovereign states were immune from the legal processes of other states, be they civil or ­criminal. The issue of head of state immunity arises in three different contexts, and a different law applies to each. The three contexts are: national proceedings against a national who is or was a head of state, national proceedings against a foreign head of state, and international proceedings against a sitting or former head of state. In the wholly national context, the former or incumbent head of state is prosecuted in a national court employing domestic laws and procedures, such as in the case of the former Egyptian president Hosni Mubarak. In national proceedings against foreign former or incumbent head of state based on the national forum’s laws or international law. An example of this situation is the proposed prosecution of former Chadian President Hissène Habré, whether in Senegal or in Belgium. In the international context, a former or incumbent head of state is tried before an international tribunal, whether the ICC, the Ad Hoc tribunals or mixed-model tribunals. Examples of this include the prosecution of Slobodan Milošević by the ICTY or Jean Kambanda by the ICTR. With respect to the first category, national law controls the proceedings entirely. The main issue which arises in this context is whether any aspect of the national law, in particular the constitution, stands in contrast or opposition to a jus cogens norm of international law. As discussed below, heads of state do not enjoy any substantive immunity for jus cogens crimes. Accordingly, national law, including the constitution of the relevant state, cannot provide for substantive immunity to the accused. However, as held by the ICJ in the Belgium v. Congo case,56 customary international law does provide for temporal immunity for heads of state, an exception that also applies to domestic proceedings unless the law of that state provides otherwise. With regards to the second category, national courts prosecuting a former or incumbent foreign head of state who is not a national of the forum state, the prosecuting state must also apply customary international law, whether for the purposes of prosecution or extradition in addition to national law.57 While national law applies both for substance and procedure, it cannot override a jus

56 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, I.C.J. Reports 2002. 57 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I.C.J. 

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cogens substantive norm. Thus the state in question would have the obligation to extradite or prosecute subject to the customary international law norm of temporal immunity for incumbents.58 In the third category concerning the prosecution of a former or incumbent head of state before an international, ad hoc or mixed-model tribunal, the laws and procedures of the relevant tribunal apply. For instance, if the proceedings are before the ICC, Article 27 of the Rome Statute controls thereby stripping the accused of his/her substantive and temporal immunity. Each tribunal’s rule on the subject will prevail. Accordingly, ad hoc and mixed model tribunals have followed the respective rules of their statute. The international immunity regime applies to heads of state,59 diplomats,60 and officials on state missions.61 With respect to all such offices, a distinction is made between incumbent public officials and former public officials. The incumbent public officials benefit from certain substantive and temporal immunities, while the former public officials benefit only from substantive immunities for lawful acts of state. Subsequent to World War I, the traditionally applied absolute immunity regime began to show cracks, and after World War II it changed to a qualified

58 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, I.C.J. Reports 2002.  59 Le Chef d’Etat et le Droit International (SFDI 2002); J. Bröhmer, State Immunity and the Violations of Human Rights (1997); Jean Salmon, Manuel de Droit Diplomatique 559 et seq. (1994); Oppenheim’s International Law 1036 et. seq. (R. Jennings & A. Watts eds., 9th ed. 1992); Charles Rousseau, Droit International Public 123 et. seq. (1980). For early writings on the position of immunity of heads of state, see Emmerich de Vattel, Le Droit des gens, ou principles de la loi naturelle appliquée à la conduite et aux affaires des nations et des souverains 289 (1773). See also Marc Henzelin, L’Immunité pénale des chefs d’Etat en matiere financiere: Vers une exception pour les actes de pillage de resources et de corruption?, in 12 Revue suisse de droit international et de droit européen 179 (2002); Mary Margaret Penrose, It’s Good to be the King!: Prosecuting Heads of States and Former Heads of State Under International Law, 39 Colum. J. Transnat’l L. 193–220 (2000); Jill M. Sears, Confronting the ‘Culture of Impunity:’ Immunity of Heads of State from Nuremberg to Ex Parte Pinochet, 42 German Y.B. Int’l L. 125 (1999); A. Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 249 (1999); Ved. P. Nanda, Human Rights and Sovereign and Individual Immunity (Sovereign Immunity, Act of State Immunity and Diplomatic Immunity): Some Reflections, ILSA J. Int’l & Comp. L. 467 (1999); Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Receuil des Cours de l’Academie de La Haye (RCADI) 9 (1994); Stacy HumesSchulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 (2008). 60 Vienna Convention on the Law of Diplomatic Immunity, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95; Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; see also Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. (Feb. 14), reprinted in 41 I.L.M. 536 [hereinafter Congo v. Belgium] (holding in part that ministers of foreign affairs have diplomatic immunity under the Vienna Convention on the Law of Diplomatic Immunity). 61 See United Nations Convention on Special Missions, Dec. 16, 1969, 1035 U.N.T.S., arts. 21, 29, 31, 34, & 42 (entered into force June 21, 1985); see also European Convention on State Immunity, May 16, 1972, E.T.S. 74; Additional Protocol to the European Convention on State Immunity, May 16, 1972, E.T.S. 74A.



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immunity regime as substantive immunities for certain international crimes were removed while temporal immunity was retained. During the last decade, however, there have been signs of the erosion of temporal immunity, though, as discussed below, the ICJ recently affirmed it. Conversely, the ICC statute, also discussed below, unequivocally rejects it. 4.2. Historical Evolution before International Judicial Organs and under Conventional ICL The first attempt to prosecute a head of state was after World War I when the 1919 Treaty of Versailles provided in Article 227 for the prosecution of Germany’s head of state, Emperor William II. Kaiser Wilhelm. Wilhem, however, sought refuge in the Netherlands, which gave him asylum on the basis that the crime for which he was charged, namely, “the supreme offense against the sanctity of international treaties”62 was a political crime for which the Netherlands could refuse extradition.63 In 1945 the Nuremberg Charter, in Article 7, removed the immunity of heads of state from criminal prosecution. The same provision was included in Article 6 of the IMTFE Charter. The IMT prosecuted Admiral Karl Dönitz who was appointed Germany’s named successor Chancellor (head of state) by Adolph Hitler before the latter committed suicide in Berlin. The IMT also prosecuted Fritz von Pappen, who was Germany’s Vice-Chancellor and foreign minister during the Third Reich (and previously Chancellor of Germany before the takeover of the Third Reich), and Hermann Goering, Deputy Chancellor of Germany’s Third Reich.64 The IMTFE did not, however, prosecute Japan’s head of state, Emperor Hirohito, but did prosecute a former head of government, cabinet officers, and diplomats, all of whom were convicted and sentenced.65 Thus, a new rule of customary international law was established, namely that international immunities do not apply to international criminal prosecutions for certain international crimes which, with respect to the IMT and IMFTE, were “crimes against peace,”

62 Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, art. 227, 11 Martens (3d) 323, reprinted in 2 Bevans 43. 63 See M. Cherif Bassiouni, World War I: “The War to End all Wars” and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002). 64 See Mark Drumbl, Immunities and Exceptions, in 2 International Criminal Law: Multi­ lateral and Bilateral Enforcement Mechanisms 231 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL]. 65 Shumoko Hata, War Minister; Kiichiro Hiromma, Prime Minister; Kaki Hirota, Minister of Foreign Affairs and Ambassador; Kaichi Kida, Minister of Education; Jiro Minami, Minstry of War; Mamoru Shigemitsu, Ministry of Foreign Affairs and Ambassador; Shigetaro Shimada, Ministry of the Navy; and Shigenari Togo, Ministry of Foreign Affairs. See M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 Bassiouni, ICL, supra note 38, at 29.

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“war crimes,” and “crimes against humanity”—the three crimes contained in their respective statutes.66 Post-World War II national prosecutions, which were based on national laws, relied on and cited the IMT and the IMTFE Statutes and their respective jurisprudence as support for their national prosecutions.67 In 1993 and 1994, the Security Council established the ICTY and ICTR, whose Articles 7(2) and 6(2), respectively, provided for the non-applicability of head of state immunities. Both of these Tribunals prosecuted former heads of state: Slobovan Milosevič of the Former Republic of Yugoslavia68 and Jean Kambanda of Rwanda.69 The latter was convicted and sentenced to prison while the former died during his trial at The Hague. Thus, the precedents of the IMT and IMTFE were reaffirmed in the respective statutes and jurisprudence of the ICTY and ICTR.70 The U.N. General Assembly in a 1946 resolution, which is considered declarative of customary international law, affirmed the non-applicability of head of state immunity in connection with international crimes.71 Subsequently, in the ILC’s 1950 “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal,”72 the same principle was affirmed.73 Presumably, these international crimes were meant to be those contained in the IMT and IMTFE, namely “crimes against peace,” “war crimes,” and “crimes against humanity.”74 Also, this exception from the international 66 Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, art. 6, 59 Stat. 1544, 82 U.N.T.S. 279, [hereinafter IMT Charter]; Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, art. 5, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter]. 67 They include: the Eichmann trial in Israel; the Barbie, Touvier, and Papon trials in France; Finta in Canada; and Kapler in Italy. See Bassiouni, Crimes Against Humanity, supra note 47, at 664–84. 68 ICTY Indictments of Slobodan Milosevič, Nos. IT-99-93-I (24 May 1999) (Kosovo); IT-01-50-I (8 Oct. 2001) (Croatia); IT-01-51-I (22 Nov. 2001) (Bosnia); see Michael P. Scharf & William A. Schabas, Slobodan Milosevic on Trial: A Companion (2002); Norman Cigar & Paul Williams, Indictment at the Hague: The Milosevic Regime and Crimes of the Balkan Wars (2002); Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002); Michael P. Scharf: Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997). 69 Prosecutor v. Kambanda, Case No. ICTR-97-23-S (Sept. 4, 1998); Prosecutor v. Kambanda, Case No. ICTR-97-23-I (Oct. 19, 2000). 70 Admittedly, these two tribunals were established by the Security Council pursuant to its powers under Chapter VII of the Charter to prevent threats to peace and to the maintenance of peace; but in the exercise of these powers, the Security Council acted in conformity with established principles of customary international law. 71 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, supra note 35. 72 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission Covering Its Second Session, 5 June–29 July 1950, 5 U.N. GAOR Supp. (No. 12), at 11–14; U.N. Doc. A/1316 (1950). 73 Id.; see Principle III, which specifically excludes head of state immunity. 74 See supra note 5.



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immunities regime presumably extends to international as well as to national criminal jurisdictions. By implication, therefore, states other than those of the public officials’ nationality can rely on this exception and invoke the theory of universal jurisdiction to prosecute such persons before their own national courts.75 The 1948 Genocide Convention in Article 4, the 1973 Apartheid Convention in Article 3, and the 1984 Torture Convention in Articles 4 and 12, removed head of state and other public official immunity from criminal prosecution, again, presumably irrespective of whether prosecution is before a national or international judicial body. The language employed by these provisions does not, however, explicitly state that the removal of substantive immunity for these crimes also removes temporal immunity. The ICJ’s 2002 decision in Congo v. Belgium,76 discussed below, recognizes the existence of temporal immunity for incumbent officials. The ICC statute, however, takes a categorical position in Article 27, which states: Article 27 Irrelevance of Official Capacity 1. 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. 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 ICC Statute removes substantive and temporal immunity for all public officials for “genocide,” “crimes against humanity,” and “war crimes”—all three being crimes within the Court’s jurisdiction.77 Furthermore, Article 5 of the ICC ­statute includes “aggression,” the definition and jurisdictional conditions of which were recently addressed at the ICC Kampala Review Conference in 2010.78 On March 5, 2009, the ICC issued an arrest warrant for Sudan’s President Omar Hassan Ahmed Bashir. The warrant charged Bashir with seven counts of war crimes and crimes against humanity for events in Darfur. On June 27, 2011, the ICC 75 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001); c.f. Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000). 76 See Congo v. Belgium, supra note 60. 77 See ICC Statute, supra note 40; see also Bassiouni, Statute of the ICC, supra note 40; Ratification and National Implementing Legislation, 71 Revue Internationale De Droit Pénal 41–81 (M. Cherif Bassiouni ed., 2000). 78 Res. RC/Res. 6, U.N. Doc. RC/Res. 6 (June 11, 2010).

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issued its second arrest warrant for Libyan leader Muammar Gadhafi, and his son, Saif Al-Islam Gadhafi and Abdullah Al-Senussi for crimes against humanity; Muammar Gadhafi was killed on October 20, 2011 and his son and Al-Senussi are in custody in Libya and Mauritania, respectively.79 4.3. Customary Practice of States The practice of states has been equivocal as to the question of head of state and other public official immunities, though many states have entertained suits predicated on the commission of international crimes by state officials.80 The United Kingdom’s House of Lords found the former Chilean head of state, Augusto Pinochet, unprotected from former head of state immunity for the crime of torture, which, as alleged by a Spanish extradition request, had been committed on his instructions during his military dictatorship control of Chile.81 The House of Lords recognized the applicability of head of state immunity both under customary international law and under U.K. law, and also recognized the obligation of the U.K. to comply with a foreign state’s extradition request for a former head of state in accordance with the provisions of U.K. law,82 which in 79 Situation in the Libya, ICC, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/ICC0111/Situation+Index.htm (last visited Nov. 3, 2011); Muammar Gaddafi Killed in Libya, BBC News, Oct. 20, 2011, http://www.bbc.co.uk/news/world-africa-15389550; Richard Roth, ICC: Mercenaries May Try to Help Gahdafi Son Escape, CNN, Nov. 3, 2011, http://www.cnn.com/2011/11/02/ world/un-libya/index.html?hpt=wo_c2. 80 See Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 EUR. J. INT’L L. 853, 870–71 (2002) (referring to cases in which British, Dutch, French, Israeli, Italian, Mexican, Polish, Spanish, and U.S. courts have entertained proceedings against foreign state officials—particularly foreign military officers—with respect to war crimes, crimes against humanity, and genocide). 81 All Lords agreed that immunity exists under U.K. and international law for all acts and from all penal and civil consequences. When a person ceases to be a head of state, he has no immunity except for those acts which are jure imperii during his incumbency. In the first decision of 25 November 1998, by three-to-two majority, the Law Lords revoked the immunity of Pinochet, a decision upheld in the Law Lords’ second decision of 24 March 1999, and therefore, Pinochet was extraditable to Spain. The Home Secretary, exercising “Executive Discretion,” withheld extradition on humanitarian grounds, on the basis that Pinochet was too ill to stand trial and, instead was allowed to return to Chile. See Regina v. Bow Street Metropolitan Stipendiary Magistrate (No. 1), ex parte Pinochet Ugarte, [1998] 3 W.L.R. 1456 (H.L.), reprinted in 37 I.L.M. 1302 (1998); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272 (H.L.), reprinted in 38 I.L.M. 430 (1999); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.); see also Alun Jones, Jones on Extradition (1995); Hartley Booth, British Extradition Law and Procedure (1980); The Law of Extradition and Mutual Legal Assistance (Clive Nicholls, Clare Montomery & Julian Knowles eds., 2002); M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th rev. ed. 2007); Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129 (1999). 82 United Kingdom State Immunity Act of 1978, which excludes jure imperii but not jure gestionis. The same distinction exists in substance in the U.S. Foreign Sovereigns Immunity Act of 1976, 90 Stat. 289l, 28 U.S.C. §§1330, 1332(a), 1391(f), 1601–11. Both incorporate the customary international law doctrine of the Act of State.



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this case had incorporated the 1984 Torture Convention. Furthermore, the House of Lords rejected the contention that the immunity granted to Pinochet under Chilean law was binding on the U.K. insofar as the 1984 Torture Convention provided for the obligation to prosecute or extradite persons accused of such a crime and that the obligations of the said Convention had become part of U.K. law. Germany and Spain have also entertained suits against various foreign states based on their aggressive universal jurisdiction statutes enacted after the Pinochet litigation in the U.K.83 Suits have also been brought before the European Court of Human Rights and Australian tribunals.84 In 1999, another cause célèbre prosecution involving a former head of state took place in Senegal. A criminal complaint was filed by several plaintiffs in that country against the former head of state of Chad, Hissène Habré. The former dictator of that country was accused, inter alia, of murder and torture in Chad.85 Senegal, as a state party to the 1984 Torture Convention, was faced with its obligation to prosecute or extradite.86 After an initial finding by the Senegalese Judge of Instruction that the former head of state was subject to the criminal jurisdiction of Senegal, the decision was reversed by the Senegal Cour de Cassation.87 Nevertheless, in 2002, that decision was reconsidered.88 Moreover, a Juge d’ Instruction from Belgium considered an indictment in Belgium of Habré pursuant to Belgium’s national law of 1993, as amended in 1999,89 which gives it 83 Suits have been brought in Spain against Chinese and Guatemalan officials and in Germany against Donald Rumsfeld and other U.S. military officials for alleged torture at Abu Ghraib. The case against U.S. officials did not proceed. See Dr. Christopher D. Totten, Head-of-State and Foreign Official Immunity in the United States After Samantar: A Suggested Approach, 34 Fordham Int’l L.J. 332, 366–68 (2011). 84 The European Court of Human Rights heard cases involving actions by U.K. officials. See, e.g., McElhinney v. Ireland, App. No. 31253/96, 2001-XI Eur. Ct. H.R. 37; Al-Adsani v. United Kingdom, App. No. 35763/97, 34 Eur. H.R. Rep. 11 (2001); Fogarty v. United Kingdom, App. No. 37112/97, 34, Eur. H.R. Rep. 302 (2001). See generally Marius Emberland, Discussion of International Decisions, 96 A.J.I.L. 699 (2002). For a discussion of Australian cases involving foreign states, see Richard Garnett, Foreign States in Australian Courts, 29 Melbourne U. L. Rev. 704 (2005). 85 Documents on the Habré case can be found at Habré, Human Rights Watch, http://www .hrw.org/justice/habre (last visited June 4, 2012). 86 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51), at 197, arts. 5(2), 7(1), U.N. Doc. A/39/51 (1984) (establishing the duty to prosecute or extradite). Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, 2375 U.N.T.S. 24841 (2003). The U.S. is not a signatory to the Optional Protocol. 87 See supra note 85. 88 Id. 89 Act Concerning the Punishment of Serious Violations of International Humanitarian Law § 7 (Belgium). Belgian Law of 16 June 1993, as amended by the Law of 10 February 1999. As a consequence of the ICJ’s decision in Congo v. Belgium, supra note 60, the Cour de Cassation held that international immunities apply on a temporal basis. Consequently, the Belgian courts must suspend proceedings against such persons. As a result, an amendment to the 1993 law was introduced before the Belgium Senate and the Conseil d’Etat expressing its position on the proposed law that provided that in cases where there is no “link” to Belgium, the investigatory authority must defer the case to the ICJ or to a state seeking to exercise its jurisdiction. Belgium thus remains

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universal jurisdiction over certain international crimes, namely, “genocide,” “crimes against humanity,” and “war crimes.”90 Belgium eventually issued an arrest warrant for Habré but Senegal refused to extradite him. While Habré awaited trial in Senegal, a Chadian court convicted Habré of providing “financial, material and moral support to the rebels” and sentenced him to death in absentia in 2008 for planning to overthrow Chad’s government.91 Habré was convicted along with eleven Chadian rebel leaders for threatening the “constitutional order” of Chad.92 Human rights groups have consistently opposed Habré’s extradition to Chad and prefer to see him tried in Senegal, an option still available because Habré was not convicted of crimes against humanity.93 Belgium brought the issue of Senegal’s duty to extradite or prosecute before the International Court of Justice in 2009. Belgium and Senegal made arguments to the ICJ in March 2012 and an opinion is expected later in the year.94 Contemporaneously, in November 2010 the court of justice of Economic Community of West African States found that Habré may only be tried in an “ad hoc special tribunal of an international character.”95 But Senegal withdrew from talks to establish a tribunal to try Habré, drawing criticism from the African Union.96 After initially planning to return Habré to Chad on July 11, 2011,97 Senegal suspended Habré’s repatriation to Chad.98 The prospect of Habré being tortured in Chad was a reason for the UN Human Rights chief Navi Pillay to plead against his repatriation, particularly in light of Senegal’s status as a party to the Convention Against Torture.99

the jurisdiction of last resort, but subject to certain limitations. See Amendments to the Law of 16 June 1993, 5 April 2003, Sénat de Belgique, 2–1256/14; see also A. Andries, C. Van den Wyngaert, E. David, & J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la repression des violations graves de droit international humanitaire, Revue de Droit Pénal et de Criminologie 1133 (1994); Damien Vandermeersch, Compètence universelle et immunités en droit international humanitaire la situation belge, in Le Droit Pènal a l’epreuve de l’internationalisation 227 (Marc Henzelin & Robert Roth eds., 2002). 90 Id. 91 Chad Confirms Former President Habre’s Conviction, Agence France Presse (AFP), Aug. 19, 2008, available at http://afp.google.com/article/ALeqM5jRB8NAgF4CYAzlVwngJZzPdkgKFw. 92 Id. 93 Moumine Ngarmbassa, Habre death sentence won’t alter Senegal case—Chad, Reuters Africa, Aug. 19, 2008, http://www.reuters.com/article/2008/08/19/idUSLJ487890._CH_.2400. 94 Press Release, International Court of Justice, Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal) ( March 21, 2012), available at http://www.icj-cij.org/docket/ files/144/16953.pdf; African Union: Press Senegal to Extradite Habré, Human Rights Watch, June 28, 2011, http://www.hrw.org/en/news/2011/06/28/african-union-press-senegal-extradite-habr. 95 Hissène Habré v. Senegal, Decision No. ECW/CCJ/JUD/06/10, ¶ 61 (Ct. of Justice of the Econ. Union of West Afr. States, Nov. 18, 2010), available at http://www.hrw.org/en/habre-case. 96 Human Rights Watch, supra note 85.    97 Senegal Urged to Halt ex-Chad Leader Habre Extradition, BBC News, July 10, 2011, http://www .bbc.co.uk/news/world-africa-14097937.    98 Senegal suspends Hissene Habre’s repatriation to Chad, BBC News, July 10, 2011, http://www .bbc.co.uk/news/world-africa-14101258.    99 Id.



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But Pillay stressed that Habré must be prosecuted or extradited to face charges against him.100 Habré has expressed a willingness to appear before an international tribunal to answer charges of atrocities during his rule, and the Belgian foreign ministry has indicated it will bring Senegal’s ambassador the option of trying Habré in Belgium for crimes against humanity.101 Recently, Chad issued a communiqué stating that it would like to see Senegal send Habré to Belgium.102 In the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Seneral) case (the Habré case),103 the ICJ affirmed its earlier position in the Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom and Libya v. United States of America) case (the Lockerbie case) regarding the duty of states when to extradite or prosecute.104 The two cases resulted in similar holdings, in essence that the duty to prosecute “outweighs” the duty to extradite, even though both cases arose under different conventions, namely the 1971 Montreal Convention for the Lockerbie case,105 and the 1984 CAT for the Habré case.106 Neither case, however, addressed the implicit requirements of fairness and effectiveness discussed below. The Lockerbie and Habré cases turned on the interpretation of relevant provisions of the Montreal Convention and the CAT, respectively. Article 7 of the Montreal Convention declares that: The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.

   100 Former Chad dictator Habre ‘Must Face Prosecution’, AFP, July 12, 2011, available at http:// www.google.com/hostednews/afp/article/ALeqM5iQjSs_ZIiY5fv8P8Ls-i-GvHvIVA?docId=CNG.b2c eadbac94f53ed52774bcb398e39c0.4b1 (last visited Nov. 3, 2011).    101 Chad’s Habre Willing to Appear Before International Tribunal, AFP, July 14, 2011, available at http://www.google.com/hostednews/afp/article/ALeqM5jDtseSoEIlNRuBfgKek-FePuSCVg?docId= CNG.0417e1235e0b3c919628eb16a61a6020.121 (last visited Nov. 3, 2011).    102 Senegal: Chad Asks for the Extradition of Hissène Habré to Belgium, Human Rights Watch, July 22, 2011, http://www.hrw.org/news/2011/07/22/senegal-chad-asks-extradition-hiss-ne-habrbelgium. 103 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ (July 20). 104 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United States and United Kingdom), Provisional Measures Order, 1992 I.C.J. 3 (April 14). 105 Convention For The Suppression Of Unlawful Acts Against The Safety Of Civil Aviation, Sept. 23, 1971, 974 U.N.T.S. 177. 106 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. res. 39/46, U.N. Doc. A/39/51.

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Article 7(1) of the CAT provides that: The State Party in the territory under whose jurisdiction a person 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.

Both Conventions use substantially the same language with the same syntactical construction, namely: if the state in which the alleged perpetrator does not extradite, then it must prosecute him/her. Under Article 31 of the Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”107 The ICJ, in both the Lockerbie and Habré judgments, reasonably concluded on the basis of the “ordinary meaning” of Article 7 of the Montreal Convention and Article 7(1) of the CAT that the duty to prosecute precedes that of extradition. The ICJ’s two rulings have their logic, as the requested state is likely to be the one where the crime occurred, or the state of nationality of the alleged perpetrator (as in the Lockerbie case) or the state in which the alleged perpetrator has sought asylum (as in the Habré case). In the Habré case, Belgium, the requesting state, claimed universal jurisdiction over the crimes under the CAT, but was neither the state in which the crimes occurred nor the state of nationality of the alleged perpetrator. Senegal did not satisfy these jurisdictional assumptions either, but the fact that it was the state which gave Habré asylum after his escape from Chad that gave it priority over extradition in the eyes of the ICJ. Under Article 7 of the CAT all state parties have an obligation to prosecute, and it was therefore logical and reasonable for the ICJ to conclude that Senegal, the state of custody, had the duty to prosecute Habré, and failing that, to extradite him to Belgium. The Court interpreted extradition as being optional under the CAT, which underscored its secondary status in relation to the obligation to prosecute. In summarizing the duty to prosecute or extradite, the Court stated that: . . . if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to that request. It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.108 107 Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 UNTS 331. 108 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____, ¶¶ 89–95 (July 20).



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Unfortunately, in stating categorically that prosecution invariably outweighs extradition, the Court failed to take into account any jurisdictional priorities or state interests that a requesting state may have over the custodial state. This is particularly so where the requesting state is the territory on which the crime was committed or the state whose nationals were the victims of the crime, while the custodial state may have only the physical presence of the alleged perpetrator as a jurisdictional nexus.109 While both the Lockerbie and Habré cases dealt with the issue of prosecution or extradition, otherwise reflected in the maxim aut dedere aut judicare, both judgments relied on the respective applicable treaties, namely, the Montreal Convention and the CAT. The Court did not rely on, or supplement, its understanding of the respective provisions with developments in customary international law. This omission is particularly significant since there have been developments in customary international law since the drafting of the 1971 Montreal Convention and the 1984 CAT which should have led the ICJ to an interpretation of the alternative duties to prosecute or extradite that includes the implicit requirements to provide an effective and fair trial. Satisfying these requirements is essential not only to achieving the object and purpose of the respective conventions to prevent and punish the underlying crimes, but also to respect the rights of the accused and the victims, a class that is increasingly recognized in international law.110 The right to a fair trial is well established in international human rights law. Fairness in judicial proceedings is required by Article 14(1) of the ICCPR,111 as 109 For theories of jurisdiction see M. Cherif Bassiouni, International Extradition: U.S. Law and Practice (forthcoming 2012), ch. 6. 110 The rights of victims are detailed in the 2006 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (March 21, 2006). Similarly, Article 68(3) of the Rome Statute of the ICC provides that, Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. The Extraordinary Chambers in the Courts of Cambodia also provides for victim participation through “Civil Party” representation, with rights of audience and the power to question ­witnesses. 111 International Covenant on Civil and Political Rights, Dec. 16, 1966, G.A. res. 2200A (XXI), U.N. Doc. A/6316 (1966). Article 14 of the ICCPR states: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a ­democratic

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well as the ECHR112 and the ACHR.113 The courts established by the ECHR and ACHR have issued a number of decisions supporting the proposition that a person should not be extradited to a state where he/she is likely to be tortured or treated with discrimination, or where his/her fundamental procedural rights would be violated. Admittedly, no ICL convention containing a provision on the duty to prosecute or extradite specifically includes such implicit conditions requiring effectiveness of the prosecution and fairness of the prosecution by both the requested and requesting states. Nevertheless, the ICJ failed to provide any guidance on the society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. 112 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222. 113 American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.



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question of such implicit conditions in the Habré case even though the existence of these conditions is inferred on the basis of logic and sound legal judgment. Logic and sound legal judgment dictate that at the very least effectiveness precludes sham prosecutions and extradition to states which are likely to engage in such proceedings. The effectiveness requirement can, for instance, be read into the willingness provision of Article 17 of the ICC Statute, which states: 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider 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.114

114 Rome Statute of the International Criminal Court, art. 17, July 17, 1998, 2187 U.N.T.S. 90.

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At the heart of Article 17 is an analysis of whether the national courts of the state seeking to remove jurisdiction from the ICC are “unwilling or unable genuinely to carry out the investigation or prosecution”. Such an analysis could be transposed onto extradition cases by requiring states to assess whether national courts in the requesting or requested state have the capacity, will and independence to effectively investigate and prosecute a particular case. Surprisingly, the ICJ in the Habré case did not address the issue of effectiveness or fair trial, nor did it even refer to them, thus leaving open the question of when and how the duty to prosecute or extradite under either a treaty ­obligation—including under the Montreal Convention or the CAT—or under customary international law, is to be interpreted if the requesting or requested state is unable or unwilling to guarantee an effective or fair trial. In the Habré case, the ICJ referred to Article 6 of the CAT,115 which requires the investigation of torture allegations. The ICJ could have relied on this provision to consider investigation as a prelude to prosecution, and to consider that an effective and prompt investigation also extends to an effective and prompt prosecution. This was not the case, even though Senegal first indicted Habré in 2000. The ICJ could have reasonably considered that after 12 years, Senegal was not particularly diligent in the pursuit of investigation and prosecution of Habré, and that this would have a bearing on the future capacity to ensure an effective and fair prosecution. One must infer from the context of the case that the Court found it more practical for Senegal to pursue its prosecution, particularly since its government had indicated its willingness to do so than to order Habré’s extradition to Belgium. Thus, Senegal’s explanation for the delay in moving to the prosecutorial stage is the costly and complex nature of the case, but that this alone was not enough to justify removing the case to Belgium. It should also be noted that the in the Habré case the Court concluded that “the prohibition of torture is part of customary international law and it has become a peremptory norm of international law (jus cogens).”116 However, the Court went on to qualify this holding by stating that “the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applies only to facts having 115 Article 6 provides, in pertinent part: 1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. See also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ ¶¶ 78–88, 120 (July 20). 116 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ ¶ 99 (July 20).



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occurred after its entry into force for the State concerned.”117 One would have expected the Court to be more progressive on this question, especially in light of the jus cogens status of the crime of torture.118 A number of national jurisdictions have dealt with the issue of non-applicability of immunities for heads of state, though most of them have been those of the state of nationality of the former head of state. These efforts, however, have not always produced the outcomes of prosecution or extradition. Among these cases are the successful extradition from the U.S. to Venezuela of its former head of state, Carlos Perez Jimenez, charged with embezzlement;119 and the unsuccessful efforts of the Philippines to obtain the surrender of its former head of state, Ferdinand Marcos, from the U.S.120 Nevertheless, the Philippines was able to obtain, in civil suits, the seizure and forfeiture of the assets of that former head of state located in the U.S.121 and in Switzerland.122 The same applied to the assets of “Baby Doc” Duvalier, the former head of state of Haiti, whose assets were seized in Switzerland.123 In a more recent case in France, the Cour de Cassation held that the now former head of state of Libya, Muammar Gaddafi, was immune from prosecution in France because he was the incumbent head of state, thus affirming the rule of temporal immunity.124 Similarly, the Spanish Supreme 117   Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ ¶ 100 (July 20). 118   With respect to attacks on civilian aircrafts, more commonly known as falling within the meaning of “terrorism”, these crimes have also since then risen close to their recognition as jus cogens international crimes. M. Cherif Bassiouni, Extraterritorial Jurisdiction: Applications to “Terrorism”, in Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Mirjan Damaška 201 (Jon Jackson, Maximo Langer & Peter Tillers, eds. 2008); M. Cherif Bassiouni, “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values & Violence: Intangible Aspects of Terrorism 216 (Wayne McCormack ed., 2008); M. Cherif Bassiouni, An Assessment of International Legal Modalities to Control International Terrorism, 31 Arab J. Legal & Judicial Sciences 17 (2005); M. Cherif Bassiouni, Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299 (2004); M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); M. Cherif Bassiouni, International Terrorism, in 1 International Criminal Law 765 (M. Cherif Bassiouni, ed. 1999); M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63–74 (1996). 119   Jimenez v. Aristeguieta, 362 F.2d 547 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963); Bassiouni, International Extradition, supra note 81, at 490–91. 120 See, e.g., Tracie A. Sundack, Note, Republic of Philippines v. Marcos: The Ninth Circuit Allows a Former Ruler to Invoke the Act of State Doctrine Against a Resisting Sovereign, 38 Am. U. L. Rev. 225 (1988). 121 See Republic of the Philippines v. Marcos, 1986 U.S. Dist. LEXIS 23629 (S.D.N.Y. 1986); Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir. 1987) (“Marcos II”), reh’g granted, 832 F.2d 1110 (9th Cir. 1987), 862 F.2d 1355 (9th Cir. 1987) (en banc). 122 See Henzelin, supra note 59, at 189–91. Seizures of the funds of former heads of states in Switzerland between 1997 and 2001, include: President Mobuto Sese Seko of the Congo, Pakistan’s Prime Minister Benazir Bhutto, Indonesia’s General Suharto, Nigeria’s President General Sani Abacha, and Ukranian Prime Minister Pavlo Lazarenko. 123 Id. 124 Affaire Khadafi, Cassation Criminelle, 13 March 2001, at 1414.

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Court refused to exercise jurisdiction over Fidel Castro in a 1999 suit because of his status as a sitting head of state.125 Peru sought the extradition from Japan of its former head of state, Alberto Fujimori, whose trial began December 2007 in Peru, and who was convicted and sentenced in 2009 to a twenty-five year prison term which he is currently serving.126 Bolivia prosecuted its former President, General Luís Garcia Meza and several of his collaborators on criminal charges involving gross human rights violations, including arbitrary arrests and detention, extra-judicial executions and torture.127 Argentina tried nine military commanders who had ruled Argentina between 1976 and 1982.128 Recently, former Egyptian President Hosni Murbarak has been placed on trial in Egypt for prosecution of charges of corruption; the country’s interim military leaders stated that there would be no immunity deal for the former head of state.129 Similarly, former Tunisian President Zine El Abidine Ben Ali was convicted in absentia in 2011 for financial crimes and 2012 for the killing of protestors.130 One additional case that is sui generis is that of General Manuel Noriega, the former head of state of Panama, who was seized by American troops during a military incursion into that state in January 1990. He was militarily removed to the U.S. to face charges for drug trafficking and money laundering.131 The U.S. relied in that case on the tenuous proposition that it had not recognized Manuel Noriega as the official head of state of Panama. He was convicted and sentenced to prison, though the U.S. recognized that he was to be treated as a POW pursuant to the fourth Geneva Convention of 1949.

125 Fidel Castro, Order of 4 March 1999, No. 1999/2723 (Spain). The Spanish Court distinguished its holding in Fidel Castro from its holding in Pinochet, Order of 5 November 1998 (no. 1998/22605) (Spain), as Pinochet was a former head of state and thus no longer entitled to immunity. 126 The Supreme Court of Japan approved on May 29, 2002, Peru’s extradition request. The Ministries of Justice and Foreign Affairs had been expected to approve the request, but did not. See Court Advances Extradition of Fujimori, Chi. Trib., May 31, 2002, at Sec. 1, p. 6. In 2005, Fujimori left Japan for Chile where he was arrested. The Supreme Court of Chile approved Peru’s extradition request September 21, 2007. See Simone Romero, Chileans Order Peru’s Ex-Chief Home For Trial, N.Y. Times, Sep. 22, 2007, at A1. Fujimori arrived in Peru September 22, 2007 and his trial began on December 10, 2007. There have been many other cases in which states have indicted and/or prosecuted former heads of states, including Ethiopia and Iran’s indictments of, respectively, Emperor Haile Selassie in 1974 and King Reza Pahlevi in 1979, Romania’s indictment of former President Ceausescu in 1987, and Pakistan’s indictment of former Prime Minister Benazir Bhutto in 1990. 127 Sentencia pronunciada en los juicios de responsabilidad seguidos por el Ministerio Público y coadyuvantes contra Luis Garíca Meza y sus colaboradores, Bolivia, Supreme Court of Justice, 21 April 1993. 128 Causa originariamente instruida por el Consejo Supremo de las Fuerzas Armadas, Supreme Court of Justice of Argentina, 30 December 1986. 129 Ernesto Londono, Military Council Rules Out Immunity Deal for Mubarak, Wash. Post., May 18, 2011, at A08. 130 United Press International, Former Tunisian president Ben Ali on trial, Jan. 3, 2012. 131 United States v. Noriega, 683 F. Supp. 1373 (S.D. Fla. 1988), motion granted by 746 F. Supp 1541 (S.D. Fla. 1990), aff ’d, 117 F.3d 1206 (11th Cir. 1997).



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A number of individual complaints have also been filed in Belgium (under its universal jurisdiction law referred to above)132 against Cuba’s Fidel Castro, Israel’s Ariel Sharon,133 Palestine’s Yasser Arafat, and Chad’s Hissène Habré.134 The ­Belgian Supreme Court dismissed these cases after Belgium narrowed its universal jurisdiction laws in 2003.135 From January 1990 to May 2011, more than sixty-seven heads of state or government spanning Latin America, Africa, Europe, Asia and the Middle East have been formally charged or indicted with serious criminal offenses involving human rights and corruption for the most part.136 Although “[t]he days when head-of-state immunity was a show-stopper are now long past,”137 it should be noted that only half of the cases went to trial, half of the trials resulted in convictions and half of the convictions resulted in some form of sentence.138 This weak and ambivalent prosecution pattern is tied to the political climate surrounding the prosecutions.139 Thus, increased political resolve among States in the international community to bring human rights violators to justice is necessary if heads of state are to be deterred from further commission of atrocities on the assumption that there is insufficient political will to bring them to task. 4.4. The ICJ’s 2002 Ruling on International Immunities of Certain Persons Belgium relied on its 1993 law, as amended in 1997,140 in seeking the arrest of Abdulaye Yerodia Ndombasi, a former Congolese Minister of Foreign Affairs, for incitation to commit “genocide,” “crimes against humanity,” and “war crimes” against ethnic Tutsi citizens and residents of Rwanda. In response, the Congo brought an action against Belgium to declare that the exercise of such universal jurisdiction by Belgium was in violation of customary international law and the

132 See supra note 89. 133 See Decision of the Court of Appeals of Brussels, Chambre des Mises en Accusation, Pen. 1632/01 (May 15, 2002). As a result of the ICJ’s decision in Congo v. Belgium, supra note 60, and as discussed below in section 4.4, the Belgian Cour de Cassation in its Arrêt of February 12, 2003, P.02.1139.F/1 ruled that Ariel Sharon could not be indicted during his tenure in office. 134 See supra note 85. 135 See Congo v. Belgium, supra note 60. 136 For a breakdown of these prosecutions by region with disposition, see Prosecuting Heads of State 295–304, (Ellen L. Lutz & Catilin Reiger, eds. 2009). 137 Scott Horton, Gimme Shelter, Foreign Pol’y, Feb. 2, 2011, http://www.foreignpolicy.com/ articles/2011/02/02/gimme_shelter?page=full (last visited Oct. 19, 2011). 138 See Prosecuting Heads of State, supra note 136, at 14. 139 Id. at 19, 37. One example of political pressure influencing the pursuit of justice is how Belgium’s expansive legislation permitting its exercise of universal jurisdiction was repealed in 2003 after the United States, facing criminal complaints filed by Iraqi families arising from US’ actions during the first Gulf War, threatened to pull NATO headquarters out of Brussels unless the law was changed. 140 See Congo v. Belgium, supra note 60.

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Vienna Convention on the law of diplomatic immunity.141 On February 14, 2002, the ICJ rendered a decision against Belgium, holding that an incumbent foreign minister benefits from the customary and conventional international law immunity that is afforded diplomats.142 That ruling, however, reaffirmed the principle that there is no substantive immunity for heads of state, diplomats, or other public officials with respect to the commission of certain international crimes.143 Nevertheless, the ICJ found that temporal immunity exists for incumbents who are entitled to international immunities, unless derogation thereto exists under conventional international law as in the case of the ICC’s Article 27.144 As stated above, the distinction between substantive immunity and temporal immunity has been rejected in the ICC Statute, Article 27, thus confirming the historic evolution towards the non-applicability of immunities for persons holding certain official positions with respect to certain international crimes.145 The ICJ’s decision, however, noted that Article 27 of the ICC Statute was a treaty-based derogation to the customary principle of temporal immunity146 for certain public officials, including heads of state, diplomats, and others, such as

141 Id. It should be noted that the acts charged were at a period of time when Yerodia was not Foreign Minister, and at the time of the case, he was no longer Foreign Minister. He was, however, Foreign Minister when the arrest warrant was issued. 142 Id. at 18, para. 51. 143 Id. at 22, para. 61. 144 Id. at 20, para. 54. For an analysis of this case and a critique of the theory of universal jurisdiction, see Marc Henzelin, La Compétence Pénale Universelle: Une Question Non Résolue par l’Arrêt Yerodia, 4 Revue Génerale de Droit International Public 819 (2002); Mark A. Summers, Diplomatic Immunity: Ratione Personae: Did the International Court of Justice Create a New Customary Law Rule in Congo v. Belgium?, 16 Mich. St. J. Int’l L. 459 (2007). 145 However, ICC Statute Article 98 subordinates the ICC’s exercise of jurisdiction to other international obligations under international law with respect to the diplomatic immunity of the state and heads of state, without the prior consent and cooperation of the state waiving such ­immunity. 146 As of May 2012, 121 states have ratified the Rome Statute. It could be inferred that because the number of State Parties has reached more than one-half of the U.N.’s 192 member-states, the development of leadership accountability is a new customary international legal principle that no immunities, substantive or temporal, apply to the crimes within the court’s jurisdiction. See supra note 40. An unresolved issue follows from the fact that Article 27 of the ICC Statute is treaty based, namely that the ICC has indicted Sudanese President Hassan Ahmad Al Bashir and Libya’s leader, Muammar Qadhafi., but neither the Sudan nor Libya are parties to the ICC treaty. Consequently the ICC Statute applies to these cases only because they were referred by the United Nations Security Council to the Court. The question presented is whether the Security Council may refer a situation to the ICC and ask the ICC not to apply customary international law (i.e. not to apply head of state immunity). The only precedents that could be looked to for guidance are the ICTY and ICTR, whose statutes were drafted using customary international law. Article 27 of the ICC statute is an exception to customary international law, and if the Sudan or Libya were to appeal the ICC’s removal of head of state immunity to the ICJ, it is probable that the ICJ would rule, given the precedent set by Congo v. Belgium, that the Security Council may only apply international law. In the face of such a decision, the ICC could not apply Article 27 to the actions of the Sudanese and Libyan leaders to the extent those actions would be precluded from prosecution by head of state immunity.



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heads of government and cabinet members who engage in diplomatic missions abroad.147 4.5. Head of State Immunity under the ICTY/ICTR and ICC The statues of both the ICTY and ICTR reject immunity for heads of states and government officials.148 Accordingly, both the ICTY and ICTR have brought cases against high-level officials believed to be responsible for acts of violence in the respective situations. In 1998, the ICTR undertook the prosecution of Jean Kambanda,149 the former Prime Minister of Rwanda. As a head of state, Kambanda formerly would have been entitled to substantive immunity for his actions, even those constituting war crimes and crimes against humanity. However, the court found not only that Kambanda did not enjoy immunity from prosecution, but that his culpability was increased by virtue of his position. Kambanda’s status as Prime Minister left him in a position to better protect victims of the genocide or to prevent more severe casualties, a fact highlighted by the prosecutor. Kambanda’s indictment read “the Prime Minister is responsible for directing Government activities. The Government determines and controls national policy and has the administration and the armed forces at its disposal. The duties of Ministers as well as the nature and scope of government departments under their authority are determined by the Prime Minister.”150 The indictment charged that Kambanda “failed in his duty to ensure the security of the Rwandan population.”151 Kambanda pled guilty to genocide—the first head of state to do so—and was sentenced to life imprisonment. The ICTY also tackled the idea of head of state immunity in its prosecution of Slobodan Milosevic for crimes against humanity and war crimes, relying on Article 7(2) of the ICTY Statute152 to remove Milosevic’s temporal immunity.153 The trial chamber referred to Article 7(2) as representative of customary international law, calling upon the precedence of the Nuremburg and Tokyo Charters to support this finding.154 At the time of his prosecution, Milosevic was still the President of the Federal Republic of Yugoslavia. Milosevic died during his trial, removing any possibility of a sentence. The ICTY also brought charges against 147 See Congo v. Belgium, supra note 60, at 21, para. 58. 148 ICTY Statute, supra note 36, at art.7(2); ICTR Statute, supra note 37, at art. 6(2). 149 Prosecutor v. Kambanda, supra note 69. 150 Id. 151 Id. at paras. 3.8, 3.17. 152 See ICTY Statute, supra note 36, at art. 7(2). 153 Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Preliminary Motions, ¶ 25 (Nov. 8, 2001). 154 Id. at para. 28.

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the former President of the so-called Republika Srpska, Radovan Karadžić, for genocide, crimes against humanity, and war crimes during the violence in Yugoslavia in the 1990s.155 Karadžić’s trial began October 26, 2009. The trial was interrupted, however, by extended absences of Karadžić, who claimed he had not been given adequate time to prepare for trial. After reviewing Karadžić’s claims, the trial chamber found he was obstructing the progress of the trial and ordered the Registrar to appoint counsel for Karadžić.156 The trial resumed on March 1 and 2, 2010 with the accused making opening statements, and on April 13, 2010, the prosecution resumed presenting evidence.157 As of May 2012, the proceedings are ongoing.158 Overall, the ICTY has indicted 161 individuals,159 and with the arrest of Goran Hadžić, a former leader of Serb separatist forces in Croatia, in July 2011, there are no longer indictees remaining at large.160 Following these examples, the Special Court for Sierra Leone (SCSL) revoked the immunity of Charles Taylor, President of Liberia.161 Taylor claimed that the Special Court did not have jurisdiction to prosecute him because of his status as a head of state.162 The Special Court found four reasons why head of state immunity did not apply to the SCSL: (a) the Special Court is not part of the judiciary of Sierra Leone and is not a national court; (b) the Special Court is established by treaty and has the characteristics associated with classical international organizations . . . (c) the competence and jurisdiction ratione materiae and ratione personae are broadly similar to that of ICTY and the ICTR and the ICC, including in relation to the provisions confirming the absence of entitlement of any person to claim of immunity; (d) accordingly, there is no reason to conclude that the Special Court should be treated as anything other than an international tribunal or court, with all that implies for the question of immunity for a swerving Head of State.163

The Special Court then found no head of state immunity existed in the Special Court, relying on Article 6(2) of its statute. The prosecution opened their case against Taylor on June 4, 2007, but Taylor fired his defense team, suspending the trial until counsel could be reappointed. The prosecution began presenting 155 Prosecutor v. Karadžić, Case No. IT-95-5/18, Amended Indictment (Apr. 28, 2000). 156 ICTY, Case Information Sheet: Radovan Karadžic 5 (http://www.icty.org/x/cases/karadzic/ cis/en/cis_karadzic_en.pdf. 157 See id. 158 See The Cases: Karadžic (IT-95-5/18-I) , ICTY, http://www.icty.org/case/karadzic/4#pressrel (last visited Nov. 5, 2011). 159 Key Figures, ICTY, http://www.icty.org/x/file/Cases/keyfigures/key_figures_110913_en.pdf (last updated Sept. 13, 2011). 160 Serbia Holds Croatia War Crimes Suspect Goran Hadzic, BBC News, July 20, 2011, http://www .bbc.co.uk/news/world-europe-14214573. 161 Prosecutor v. Taylor, Case No. 2003-01-I, Decision on Immunity from Jurisdiction, ¶ 35 (May 31, 2004). 162 Id. 163 Id. at para. 41.



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the testimony from ninety-nine witnesses on January 7, 2008 and the defense opened their case more than a year later on July 13, 2009. In April 2012 the Trial Chamber found Taylor guilty of aiding and abetting crimes in Sierra Leone, but acquitted him of command responsibility and membership in a Joint Criminal Enterprise. 164 As discussed above, the ICC does not recognize immunity for heads of state. Thus, the ICC has investigated and prosecuted several cases involving high-level officials. Notably, the ICC prosecutor presented a case to the pre-trial chamber regarding Sudanese President Omar Hassan Ahmad Al Bashir, the first ever ICC indictment against a sitting head of state. Prosecutor Luis Moreno-Ocampo presented evidence against Al Bashir for genocide, crimes against humanity, and war crimes in the Darfur region of Sudan.165 The Pre-Trial Chamber issued an arrest warrant for Bashir on March 4, 2009 and a second arrest warrant on July 12, 2010, requesting the cooperation of State Parties in his surrender and arrest. Although Bashir has yet to be brought before the Court, his arrest warrant alone sparked a debate in the international legal community over the warrant’s legality. Such questions focus on the interplay between the immunity-stripping Article 27 of the Rome Statute; the effect of Article 98 of the Rome Statute, which calls for the cooperation of States Parties with respect to the waiver of immunity; the role of Security Council referrals to the ICC; and the relationship between States Parties and non-States Parties like Sudan.166 Separately, the ICC is proceeding with a case against several high-level officials of the Kenyan government, including a deputy prime minister, regarding alleged crimes against humanity committed in post-electoral violence from 2007 to 2008. In August 2011, the ICC dismissed an appeal by the Kenyan government to throw out the cases against the officials, instead finding reasonable grounds to believe that the various officials were criminally responsible for murder, forcible transfer, persecution, and other inhumane acts.167 Although the case does 164 See Chapter 8, Section 4 for more information about Taylor and the conviction. 165 Press Release, International Criminal Court, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al Bashir, for Genocide, Crimes Against Humanity and War Crimes in Darfur, ICC-OTP-20080714-PR341-ENG (July 14, 2008). 166 See, e.g., Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333, 335 (2009) (arguing that Article 27 of the Rome Statute applies at the national level and that the effect of the Security Council referral in this case is to bind Sudan to the Rome Statute and thus, Article 27’s immunity-stripping provisions as well; additionally finding that the Security Council referral means that Bashir is not immune from the exercise of jurisdiction by nations acting in support of the ICC); Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 J. Int’l Crim. Just. 315, 316, 332 (2009) (arguing that although the ICC’s arrest warrant is valid, States Parties do not have an obligation to comply with the ICC’s arrest and surrender request and that any State other than Sudan that enforces the warrant would violate the immunity granted to incumbent heads of state); see also supra note 146. 167 International Criminal Court Case Against Kenyan Officials to Proceed, UN News Centre, Aug. 30, 2011, http://www.un.org/apps/news/story.asp?NewsID=39411&Cr=international&Cr1=court.

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not directly involve the Kenyan president, there is concern that Prosecutor ­Moreno-Ocampo’s evidence alleging that the State House in Nairobi was used as “a command post” for the post-election violence may draw attention to President Kibaki, with “debate raging over the possibility he could be adversely mentioned if the cases proceed to trial.”168 In January 2012 the Pre-Trial Chamber confirmed the charges against four of the six indictees, prominently including the Deputy Prime Minister and former Minister of Finance, the former Head of the Public Service and Secretary to the Cabinet, and the former Minister of Higher Education, Science and Technology.169 Additionally, on February 26, 2011, the U.N. Security Council unanimously decided to refer the situation in Libya to the ICC Prosecutor.170 In his statement opening the investigation into the situation in Libya, Prosecutor Luis MorenoOcampo identified “individuals with formal or de facto authority,” namely former leader Muammar Gaddafi and members of his inner circle who commanded and allegedly committed crimes.171 In the latest developments, the case was assigned to the Pre-Trial Chamber, which found reasonable grounds to believe that Gaddafi, Saif Al-Islam Gaddafi (Libyan de facto Prime Minister), and Abdullah Al-Senussi (Colonel in the Libyan Armed Forces and Head of Military Intelligence) are criminally responsible for crimes against humanity, namely murder and persecution;172 arrest warrants were issued for three men on June 27, 2011.173 168 Emeka-Mayaka Gekara, Why President’s Men are Wary of ICC Case, Daily News (Kenya), Aug. 27, 2011, available at http://www.nation.co.ke/News/politics/Why+Presidents+men+are+ wary+of+ICC+case+/-/1064/1226562/-/item/0/-/15sawj6z/-/index.html (last visited Oct. 19, 2011). 169 Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012).    170 S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 16, 2011). 171 International Criminal Court, Office of the Prosecutor, Statement of the Prosecutor on the Opening of the Investigation into the Situation in Libya (Mar. 3, 2011), available at http://www.icc-cpi.int/NR/rdonlyres/035C3801-5C8D-4ABC-876B-C7D946B51F22/283045/ StatementLibya_03032011.pdf. 172 Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-1, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Alsenussi” ( June 27, 2011). 173 Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-2, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi ( June 27, 2011); Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-3, Warrant of Arrest for Saif Al-Islam Gaddafi ( June 27, 2011); Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-4, Warrant of Arrest for Abdullah Al-Senussi ( June 27, 2011). Like Sudan, Libya is not a party to the Rome Statute, and thus similar legal questions about immunity may arise regarding the case against Gaddafi. See supra notes 146 and 166. Also like the case against Sudan’s Bashir, the Security Council referred the Libya situation to the ICC. But, notably, while many countries still question the obligation for other states to cooperate with the ICC’s request in the surrender and arrest of Sudan’s Bashir, the ICC Prosecutor did not request states other than Libya to surrender Gaddafi. Thus, the ICC is not



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On October 20, 2011, Gaddafi was killed in a fight with revolutionary fighters; as of May 2012 Saif al-Islam Gaddafi and Al-Senussi are in custody in Libya and Mauritania, respectively.174 4.6. Conclusion Customary international law provides that heads of states and other public officials who are no longer in office cannot benefit from substantive immunities for acts that violate international criminal law, though it is not clear as to which of the 27 categories of international crimes are included in this exception.175 As mentioned above, the present state of customary and conventional international law removes international immunities for certain international crimes, such as crimes against peace, genocide, crimes against humanity, war crimes, and torture. It can also be asserted that customary international law removes the immunity of heads of state for the historic crimes of piracy and slavery, though there are no judicial precedents to support this proposition.176 It is unclear at this point, however, whether other international crimes can, by analogy, be included in this exception to international immunities, such as terrorism-related crimes.177 It is also unclear whether this exception to international immunities applies only to international judicial bodies, or whether it also extends to the national criminal jurisdictions of states other than the state of nationality of the person claiming immunity.178 For instance, it is not clear whether the elimination of substantive immunity includes or excludes temporal immunity before national jurisdictions while such persons are incumbent.179 There are, however, two exceptions to temporal immunities, namely, when such prosecutions are mandated by the Security Council (as evidenced by the law and practice of the ICTY and ICTR) and when they are provided for by treaty, as in the ICC Statute. In summary, the present state of the international immunities regime for heads of state and other officials is:

asking other states to potentially violate any immunities Gaddafi would have under international law. See Dapo Akande, The ICC Prosecutor Requests an Arrest Warrant for Gaddafi: Immunity Issues and Questions about the Start of the Libyan Armed Conflict, EJIL: Talk! (May 23, 2011), http://www .ejiltalk.org/the-icc-prosecutor-requests-an-arrest-warrant-for-gaddafi-immunity-issues-andquestions-about-the-start-of-the-libyan-armed-conflict/ (last visited Oct. 19, 2011). 174 Muammar Gaddafi Killed in Libya, BBC News, Oct. 20, 2011, http://www.bbc.co.uk/news/ world-africa-15389550. 175 For the 27 categories of international crimes, see infra Chapter III. 176 See Bassiouni, Universal Jurisdiction, supra note 75, at 108–15. 177 See 1, 2 International Terrorism: A Compilation of U.N. Documents (M. Cherif Bassiouni ed., 2002) [hereinafter Bassiouni, Terrorism Documents]. 178 See supra section 3.3. 179 See Congo v. Belgium, supra note 60.

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1. No substantive immunity exists for certain international crimes, whether before international or national judicial organs;180 2. No temporal immunity exists for certain international crimes before international judicial organs;181 3. No substantive immunity exists for any crimes before the national judicial organs of the official’s state of nationality unless otherwise specified under national law; 4. Temporal immunity remains for incumbents before national judicial organs other than those of the state of nationality for all international crimes, unless otherwise specified for by treaty.182 Section 5. International Criminal Responsibility of Groups and Organizations 5.1. International Responsibility of Individual Group Members The Charter of the IMT provided a basis for criminal responsibility of groups and organizations.183 Indeed, the IMT held the Leadership Corps of the Nazi Party,184 Gestapo, Sicherheitsdienst (SD),185 Sturmabteilung (SA) and the Schutzstaffel (SS)186 as criminal groups. But the question is not only whether an organization can have a criminal purpose, but whether the organization’s members can be found guilty by virtue of association or membership, or whether something more is required. These and other related questions fall within the province of the general part of criminal law, which has not so far been sufficiently addressed in ICL. Among these questions are the following: Is mere membership in an organization deemed criminal enough or must active participation in a criminal activity be demonstrated? Must a member’s specific knowledge of the criminal purposes of the organization and his/her intent to be part of the criminal scheme

180 Uncertainty remains as to which crimes this exception to the immunities regime applies. 181 See Congo v. Belgium, supra note 60. 182 See, e.g., ICC Statute, supra note 40, at art. 27. 183 In Article 9, the Charter provided that: “the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.” Article 10 of the Charter stated that: “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military, or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.” 1 Trial of the Major War Criminals, supra note 34, at 20 (emphasis added). 184 Id. at 262. 185 Id. at 268. 186 Id. at 273.



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perpetrated by the organization be demonstrated before he or she can be held criminally responsible as a member of the organization? In its judgment, the IMT explicitly noted that “a member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death.”187 To impose international criminal responsibility merely for passive membership in an organization stretches the generally accepted principles of criminal responsibility found in most legal systems. Such a proposition would be tantamount to guilt by association, which most legal systems reject as fundamentally unfair. Indeed, the IMT was aware that imposing criminal responsibility on members of groups or organizations simply by virtue of their membership in such organizations was a “far reaching and novel procedure. Its application, unless properly safeguarded, may produce great injustice.”188 The IMT, in its judgment, went on to observe that Article 9 of the Charter gave the Tribunal discretion to declare an organization criminal and continued as follows: This discretion is a judicial one and does not permit arbitrary action, but should be exercised in accordance with well-settled legal principles, one of the most important of which is that criminal guilt is personal, and that mass punishments should be avoided. If satisfied of the criminal guilt of any organization or group, this Tribunal should not hesitate to declare it to be criminal because the theory of “group criminality” is new, or because it might be unjustly applied by some subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible in a manner to insure that innocent persons will not be punished.189

The IMT then analogized a criminal group or organization to a conspiracy and said that for a criminal organization to exist “there must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter.”190 The IMT specified that a definition of a criminal group or organization “should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts defined as criminal . . . as members of the organization.”191 The IMT implemented the foregoing in its judgment and declared as criminal the group of members of the S.S. “who became or remained members of the organization with knowledge that it was being used for the commission [of crimes] . . . or who were personally implicated as

187 Id. at 256 (emphasis added). 188 Id. 189 Id. at 20 (emphasis added). 190 Id. 191 Id. (emphasis added).

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­ embers of the organization in the commission of such crimes. . . .”192 This theme m was repeated with respect to other groups that the IMT held to be criminal.193 Thus, at the IMT, mere membership was not sufficient to create criminal liability stemming from membership in a criminal group. The IMT required either a commission of a criminal act by the individual member or that the membership was with knowledge that the organization was used for the commission of crimes. This later assertion, however, sidesteps the question of what constitutes a crime under what law. Contemporary ICL would answer that question with the proposition that it refers to jus cogens crimes. Traditionally, it has been easier for common law systems than for others to accommodate themselves to a theory of criminal liability based on membership in a criminal group or organization under the concept of conspiracy. In recent times, however, as a result of the expansion of organized crime groups and drug trafficking, many states have enacted laws that provide for organizational ­criminal responsibility, either under the common law conspiracy model or under hybrid models that combine participation, intent, and some conduct. How far these new approaches to group criminality can form part of ICL is yet to be determined. 5.2. International Criminal Responsibility of Corporations As Legal Persons As early as 1946 the issue of corporate criminal liability has presented itself to the international community.194 The concept of corporate liability for the commission of international crimes by transnational corporations (TNCs), though not a novel concept, is not without its controversies and difficulties. Corporate criminal responsibility can be inferred from various environmental protection treaties and national legislation enacted to implement these treaties.195 As TNCs 192 Id. at 273 (emphasis added). 193 These included the leadership Corps of the Nazi Party, Gestapo, and the SD. Id. at 262, 268. 194 After World War II, IG Farben, a German corporation allied with the Nazi party which was responsible for aiding the Nazis through the provision of materials, including the infamous Zyklon B chemical. Farben faced trial before the Nuremberg Military Tribunal for their actions. Many of those in charge of Farben were sentenced to prison time by the Tribunal for plundering and participation in slave labor. For a detailed analysis of the Farben trial, see Florian Jessberger, On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial, 8 J. Int’l. Crim. Just. 783 (2010). For a discussion of other World War II era cases involving German corporations and businessmen, see Hans Vest, Business Leaders and the Modes of Individual Criminal Responsibility Under International Law, 8 J. Int’l. Crim. Just. 851, 853–54 ( July 2010). 195 These kinds of issues arose in the context of international activity involving ships and the protection of wildlife. See, e.g., the International Convention for the Preservation of Fur Seals in the North Pacific, July 7, 1911, 5 Martens Noveau Recueil (3d) 720, 37 Stat. 1542, T.S. No. 564; International Agreement for the Regulation of Whaling, Sept. 24, 1931, 155 L.N.T.S. 348, 3 Bevans 26, T.S. No. 880; Convention Relative to the Preservation of Fauna and Flora in Their Natural State,



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have grown and developed to be able to wield power similar to that of states, it is becoming increasingly important to develop and implement mechanisms to ensure that their activities conform to the conduct expected of states under various international treaties and conventions.196 This is especially true as many TNCs have been able to dictate the terms of their involvement in nations that were eager to attract foreign investment money and thereby promote domestic development.197 There are several sources that support the proposition that corporate entities must be held responsible for their violations of international law, namely the existing criminal sanctions for violations of environmental protection and suits brought against corporations in part for their environmentally harmful activities, the current trend to subject corporate entities to civil liability for tortuous conduct abroad, and the use of an “aiding and abetting” theory against corporate entities for human rights abuses and bribery of foreign officials. However, no corporation, as a legal person, has been investigated or prosecuted to date by any major international or hybrid tribunal, and indeed these tribunals lack jurisdiction over corporations as legal persons.198 5.3. Corporate Liability for Harm to the Environment Suits have been filed against TNCs in United States courts for environmental harm since the 1990’s.199 Although these suits have not succeeded in holding Nov. 8, 1933, 172 L.N.T.S. 241; International Agreement for the Regulation of Whaling, June 8, 1937, 190 L.N.T.S. 79, 32 U.N.T.S. 404, 52 Stat. 1460, T.S. No. 933; Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct. 12, 1940, 161 U.N.T.S. 193, 56 Stat. 1354, T.S. No. 981; International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72, T.I.A.S. 1849, 62 Stat.(2) 1716, 4 Bevans 248; the Convention for the Regulation of the Meshes of Fishing Nets and the Size Limits of Fish, Apr. 5, 1946, 231 U.N.T.S. 199; International Convention for the Prevention of the Pollution of the Sea by Oil, May 12, 1954, 327 U.N.T.S. 3, 12 U.S.T. 2989, T.I.A.S. No. 4900; the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15, 1972, U.K.T.S. 119, reprinted in 11 ILM 262; the Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3, 1973, 993 U.N.T.S. 243, 27 U.S.T. 1087, T.I.A.S. No. 8243; the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, I.M.C.O. Doc. MP/CONF/WP.35, reprinted in 12 ILM 1319 (1973); Agreement for the Conservation of Polar Bears, Nov. 15, 1973, 27 U.S.T. 3918, T.I.A.S. No. 8409. For further discussion of the various values sought to be protected and purposes behind such environmental protection instruments, see Stephen C. McCaffrey, Criminalization of Environmental Protection, in 1 Bassiouni, ICL, supra note 21, at 1013–35 (2008). 196 See Dennis A. Rodinelli, Sovereignty On Line: the Challenges of Transnational Corporations and Information Technology in Asia, in Sovereignty under challenge: how governments respond, 345–71 (John D. Montgomery and Nathan Glazer, eds., 2002). By the late 1990’s, General Electric’s total sales revenue was greater than the GDPs of ninety-one countries around the world. Id. at 360. 197 Id. at 345–47, 358–61. 198 Norman Farrell, Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 J. Int’l Crim. Just. 873, 874 (July 2010). 199 See Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991) (a claim brought under the ATCA against a U.S. corporation by a British corporation for environmental harm based on

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TNCs liable for environmental harm, one court has noted that “the ATS [Alien Tort Statute] holds great potential to bring justice to certain serious violations of human, civil, and environmental rights in a federal forum.”200 As discussed above, there are numerous international conventions and treaties governing environmental issues from conservation of animals and natural resources to the transportation and disposal of wastes and hazardous materials. There are various international environmental treaties that make corporations liable for even unintentional toxic torts.201 Provisions of domestic law within the United States provide for criminal penalties for certain activities resulting in the pollution of the environment.202 As international actors continue to place emphasis on protection of the environment and enact additional environmental treaties, the “environmental rights” referenced by the Sixth Circuit in Taveras v. Taveras will likely become defined enough for a suit against a TNC to succeed.203 The willingness of the United States and other countries to enact domestic legislation criminalizing certain defined levels of environmental harm or destruction is a signal that States are moving towards holding those responsible for harming the environment liable for their actions. It is the lack of enforcement provisions in many of the environmental rights declarations that makes the prosecution of TNCs for violations of those declarations difficult.204

shipping of hazardous waste to a foreign country without notice or permission); Torres v. Southern Peru Copper, 965 F. Supp. 895 (S.D. Tex. 1995); Jota v. Texaco, 157 F.3d 53 (2d Cir. 1998); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999) (environmental torts brought against FreeportMcMoran Copper & Gold, Inc., a Delaware mining corporation, for its activities in the Pacific Rim); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) (claims for environmental abuses resulting from the highly toxic gas leak that killed thousands and injured more than 200,000 people); Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001) (class action suit brought by citizens of Ecuador under the ATCA against Texaco for environmental abuses in connection with oil drilling); Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002) (violations of the United Nations Convention on the Law of the Sea); Flores v. S. Peru Copper, 253 F. Supp. 2d 510 (S.D.N.Y. 2002), aff’d 343 F.3d 140 (2d Cir. 2003). These cases were dismissed on various grounds and thus did not succeed in imposing liability on TNCs for the alleged violations. 200 Taveras v. Taveras, 477 F.3d 767 (6th Cir. 2007) (involving a dispute over unlawful withholding of children by one spouse). 201 These treaties are discussed in Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp. 2d 289, 317 (S.D.N.Y. 2003). 202 Clean Water Act, 33 U.S.C. § 1319(c) (providing criminal penalties for violations of the Clean Water Act). 203 The United Nations Conference on Environment and Development in 1992, recognizing the need to bring the state of the law in line with contemporary environmental issues, called on states to enact local legislation in concert with business and industry. In 1999, United Nations Secretary General Kofi Anan called on corporations to join the “Global Compact,” which was an attempt to promote corporate self regulation towards the promotion of environmentally conscious and friendly policies. However, the “Global Compact” is not a legally enforceable document. See Luis Enrique Cuervo, The Alien Tort Statute, Corporate Accountability, and the New Lex Petrolea, 19 Tul. Envtl. L. J. 151, 203–04, 207–08 (2006). 204 Lorelle Londis, Comment: the Corporate Face of the Alien Tort Claims Act: How an Old Statute Mandates a New Understanding of Global Interdependence, 57 Me. L. Rev. 141, 208 (2005).



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5.4. Liability of TNCs for Their Conduct Abroad: “Aiding and Abetting” As Applied to TNCs Corporations have been sued for human rights violations before United States federal courts pursuant to the Alien Tort Claims Act and the Torture Victims Protection Act. The Alien Tort Claims Act has been in existence since 1798, but was only used by citizens of foreign states to bring United States TNC activities before United States courts since the 1980’s.205 It was the decision in Filartiga v. PenaIrala wherein United States courts asserted jurisdiction over torts in violation of the law of nations committed against aliens.206 The subsequent decision in Kadic v. Karadzic established individual liability under the Alien Tort Claims Act when TNCs’ conduct was under color of state.207 The first case to issue a verdict against a corporation under the Alien Tort Claims Act was Romero v. Drummond Co., in which the court found a corporation guilty of aiding and abetting a state actor, violating human rights.208 Since then, there have been many cases before United States Federal Courts considering the issue of corporate liability for aiding and abetting in human rights violations. The Second Circuit, which had been at the forefront of allowing Plaintiffs to pursue Alien Tort Claims Act claims, has rejected the application of domestic concepts of corporate liability in regards to Alien Tort Claims Act actions, and has shifted to analyzing corporate liability on the basis of international law principles.209 This interpretation regarding the determination of potential actors who may be held liable under the Alien Tort Claims Act appears to be an attempt by some courts to limit the number of Alien Tort Claims Act cases in the federal courts as part of the “vigilant doorkeeping” suggested by the Supreme Court in Sosa v. Alvarez-Machain.210 However, the Supreme Court in Sosa indicated that international law was to govern the determination of the types of torts for which the Alien Tort Claims Act can be used as a jurisdictional mechanism, and left open the question of whether international 205 For a discussion of the history of the Alien Tort Claims Act from 1798 to the seminal Filartiga decision, see generally Katherine Gallagher, Civil Litigation and Transnational Business: An Alien Tort Statute Primer, 8 J. Int’l Crim. Just. 745 (2010); Eric Engle, Frontiers in International Human Rights Law: Article: The Alien Tort Statute and the Torture Victims’ Protection Act: Jurisdictional Foundations and Procedural Obstacles, 14 Willamette J. Int’l L. & Dispute Res. 1 (2006). 206 Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?, 76 Fordham L. Rev. 2177 (2008). 207 Kadic v. Karadzic, 70 F.3d 232, 237 (2d Cir. 1995). 208 Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) (upholding the district court’s exclusion of evidence). The original jury rejected Plaintiff ’s claims in Romero. Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?, 76 Fordham L. Rev. 2177 (2008). 209 Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 Fordham L. Rev. 2859, 2862 (2011). 210 Sosa v. Alvarez-Machain, 542 U.S. 692,724 (2004).

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law should similarly apply to the determination of the scope of liability of the actor involved.211 The Second Circuit shift effectively prevents corporations from being sued under the Alien Tort Claims Act, because hard international law relative to corporate entities remains in development with little legally enforceable regulation of corporate actors, and there is no international tribunal that has yet imposed liability on a corporation.212 Although the Second Circuit’s reasoning in cases like Kiobel persuaded other jurisdictions to dismiss actions brought against corporations under the Alien Tort Claims Act, as of October 2011, U.S. Circuit Courts ultimately remain split as to whether corporations may be sued as a legal person under the Alien Tort Claims Act.213 At present the issue is being addressed by the U.S. Supreme Court which will issue a final, binding decision on corporate, criminal responsibility. Arguments were heard by the Supreme Court in February 2012. Shortly thereafter the Court requested additional briefs and a reargument in October 2012 to address whether U.S. Courts have extraterritorial jurisdiction to hear cases of human rights violations committed outside, whether by individuals or corporations.214 Whereas United States courts have found corporations only civilly liable, Dutch courts have found businessmen criminally liable for their complicity in human rights atrocities. In 2007, Frans van Anraat was found guilty of supplying Saddam Hussein with chemicals used to produce weapons subsequently used against Kurds; his conviction was upheld in 2009.215 In 2006, Guus Kouwenhoven was convicted for illegally supplying arms to Charles Taylor.216 One problem

211 Theophila, supra note 209, at 2874 (discussing Sosa). 212 The Second Circuit in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 131–45 (2d Cir. 2010) conducted a review of cases, treaties and submissions of publicists in reaching the conclusion that there is no customary international norm of imposing liability on corporations. On October 17, 2011, the U.S. Supreme Court granted the plaintiff ’s petition for a writ of certiorari. 213 Viera v. Eli Lilly & Co., 2010 WL 3893791 (S.D. Ind. 2010); Flomo v. Firestone Natural Rubber Co., 744 F.Supp. 2d 810 (S.D. Ind. 2010); Estate of Ahuva Amergi, Amergi v. The Palestine Authority, 611 F.3d 1350 (11th Cir. 2010) (dismissing suit against Palestine Authority and PLO in case of Israeli citizens’ murder while driving within the Gaza strip because murders committed by private actors during isolated armed skirmishes failed to give rise to the Alien Tort Claims Act’s international jurisdiction); cf. Flomo v. Firestone, 643 F.3d 1013 (7th Cir. 2011) (holding that corporate liability is possible under the Alien Tort Claims Act); Doe v. Exxon Mobile Corp., No. 09-7125 (D.C. Cir. July 8, 2011) (holding that companies are proper defendants under the Alien Tort Claims Act, expressly disagreeing with the Second Circuit’s decision in Kiobel). 214 Adam Liptak, Supreme Court Seeks Clarification on Jurisdiction in a Human Rights Case, N.Y. Times, Mar. 6 2012. See also Brief of Amici Curiae International Law Scholars in Support of Petitioners, available at: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-1491_petitioner_amcu_law_scholars.authcheckdam.pdf. 215 Prosecutor v. Frans van Anraat, Case No. AX6406, District Court of the Hague (December 23, 2005), Case No. BA6734, Court of Appeal of the Hague (May 9, 2007), Case No. BG4822, Dutch Supreme Court (June 30, 2009). 216 Prosecutor v. Guus Kouwenhoven, Case No. AY5160, District Court of the Hague (June 7, 2006). This Dutch case is discussed in Wim Huisman & Elies van Sliedregt, Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity, 8 J. Int’l Crim. Just. 803 (July 2010).



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posed by these prosecutions, and more so by the prosecution involving the sale of chemicals, is the dual purpose problem encountered in determining whether prosecution is appropriate where the good at issue was capable of normal commercial use but instead was applied to a criminal activity.217 The mere fact that a good can be turned to a criminal purpose cannot be sufficient to justify investigation or prosecution of a corporation which supplied the good. In the van Anraat case, the Dutch court reasoned the amount of chemicals supplied was too great to be used for legitimate ends in the destination country, reasoning that the businessman had to have known that some of it would end up used by the military.218 In neither case did the Dutch prosecutor seek to prosecute the corporation as a legal entity, though the prosecutor was not barred from doing so by any provision of law.219 Another problem posed in aiding and abetting is determining the proper mens rea.220 While the deterrent effect of the prosecution of individuals on corporations who may commit crimes is questionable, the prosecution of corporations can serve meritorious goals such as promoting consistency within the legal system, ensuring crimes are punished (if the corporation is the only possible culprit, it should be prosecuted for this motive), preserving a notion of equality before the law, enabling accountability for cumulative criminal activity of different corporate managers or officers over a long period of time and incentivizing shareholders to take care in who they place in positions of authority within a corporation.221 Corporations have also been the subject of litigation involving bribery of foreign officials. Since at least the eighteenth century, United States courts have viewed bribery generally as a violation of both the common law of the United States and the law of nations.222 Both the United States domestically, through the Foreign Corrupt Practices Act of 1977, and the international community more broadly through the enactment of various treaties and conventions dealing with bribery, have recognized bribery as a serious problem particularly in regards to

217 Id. at 826–28. 218 Prosecutor v. Frans van Anraat, Case No. AX6406, District Court of the Hague (December 23, 2005), Case No. BA6734, Court of Appeal of the Hague (May 9, 2007). 219 Huisman & van Sliedregt, supra note 216, at 826. 220 For a thorough discussion of this issue, see Norman Farrell, Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 J. Int’l Crim. Just. 873, 882–93 (2010). 221 Various studies indicate that damage to corporate reputation peaks at certain times of the investigation and prosecution, and that individual shareholders only take action when their direct interests in the corporation are affected, such as accounting irregularities. See Huisman & van Sliedregt, supra note 216, at 824–26. For the other policy goals served by prosecuting corporations, see Mordechai Kremnitzer, A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law, 8 J. Int’l Crim. Just. 909, 913–14 (2010). 222 Matt A. Vega, Balancing Judicial Cognizance and Caution: Whether Transnational Corporations are Liable for Foreign Bribery Under the Alien Tort Statute, 31 Mich. J. Int’l L. 385, 402 (2010).

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its impact on developing countries.223 Foreign bribery suits have been considered by United States Federal Courts since the 1970’s, and plaintiffs have been allowed to pursue a theory of foreign bribery under the Alien Tort Claims Act as aiding and abetting, based in large part on the international conventions on the subject establishing the prohibition of bribery as customary international law.224 Section 6. International Criminal Responsibility of States Among the 27 categories of international crimes, some are the product of “stateaction” or the result of a “state-favoring policy”, in other words commission, or as a result of a lack of state enforcement that ranges from permissiveness to purposeful omission. Other violations occur in contravention of state policy and state enforcement efforts. In all cases, individuals commit crimes. What is called “state action” and “state-favoring policy” does not alter the fact that one or more individual authors are involved. The characterizations of “state action” and “state-favoring policy” refer to collective decision-making and actions by individuals who develop a policy or who execute a policy or carry out acts that constitute international crimes under color of legal authority. Decision-makers are usually few in comparison to the entire apparatus of government, let alone to the entire population of a state. In some cases, such as dictatorships, a single person assumes the prerogative of making decisions on behalf of the entire state. In those cases, the traditional criminal law approach of individual responsibility suffices for such a leader. But in cases involving a larger number of participants in the decision-making process, such as cabinet members or members of a ruling party, the question of individual criminal responsibility for each member of the responsible group becomes more difficult to establish, though it remains within the traditional conceptual domain of individual responsibility as recognized by most legal systems. The question, however, of when a given conduct transcends the one or the few or the group of decision-makers to become collectively ascribable to the entire state, and by implication to be borne by all its citizens irrespective of whether they participated, shared, or even agreed in the decision or commission of the 223 Id. at 405–07. The Inter-American Convention Against Corruption, passed in 1996, was the first multilateral convention against bribery, and since then, there have been numerous anticorruption conventions passed in the European Union, Asia, Africa, by the World Bank, and, most recently, the United Nations Convention Against Corruption in 2003. 224 The first case involving foreign bribery was IIT v. Vencamp, 519 F.2d 1001 (2d Cir. 1975). A more recent division from the Second Circuit, Khulumani v. Barclay Nat’l Bank, Ltd., 504 F.3d 254 (2d Cir. 2007), cert. denied, Am. Isuzu Motors v. Ntsebeza, 128 S. Ct. 2424 (2008), allowed a claim to proceed based on bribery as a violation of international law for which a claim under the Alien Tort Claims Act may proceed. Matt A. Vega, supra note 222, at 429–33, 444 (2010).



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violative conduct, has never received an answer in ICL and certainly presents its share of legal problems. The basis of responsibility in these cases is essentially predicated on two assumptions: (1) the people in that state should have and could have prevented the violation and (2) that attribution of responsibility to a state will operate as a deterrent for decision-makers and as an inducement for citizens of a state to do whatever is necessary to prevent violations of ICL.225 Both assumptions are not without flaws, but they also have some merit. The invocation of state responsibility may serve as a means to obtain compensatory and punitive damages, and this may deter future violations of ICL in addition to compensating victims. But the finding of criminal liability is unnecessary for the imposition of damages given that the law of state responsibility already provides for compensatory and punitive damages and the finding of civil liability is easier to obtain than the finding of criminal responsibility. The invocation of the concept of state responsibility is, however, a symbolic act by the international community to stigmatize regimes that engage in internationally proscribed policies and conduct, irrespective of the efficacy of the stigmatization in altering the internationally proscribed behavior. No evidence exists that such an approach deters other regimes from similar or other transgressions. In lieu of the difficult assessment of prevention, the assumption is that deterrence is logically valid even though its effect remains questionable. A contrary argument is that attribution of criminal responsibility to a state ignores a fundamental principle of criminal justice and its corollary that criminal sanctions should apply only to those who share in the responsibility by conspiring, planning, carrying out, aiding and abetting, or committing the proscribed conduct. It violates this principle of justice because the criminal sanctions will fall upon innocent or potentially innocent persons, or at the least persons whose individual criminal responsibility has not been established under law. However, no provision exists in any of the 281 conventions analyzed below, which cover 27 categories of crimes, that expressly establishes a basis for a state’s criminal responsibility.226 The ten penal characteristics identified below are also entirely related to individual criminal responsibility and not to state penal responsibility.227 There is no convention in force that provides for state

225 That is presumably the rationale for the imposition of sanctions by the Security Council on states. Such sanctions have been imposed recently on Iraq and Libya, and earlier on Rhodesia (Zimbabwe) and South Africa. But the merits and wisdom of such an approach has been criticized, though it appears to have produced the intended results in Rhodesia (Zimbabwe) and South Africa where the offending regimes were transformed and a new legal order was established. For the U.N.’s Security Council resolutions on sanctions related to terrorism, see Bassiouni, Terrorism Documents, supra note 177, at 13–24. 226 See infra Chapter III. 227  See supra section 3.

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penal responsibility. Thus state responsibility must be found in other sources of international law.228 The ILC, as stated above, has contemplated since 1976 the recognition of state criminal responsibility, but in its approved text of 2001, it abandoned that position. For many years, state criminal responsibility for international crimes was included in draft Article 19 (“International Crimes and International Delicts”), which stated the following: 1. An Act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached. 2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime. 3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere of the seas. 4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2, constitutes an international delict.229

The ILC’s formulation quoted above is an attempt to extend the notion of civil responsibility to the ambit of criminal responsibility. The temptation to extend the civil law concerning tortious conduct to the criminal sphere is easy to understand, particularly at a time when civil responsibility has extended to unintentional wrongs and to liability without fault in certain areas involving a high risk of danger. The policies of prevention, deterrence, and punishment of civil and 228 Considering that there are no conventions that at present provide for, let alone establish, a basis for state criminal responsibility, the only relevant source is customary international law. Under that source, it would appear that principles of state responsibility are well established, but that, so far, they do not include state criminal responsibility. 229 See Report of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, U.N. Doc. A/56/10 and Corr. 1 (2001); see also Draft Articles on State Responsibility, art. 19, in Report of the International Law Commission to the General Assembly, U.N. Doc. 1/31/10 (1976) II (Pt. 2), T.B. I.L.C., 95–122. For an insightful analysis of the ICTY’s confusion concerning principles of state responsibility and attribution of acts to individuals, see André de Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, The Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia, 72 Brit. Y.B. Int’l L. 255 (2002).



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criminal responsibility are on the same legal continuum and make the extension of responsibility from the civil to the criminal appear to be easy. But such an extrapolation is nevertheless a difficult one. The conceptual, doctrinal, and dogmatic differences between civil and criminal responsibility are far too great in the world’s major criminal justice systems to be reconciled in the way that the ILC’s draft suggests.230 In addition to these threshold difficulties, the most significant hurdles to defining state criminal responsibility are the principles of legality discussed below. The concept of state criminal responsibility raises, inter alia, the following sets of questions that have not yet been sufficiently addressed by ICL scholars and experts: 1. Can state criminal responsibility be established without establishing the individual criminal responsibility of decision-makers and principal executors? 2. If the individual criminal responsibility of decision-makers and principal executors is required, (i) what elements of criminal responsibility are applicable to such individuals, and (ii) is state criminal responsibility a consequence of individual criminal responsibility or is it something separate and apart from it? 3. Whenever state criminal responsibility is established, can it serve as the basis for establishing the individual criminal responsibility of persons other than decision-makers and principal executors, and in that case (i) what are the elements of this derivative individual criminal responsibility, and (ii) in what way does this derivative criminal responsibility arise? 4. How can state criminal responsibility exist without becoming a form of collective criminal responsibility that would violate fundamental principles of individual justice? 5. Can penalties for state criminal responsibility be developed that would not penalize individuals who had no part in the conduct for which criminal responsibility is to be imposed?

Proponents of the concept of state criminal responsibility have not dealt with these questions and others related to them in more than a superficial manner, let alone resolved them. This is understandable because most of these proponents are publicists and cannot be expected to have expertise in comparative criminal doctrine, while criminal law experts who have opposed such a concept have largely ignored the question. The writings of publicists have criticized the concept of state criminal responsibility as articulated in the ILC’s now defunct draft Article 19.231 The concept, 230 For a different perspective suggesting that the recent developments in civil jurisdiction may bear on the development of criminal jurisdiction, see Hazel Fox QC, The Law of State Immunity 508–16 (2002). 231 See generally Farhad Malekian, International Criminal Responsibility of States (1985); André de Hoogh, Obligatio Erga Omnes and International Crimes (1996); International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (J. Weiler et al. eds., 1988); Pierre-Marie Dupuny, Observations sur le Crime International

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however, reflects the growing expectations of the legal community to establish a more effective basis for state responsibility.232 As a result, in its approved report of 2001, the ILC abandoned draft Article 19. The ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind233 avoided the thorny problem of state responsibility. In its Article 4, entitled “Responsibility of States,” the Draft Code merely states, “[t]he fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law.”234 This of course raises a question about the consistency of the ILC’s work, when one text purports to establish state criminal responsibility and another foregoes it. The conclusion has to be that the ILC’s Draft Code of Crimes rejected state criminal responsibility, but that for whatever its reasons may be, the ILC has elected to leave the concept in the Draft Articles of State Responsibility, which is a text that has not yet been adopted by the General Assembly. This dichotomous approach may, however, have some wisdom. The Draft Code of Crimes has been in gestation with the ILC since 1947, and after its 1991 version was highly criticized, the 1996 text was more streamlined and less controversial; this may be the reason why state criminal responsibility in that text has been sidestepped. But preserving the concept of state criminal responsibility in the Principles of State Responsibility is indeed prudent. What the ILC needs, however, is expertise on ICL and comparative

de l’Etat, 84 Revue Génèrale de Droit International Public 449 (1980); Geoffrey Gilbert, The Criminal Responsibility of States, 39 Int. & Comp. L.Q. 345 (1990); M. Cherif Bassiouni, The Subjects of International Criminal Law: Ratione Personae, in 1 Bassiouni, ICL, supra note 21, at 41; Antonio Cassese, On the Use of Criminal Law Notions in Determining State Responsibility for Genocide, 5 J. Int’l Crim. Just. 875 (2007); Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty, 18 Eur. J. Int’l L. 903 (2007). 232 The recognition of an international community expectation is now well established, even though the exact parameters of a world order are yet to be agreed upon. For an earlier position, see Myres McDougal et al., Law and Minimum World Public Order (1961). 233 For a perspective from the academic academy, see M. Cherif Bassiouni, Nuremberg Forty Years After: An Introduction, 18 Case W. Res. J. Int’l L. 261 (1986); M. Cherif Bassiouni, Das “Vermächtnis von Nürnberg:” eine historische Bewertung fünfzig Jahre danach, in Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürenberger Prozessen, (Ger Hankel & Gerhard Stuby eds., 1995); M. Cherif Bassiouni, The “Nuremberg Legacy:” Historical Assessment Fifty Years Later, in War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1998). For recent U.N. developments, see International Law Commission, Draft Code of Crimes Against the Peace and Security of Mankind (1996), available at http://untreaty .un.org/ilc/texts/instruments/english/draft%20articles/7_4_1996.pdf. The Draft Code of Crimes was adopted by the General Assembly in 1996 without modifications. See also ICTR Statute, supra note 37; ICTY Statute, supra note 36; Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 50th Sess., U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995); 1996 PrepCom Report, supra note 39; M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996). 234 Id.



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criminal law doctrine to prepare a draft text that will avoid much of the criticism that the former formulation of the defunct Article 19 justifies. In the Statute of the ICC, the concept of state criminal responsibility has been rejected, even though some delegations expressed a different viewpoint in the 1996 Report as follows: “The view was also expressed that an essential question which should be addressed in the Statute [of the ICC] was whether some kind of safeguard provision was needed to ensure that individual criminal responsibility did not absolve the State of any of its responsibility in a given case.”235 Some scholars have analyzed the reasons for hesitancy to extend the restrictive theory of liability in international law in civil proceedings to criminal proceedings. One concern relates to the fundamental function of international law in maintaining equality and non-intervention into a state’s sovereign domain.236 International law does not allow one state to legislate conduct of another, and the exercise of one state’s penal code to the activities of another state, such activity would effectively “extend the legislative jurisdiction of the territorial State on public law matters to the foreign State” making the states thus unequal (the exercise of criminal jurisdiction presupposes the power to do impose a set of standards over another).237 Section 7. State Immunity: A Bar to Civil Remedies for Jus Cogens International Crimes The doctrine of state immunity was upheld by the ICJ in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) with respect to individual remedies sought by Italian POW who were the victims of slave labor in Nazi Germany, and Greek victims of a massacre in Distomo, Greece.238 The case arose out of several successful tort actions by Italian and Greek victims of Nazi atrocities before domestic Italian courts.239 The underlying acts were not in ­dispute, as Germany accepted responsibility for the atrocities, in particular the use of slave labor. However, Germany challenged the Italian rulings before the ICJ, arguing that sovereign immunity shielded it from civil actions before the courts of other states. 235 See 1996 PrepCom Report, supra 39, at 44, para. 192. 236 Fox QC, supra note 230, at 503–16. 237 Id. at 505. 238 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1 (Feb. 3, 2012). 239 The Greek claims arose out of a separate incident in Greece which was successfully litigated before that country’s courts. However, the Minister of Justice refused to enforce the damages awarded and the Greek plaintiffs brought the matter before Italian courts, seeking enforcement of the judgment there, resulting in the transfer of German property in Italy to the Greek plaintiffs.

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After the conclusion of the war, in 1947, Italy signed a peace treaty with the victorious allies which included a provision that “Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945.”240 Subsequent bilateral agreements were reached between the two countries in which Italy indemnified Germany for all suits arising out of the Second World War in exchange for a lump sum payment to the Italian government.241 In 1953, Germany adopted the Bundesentschädigungsgesetz, a national law establishing a compensation system for victims of crimes committed by the Nazi regime.242 An additional law was adopted in 2000 to provide compensation specifically for the victims of slave labor.243 The 1953 and 2000 German laws applied to civilian victims only; neither provided a remedy for POWs who had been used as slave labor, and POWs were explicitly excluded from the reparations scheme under a separate 2000 law,244 which was upheld by the German Constitutional Court despite its disparate effect.245 Furthermore, compensation for Italian POWs was not included in the 1947 Peace Treaty and was excluded from the subsequent agreements which terminated all Italian claims against Germany. The Italian POWs who had been forced into slave labor were not, however, considered “civilians” for the purposes of compensation despite the fact that they had been deprived of POW protections arising under IHL by the Nazis. Despite this Germany argued, and the ICJ accepted, that the Italian soldiers never lost their POW status and could therefore lawfully be put to some form of work even though the Nazi government had denied them the full protections that this status required.246 Thus, Italian POWs became a category of victims without a remedy under German Law. Unable to file a claim in German courts due to the 2000 law excluding POWs from restitution claims, the Italian plaintiffs brought a domestic action in Italy.247 Germany brought the matter before the ICJ on the grounds of state immunity, arguing that state and judicial practice, as well as practical concerns militated against the right of national courts to hear international tort claims against a

240 Treaty of Peace with Italy. Signed at Paris, on 10 February 1947, art. 77(4), Feb. 10, 1947, 49 UNTS 3. 241 Jurisdictional Immunities Of The State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶24 (Feb. 3, 2012). 242 Bundesentschädigungsgesetz (BGBl. I S. 1387) (Ger.). 243 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶26 (Feb. 3, 2012). 244 2000 Federal Law (14/3206) (Ger.), art. 11. 245 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶26 (Feb. 3, 2012). 246 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 26 and 29 (Feb. 3, 2012). 247 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 28–29 (Feb. 3, 2012).



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foreign state. In response, Italy argued that the victims had been excluded from all compensation schemes and had no other recourse to remedy their denial of justice for a jus cogens violation of international law. In effect, Italy argued that by necessity and by reason of the fact that the claimants (whether Italian or Greek) were present in Italy, Italian courts could exercise their national jurisdiction over these claims. The ICJ ruled in favor of Germany,248 holding that the doctrine of state immunity prevailed over other considerations, even barring compensation for jus cogens crimes such as slave labor.249 Under the Court’s ruling the Italian POWs were also deprived of a remedy under international law since state immunity barred any civil action against Germany in the courts of another state. The ICJ’s judgment reinforced the principle that state immunity is a state right deriving from the co-equal nature of state sovereignty,250 and as such a firm and wellentrenched doctrine of customary international law.251 The ICJ held that no exception existed to state immunity, and thus in an elegant way it said too bad for the victims. In doing so, the Court disregarded the obligation of Germany to provide for a remedy under the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,252 which it did not even address or cite in its decision.253 This omission raises questions about the position of the ICJ on the progressive development of international law in connection with ICL, IHL and IHRL. Section 8. The Victim As a Subject of ICL 8.1. The Evolution of the Individual Victim’s Rights in International Law From the peace at Westphalia in 1648 until World War II, the state was the only subject of international law. The individual’s gradual and limited recognition as a subject of international law highlights the state-centric nature of this body of law. For example, the law of diplomatic protection permits a state to present a 248 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 101–03 (Feb. 3, 2012). 249 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 92–101 (Feb. 3, 2012). 250 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶56 (Feb. 3, 2012). 251 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 57–60, 65, 69, 89–91 (Feb. 3, 2012). 252 G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (March 21, 2006). 253 M. Cherif Bassiouni, International Recognition of Victims’ Rights, in 6 Hum. Rts. L. Rev. 203–279 (2006).

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claim on behalf of its citizens when they are injured by another state. This law is predicated on the notion that the direct injury to a state’s citizens is an indirect injury to the state itself.254 As de Vattel stated in his oft-quoted passage from Les Droits des Gens, “Quiconque maltraite un citoyen offense indirectement l’état qui doit protéger ce citoyen.”255 Indeed, a state, which presents a claim against another state for injuries to its citizens does so purely on a discretionary basis and is under no obligation to pass on the award it may receive to the injured party, though state practice since World War II has been to the contrary, thus establishing an international custom.256 International law’s concern for the protection of the individual is in part a result of legal developments that occurred in the wake of the atrocities of World War II and the international community’s pursuit of individual criminal responsibility.257 Once international law made individuals subjects of that discipline for purposes of international criminal responsibility, it followed that the individual became the subject of international legal rights. This chronology explains, in part, the beginning of international human rights law after the World War II Nuremberg and Tokyo international prosecutions.258 Until World War II, the rights and obligations of the individual vis-à-vis the state were the exclusive prerogative of municipal law, and a state was more or less free to treat its own citizens as it pleased.259 Since then, however, numerous international instruments have established protections and rights for individuals, which required states to enact domestic legislation to protect these rights.260 The international community’s enunciation of internationally protected individual rights was accompanied by parallel efforts to ensure the protection of these rights through a variety of international enforcement mechanisms.261 Indeed, many instruments on the protection of human rights have created 254 See Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1992) [hereinafter Oppenheim]. 255 Translated as “Whoever mistreats a citizen offends the citizen’s state which must protect this citizen.” Emmerich de Vattel, Le Droit des gens, ou principles de la loi naturelle appliquée à la conduite et aux affaires des nations et des souverains 289 (1773). 256 See Bassiouni, From Versailles to Rwanda, supra note 32. 257 See Oppenheim, supra note 254. 258 See IMT Charter, supra note 66; IMTFE Charter, supra note 66. 259 See Oppenheim, supra note 254. 260 See e.g., International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), art. 2.3 [hereinafter ICCPR]; Universal Declaration of Human Rights, art.11(2), Dec. 10, 1948, GA Res. 217 A (III), U.N. Doc. A/810 (1948); European Convention on Human Rights, art. 7(1), Nov. 4, 1950, EUR. TS. Nos. 5, 213 U.N.T.S. 221 [hereinafter ECHR]; African Charter on Human and Peoples’ Rights, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3/ Rev. 5 (1981), reprinted in 21 I.L.M. 58 (1982) [hereinafter Banjul Charter]; American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. A/16 [hereinafter AMCHR]. 261 For a discussion of these enforcement mechanisms see Chante Lasco, Repairing the Irreparable: Current and Future Approaches to Reparations, 10 Hum. Rts. Brief 18–21 (2003); see also Raquel



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special monitoring bodies as well as procedures to receive complaints of violations of individual rights and to investigate or adjudicate them, or at least to report on such violations.262 But all of these mechanisms have proven insufficient to achieve the desired protection of human rights, as evidenced by the large-scale victimization that has occurred in the last fifty years.263 Thus, an individual victim’s right of redress in its various modalities has become an indispensable component of efforts to protect individual human rights. A significant gap, however, continues to exist between international human rights law and international criminal law.264 It seems as if the former is a shield without a sword and the latter, a sword without a shield. The parallelism of these two bodies of law limits the reach of international criminal law to punish fundamental human rights violations, while these rights remain without effective enforcement.265 8.2. The Normative Framework of a Victim’s Right to Reparation The post WW-II paradigm shift which brought about the recognition of the individual as a subject of legal obligations and legal rights under international law did not at first take into account the direct rights and interests of victims. The prescriptions and proscriptions contained in ICL and IHRL whose value oriented goals include the prevention of human harm and the protection of fundamental human values as well as human rights and interests, failed to include the specific rights of victims as part of both disciplines. It was not until 1984 that the United Nations looked at the rights of victims and thereafter it took until 2004 for the general assembly to adopt a resolution containing the basic principles and rights of victims of violations of IHL and IHRL. The Declaration contains both substantive and procedural rights. Prior to that in 1998 the Rome Statute of the ICC gave victims a limited procedural right in the course of the ICC’s proceedings. The importance of the subject as well as the newer dimensions it brings to ICL and IHRL are reflected below.

Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State Sponsored Crimes, 35 Vand. J. Transnat’l. L. 1399 (2002). 262 Such monitoring bodies include the Inter-American Commission on Human Rights (established pursuant to the AMCHR, supra note 260), The European Commission on Human Rights (established pursuant to the ECHR, supra note 260) (in 1998, Protocol 11 amended the ECHR, effectively dismantling the European Commission), the African Commission on Human and Peoples’ Rights (established pursuant to the Banjul Charter, supra note 260). 263 According to a study performed by this author, since World War II there have been over 250 conflicts in which an estimated 170 million people have been killed. See M. Cherif Bassiouni, The Need for International Accountability, in 3 Bassiouni, ICL, supra note 38, at 3. 264 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the International Protection of Human Rights, 9 Yale J. World Pub. Ord. 193 (1982). 265 Id.

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8.2.1. The Evolution and Foundation of the Normative Framework for a Victim’s Right of Reparation The Hague Conventions of 1899266 and 1907267 were the first international instruments codifying the customary law of armed conflicts. Under these conventions, violations by a state engaged in an international armed conflict that resulted in physical harm or damage to civilians and to civilian property, as well as harm to combatants protected by these customary norms, resulted in the right of the state of nationality to request compensation on behalf of its citizens.268 While this recognition gave rise to damages based on the injuries of individuals, it did not, however, give rise to an individual right of legal action against a state. In keeping with the law of diplomatic protection, it merely allowed the state of nationality or the territorial state in which the violations of these norms occurred to present a claim against the state which committed these violations.269 Since World War II, individuals’ human rights have been codified in numerous international instruments such as the Universal Declaration of Human Rights,270 the International Covenant on Civil and Political Rights,271 the International Covenant on the Elimination of All forms of Racial Discrimination,272 the Convention against Torture and Other Forms of Cruel Inhuman and Degrading Treatment,273 and the Convention on the Rights of the Child.274 Moreover, several regional conventions have also codified these human rights. The principal ones are: the African Charter of Human and Peoples’ Rights,275 the American Convention on Human Rights,276 and the European Convention for the Protection of Human

266 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague (July 29, 1899) [hereinafter Hague II]. 267 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague (October 18, 1907) [hereinafter Hague IV]. 268 See e.g., Hague IV, supra note 267, at art. 3. 269 See Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5, 1970). 270 Universal Declaration, supra note 260. 271 ICCPR, supra note 260. 272 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, 3 I.L.M. 352 (March 7, 1966). 273 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984) [hereinafter Torture Convention]. 274 Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/44/49 (Nov. 20, 1989). The Convention on the Rights of the Child entered into force on September 2, 1990. As of October 2011, 194 countries have Ratified the Convention, including every member of the UN except Somalia and the US. Ratified by 140 of these countries are two Optional Protocols which were adopted in May 25, 2000 to restrict the involvement of children in military conflicts and prohibit of the sale of children, child prostitution, and child pornography. 275 Banjul Charter, supra note 260. 276 AMCHR, supra note 260.



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Rights and Fundamental Freedoms.277 But few of these conventions provide for an individual’s right to redress or to receive compensation except for the European and the American conventions, which provide for individual compensation for damages arising out of a state’s violation of protected rights.278 More recently, the 1998 statute of the ICC (for which this author had the honor to serve as chair of the drafting committee) provides for a victim’s right to compensation.279 The first international document to incorporate victims’ rights was the Universal Declaration of Human Rights of 1948, which stated that, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”280 While the European and the American conventions, which provide for individual compensation for damages arising out of a state’s violation of protected rights,281 it was not until 1985 that the United Nations addressed the question of victims’ rights when the Seventh United Nations Congress on Crime Prevention and Criminal Justice (“Congress”) adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (“Declaration”).282 The draft text, which was prepared by a committee of experts who convened in Ottawa, Canada in 1984 and subsequently submitted to the Congress, was far more extensive than the text that was eventually adopted in 1985.283 This is particularly so with respect to the right of redress for victims of states’ abuse of power.284 That section of the Declaration, whose draft text was two pages long, was reduced to an innocuous paragraph while the rest of the text dealt with victims of crime committed by individuals. The catalyst for the UN’s effort to adopt a resolution concerning victims was a 1984 industrial disaster in the town of Bohpal, India, which caused the release of toxic chemicals resulting in the death and illness of thousands of persons.285 The deadly spill was due in large part to the state’s failure to protect its citizens from industrial malfeasance and misfeasance.286 The first issue confronting the 1984 delegates was whether states could be held civilly or criminally accountable, or both, for their failure to provide adequate oversight over private sector

277 ECHR, supra note 260. 278 See AMCHR, supra note 260, at art. 63; ECHR, supra note 260, at art. 41. 279 ICC Statute, supra note 40, at art. 75, 79 (trust fund for victims). 280 Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A. Res. 217 A (III) (1948), Art. 8. 281 See AMCHR, supra note 260, at art. 63; ECHR, supra note 260, at art. 41. 282 G.A. Res. 40/34 (29 November 1985); See M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 HRLR 203 (2006). 283 Id. See also 7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed, 1988). 284 Declaration, Annex (Article 11). 285. See Amnesty Int’l Rep. Clouds of Injustice, Bhophal Disaster 20 Years On (2004) available at http://www.amnesty.org/en/library/info/ASA20/015/2004 (last visited January 18, 2012) 286 Id.

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entities engaging in inherently dangerous activities. The second question was whether a state’s failure to oversee private sector entities placed them de facto beyond the reach of the law. The third question was whether state-actors and corporate decision makers can be de facto beyond the reach of the law when the outcomes of their conduct, by commission or omission, constitutes an international crime. Establishing rights of redress for victims of states’ crimes was not something the international community was willing to accept in 1985, even though many states provide for administrative and civil accountability for injuries to victims in their national legislations. But states maintain barriers against criminal responsibility for state actors, particularly for civilian superior responsibility. Shortly thereafter, in 1989, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities entrusted the task of undertaking a study concerning the status of the right of reparation for victims to Mr. Theo van Boven, who in 1997 prepared the Draft Basic Principles and Guidelines on the Right to Restitution, Compensation, and Rehabilitation, for Victims of Gross Violations of Human Rights and Fundamental Freedoms.287 The Commission on Human Rights found this document a useful basis for giving priority to the question, and circulated the draft among states and interested organizations for comment. The task of finalizing a set of basic principles and guidelines based on the comments of interested states and organizations was then entrusted to this writer by the Commission on Human pursuant to its resolution 1998/43.288 The drafting process included extensive research of extant international law norms, consultations with representatives of interested governments, organizations, and highly respected experts. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (“Basic Principles on Victim Redress”) were presented to Commission on Human Rights in April 2000.289 The adoption 287 Draft Basic Principles and Guidelines on the Right to Restitution, Compensation, and Rehabilitation, for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. E/CN.4/1997/104, Annex (1997). 288 C.H.R. res. 1998/43, ESCOR Supp. (No. 3) at 150, U.N. Doc. E/CN.4/1998/43 (1998). 289 After 1984, when the Basic Principles of Justice for Victims of Crime and Abuse of Power were adopted at a meeting in Ottawa which this writer had the honor of chairing, efforts at developing remedies for victims remained essentially an NGO endeavor. In 1989, the sub-Commission appointed Professor Theo Van Boven as Special Rapporteur on the subject of victims’ reparation. His mandate was then established by the Commission on Human Rights, and lasted until 1998, when the Commission appointed this writer as Independent Expert. In reliance upon Van Boven’s prior work, this writer completed two reports and prepared guidelines, which were embodied in a report to the Commission in 2000. Because of the impending U.N. Conference on Racism, which raised concern among governments that different groups of victims would rely on these principles to make claims against governments, the question was temporarily set aside. But continued interest by certain governments and by international civil society brought the question once again to the fore of the Commission’s attention. The final report of the Independent Expert and the prin-



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of the “Basic Principles on Victim Redress” was postponed by the Commission until 2001, and then postponed again to 2002. The delay in adopting the Principles was the result of the September 2001 World Conference on Racism where the issue of victim compensation was contested by many states.290 Several governments therefore opposed the adoption of these “Basic Principles on Victim Redress” for fear that claims arising out of their past racial or colonial practices may be raised.291 It was not until 1998, following the adoption of the ICC statute by the Rome Diplomatic Conference, July 17, 1998 that the question of victims’ rights took on a new life. Individual international criminal responsibility was the gravamen of the ICC’s jurisdiction.292 Head of State and other immunities were removed in Article 27 and superior responsibility was clearly established.293 The principal goal of the elimination of immunities and the application of superior responsibility was to provide deterrence and thereby to achieve prevention. These are the same goals reflected in the legislative policy underlying domestic criminal laws of most legal systems. The theory of general deterrence, however, is based on the effectiveness and relative certainty of retributive sanction attaching to the consequences of the criminal violation. Retribution in some legal systems goes back to Talmudic Talion Law (with its famous codification of an “eye for an eye”)

ciples were submitted to the Commission on Human Rights in 2000. See The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission Resolution 1999/33, U.N. Doc. E/CN.4/62 (Jan. 18, 2000) (basic principles and guidelines on the right to a remedy and reparation are attached as an annex). The Commission did not act on the guidelines pending further consultations between governments, pursuant to its Resolution, The Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. 2002/44 (April 23, 2002). These consultations, which took place in October 2002, resulted in the following report: The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, Note by the High Commissioner for Human Rights, U.N. Doc. E/CN.4/2003/63 (Dec. 27, 2002). At its 59th session, the Commission adopted a resolution for the finalization of the principles on the basis of governments’ input (based on U.N. Doc. E/CN.4/2003/L.44 (April 14, 2003)). 290 See Report of the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, A/CONF.189/12 (Jan. 25, 2002), available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.Conf.189.12.En?Opendocument; see also World Conference on Racism, Daily Highlights (Sept. 8, 2001), available at http://www.un.org/WCAR/dh/; U.N. Race Conference On Thin Ice, CBS News, July 25, 2001 http://www.cbsnews.com/stories/2001/07/25/world/ main303313.shtml. For the European Commission view, see Council Conclusions on the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, http://europa. eu/legislation_summaries/human_rights/human_rights_in_third_countries/r10107_en.htm (last updated July 5, 2006); European Union Endorses Compensation for Racism and Slavery, SABC News, Mar. 20, 2001 http://www.sabcnews.co.za/Article/PrintWholeStory/0,2160,12608,00.html. 291 See also World Conference on Racism, Daily Highlights (Sept. 8, 2001), available at http:// www.un.org/WCAR/dh/ (last visited Nov. 6, 2011); U.N. Race Conference On Thin Ice, CBS News, July 25, 2001, http://www.cbsnews.com/stories/2001/07/25/world/main303313.shtml. 292 Id. 293  Id.

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which was designed to provide “justice” or, more appropriately, satisfaction to the victims.294 This is the reason for the inclusion in the Rome Statute of article 68(3), which provides for victims’ recovery. Subsequently, as stated above, the Rules of Procedure and Evidence adopted in 2000 provide, in Rule 85, for victim’s participation in the proceedings.295 The ICC statute, having taken this unprecedented position, spurred the efforts undertaken by the United Nations Commission on Human Rights which resulted in the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“Basic Principles”).296 Unlike the 1985 Declaration, which focused on domestic crime, the 2005 Basic Principles focused on gross violations of international human rights law and serious violations of international humanitarian law, thus complementing the ICC’s provision for victim compensation and participation in criminal proceedings.297 Unlike the ICC’s Article 68, the Basic Principles provide for a number of different remedies for victims of the crimes within the scope of international human rights law and serious violations of international humanitarian law. They are: a) restitution, or the “restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property”; b) compensation “for any economically assessable damage” including for physical or mental harm, lost employment, education or social opportunities, material damages and loss of income, moral damage, and the cost of any medical, psychological, legal or social services costs incurred; c) rehabilitation, or the provision of medical, psychological, legal or social services; d) satisfaction, or the implementation of measures to prevent future violations, the verification and public disclosure of facts related to the violation, a declaration from a judicial body recognizing the harm done to the victim thereby restoring the victim’s dignity and reputation, a public apology, the imposition of sanctions against the perpetrator(s), commemorations, and the inclusion of the incident in educational materials; and e) guarantees of nonrepetition, including military, police and judicial reform as well as the protection of human rights defenders, the provision of continuing education to the military, police and judiciary, monitoring for human rights violations and reforming problematic laws.298 294 In addition to Talmudic law, Islamic law based on the Qur’an provides for crimes of Qisas, an option to the victim. The choices are: “Talion Law” or the equivalent harm (a death for a death, and injury for injury), the payment by the perpetrator of Diyya (victim compensation), or pardoning (forgiving) the perpetrator, which is the most desirable option. 295 International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/ Add.1 (2000), Rule 85. 296 G.A. Res 60/147 (New York 21 Mar. 2006). 297 Bassiouni, Supra note 3. 298 Principles 19-23, supra note 289.



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Under Rule 85 of the ICC’s Rules of Procedure and Evidence, victims have the right to participate in ICC proceedings with respect to crimes within the jurisdiction of the court, which as of now are defined in articles 6, 7, and 8—respectively “genocide”, “crimes against humanity”, and “war crimes”—and after its possible entry into effect in 2017, the crime of “aggression”.299 Violations giving rise to victims’ rights and participation under the ICC regime are more limited than under the 2005 Basic Principles, as are the remedies afforded. Under the ICC’s Rules, these remedies are limited to restitution, compensation and rehabilitation,300 and do not extend to other forms of redress for victims contained in the 2005 Basic Principles, as described above. It should also be noted that neither the Statute adopted in 1998 nor the Rules adopted in 2002 define compensation or rehabilitation. Under the provisions in the ICC Statute for the ICC’s Trust Fund,301 individual claims for reparations shall be made directly against the convicted person, which limits the exposure of States and also potentially the level of the reparation. While the Basic Principles are still deemed “soft law”, they provide for broader rights and remedies, they do not limit the victims’ competent forum,302 and they do not limit the category of victims to those who are directly encompassed within the facts described in the indictment. More importantly, the ICC victims’ substantive and procedural rights are not applicable to state parties who elect to exercise their domestic jurisdictional under the complementarity provision of the ICC statute by prosecuting the accused in domestic fora (Article 17). How victims’ rights can be reconciled under these two instruments, if and when the Basic Principles become in whole or in part customary international law, is still off the radar screen of scholars and experts of victims’ rights. Under the ICC scheme, the determination of a victim’s status depends first upon the prosecutor’s selection of the incriminating facts and second upon the Pre-Trial Chamber’s confirmation of the Indictment. Although the prosecutor’s reasons may be objective and not discriminatory, they are nonetheless informed by prosecutorial policy which may narrow the charges against the accused to ensure successful prosecution.303 The narrowing of the charges for such purposes 299 Rome Statute Articles 5(2) and 15bis(3). 300 Rome Statute, Article 75; ICC RPE, Rule 94(1)(d-f). 301 ICC RPE Rule 98. 302 The victim’s ability to enforce the rights contained in the 2005 Basic Principles are not limited to a specific forum as in case of victims’ rights under the ICC regime. 303 Redress, Victims and the ICC: Still Room for Improvement (2008), available at http://www .redress.org/downloads/publications/ASP%20Paper%20Draft%20Nov08.pdf; Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. U. J. Int’l Hum. Rts. 459 (2008); Greco, Victims’ Rights Overview under the ICC Legal Framework: A Jurisprudential Analysis, 7 Int’l. Crim. L.R. 531 (2006); Stahn, Olásolo and Gibson, Participation of Victims in Pre-Trial Proceedings of the ICC, 4(2) J. Int’l. Crim. Just. 219-238 (2006); Mekjian and Varughese, Hearing the Victim’s Voice: Analysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court, 17 Pace Int’l L. Rev. 1 (2005).

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necessarily means narrowing the facts and focusing on a specific time and place on which the charges are based. As a result of such a narrowing, the category or group of court recognized victims becomes narrower and unjustly excludes those individuals whose victimization was not a part of the facts referred to in the indictment. Ultimately, this outcome arbitrarily distinguishes between victims on the basis of prosecutorial considerations, which are unrelated to the factual victimization caused by the total conduct of the perpetrator. It is obvious that this goes against the purpose and spirit of the ICC Statute. This approach also goes against the 2005 Basic Principles, whose focus was on defining categories of violations for which victims could obtain redress in a variety of forms, irrespective of the facts specified in the indictment. The 2005 Principles are more openly inclined towards the Romanist-Civilist (“civilist”) legal scheme of the “partie civile,” than the ICC statute, whose procedures are strongly influenced by the adversary-accusatorial approach which is characteristic of the common law systems.304 The unarticulated premises of the Basic Principles is that no victim should be excluded before a forum and victims who have the right to a cause of action should be able to participate in the criminal proceedings without exclusion by the prosecution for whatever reason. Victims in “partie civile” legal systems participate in the proceedings through their counsels who have the right to present or question evidence. The reason for such a prominent role of the “partie civile” in criminal prosecutions is that in those civilist systems the facts as determined in the criminal proceedings are binding on the subsequent civil proceedings. In other words, if there is no independent civil action for damages in respect to crimes for which prosecutions have taken place, then the victim has to establish the facts in the course of the criminal proceedings. The victim can either establish damages in the criminal proceeding or elect to have a subsequent civil action that establishes only damages. Judges in the proceedings can also remand the ascertainment of the quantum of damages to subsequent civil proceedings if that question excessively encumbers the criminal proceedings. If damages are established in the course of the criminal proceedings, the defendant is sentenced to pay the victim such damages. This is unlike common law systems where civil proceedings establish both liability and damages. There are of course variations in civilist legal systems some of which allow greater latitude for the defense in the role of a “partie-civile” while others are more restrictive in order to give the prosecution more leeway. In the latter cases 304 7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed., 1988); 65 International Review of Penal Law: “The Regionalization of International Criminal Law and the Protection of Human Rights in International Cooperation in Criminal Proceedings” (1994); 68 International Review of Penal Law: “Inquisitorial-Accusatorial: The Collapse of Dogmas in Criminal Procedure” (1997).



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the victims are allowed greater procedural latitude in bringing independent civil actions for damages in which they may or may not be bound by the facts as established in the criminal proceedings.305 The ICC statute reveals the ambivalence that exists in its efforts to reconcile the differences between the common law and civilist approaches as to the rights and roles of victims before the court. This is evident in the contentious ICC pretrial proceedings as to who the class of victims include, particularly before and after indictment confirmation hearings. In other words, a broader class of victims may be involved in the pre-confirmation investigatory stage only to be narrowed post-confirmation, which is a manifest injustice to the excluded victims. Another issue arises out of the ICC’s approach to the “partie civile” for victims arises in the context of victims’ counsel presentation of evidence which the prosecution may not find satisfactory. These and other issues pertaining to the fundamental rights of victims have yet to be resolved by the ICC. The jurisprudence of the ICC during its first few years has demonstrated a lack of coherence which reflects the tensions between those judges who essentially support an adversary-accusatory system of criminal procedure and those favoring the civilist “partie-civile” system. Neither the statute nor the rules have adequately dealt with the issues arising out of this incongruity causing several trial chambers and appeals chambers to issue multiple rulings over a period of 10 years that gave rise to criticism.306 305 Some Civilist states like Italy have provided as of 1989 with the adoption of their new code of criminal procedure for an independent right of civil action by victims irrespective of whether they were a Partie-Civile in a criminal case or not. See Article 130 et seq Codice di Procedura Pénale. 306 Supra note 304; see also Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1119, Trial Chamber, Decision on victims’ participation (18 January 2008); ICC-01/04-01/06-1432, Appeals Chamber, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008 (11 July 2008). Prosecutor v. Thomas Lubanga: ICC-01/04-01/06-672 (6 November 2006); ICC-01/04-01/06-462 (22 September 2006); ICC-01/04-01/06-380 (4 September 2006); ICC-01/04-01/06-335 (17 August 2006); ICC-01/04-01/06-319 (10 August 2006); ICC-01/04-01/06-318 (9 August 2006); ICC-01/04-01/06-317 (8 August 2006); ICC-01/04-01/06-206 (24 July 2006); ICC-01/04-01/06-2698 (8 March 2011); ICC-01/04-01/06-2659-CORR-RED (8 February 2011); ICC-01/04-01/06-2586-RED (4 February 2011); ICC-01/04-01/06-2468 (9 June 2010); ICC01/04-01/06-2340 (11 March 2010); ICC-01/04-01/06-2207 (26 January 2010); ICC-01/04-01/06-2175 (27 October 2009); ICC-01/04-01/06-2135 (22 September 2009); ICC-01/04-01/06-2127 (16 September 2009); ICC-01/04-01/06-2115 (11 September 2009); ICC-01/04-01/06-2109 (8 September 2009); ICC01/04-01/06-2065 (23 July 2009); ICC-01/04-01/06-2063 (21 July 2009); ICC-01/04-01/06-2035 (10 July 2009); ICC-01/04-01/06-2032 (9 July 2009); ICC-01/04-01/06-1861 (8 May 2009); ICC-01/04-01/06-1564 (19 December 2008); ICC-01/04-01/06-1563 (19 December 2008); ICC-01/04-01/06-1562 (18 December 2008); ICC-01/04-01/06-1556 (15 December 2008); ICC-01/04-01/06-1379 (5 June 2008); ICC01/04-01/06-1368 (2 June 2008); ICC-01/04-01/06-1333 (16 May 2008); ICC-01/04-01/06-1211 (6 March 2008); ICC-01/04-01/06-1191 (26 February 2008); ICC-01/04-01/06-1119 (18 January 2008); ICC-01/0401/06 OA 9 and OA 10 (16 May 2008); ICC-01/04-01/06-1239 (20 March 2008); ICC-01/04-01/06-1347 (22 May 2008); ICC-01/04-01/06-1426 (9 July 2008); ICC-01/04-01/06-1432 (11 July 2008); ICC-01/04-01/06-1435 (15 July 2008); ICC-01/04-01/06-1448 (28 July 2011); ICC-01/04-01/06-1453 (6 August 2008); ICC-01/04-01/06-2155, (9 October 2009); ICC-01/04-01/06-2159 (14 October 2009); ICC-01/04-01/06-2168 (20 October 2009); ICC-01/04-01/06-2546 (30 July

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A number of unresolved issues remain such as (1) the rights of victims before national tribunals of state-parties exercising their complementary rights under the statute; (2) the rights of victims left out of that category because of the ICC prosecutor’s choice of narrowing the facts in a given case (thus excluding actual victims of the crime); (3) The intersection of victims’ rights with Ne bis in idem protections; (4) the rights of victims before the ICC to ask for additional remedies on the basis of customary international law, if and when, some or all of the remedies contained in the 2005 Basic Principles reach such a level; and 5) victims’ appeal rights.307 The ICC Statute and Rules were a step forward in securing victims’ rights, but for lack of political consensus, and maybe because the Rome Conference negotiators were mostly diplomats whose knowledge of comparative criminal law and procedure was limited, the statutory language was inadequate. Subsequently, the ICC Judges considering victims’ issues also did not demonstrate their grasp of these legal questions. The jurisprudence of the ICC is less than satisfactory, and it is likely to be revisited by the Court in the years to come. 8.2.2. Defining the Term “Victim” Principle 8 of the “Basic Principles on Victim Redress” as proposed by this writer defines “victims” of violations of international human rights and humanitarian law as follows: 2010); ICC-01/04-01/06-2552 (13 August 2010); ICC-01/04-01/06-2555 (17 August 2010); ICC-01/04-01/06-2556 (18 August 2010); ICC-01/04-01/06-2575 (29 September 2010); Situation in the Democratic Republic of the Congo, ICC-01/04 OA4 OA5 OA6. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui: ICC-01/04-01/07-3185 (21 October 2011); ICC-01/04-01/07-3064 (16 August 2011); ICC-01/04-01/07-2642 (10 January 2011); ICC-01/04-01/07-2517 (9 November 2010); ICC-01/04-01/07-2367 (6 September 2010); ICC-01/04-01/07-2288 (16 July 2010); ICC-01/04-01/07-2124 (24 May 2010); ICC-01/04-01/07-2108 (19 May 2010); ICC-01/04-01/07-2032 (19 April 2010); ICC-01/04-01/07-1967 (16 March 2010); ICC-01/04-01/07-1876 (16 February 2010); ICC-01/04-01/07-1788 (22 January 2010); ICC-01/04-01/07-1669 (23 November 2009); ICC-01/04-01/07-1567 (28 October 2009); ICC-01/04-01/07-1491-Red (23 September 2009). The Prosecutor v. Callixte Mbarushimana: ICC-01/04-01/10-483 (24 January 2011); ICC-01/04-01/10-476 (20 December 2011); ICC-01/04-01/10-441 (23 September 2011); ICC-01/04-01/10-382 (18 August 2011); ICC-01/04-01/10-351 (11 August 2011); ICC-01/04-01/10-265 (4 July 2011); ICC-01/04-01/10-229 (10 June 2011); ICC-01/04-01/10-181 (24 May 2011). The Prosecutor v. Jean-Pierre Bemba Gombo: ICC-01/05-01/08-2027 (21 December 2011); ICC-01/05-01/08-2011 (15 December 2011); ICC-01/05-01/08-1935 (21 November 2011); ICC-01/05-01/08-1862 (25 October 2011); ICC-01/05-01/08-1837 (11 October 2011); ICC-01/05-01/08-1711 (6 September 2011); ICC-01/05-01/08-1619 (23 September 2011); ICC-01/05-01/08-1597 (23 September 2011); ICC-01/05-01/08-1590 (8 July 2011); ICC-01/05-01/08-1091 (23 December 2010); ICC-01/05-01/08-1017 (18 November 2010); ICC-01/05-01/08-871 (6 September 2010); ICC-01/05-01/08-857 (18 August 2010); ICC-01/05-01/08-851 (11 August 2010); ICC-01/05-01/08-807 (19 July 2011); ICC-01/05-01/08-699 (22 February 2010); ICC-01/05-01/08-623 (27 November 2009); ICC-01/05-01/08-566 (20 October 2009); ICC-01/05-01/08-500 (3 September 2009); ICC-01/05-01/08-408 (22 April 2009); ICC-01/05-01/08-349 (8 January 2009); ICC-01/05-01/08-184 (23 October 2008); ICC-01/05-01/08-103 (12 September 2008). 307 The ICC Statute provides that its provisions are also interpreted on the basis of customary international law. See Article 21.



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A person is a “victim” where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss or impairment of that person’s fundamental rights. A “victim” may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.308

The above definition is based on that found in the Basic Principles of Justice for Victims of Crime and Abuse of Power309 and is likewise quite similar to that adopted by the Preparatory Commission on the Establishment of the International Criminal Court in its Rules of Procedure and Evidence.310 The definition contemplates four types of victims: (1) those individuals who directly suffer harm; (2) dependents or family of a direct victim who suffer indirectly because of the primary victimization; (3) individuals injured while intervening to prevent violations; and (4) collective victims such as organizations or entities. The first category of victims is those individuals who personally are the victims of violations such as torture and arbitrary arrest or property confiscation. The second category includes the members of their household or dependants who suffer because of the primary violation. For example, if the primary income earner is “disappeared” or unable to work because of injuries sustained, then certainly the family suffers loss as well. Individuals who are injured trying to intervene are also included. Injuries that such a person might suffer included those resulting from physically trying to pull a victim from harm’s way, loss of employment, or imprisonment for challenging authorities for persecuting a targeted group. The collective victim is perhaps best illustrated by organizations or entities that suffer harm to property that is dedicated to religious, educational, humanitarian, or charitable purposes. This includes those entities that are in fact the community’s custodians of cultural property, such as historical monuments. The significance of being categorized as a victim lies in the fact that states, intergovernmental and nongovernmental organizations, and private enterprises are called to treat victims with compassion and respect, as well as to ensure that appropriate measures are taken for their safety and privacy, as well as the safety and privacy the victim’s family.311 The Statute of the ICC requires ­special

308 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter Basic Principles on Victim Redress], at princ. 8. 309 Declaration of Basic Principles of Justice for Victims, supra note 282, at art. 1. 310 International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/ Add.1 (2000), at R. 85. 311 Basic Principles on Victim Redress, supra note 289, at princ. 10.

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­ rotection of victims at trial by allowing such measures as the presentation p of evidence by closed-camera or other means, particularly to protect children and victims of sexual violence from re-traumatization.312 Moreover, the Statute entrusts the Registrar of the Court to establish a Victim and Witnesses program to provide relevant protection and services.313 8.2.3. A State’s Obligation to Respect, Ensure Respect for, and Enforce International Human Rights and Humanitarian Law States bear the obligation to respect, ensure respect for, and to enforce norms of international human rights and humanitarian law that incorporate treaties to which they are parties, found in binding customary international law, and those that have been incorporated in their domestic legal system.314 This obligation gives rise to a state’s duty to: (1) take appropriate legal and administrative action to prevent violations; (2) investigate violations and where appropriate, take action against the violator in accordance with its domestic or international law; (3) provide the victim with equal and effective access to justice irrespective of who is the ultimate bearer of the responsibility for the violation; (4) afford appropriate remedies to victims; and (5) provide for or facilitate reparations to victims.315 The above stated duties and obligations simply require, at the very least, states to follow international norms to which they have consented and their own national legal systems. 8.2.4. The Rights of Victims There are two principal overarching rights of victims of violations of human rights and humanitarian law norms. The first is that they have access to a fair and impartial mechanism of justice to redress their claim. The second is that if the claim is adjudged valid, then an adequate award of reparation is to be made. A. The Right to Access Mechanisms of Justice Principle 12 of the “Basic Principles of Victim Redress” describes the right of access to mechanisms of justice as follows: A victim’s right of access to justice includes all available judicial, administrative, or other public processes under existing domestic laws as well as under international law. Obligations arising under international law to secure the individual or col312 ICC Statute, supra note 40, art. 68. 313 Id. at art. 43(6). 314 Basic Principles on Victim Redress, supra note 289, at princ. 10. 315 See International Protection of Victims, 7 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1988).



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lective right to access justice and fair and impartial proceedings should be made available under domestic laws. To that end, States should: (a) Make known, through public and private mechanisms, all available remedies for violations of international human rights and humanitarian law; (b) Take measures to minimize the inconvenience to victims, protect their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during, and after judicial, administrative, or other proceedings that affect the interests of victims; (c) Make available all appropriate diplomatic and legal means to ensure that victims can exercise their rights to a remedy and reparation for violations of international human rights or humanitarian law.316

At present, international law does not provide for the modalities pursuant to which a victim may present a claim. B. The Right to Reparation317 If an individual is determined to be a victim of a violation of an applicable human rights or international humanitarian law norm, then adequate, effective, and prompt reparation must be made.318 Such reparation should be proportional to the gravity of the harm suffered.319 In accordance with its domestic and international legal obligations, a state should provide reparation to victims for its acts or omissions in violations of international human rights and humanitarian law.320 In the event that a violation is not attributable to the State, the party responsible should make the appropriate reparation.321 However, in the event that the responsible party is either not able or willing to provide reparation, the State should endeavor to provide the reparation to victims, especially those who have sustained serious bodily injury or physical or mental impairment.322 To such ends, states should likely seek to establish national trust funds or contribute to an international fund for such purposes.323 Such an end is in keeping with the call of the Basic Principles of Justice for Victims of Crime and Abuses of Power to establish such a fund.324 Indeed, such a fund is contemplated by Article 78 of the ICC.325

316 Basic Principles on Victim Redress, supra note 289, at princ. 12. 317 For forms of reparation and redress of victims, see infra Chapter X. 318 Basic Principles on Victim Redress, supra note 289, at princ. 15. 319 Id. 320 Id. at princ. 16. 321 Id. at princ. 17. 322 Id. at princ. 18. 323 Id. 324 Declaration of Basic Principles of Justice for Victims, supra note 282, at art. 13. 325 ICC Statute, supra note 40, at art. 78.

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Providing victims reparation rights is perhaps an empty victory if there is no corresponding mechanism to provide a victim with a forum to press a claim or obtain an award. This is why one of the cornerstones of a victim’s right to reparation is that states have an obligation to have some form of mechanism in place to redress violations of their international and domestic legal obligations. The mechanisms for reparation are national, regional, and international. Perhaps the most traditional method for a victim to seek redress for a violation is through national courts. The civil law tradition permits victims to participate in the criminal proceeding as a partie civile and obtain an award of compensation that is subsequently enforced in the civil courts.326 The common law tradition provides for a separate legal proceeding that is independent from the criminal action.327 Thus, in common law legal systems, it is possible for a victim to obtain compensation even if there is an acquittal in the criminal proceeding.328 In addition, special administrative tribunals or commissions may be established to deal with widespread victimization in a uniform fashion. However, these national methods presume that a given national system is either willing to fulfill and enforce international and domestic legal obligations or has the capacity to do so. Indeed, in many cases, the violator regime is still in power or the domestic legal infrastructure has been so devastated by conflict that it is unable to cope with claims. In such cases, both regional and international mechanisms may be applicable. It is important to note, however, that the national legal systems of other states might too provide an alternate venue for victims to pursue a claim. For example, the Alien Tort Claims Act in the United States allows a non-national to pursue an action for a tort in violation of the law of nations.329 While the tort need not be committed in the United States, the requirements of personal jurisdiction over the offender still exists.330 Indeed, successful claims have been brought and won against dictators and war criminals.331 The Alien Tort Claims Act has also been used to pursue both Osama 326 See International Protection of Victims, supra note 283. 327 See Dan Dobbs, The Law of Torts (2001); Harper et al., The Law of Torts (3d ed. 1996). 328 See Rufo v. Simpson, 103 Cal. Rptr. 2d 492 (Cal. App. 2d Dist. 2001) (involving the ex-football player O.J. Simpson). 329 Alien Tort Claims Act, 28 U.S.C. § 1350 (2006). 330 Id. 331 See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated by Serbian military leader); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.1984) (alleging claims against Libya based on armed attack upon civilian bus in Israel); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (alleging torture by Paraguayan officials); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (alleging abuses by Guatema-



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Bin Laden and the government of Afghanistan.332 This option is somewhat limited in providing redress, as it is necessary for the offender to have assets in the U.S. or another state that would be willing to execute the judgment. The process, however, does fulfill the goals of documenting the violations and publicly denouncing the violator in an official proceeding. Several regional mechanisms also exist that provide victims with an alternative venue to pursue a claim. These include the African, American, and European human rights commissions and courts.333 These entities provide an important check to national systems. However, they are not venues of first instance as they all require the exhaustion of local remedies before a victim’s claims be pressed. In the Inter-American System, the victim presents claims first to the InterAmerican Commission on Human Rights.334 The Commission investigates the claims and attempts to facilitate a settlement with the offending state.335 If this is not accomplished and there is merit to the claim, then the Commission prosecutes the claim before the Court on behalf of the victim.336 Victims have limited standing to pursue international claims for violations of human rights and international humanitarian law norms. International claims must be presented by the state of nationality or a state with a “genuine link” with the victim, although the language of the Barcelona Traction case supports individual standing in cases of violations of erga omnes obligations.337 International treaty-bodies, such as the Torture and Racial Discrimination Committees established respectively by the Convention Against Torture and the Convention on the Elimination of all Forms of Racial Discrimination,338 provide for different standing thresholds. In 1993, in response to serious violations of international humanitarian law committed in the territory of former Yugoslavia since 1991, the U.N. Security Council passed a resolution creating the ICTY. S.C. Resolution (827) of 25 May 1993, which contained the Statute of the ICTY, stated in its preambular language that the “work of the International Criminal Tribunal will be carried out without prejudice to the right of victims to seek, through appropriate means, ­compensation for damages incurred as a result of violations of humanitarian lan military forces); Rein v. Socialist People’s Libyan Arab Jamahiriya, 568 F.3d 345 (2d Cir. 2009) (noting that the consolidated suits resulted in a $2.7 billion settlement between the government of Libya and 269 of the 270 plaintiffs). 332 See James Cooper Hill, The Law of Sovereign Immunity and Terrorism, 58–9 (2006) (discussing Odilla Mutaka Mwani v. Osama Bin Ladin, 2005 U.S. App. LEXIS 16185 (D.C. Cir. 2005)). 333  See supra note 260. 334 AMCHR, supra note 260, at art. 44. 335 Id. at art. 48. 336 Id. at arts. 50–51. 337 Belg. v. Spain, supra note 269. 338 Torture Convention, supra note 273.

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law.”339 In 1994, in response to the murder of approximately 800,000 Rwandans, the U.N. Security Council passed the resolution creating the ICTR.340 Although both the ICTY and ICTR continue to play an important role in the enforcement of international criminal and humanitarian law, they fail to adequately address the issue of victim reparations. This is partially because the statutes and the judge-made rules of procedure and evidence provide only limited guidance on the issue of reparations. In particular, the legal provisions of both tribunals limit reparations to the return of stolen property “to their rightful owners,” without providing redress for personal injuries of physical or mental nature.341 With regard to compensation, Rule 106 at both tribunals allows a victim, or persons claiming on behalf of the victim, to bring a legal action in the national court (or other competent body) for compensation, provided that relevant national legislation is available.342 Thus, the ultimate decision on whether to provide compensation to a victim is left to national justice systems, which, in case of the post-war Yugoslavia and Rwanda, were ill-prepared to handle such cases. The most promising potential for the development of victims’ rights lies in the ICC’s provisions concerning victim compensation.343 Rule 85 of the ICC Rules of Procedure and Evidence defines victims as: (a) “Natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court”; and (b) “Organizations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects from humanitarian purposes.”344 The ICC also has the power to order the payment of appropriate reparations to the victims by the convicted person.345 The Court, either by request or in exceptional circumstances on its own motion, may determine the scope and

339  See United Nations Security Council Resolution 827 on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, S.C. Res. 827, 48 U.N. SCOR, 48th Sess., U.N. Doc. S/RES/827 (May 25, 1993). 340 See ICTR Statute, supra note 37. 341 ICTY Statute, supra note 36, at art. 24; see Lasco, supra note 261, at 19. Rule 105 at both ad hoc tribunals further elaborates on the procedure for carrying out restitution in case the Trial Chamber can determine the rightful owner. Id.; see also ICTY Statute, supra note 36, at R. 105. 342 ICTY, supra note 36; ICTR Statute, supra note 37, at R. 106. 343 ICC Statute, supra note 40, at arts. 75, 79; Susana SáCouto & Katherine Cleary, Victim’s Participation in the Investigations of the International Criminal Court, 17 Transnat’l L. & Contemp. Probs. 73 (2008); Christine H. Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. J. Int’l Hum. Rts. 459 (2008); Mugambi Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, 26 St. Louis U. Pub. L. Rev. 249 (2007). 344 ICC Statute, supra note 40, at art. 85. 345 Id. at art. 75.



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extent of any damage, loss and injury to, or in respect of, victims.346 The Court may then make an order for reparation (compensation, restitution, and rehabilitation) directly against the convicted person.347 Before making an order, the Court may invite and take account of representations from or on behalf of the offender, victims, and other interested persons or states.348 By inviting comment from other interested persons the Court may take into account the needs of the victim and others who might be affected by the award, such as the offender’s family or a bona fide purchaser of property that is to be restored. In order to facilitate enforcement of awards, the ICC Statute mandates states parties to the convention to give effect to all decisions entered.349 The ICC Statute also envisions a Trust Fund for the benefit of victims and their families.350 Assets of the Trust Fund may come from money or property collected through fines or forfeiture.351 The Court may order reparations to victims out of this fund.352 The Court is powerless to order reparations from anyone other than the individual violator. Thus, even though the individual offender’s acts can be attributed to the state, an order for reparations cannot be imposed on the state. However, nothing in Article 75 is to be interpreted as prejudicing the rights of victims under national or international law; thus, these claims can be pursued in other forums.353 In addition to the potential for reparation, the Statute contains other victim-centered aspects. Specifically, the Statute envisions the creation of a Victims and Witnesses Unit.354 Moreover, victims are allowed to participate in several stages of the proceedings at the discretion of the court, including: a) the Pre-Trial Chamber’s decision to authorize an investigation;355 and b) the awarding of reparation.356 Pre-Trial Chambers I and II of the ICC have considered the extent of victim participation in the investigative stage of a situation.357 Pre-Trial Chamber I held 346 Id. at art. 75(1). 347 Id. at art. 75(2). 348 Id. at art. 75(3). 349 Id. at art. 75(5). 350 Id. at art. 79. 351 Id. at art. 79(2). 352 Id. 353 Id. at art. 75(6). 354 Id. at art. 43(6). 355 Id. at art. 57. 356 Id. at art. 75. 357 See Situation in the Democratic Republic of Congo, Case No. ICC-01/04, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 (Pre-Trial Chamber I, Jan. 17, 2006); Prosecutor v. Joseph Kony et al., Case No. ICC-02/ 04-01/05, Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, P 2 (Pre-Trial Chamber II, Aug. 10, 2007); Situation in Darfur, Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, ICC-02/05 (Pre-Trial Chamber I, Dec. 6, 2007).

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that “persons accorded the status of victims will be authorized . . . to be heard by the Chamber in order to present their views and concerns and to file documents pertaining to the current investigation of the situation.”358 Pre-Trial Chamber II listed three specific rights granted to victims: (1) “right to be formally informed of procedural developments which is typically granted to individuals or entities entitled to some role in the proceedings;” (2) “victims having communicated with the Court’ are mentioned in rule 92, sub-rules 2 and 3 as a separate and additional group of victims besides those who ‘have already participated in the proceedings;’ ” and lastly (3) “only rule 92, sub-rule 2 refers to communication by victims with the Court having occurred ‘in respect of the situation or case’, while the remaining provisions only refer to victims having communicated with the Court in respect of a case.”359 This distinction between the participation of a victim in a situation, as opposed to a case, may prevent more victim participation at the pre-trial stage. 8.4. Economic and Political Considerations The movement in many societies to provide compensation for victims of domestic crimes was at first well-received, in part because it originated in developed societies whose affluence did not cause concerns of an economic nature. In addition, however, what in the 1960s was called victimology was not only concerned with monetary compensation of victims of common crimes, but it also offered an incentive to governments by linking the compensation to victims’ cooperation in the pursuit of criminal prosecutions. Thus, governments such as Canada and several states within the United States provided victim compensation for common crimes and encouraged, thereby, victim participation in criminal prosecutions.360 The movement gained prominence until the 1980s, when experts of victimology and other fields sought to extend monetary compensation to other forms of redress, including medical, psychiatric, and psychological treatment, 358 Situation in the Democratic Republic of Congo, supra note 306, at para. 71. 359 Prosecutor v. Joseph Kony et al., supra note 357, at para. 94 (emphasis in original). For a more in-depth analysis as to the ramifications of these decisions, see SáCouto and Cleary, supra note 343, at 97. 360 For Canadian legislation see Legislation, Policy Center for Victim Issues, http://www .justice.gc.ca/eng/pi/pcvi-cpcv/legis.html (last visited Nov. 6, 2011). For a compilation of national legislation on victimology and victims’ rights, see International Victimology Institute Tilburg, http://www.victimology.nl/ (last visited Nov. 6, 2011). For U.S. resources, see Victims of Crime Act— Crime Victims Fund, Office for Victims of Crime, https://www.ncjrs.gov/ovc_archives/factsheets/ cvfvca.htm (last visited Nov. 6, 2011). For a listing of U.S. State programs aimed at compensating victims of crime, see Dan Eddy, National Roudtable on Victim Compensation, State Crime Victim Compensation Programs: Nature and Scope (2003), available at http://www.ncvc.org/ ncvc/AGP.Net/Components/documentViewer/Download.aspxnz?DocumentID=32593. For a listing of Victim’s Rights Statutes in the U.S., see Victims’ Rights in 50 States, KlassKids Foundation, http://www.klaaskids.org/vrights.htm (last visited Nov. 6, 2011).



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and to expand the basis of such compensation and redress modalities to violations committed by state agencies and state officials.361 By the 1980s and 1990s, the movement of victim compensation started to slow. States that were willing to recognize victims’ rights when the harm was produced by individuals acting in their private capacity were no longer readily willing to support such rights when the harm was a product of state policy and/or committed by state actors. This is due to the reluctance of states to assume responsibility, and also, to avoid the economic consequences that such responsibility would entail. The reluctance of states increased significantly when proponents of victims’ rights began to claim historic violations. While some major Jewish organizations had for years pursued claims for the World War II Jewish Holocaust,362 resistance to these claims were consistent, but not without expectations of positive outcomes.363 In the late 1990s, significant breakthroughs occurred when the World Zionist Organization was able to negotiate a substantial settlement with Swiss banks, followed by similar successful settlements with German and Austrian industries in 1999–2001.364 This coincided with the submission by this writer of the “Basic Principles on Victim Redress” to the Commission on Human Rights in 1999, and with the General Assembly’s decision to hold a world conference on racism in September 2001. In preparation for the latter, many governments and NGOs advanced the proposition that governments who carried out racist policies, including colonialism and slavery, should be required to pay reparations.365 This became the point at which major governments with a colonial, slavery and racist past joined in efforts to put the whole question of victims’ rights on hold. 361 See Peggy Tobolowski, Victim Participation in the Criminal Justice Process:  Fifteen Years After the President’s Task Force on Victims of Crime, New Eng. J. Crim. & Civil Confinement  21, 25 (1999); John R. Anderson & Paul L. Woodard, Victim and Witness Assistance: New State Laws and the System’s Response, 68 Judicature 221, 222–23 (1985). 362 See Statement by Under Secretary of Commerce Stuart Eizenstat before the House Banking and Financial Services Committee, Washington, DC, (Dec. 11, 1996) available at http://www .state.gov/www/regions/eur/961219eizen.html. For a listing related documents see Holocaust Issues, U.S. Department of State, available at http://www.state.gov/www/regions/eur/holocausthp.html (last visited Oct. 19, 2011). 363 See, e.g., U.S. Department of State, Press Statement by James P. Rubin/Spokesman, German Government Agreement on Holocaust Compensation (Jan. 13, 1998) available at http://secretary.state .gov/www/briefings/statements/1998/ps980113b.html. 364 Id.; see also U.S. Department of State, Press Statement by Nicholas Burns/Spokesman, Swiss Banks to Create Fund (Feb. 5, 1997), available at http://secretary.state.gov/www/briefings/ statements/970205b.html. For more recent developments see U.S. Department of State, Press Statement, Philip T. Reeker, Holocaust Insurance Agreement Reached (Sept. 19, 2002), available at http:// germany.usembassy.gov/germany/img/assets/8497/wf091902.pdf. 365 See Owen Bowcott, Africans Call for Slavery Reparations, Guardian, June 29, 2001, available at http://www.guardian.co.uk/world/2001/jun/29/race.unitednations; see also African Regional Preparatory Conference For the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Reports of Preparatory Meetings and Activities at the International, Regional And National Levels (2001), available at http://www .unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.189.PC.2.8.En?Opendocument.

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One speculation is that after the September 2001 United Nations conference on racism, major governments may find a way to mitigate any retrospective effects of victims’ rights to reparations, and may be more open to consider such rights in the future. Even so, the economic factor remains. Who bears the costs? The question of costs has essentially two sides. One side is when the government which has perpetrated the harm is still in power and has the financial means at its disposal to compensate the victims. The other side is when the offending government is no longer in power, and the one in power represents those who have been previously victimized. But if the new regime does not have financial means at its disposal to compensate the victims of the prior regime’s violations, then how are the victims to be compensated, and who will ultimately bear the economic costs? The regime change in Rwanda illustrates the difficulty of this question. Can a Tutsi government with no resources be expected to provide compensation to Tutsi citizens for violations committed by a Hutu regime? Some, mostly humanists, feel that there is a duty of human social solidarity that would require the establishment of an international trust fund. Regrettably, this is far from being achievable, either politically or economically. Efforts to provide victims with certain rights will, however, continue to be incremental, though not always linear, in that they may be limited to certain conflicts or to certain categories of victims under certain particular circumstances. The incremental development of such a right will probably be more marked with respect to victimization committed by non-state actors, while those committed by state actors are likely to develop at a much slower pace. In 1984, the United Nations Draft Principles on Justice for Victims of Crime and Abuse of Justice366 was quite extensive with respect to obligations of states for victimization occurring as the result of a state’s “abuse of power.” But when the text was adopted at the Seventh United Nations Congress on Crime Prevention and Criminal Justice held in Milan, Italy in 1984, the draft was significantly shortened. In fact, it was reduced to two innocuous paragraphs.367 In 1993, this writer was came in a position to propose the inclusion of a victim compensation provision in the Security Council Resolution 827 (1993), establishing the ICTY.368 But, as stated above, the Security Council’s only reference to victims came in the resolution’s preambular language; the statute’s text lacked any mention of victim compensation.369 The ICTR’s resolution, by contast, does not even mention 366 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, supra note 282. 367 See also M. Cherif Bassiouni, International Recognition of Victim’s Rights, in 3 Bassiouni, ICL, supra note 38, at 633. 368 ICTY Statute, supra note 36; see Bassiouni, Yugoslavia Tribunal; Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former-Yugoslavia: A Documentary History and Analysis (1995). 369 ICTY Statute, supra note 36, at pmbl.



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victim compensation.370 Finally, as discussed above, the ICC statute contains provisions on victim compensation. But, it is uncertain how these provisions will be made operative, and how such a right will be funded. Nevertheless, it can be said with some degree of optimism that between 1984–1998 progress did take place, but much more is needed to make such progress a reality for victims. Probably the most important recognition of the victim as a subject of international criminal law is contained in the ICC Statute. This instrument recognizes several significant principles concerning victims: (1) victim participation in the proceedings; (2) protection of victims and witnesses during Court proceedings; (3) the right to reparations; and (4) trust fund out of which reparations to victims may be made. The international community’s increasing concern for victims of human rights and international humanitarian law violations is clearly evident in the evolution of international law over the course of the last fifty years. While the international legal system is far from being victim-oriented, some progress has been made to ensure that victims are not denied the basic right of redress for their injuries. Certainly, in honoring victims’ rights to benefit from remedies and reparation, the international community expresses human solidarity with victims and reaffirms the international legal principles of accountability, justice, and the rule of law. Section 9. Conclusion The international criminal responsibility of individuals for international crimes is now well-established, and ICL permeates national criminal law with respect to the duty to prosecute or extradite, aut dedere aut judicare,371 and with the consequences deriving from jus cogens international crimes.372 The international criminal responsibility of organizations and non-state actors is once again being reconsidered since the recognition of criminal responsibility of the SS and SD at the Nuremberg trials.373 It is conceivable that with the development of contemporary national concepts of criminal responsibility of organizations that these concepts will influence ICL.374 370 See ICTR Statute, supra note 37; Virginia Morris & Michael P. Scharf, I, II The International Criminal Tribunal for Rwanda (1998). 371 See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995); infra Chapter V, section 2. 372 See infra Chapter III, section 3. 373 See supra section 4. 374 For example, there is a trend in anti-organized crime legislation to criminalize such organizations, as is the case, for example, with the Italian criminal code, Article 416 bis, which refers to membership in an organization having a mafia-type characteristic. The French criminal code

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The criminal responsibility of organizations (whether they are referred to as legal personalities, non-state actors, groups, or others) is not well-established, however, except in the legislation of a few countries.375 The reason for that is the legal uncertainty legal systems face with respect to the consequences of individual membership in such organizations. Nevertheless, it is a useful tool to reach the assets and instrumentalities that such organizations may use in the commission of their crimes. In short, the question is not whether it is appropriate for ICL to include responsibility for such organizations within its ratione personae, but how to deal with what is essentially a sui generis concept of criminal responsibility in the domestic legal systems in which they originate.376 The recognition of criminal responsibility of non-state actors has, for the first time, been recognized in ICL in Article 7 of the ICC Statute. It posits that nonstate actors are equivalent to states when it comes to the formulation and carrying out of policies targeting civilian groups in a widespread or systematic manner which produces the enumerated specific acts contained in that article.377 The notion of criminal responsibility for States was supported in the aftermath of World War I, but not since.378 However, in the last two decades, the idea of state criminal responsibility has re-emerged under a new political guise,

has a similar article dealing with association de malfaiteures. For an early description, see Gerhard O.W. Mueller, Mens Rea and the Corporation: A Study of the Model Penal Code Position on Corporate Criminal Liability, 19 U. Pitt. L. Rev. 21 (1957). For a more recent study, see International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé (Hans De Doelder & Kluas Tiedman eds., 1996) See Schloenhardt, Transnational Organized Crime, supra note 54. See e.g., The Criminal Justice Systems Facing the Challenge of Organized Crime: Preparatory for the XVIth International Congress of Penal Law, 67 Revue Internationale de Droit Pénal 417 (1996); The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic I, General Part, 68 Revue Internationale de Droit Pénal 479 (1997); The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic III, Procedural Part, 69 Revue Internationale de Droit Pénal (1998); The Criminal Justice Systems Facing the Challenge of Organized Crime: XVIth International Congress of Penal Law, Resolutions, 70 Revue Internationale de Droit Pénal 749 (1999); The United Nations Convention Against Transnational Organized Crime, 71 Revue Internationale de Droit Pénal 253 (2000). 375 Supra section 5. 376 It is sui generis because organizations cannot commit acts, something that is reserved to individuals. However, since organizations can have assets, it is important to have a finding that the organization is either criminal or engages in criminal activity in order to seize them. But in that case, the seizure of the assets is a legal consequence of a judicial finding of organization’s criminal nature or criminal activity. 377 See ICC Statute, supra note 40, at art. 8; see generally Bassiouni, Statute of the ICC, supra note 40; Bassiouni, Crimes Against Humanity, supra note 47; Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d ed. 2002); Wiebke Rückert & Georg Witschel, Genocide and Crimes Against Humanity in the Elements of Crimes, in International and National Prosecution of Crimes Under International Law: Current Developments (Horst Fischer, Claus Kress, & Sascha Rolf Lüder eds., 2002). 378 See Principles on State Responsibility, Rep. of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, ch. 4, U.N. Doc. GAOR A/56/10 (2001) (removing draft Article 19 containing norms on state criminal responsibility); see also supra section 6.



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namely Security Council sanctions.379 The imposition of sanctions or reparations on states is by its nature indiscriminate, and has a negative impact upon individuals who are not connected to any criminal conduct. This is essentially why the concept has not made much progress, though it has on occasion been resorted to under the guise of other names, such as those of United Nations sanctions and embargoes. The practice of human rights treaty bodies and human rights organizations to naming and shaming states for abuses of human rights is, in a sense, a form of moral sanction for a legal transgression, but it does constitute criminal responsibility. As to state responsibility, it remains essentially of a civil nature, even though it may include punitive damages.380 An important area of ICL that is likely to expand under the jurisprudence of the ICC is that of non-state actors’ responsibility for “crimes against humanity” under Article 7 of the ICC Statute, particularly with terrorist events such as those of September 11, 2001.

379 These sanctions have been imposed on Libya and Iraq since 1991. See U.N. Doc. SCOR S/Res/748 (March 31, 1992) (sanctions against the Libyan Arab Jamahiriya); U.N. Doc. SCOR S/ Res/666 (Sept. 13, 1990) (sanctions against Iraq); Bassiouni, Terrorism Documents, supra note 177, at 22–24. 380 See supra section 6.

Chapter three

International Crimes: Ratione Materiae Section 1. Introduction Most international crimes first developed in customary international law, and were thereafter embodied in conventional international law. What we now generically call “war crimes” were first in gaining cross-national recognition,1 but it was piracy that was recognized in the 1600s by a number of maritime states as the first international crime.2 The perpetrators of piracy and other early crimes like the slave-trade and slavery in the 1800s3 were referred to as hostes humani generis, the enemies of humanity, a concept that derived from Cicero’s writings, reflecting a philosophical perspective of Roman Law.4 Publicists from the seventeenth to the nineteenth centuries used that term to refer to perpetrators of international crimes. The concept of hostes humani generis was a consequence of the Roman law’s jus naturale and jus gentium. The former was the understanding of natural law that was imported in Roman law from Greek law, as it originated with Plato and Aristotle. The latter, however, was the Roman law’s norms applicable to the nations and peoples who were part of the Roman Empire or who were within the sphere of Roman influence. The jus naturale and the jus gentium, as well as the concept of hostes humani generis, presupposed the existence of a universal human community and uni­

1 For the historical evolution of the norms applicable to conduct in war, see also M. Cherif Bassiouni, Evolution of International Humanitarian Law and Arms Control Agreements, in A Manual on International Humanitarian Law and Arms Control Agreements (M. Cherif Bassiouni ed., 2000) [hereinafter Bassiouni, International Humanitarian Law]. 2 See Jacob W.F. Sundberg, The Crime of Piracy, in 1 International Criminal Law: Sources, Subjects, and Contents (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]; Alfred P. Rubin, The Law of Piracy (1998); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001). 3 See Bassiouni, Universal Jurisdiction, supra note 2, at 112; M. Cherif Bassiouni, Enslavement as an International Crime, 23 N.Y.U. J. Int’l L. & Pol. 445–517 (1991); M. Cherif Bassiouni, Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation, in 1 Bassiouni, ICL, supra note 2, at 535 [hereinafter Bassiouni, Enslavement, in 1 Bassiouni, ICL]. 4 This term is a sixteenth century adaptation of what Marco Tullio Cicerone, in his De Officiis referred to as commune hostis hommien, idem 3, 98, 107. See also Cicero, De Officiis (L.H.G. Greenwood trans., 1953). Cicerone, De Officiis, III, used the terms “nam pirata non est ex perduellium numero definitus, sed communis hostis omnium . . .” (emphasis added). See Dario Arfelli, Cicerone, De Doveri 290 (1991). I am indebted to Professor Giuliano Vassalli for this citation.

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versal values. Obviously, it is different from the contemporary notion of an international community as we have now come to know it, but it evidences the existence of a communal notion that applied to nations and peoples, and it stood for the proposition that those who transgressed certain fundamental universal values would be both enemies of that community as well as transgressors of the law of nations and peoples, namely, jus gentium.5 Thus, those who transgressed certain norms of the jus gentium by engaging in acts of brigandage on land or on sea, later called pirates, were at first called briganti,6 and that, as mentioned above, was referred to as commune hostis hommien, which in the sixteenth century, was changed into hostes humani generis in order to emphasize the moral opprobrium attached to such crimes.7 Both jus gentium and hostes humani generis are founded on the unarticulated premise that there exists a certain community of nations and peoples whose values and interests needed to be protected. The jus gentium regulated conduct, and those who violated certain of its norms became hostes, the enemies, who were to be tried and punished, though under national law and by national institutions. In time, Hugo Grotius, in 1624, concluded with respect to piracy that those who committed such crimes should be tried or punished, aut dedere aut punire.8 The regulation of how nations should behave emerged gradually out of the Westphalian legal order, which evolved after the Treaty of Westphalia in 1648.

5 The term jus gentium translates better in French as le droit des gens, and in English, more broadly, as the “law of nations.” The French is a more literal translation, and the English, a more conceptual one. Together, they reflect the Roman Law’s socio-political reality during the period of the Roman Empire. See e.g. Emmerick de Vattel, Le Droit des Gens, (The Law of Nations), bk. II, in Classics of International Law (Charles G. Fenwick, trad. 1916). During that period, Rome controlled a vast portion of lands and a large number of peoples. Their legal status varied significantly. Some nations retained their sovereignty but were subject to certain treaty limitations with Rome, and others were outright Roman provinces. This is why Roman Law developed the concept of jus gentium, which applied as the inter-national and inter-peoples law as established and enforced by Rome. See Edward Gibbon, The Decline and Fall of the Roman Empire (6 vols., 1960). For the history of international law, see generally, Arthur Nussbaum, A Concise History of the Law of Nations (2d ed. 1954). 6 See Bassiouni, Universal Jurisdiction, supra note 2, at 108; see also Cicero, supra note 4. 7 In modern times, the analogy is to “terrorism” where the term is applied to a number of common crimes like murder and kidnapping to enhance its moral opprobrium. See M. Cherif Bassiouni, Perspectives on International Terrorism, in International Terrorism: Multilateral Conventions 1 (M. Cherif Bassiouni ed., 2001) [hereinafter Bassiouni, Terrorism Conventions]; see also, e.g., M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); Jose E. Alvarez, International Organizations: Then and Now, 100 Am. J. Int’l L. 324, 326 (2006). 8 See Hugo Grotius, De Jure Belli ac Pacis Libri Tres: Classics of International Law (Francis W. Kelsey trans., 1925). As indicated in chapter IV, infra, where this concept is discussed, this writer in 1973 changed the maxim to aut dedere aut judicare. See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (1995) [hereinafter Bassiouni & Wise, Aut Dedere Aut Judicare].



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The Westphalian legal order was Western and Christian and its premises were certain commonly shared values, which were reconciled with the recognition of the nation-states’ interests. The assumption was that the sovereign nation-states ruled by enlightened Christian monarchs would uphold these values, and in some ways, reduce their potential conflicts by limiting their state interests, and voluntarily conforming to the interests of a broader community. This Kantian view, its idealism notwithstanding, allowed states wide latitude in determining their interests and what limitations they would abide by.9 In time, the concept of an international community developed whose norms derived from commonly-shared values and commonly-shared interests, intended to supercede the narrow interests of the participants in this inter-national community process.10 This concept’s development led to the incremental recognition of certain commonly-shared values and interests whose protection and enforcement went through declarative and prescriptive stages, followed by a proscriptive phase which criminalized the violation of certain norms.11 However, the historical evolution from declarative to prescriptive and then to proscriptive was both ad hoc and haphazard-ad hoc because it focused on certain crimes or categories of crimes which developed in a compartmentalized way, haphazard because there was no overall concept or international legislative policy. In fact, international crimes have developed to date, without even an agreed-upon definition of what constitutes an international crime, the criteria for international criminalization, and how international crimes are distinguished. Section 2. Codification of ICL Except for this writer’s 1987 work, there is no comprehensive codification of international crimes.12 The ILC was tasked in 1947 with the responsibility of developing a Code of Offences Against the Peace and Security of Mankind,13 and

  9 Immanuel Kant, The Metaphysical Elements of Justice (John Lord trans., 1965). 10 For a discussion of the concept of an international community, see supra Chapter 1, section 3.4. 11 For this evolutionary theory of ICL developed by this writer, see M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982). 12 See M. Cherif Bassiouni, The History of the Draft Code of Crimes Against the Peace and Security of Mankind, 27 Is. L. Rev. 1–21 (1993), reprinted in Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales 1 (1993); see also International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997) [hereinafter Bassiouni, ICL Conventions]. 13 G.A Res. 174, U.N. GAOR, 2nd Sess., U.N. Doc. A/519 (1947).

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its draft was completed in 1954.14 However, the General Assembly tabled it until 1978, ostensibly for the reason that “aggression,” which the General Assembly had in 1952 referred to another committee,15 had not yet been defined. When it was ultimately defined in a General Assembly consensus resolution in 1974,16 the question of the Draft Code of Offences Against the Peace and Security of Mankind was revived. These technical reasons for tabling the project were only a cover for the real reason-the “cold war.” During that period, neither the Eastern nor the Western bloc wanted much to do with the codification of ICL or its enforcement. It was not until 1992, when the Security Council established the Commission of Experts to investigate violations of International Humanitarian Law in the Former Yugoslavia,17 that international criminal justice was once again being addressed. For the same reason, the establishment of an ICC, as discussed in Chapter 5, was also put on hold during that period of time.18 The ILC, based on its 1978 mandate of preparing a Code of Crimes Against the Peace and Security of Mankind, produced a first draft in 1991.19 The twenty-six categories of crimes far exceeded the mandate of the General Assembly, which was limited to those crimes affecting the “peace and security of mankind.” However, governments and experts saw the textual language of the Draft Code as overreaching and ambiguous20 to the point of violating the principles of legality

14 See U.N. G.A. Res. 898 (IX) (Dec. 14, 1954) (tabling the Draft Code of Offences until aggression was defined); U.N. G.A. Res. 1187 (XII) (11 Dec. 1957) (tabling the Draft Code of Offences for a second time). 15 See U.N. G.A. Res. 688 (VII)( Dec. 20, 1952) (establishing the committee to define aggression). 16 See U.N. G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, at 143, U.N. Doc. A/9631 (1974); see also Benjamin B. Ferencz, Defining International Aggression: the Search for World Peace (1975); M. Cherif Bassiouni & Benjamin B Ferencz, The Crime Against Peace and Aggression: From its Origins to the ICC, in 1 Bassiouni, ICL, supra note 2, at 207; Roger S. Clark, The Crime of Aggression and the International Criminal Court, in 1 Bassiouni, ICL, supra note 2, at 243. 17 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, S.C. Res. 780, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/780 (1992); see also M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, in Post-Conflict Justice 429 (M. Cherif Bassiouni ed., 2002). 18 For a history of these efforts, see 2 M. Cherif Bassiouni, The Legislative History of the International Criminal Court: An Article-by-Article Evolution of the Statute from 1994–1998 (2005); Benjamin Ferencz, An International Criminal Court (1980). 19 Report of the International Law Commission, U.N. GAOR, 46th Sess. Supp. No. 10, U.N. Doc. A/46/10 (1991) [hereinafter 1991 Draft Code of Crimes]. The project was renamed from “Code of Offences” to “Code of Crimes.” 20 See Commentaries of the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1993).



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as discussed below.21 As a result, the ILC produced a new text in 199622 which reduced the earlier twenty-six crimes to only five, using the definitions contained in the statutes of the ICTY and ICTR for three of them, namely, genocide, crimes against humanity, and war crimes. Contemporaneously with that effort, which, regrettably after almost half a century of work produced such meager results, the ILC had also worked on the Draft Principles on State Responsibility, which it completed in 2001.23 But as of 1978, one of the draft articles on State Responsibility, namely Article 19, referred to “international crimes” and “delicts,” albeit without defining them.24 The 2001 adopted Principles of State Responsibility did not, however, retain this draft Article 19.25 The ILC’s work for all these years did not include the formulation of a definition of what constitutes an international crime or an international delict, the terms that it employed in the defunct Draft Article 19. Furthermore, the ILC, which is the UN body for the codification of international law, has not produced criteria for a policy of international criminalization. As discussed below, the international legislative process, which brought about the criminalization of certain categories of individual conduct, has evolved in a haphazard manner. It started in 1815 with the Congress of Vienna which set the foundation for the international protection of cultural property and the abolition of the slave-trade, followed by the incremental elaboration of conventions establishing or recognizing the existence of certain international crimes and refining or expanding earlier conventions. Though there has never been a legislative policy to guide this process, it has nevertheless been an incremental one whose hallmark in certain areas is accretion. Thus, for example, there are sixteen conventions whose penal provisions apply to the category terrorism-related crimes, twenty-three conventions applicable to the category of drug-related crimes, and seventy-one conventions on the regulation of armed conflict (some of them embody customary international law while others do not and are therefore binding only upon their signatory States). But no legislative policy guided this process. Conversely, other areas seem to have remained stagnant. Thus, there is only

21 See infra section 9. 22 Report of the International Law Commission, Draft Code of Crimes Against the Peace and Security of Crimes of Mankind, May 6–July 26, 1996, GAOR Supp. No. 10, U.N. Doc. A/51/10 (1996) [hereinafter 1996 Draft Code of Crimes]. 23 See Report of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, ch. 4, U.N. Doc. A/56/10 and Corr. 1 (2001). 24 See Report of the International Law Commission, 31st Sess, May 14–Aug. 3, 1979, U.N. Doc. A/34/10 (1979); United Nations Codification of State Responsibility (Maria Spinedi & Bruno Simma eds., 1987). 25 See supra note 23.

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one convention on genocide (notwithstanding the need for amending it),26 and no universal convention on the category of “crimes against humanity.”27 Section 3. Criteria for International Criminalization The writings of scholars are uncertain, if not tenuous, as to what they deem to be the criteria justifying the establishment of crimes under international law.28 Moreover, there is a great deal of confusion in the writings of scholars as to what constitutes an international crime, and how these crimes should be referred to. Thus, the literature contains various undefined terms, such as: crimes under international law, international crimes, international crimes largo sensu, international crimes stricto sensu, transnational crimes, international delicts, jus cogens crimes, jus cogens international crimes, and even a further subdivision of international crimes referred to as “core crimes,” meaning genocide, crimes against humanity, and war crimes.29 Among the reasons for this diversity of labels is the lack of agreement by scholars as to the criteria for international criminalization and the distinctions between categories of international crimes, depending upon the nature of the social interest which is sought to be protected and the harmful consequences sought to be prevented by criminalizing such conduct. For this writer there are five criteria applicable to the policy of international criminalization. They are: (a) the prohibited conduct affects a significant international interest, in particular, if it constitutes a threat to international peace and security; (b) the prohibited conduct constitutes egregious conduct deemed offensive to the commonly shared values of the world community, including what has historically been referred to as conduct shocking to the conscience of humanity; (c) the prohibited conduct has transnational implications in that it involves or effects more than one state in its planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or

26 Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277, reprinted in 45 Am. J. Int’l L. 7 (1951) (Supp.). The Convention in Article 2 defines the protected groups as “national, ethnical, racial or religious”. It thus excludes social and political groups. See William A. Schabas, Genocide in International Law: The Crimes of Crimes (2000); Matthew Lippman, Genocide, in 1 Bassiouni, ICL, supra note 2 at 403. 27 See M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 3–8 (2011) [hereinafter Bassiouni, Crimes Against Humanity]; M. Cherif Bassiouni, Crimes Against Humanity: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457 (1994). 28 See infra Chapter 1, note 1. 29 See, e.g., 60 Revue International De Droit Pénal (1984). With respect to these core crimes, see M. Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, in 1 Bassiouni, ICL, supra note 2, at 493 ; M. Cherif Bassiouni, Introduction to International Humanitarian Law, in 1 Bassiouni, ICL, supra note 2, at 269.



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because the means employed transcend national boundaries; (d) the conduct is harmful to an internationally protected person or interest; and (e) the conduct violates an internationally protected interest but it does not rise to the level required by (a) or (b), however, because of its nature, it can best be prevented and suppressed by international criminalization. But first it is necessary to determine what constitutes an international crime in conventional international law. This can be done on the basis of an empirical study, as was undertaken by this writer.30 Its discussion follows below. Section 4. The Penal Characteristics of ICL Conventions There are ten penal characteristics which, if found even singularly in any convention, are sufficient to characterize the conduct prohibited by the convention as constituting an international crime. These ten penal characteristics are: (1) Explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime; (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like; (3) Criminalization of the proscribed conduct; (4) Duty or right to prosecute; (5) Duty or right to punish the proscribed conduct; (6) Duty or right to extradite; (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance); (8) Establishment of a criminal jurisdictional basis; (9) Reference to the establishment of an international criminal court or international tribunal with penal characteristics; (10) No defense of superior orders. On the basis of these penal characteristics, 281 conventions can be identified that contain one or more of the ten penal characteristics mentioned.31 This num30 See M. Cherif Bassiouni, International Criminal Law: Documents Supplement (2000) [hereinafter Bassiouni, ICL Documents]; Bassiouni, ICL Conventions, supra note 12. 31 Previously this writer identified the number of these conventions at 281. Id. The downward revision is based on the fact that a number of related instruments, as described in the text above, had been included, even though these instruments did not specifically contain any of the ten identified penal characteristics. It is a matter of judgment as to whether they can be included through the theory of incorporation by reference or not. It should be noted, however, that some of the conventions included here also do not contain any of these penal characteristics, but other sources of international law applicable to that crime contain such characteristics. This is the case

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ber includes the IMT Charter, the IMTFE Charter, Control Council Law No. 10, the ICTY Statute, the ICTR Statute, and the Rome Statute of the ICC. It could be argued that these statutes are declarative of the existence of international crimes and do not establish or create such crimes. However, in view of the fact that there is some question as to whether some of the provisions of these statutes are exclusively declarative or in part creative of ICL, they have been included herein. There are also numerous related instruments, listed separately in the attached appendix. While these instruments are related to any one of the 27 crimes, they are not in and of themselves creative of the crimes to which they relate. Once identified, these 281 conventions can then be used to classify 27 international crimes.32 Those crimes are: (1) Aggression; (2) Genocide; (3) Crimes against humanity; (4) War crimes; (5) Unlawful possession, use, emplacement, stockpiling and trade of weapons, including nuclear weapons; (6) Nuclear terrorism; (7) Apartheid; (8) Slavery, slave-related practices, and trafficking in human beings; (9) Torture and other forms of cruel, inhuman or degrading treatment; (10) Unlawful human experimentation; (11) Enforced disappearances and extra-judicial executions; (12) Mercenarism; (13) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (14) Aircraft hijacking and unlawful acts against international air safety; (15) Threat and use of force against internationally protected persons and United Nations personnel; (16) Taking of civilian hostages; (17) Use of Explosives; (18) Unlawful use of the mail; (19) Financing of terrorism; (20) Unlawful traffic in drugs and related drug offenses; with respect to aggression, whose 1974 definition adopted by the General Assembly (see G.A. Res. 3314 (XXIX), U.N. GAOR, Supp. No. 31, at 143, U.N. Doc. A/9631 (1974)) does not contain any penal characteristics. But aggression, the successor term to “crimes against peace,” was one of the crimes in the IMT Charter and the IMTFE Statute. 32 It should be noted that many of these categories should be grouped together because of their commonality of protected social interest. This listing reflects the ad hoc and haphazard process of international criminalization which categorizes ICL. The listing is based on the affinity existing between these crimes.



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(21) Organized crime and related specific crimes; (22) Destruction and/or theft of national treasures; (23) Unlawful acts against certain internationally protected elements of the environment; (24) International traffic in obscene materials; (25) Falsification and counterfeiting; (26) Unlawful interference with international submarine cables; and, (27) Corruption and bribery of foreign public officials. As discussed below in this chapter, the evolution of each one of these crimes has been essentially ad hoc with sometimes little or no continuity in legislative policy within a given category and with no connections between the different crimes. The international legislative process has been essentially a hodge-podge accumulation of conventions falling within different crimes, many of which should have been integrated because of their same subject-matter or same protected social interest. This is one of the reasons why there is an unexplainable wide-range of inclusion and exclusion of the ten penal characteristics in the 281 conventions applicable to the 27 crimes. An analysis of the 281 conventions reveals that, cumulatively, they contain only 931 penal characteristics out of a possible maximum of 2,810. Cumulatively, however, because some of these conventions apply to more than one category of crimes, the actual number of penal characteristics is 931. They are by penal characteristic as follows: (1) Explicit or implicit recognition of the proscribed conduct as constituting an international crime, or a crime under international law, or a crime: 71 (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like: 190 (3) Criminalization of the proscribed conduct: 96 (4) Duty or right to prosecute: 113 (5) Duty or right to punish the proscribed conduct: 129 (6) Duty or right to extradite: 74 (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance in penal proceedings): 98 (8) Establishment of a criminal jurisdictional basis (or theory of criminal jurisdiction or priority in criminal jurisdiction): 101 (9) Reference to the establishment of an international criminal court or an international tribunal with penal characteristics (or prerogatives): 32 (10) Elimination of the defense of superior orders: 27 Ideally, all or most of the ten penal characteristics should appear in every international criminal law convention, but that is clearly not the case. Also, it seems from the incidence of recurrence of these penal characteristics that those crimes

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which contain a significant ideological or political component have the least number of the ten penal characteristics, while those that are devoid of such elements have the largest number of penal characteristics. This is evident, for example, in the former’s case with aggression and in the latter’s case with antidrug conventions. Section 5. The Hierarchy of International Crimes Neither conventions nor the writings of scholars establish a hierarchy among international crimes, except with respect to jus cogens crimes, which have a higher status than those whose prohibitions are not considered peremptory norms of international law.33 Arguably, one can assume that all other international crimes are of equal standing, irrespective of the international interest they seek to protect and/or the international harm they seek to avert. But surely it will be recognized that some of these crimes cause more significant harm to the international community than others. Thus, genocide cannot be deemed equal to international traffic in obscene materials. Because of this, it is, if not necessary then at least useful to establish a ranking of these crimes. As stated above, the five policy elements of internationalization of crimes are the following: (a) the prohibited conduct affects a significant international interest, in particular if it constitutes a threat to international peace and security; (b) the prohibited conduct constitutes an egregious conduct deemed offensive to the commonly shared values of the world community, including what has historically been referred to as conduct shocking to the conscience of humanity; (c) the prohibited conduct has transnational implications in that it involves or effects more than one state in its planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or because the means employed transcend national boundaries; (d) the conduct is harmful to an internationally protected person or interest; and (e) the conduct violates an internationally protected interest but it does not rise to the level required by (a) or (b), however, because of its nature, it can best be prevented and suppressed by international criminalization. Each one of the crimes and their respective instruments reflects the existence of one or more of these elements. International crimes can be distinguished on other bases, one of these is whether the given offense is: (a) the product of a state action or policy; or (b) the product of individual conduct. Indeed, some international criminal offenses are purely the product of individual conduct committed without implicating a state policy or action. In that respect, a distinction arises between purely individual 33 See infra section 8.



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conduct and individual conduct which is carried out in execution or favoring of a state policy. Moreover, individual acts for or on behalf of a state is attributable to the state under the theory of agency, which is well recognized in international law.34 It is, however, argued that the more serious or significant international crimes, referred to as “core crimes” are genocide, crimes against humanity, and war crimes. Interestingly, the proponents of this view seem to have given up on the inclusion of aggression among the most serious international crimes, probably because of certain major powers opposition to it.35 The distinction between state policy, state action, and purely individually motivated action implicitly embodies the seriousness of the threat and that of the ensuing harm. Thus, genocide and crimes against humanity—which require a state policy or action—are far more dangerous and harmful than individual and group activity, including drug trafficking. Based on the five factors mentioned above, some of the 27 crimes are truly international, others are transnational, others are partly international or transnational, and lastly, some crimes were categorized as international crimes because it was deemed the best way of enhancing their prevention and suppression.36 Such a categorization or classification reflects social values and policy choices. In establishing a hierarchy of international crimes it is helpful to develop different labels for different offenses, as is done in most domestic penal codes. Admittedly, labels are not necessarily descriptive, but their legal consequences, particularly as to penalties, differ.37 The national criminal laws of all legal systems have long found it useful to establish a hierarchy of crimes on the basis of the following factors: (a) the social interest sought to be protected; (b) the harm sought to be averted; (c) the intrinsic seriousness of the violation; (d) the dangerousness of the transgressor manifested by the commission of a given transgression; (e) the degree of general deterrence sought to be manifested; (f ) the policy of criminalization; and (g) the policy choices reflected in the opportunity of criminal prosecution. 34 See, e.g., Ian Brownlie, State Responsibility: System of the Law of Nations 132–58 (1983). 35 See Bassiouni & Ferencz, supra note 16. 36 For example, “torture” does not have an international or a transnational element. 37 The Common Law distinguishes between felonies, misdemeanors, and other violations of municipal ordinances. The civil law systems distinguish between crimes, infractions, and contraventions. Violations falling into one of these categories reflect legal policy and social value judgment concerning the protected interest. However, it is therefore essentially an outcome-oriented distinction because of the consequences that derive from it. These consequences are essentially about penalties.

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As with other legislative policy-oriented choices, a hierarchy of norms is based on objective criteria and/or on subjective value-judgments. Ultimately, they reflect policy. Thus, it is possible to distinguish the 27 international crimes on the basis of the factors identified above, and to place these crimes in categories which reflect their hierarchy. The consequence of placing a given ICL violation in any category should be reflected in the crimes listed in each of these three categories. But this means that penalties should be ascribed to these crimes, whereas no international convention provides for penalties. This is therefore a subject that the codification of ICL will have address in the future. Some international crimes are part of jus cogens. They are typically characterized by the fact that their commission cannot occur without state action or a state-favoring policy. But that is not always the case as is evidenced with piracy,38 slavery and slave related practices, and trafficking in human beings,39 as these international crimes are also deemed part of jus cogens. Another way of classifying international crimes is based on their affinity as it relates to the nature of the conduct and the harmful potential for results. This category includes: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)

aggression; genocide; crimes against humanity; war crimes;40 Unlawful possession, use, pmplacement, stockpiling and trade of weapons, including nuclear weapons; nuclear terrorism; apartheid; slavery, slave-related practices, and trafficking in human beings; torture and other forms of cruel, inhuman or degrading treatment or ­punishment; unlawful human experimentation; enforced disappearance and extrajudicial executions; mercenarism;

Other crimes, some of which may in the future be considered as jus cogens, can be placed in another category. This is the case with respect to acts of a terrorviolent nature or contrary to fundamental values. These crimes include:

38 Sundberg, supra note 2. 39 Bassiouni, Enslavement, in 1 Bassiouni, ICL, supra note 3. 40 With respect to the 1949 Geneva Convention and the Protocol I, this includes “grave breaches,” and also violations of Common Article 3 in the 1949 Geneva Convention and Protocol II.



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(13) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (14) aircraft hijacking and unlawful acts against international air safety; (15) threat and use of force against internationally protected persons and United Nations Personnel; (16) taking of civilian hostages; (17) use of explosives (18) unlawful use of the mail; (19) financing of terrorism; (20) unlawful traffic in drugs and related drug offenses; (21) organized crime and related specific crime; (22) destruction and/or theft of national treasures; (23) unlawful acts against certain internationally protected elements of the environment. Other crimes, clearly of a lesser international interest, can be placed in yet a third category. These crimes include: (24) (25) (26) (27)

international traffic in obscene materials; falsification and counterfeiting; unlawful interference with international submarine cables; corruption and bribery of foreign public officials.

Any categorization is necessarily judgmental and differences of opinion can affect the choice of criteria selected for such a categorization, their appraised social and human significance, and policy choices based on other value judgments.41 Section 6. The General Categories of International Crimes Regardless of the categories suggested above, the 27 previously mentioned crimes can be grouped under the following headings reflecting the prevalent protected

41 In the literature on this subject, some authors have distinguished between international infractions and transnational crimes, and others have distinguished between international crimes and core crimes. The ILC in the 1980 Draft Articles on State Responsibility distinguished between international crimes and international delicts. See International Law Commission, Draft Articles on State Responsibility, U.N. Doc. A/CN.4/L.327/Add.2, A/CN.4/SR.1692, art. 19, ¶¶ 10 et. seq. (1981). This writer, in previous editions of this book, proposed a distinction between international crimes, international delicts, and international infractions. This piece, however, abandons such terminology as often confusing and only occasionally useful. What follows is an attempt to bring added clarity to the field by outlining the crimes—and the conventions creating those crimes—contained within each category. See infra notes 43–133.

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interest embodied in each crime, even though some crime categories protect multiple interests. They are: (1) Protection of International Peace and Security; (2) Protection of Human Interests, which can be subdivided into (a) Protection of Human Interests Not Associated with Other Internationally Protected Interests, and (b) Protection of Human Interests Associated with Other ­Internationally Protected Interests; and (3) Protection of Social and Cultural Interests. What follows is essentially an inventory of international crimes reflected in the international instruments included with each crime. 6.1. Protection of International Peace and Security 6.1.1. Aggression This crime contains 51 relevant instruments dating from 1899 to 1998, and another eight related materials, but it should be noted that most of these instruments lack any of the ten required penal characteristics discussed above. A number of the treaties adopted between 1919 and 1988 that have been classified, in accordance with the methodology employed, with other crimes.42 The writings of scholars for millennia have posited rules for lawful and unlawful use of force. The earlier notions of “just” and “unjust” wars gave way to the abolitionist view of war embodied in the Charter of the United Nations, ratified on October 24, 1945.43 However, no definition of aggression was agreed upon by the international community until the UN General Assembly consensus resolution on the Definition of Aggression44 was adopted in 1974. Even so, this resolution is not a binding international instrument and its legal relevance rests in its interpretation in pari materia with the obligations of the Charter of the United Nations, and as part of customary international law. In that respect, it should be noted that the Security Council did not rely in its various resolutions under Chapter VII on the 1974 resolution. However, the ILC’s Draft Code of Crimes Against the Peace and Security of Mankind45 does rely on the 1974 consensus resolution. There is so far no specialized convention that specifically declares aggression to be a crime under international law. The Second Hague Peace Conference,

42 See Bassiouni, ICL Conventions, supra note 12, at 242–43. 43 U.N. Charter, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945. 44 United Nations General Assembly, Definition of Aggression, G.A. Res. 3314 (XXIX), 29 U.N. G.A. Supp. No. 31, at 142, U.N. Doc. ONU A/9631 (1974). 45 1996 Draft Code of Crimes, supra note 22.



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October 18, 1907,46 like the First Hague Peace Conference, July 29, 1899,47 produced a number of instruments designed to prevent war, but they have only a limited penal relevance to the enforcement of prohibitions against the resort to war. Thus, the legal record of the period up to the end of World War I is limited. The period between World War I and World War II produced two relevant instruments, the Treaty of Mutual Guarantee (Treaty of Locarno), October 16, 1925,48 and the General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Peace Pact or Pact of Paris), August 27, 1928.49 The efforts to prosecute the Kaiser as the initiator of World War I under the Treaty of Peace with Germany (Treaty of Versailles), June 28, 1919,50 were for naught. During and after World War II, the Allies expressed their commitment to prosecute and punish the perpetrators of that war in the Declaration of German Atrocities, November 1, 1943,51 and then carried out their commitment in the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Charter), August 8, 1945,52 and in the Charter of the International Military Tribunal for the Far East, January 19, 1946.53 This led to 46 Convention for the Pacific Settlement of International Disputes [Second Hague, I], 18 October 1907, 36 Stat. 2199, T.S. No. 536, 3 Martens Nouveau Recueil (ser. 3) 360 (entered into force Jan. 26, 1910); Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts [Second Hague, II], Oct. 18, 1907, 36 Stat. 2241, 3 Martens Nouveau Recueil (ser. 3) 414 (entered into force Jan. 26, 1910); Convention Relative to the Opening of Hostilities [Second Hague, III], Oct. 18, 1907, 36 Stat. 2259, 3 Martens Nouveau Recueil (ser. 3) 437 (entered into force Jan. 26, 1910); Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land [Second Hague, V], Oct. 18, 1907, 36 Stat. 2310, 205 Consol. T.S. 299, 24 Martens Nouveau Recueil (ser. 3) 504 (entered into force Jan. 26, 1910); Convention Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities [Second Hague, VI], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 533 (entered into force Jan. 26, 1910); Convention Relative to the Conversion of Merchant-ships into Warships [Second Hague, VII], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 557 (entered into force Jan. 26, 1910); Convention Concerning the Rights and Duties of Neutral Powers in Naval War [Second Hague, XIII], Oct. 18, 1907, 36 Stat. 2415, 205 Consol. T.S. 395, 3 Martens Nouveau Recueil (ser. 3) 713 (entered into force Jan. 26, 1910; entered into force with respect to the United States Feb. 1, 1910). 47 Convention for the Pacific Settlement of International Disputes [First Hague, I], July 29, 1899, 32 Stat. 1779, T.S. No. 392, 26 Martens Nouveau Recueil (ser. 2) 920 (entered into force Sept. 4, 1900). 48 Treaty of Mutual Guarantee [Treaty of Locarno], Oct. 16, 1925, 54 L.N.T.S. 289, 16 Martens Nouveau Recueil (ser. 3) 9 (entered into force Sept. 14, 1926). 49 General Treaty for Renunciation of War as an Instrument of National Policy [Kellogg-Briand Peace Pact or Pact of Paris], Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57, 2 Bevans 732 (entered into force July 24, 1929), reprinted in 22 Am. J. Int’l L. 171–73 (Supp. 1928). 50 Treaty of Peace Between the Allied and Associated Powers and Germany [Treaty of Versailles], June 28, 1919, 11 Martens Nouveau Recueil (ser. 3) 323 (entered into force Jan. 10, 1920). 51 Declaration of German Atrocities [Moscow Conference of Foreign Secretaries, Secret Protocol, Annex 10], Nov. 1, 1943, 1943 For. Rel.(I) 749 at 768, 3 Bevans 816 at 834 (entered into force Nov. 1, 1943). 52 See Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]. 53 See Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter].

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the Nuremberg and Tokyo trials. In these prosecutions, the count of “crimes against peace” was the most difficult to define due to the lack of legal specificity with respect to the punishable prohibition against the initiation and resort to war. Some of these instruments aimed at prohibiting or punishing aggression are linked to war crimes. Article 5 of the ICC includes aggression within the Court’s jurisdiction, but exercise of such jurisdiction is subordinated to the definition of aggression, which the Diplomatic Conference did not achieve. Through the efforts of the Preparatory Committee and the Special Working Group on the Crime of Aggression (SWGCA), States Parties reached a consensus on an accepted definition of the crime of aggression at the 2010 Kampala Review Conference.54 The following expresses the elements as defined by the ICC concerning the crime of aggression:55 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. Elements 1. The perpetrator planned, prepared, initiated or executed an act of aggression. 2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. [footnote 75: With respect to an act of aggression, more than one person may be in a position that meets these criteria.] 3. The act of aggression—the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations—was committed. 4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

54 Amendments to the Rome Statute of the International Criminal Court art. 8(2), June 11, 2010, Depository Notification C.N. 651.2010.Treatites-8. 55 Rome Statute of the International Criminal Court, July 17, 1998, art. 8bis, 2187 U.N.T.S. 3 (entered into force July 1, 2002) [hereinafter ICC Statute]; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B; Res. RC/Res. 6, U.N. Doc. RC/Res. 6 (June 11, 2010).



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2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f ) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 6.2. Protection of Human Interests Not Associated with Other Internationally Protected Interests 6.2.1. Genocide There is only one Convention on Genocide, adopted in 1948,56 but other relevant instruments include: the Statute of the International Criminal Tribunal for

56 Convention on the Prevention and Punishment of the Crime of Genocide, supra note 26; see Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, B.U. Int’l L.J. 1 (1984); Lippman, supra note 26; Schabas, supra note 26.

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the former Yugoslavia,57 the Statute of the International Criminal Tribunal for Rwanda,58 the 1996 ILC Draft Code of Crimes,59 and the 1998 Statute of the International Criminal Court.60 There are also fifteen other applicable instruments from 1945 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.61 Through an outgrowth of World War II atrocities, one that was presumably meant to encompass crimes against humanity, genocide is addressed in a single specialized convention that has never been amended or supplemented, notwithstanding the pressing need to do so. Its main weaknesses are: (a) the protected groups do not include social or political groups (only ethnic, racial, religious, and national groups are mentioned in the Convention); (b) the nationality of a protected group should not be understood as the totality of the group in a universal sense, but in a relative contextual sense; and (c) the specific intent requirement is too stringent for certain categories of offenders. Neither the ILC’s 1996 Draft Code of Crimes nor the 1998 ICC Statute address the weaknesses of the 1948 Genocide Convention. Unlike other crimes in which a historical evolution can be witnessed through a succession of international instruments that expand or refine the terms of earlier instruments, genocide remains a single-instrument crime. Considering that a variety of genocide-like events, some of massive proportions, have taken place since World War II,62 it is curious that the lack of political response to the problems of normative gaps has not been addressed by the international community. One explanation may well be that the convention failed to create a permanent structure that might have perpetuated institutional interest in furthering legislative development. Certainly the experiences in the crimes of slavery, slave-related practices, trafficking in human beings and drug offences demonstrate that permanent bureaucratic structures tend to enhance legislative developments. But, as the ICC Statute demonstrates, governments are not willing to accept the legal consequences that would derive from a text more expansive than the current Genocide Convention. Recent ICTR jurisprudence has been consistent

57 Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159 [hereinafter ICTY Statute]. 58 Statute of the International Criminal Tribunal for Rwanda, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute]. 59 See International Law Commission, Report of the Commission to the General Assembly on the work of its forty-eighth session, ¶ 50, in [1996] 2 Y.B. Int’l Law Comm’n 17. 60 See ICC Statute, supra note 55; see also M. Cherif Bassiouni, The Statute of the International Criminal Court (1998) [hereinafter Bassiouni, Statute of the ICC]. 61  See Bassiouni, ICL Conventions, supra note 12, at 266–67. 62 See Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002).



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with respect to genocide-related crimes. The Appeals Chamber released its opinion in the case of three journalists who were charged with incitement to commit genocide as “aiding and abetting in genocide.”63 The ICTY has yet to convict anyone of the crime of genocide even though it has affirmed that genocide was committed at Srebrenica. It should also be noted that there are overlaps between genocide, crimes against humanity, and war crimes, but they are nowhere addressed.64 Genocide is deemed a jus cogens crime. The following expresses the elements as defined by the ICC concerning genocide:65 For the purpose of this Statute, “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; Elements 1. The perpetrator killed one or more persons. [footnote 2: The term “killed” is interchangeable with the term “caused death”.] 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

63 William A. Schabas, International Criminal Tribunals: A Review of 2007, 6 Nw. J. Int’l Hum. Rts. 382, 392 (2008) (citing Nahimana v. Prosecutor, Case No. ICTR 99–52–A, Appeals Judgment, ¶ 986 (Nov. 28, 2007)). 64 See Bassiouni, ICL Documents, supra note 30; Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1, 2 (2002); Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002). 65 ICC Statute, supra note 55, art. 6; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B ; see 1 M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text 204–06 (2005).

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(b) Causing serious bodily or mental harm to members of the group; Elements 1. The perpetrator caused serious bodily or mental harm to one or more persons. [footnote 3: This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.] 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Elements 1. The perpetrator inflicted certain conditions of life upon one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part. [footnote 4: The term “conditions of life” may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.] 5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (d) Imposing measures intended to prevent births within the group; Elements 1. The perpetrator imposed certain measures upon one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The measures imposed were intended to prevent births within that group.



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5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (e) Forcibly transferring children of the group to another group. Elements 1. The perpetrator forcibly transferred one or more persons. [footnote 5: The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.] 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The transfer was from that group to another group. 5. The person or persons were under the age of 18 years. 6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years. 7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. 6.2.2. Crimes against Humanity There is no specific convention dealing with crimes against humanity, but this crime contains 11 relevant instruments from 1945 to 1998. There are also fortyone other applicable instruments from 1943 to 1993 that have been classified, in accordance with the methodology employed, with other crimes.66 The acts covered under other crimes—such as torture, slavery, slave-related practices, trafficking in human beings, and apartheid—are also included in this crime. This crime was originally established in Article 6(c) and Article 5(c) of the Charters of the International Military Tribunal at Nuremberg67 and International

66 See Bassiouni, ICL Conventions, supra note 12, at 281–84. 67 IMT Charter, supra note 52.

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Military Tribunal for the Far East, respectively.68 It was also included in Article II(c) of Control Council Law No. 10.69 Subsequent to the Nuremberg and Tokyo trials, the General Assembly adopted a resolution entitled Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, December 11, 1946.70 The International Law Commission removed the nexus between this crime and the initiation and conduct of war (war crimes), which was required by Article 6(c) of the IMT Charter. But these two instruments are not legally binding qua. Furthermore, these texts regrettably lack the specificity required by the principles of legality. The same criticism can be leveled at the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, July 15, 1996, which lacks specificity in elements of the offense and its penalties. The crime of genocide was intended to embody crimes against humanity, but it fails to do so, even though there is an overlap between the two crimes. It should be noted, however, that both the Yugoslavia and Rwanda Statutes of their respective international tribunals71 include this crime category and define it in a way that is at variance with the definition in Article 6(c) of the IMT Nuremberg Charter. Furthermore, the ICC Statute includes crimes against humanity in Article 7, but it has changed its definition to make it both more specific and less restrictive.72 The overlaps between genocide, crimes against humanity, and war crimes, are, however, nowhere addressed.73 Crimes against humanity are deemed jus cogens crimes. The following expresses the elements as defined by the ICC concerning crimes against humanity:74 68 IMTFE Charter, supra note 53. 69 See Control Council Law No. 10, reprinted in Benjamin B. Ferencz, An International Criminal Court, A Step Toward World Peace: A Documentary History and Analysis 488 (1980). 70 United Nations General Assembly, Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. GAOR, 1st Sess., U.N. Doc. A/236 (Dec. 11, 1946). 71 ICTY Statute, supra note 57, at art. 5; ICTR Statute, supra note 58, at art. 3. 72 See William A. Schabas, An Introduction to the International Criminal Court 22 (2001); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law 128 (2002); David Donat-Cattin, Crimes Against Humanity, in The International Criminal Court: Comments on the Draft Statute 49 (Flavia Lattanzi ed., 1998); Darryl Robinson, The Elements for Crimes Against Humanity, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 57 (Roy S. Lee ed., 2001); Andreas Zimmerman, Crimes Within the Jurisdiction of the Court, in Commentary on the Rome Statute of the International Criminal Court 97, 101 (Otto Triffterer ed., 1999). 73 See Bassiouni, ICL Documents, supra note 30. 74 ICC Statute, supra note 55, art. 7; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B ; see 1 M. Cherif Bassiouni, The Legislative History of The International Criminal Court: Introduction, Analysis, And Integrated Text 206–15 (2005).



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1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; Elements 1. The perpetrator killed one or more persons. [footnote 7: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts.] 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population. (b) Extermination; Elements 1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population. [footnote 8: The conduct could be committed by different methods of killing, either directly or indirectly.] [footnote 9: The infliction of such conditions could include the deprivation of access to food and medicine.] 2. The conduct constituted, or took place as part of, a mass killing of members of a civilian population. [footnote 10: 10 The term “as part of” would include the initial conduct in a mass killing.] 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (c) Enslavement; Elements 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 11: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of

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1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian ­population. (d) Deportation or forcible transfer of population; Elements 1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. [footnote 12: The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.] [ footnote 13: “Deported or forcibly transferred” is interchangeable with “forcibly displaced”] 2. Such person or persons were lawfully present in the area from which they were so deported or transferred. 3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (e) Imprisonment or other severe deprivation of physical liberty; Elements 1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty. 2. The gravity of the conduct was such that it was in violation of fundamental rules of international law. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.



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(f ) Torture; Elements [footnote 14: It is understood that no specific purpose need be proved for this crime.] 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were in the custody or under the control of the perpetrator. 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Elements—Crime against Humanity of Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [footnote15: The concept of “invasion” is intended to be broad enough to be gender-neutral.] 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. [ footnote 16: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements of article 7 (1) (g)-3, 5 and 6.] 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Sexual Slavery [footnote 17: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.]

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1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 18: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, an Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Enforced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Forced Pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.



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Elements—Crime against Humanity of Enforced Sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. [footnote 19: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.] 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. [footnote 20: It is understood that “genuine consent” does not include consent obtained through deception.] 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g), of the Statute. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Elements 1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights. [footnote 21: This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.] 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

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3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law. 4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court. [footnote 22: It is understood that no additional mental element is necessary for this element other than that inherent in element 6.] 5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (i) Enforced disappearance of persons; Elements [footnote 23: Given the complex nature of this crime, it is recognized that its commission will normally involve more than one perpetrator as a part of a common criminal purpose.] [footnote 24: This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute.] 1. The perpetrator: (a) Arrested, detained or abducted one or more persons [footnote 25: The word “detained” would include a perpetrator who maintained an existing detention.] [footnote 26: It is understood that under certain circumstances an arrest or detention may have been lawful.]; or (b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. 2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom. 3. The perpetrator was aware that: [footnote 27: This element, inserted because of the complexity of this crime, is without prejudice to the General Introduction to the Elements of Crimes.] (a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons [footnote 28: It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be satisfied if the perpetrator was aware that such a refusal had already taken place.]; or (b) Such refusal was preceded or accompanied by that deprivation of freedom.



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4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization. 5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization. 6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time. 7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (j) The crime of apartheid; Elements 1. The perpetrator committed an inhumane act against one or more persons. 2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts. [footnote 29: It is understood that “character” refers to the nature and gravity of the act.] 3. The perpetrator was aware of the factual circumstances that established the character of the act. 4. The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups. 5. The perpetrator intended to maintain such regime by that conduct. 6. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 7. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Elements 1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. 2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute. [footnote 30: It is understood that “character” refers to the nature and gravity of the act.] 3. The perpetrator was aware of the factual circumstances that established the character of the act.

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4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that



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deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. 6.2.3. War Crimes The specific crime of war crimes contains 71 relevant instruments dating from 1854 to 1998. There are also thirty-five other applicable instruments from 1868 to 1996 that have been classified, in accordance with the methodology employed, under other crimes.75 In addition, the customary regulation of armed conflict applies to this subject. Some aspects of custom have been codified and are therefore included in the instruments listed herein. The reader should, however, be mindful of the distinction between the conventional and customary regulation of armed conflict. Of all the international crimes, this crime has the largest number of pertinent and specific instruments covering a wide range of prohibitions and regulations, the violations of which require prosecution and punishment, as well as the obligations described by other penal characteristics. Many of these instruments specifically embody, codify, or evidence customary international law (e.g., Convention with Respect to the Laws and Customs of War on Land (First Hague, II), July 29, 1899;76 Regulations Respecting the Laws and Customs of War on Land;77 Convention Respecting the Laws and Customs of War on Land (Second Hague, IV), October 18, 1907;78 and Regulations Respecting the Laws and Customs of War on Land).79 Enforcement of these prohibitions, though not always consistent or uniform, has nonetheless constituted the most persistent and reliable record of prosecution and punishment of violators in the history of international criminal law. Most of the instruments contained in this category have been drafted with sufficient clarity and specificity, and most contain provisions clearly indicating their penal characteristics.

75 See Bassiouni, ICL Conventions, supra note 12, at 501–04. 76 Convention with Respect to the Laws and Customs of War on Land [First Hague, II], July 29, 1899, 32 Stat. 1803, 1 Bevans 247. 77 Regulations Respecting the Laws and Customs of War on Land, T.S. No. 539, 1 Bevans 643. 78 Convention Respecting the Laws and Customs of War on Land [Second Hague, IV], supra note 46. 79 Regulations Respecting the Laws and Customs of War on Land, supra note 77.

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The four Geneva Conventions of 194980 and their two Additional Protocols81 are the most comprehensive codifications of applicable rules and regulations, with the most specific and wide-ranging penal characteristics of any other category of international crime. The so-called “Law of Geneva” overlaps with the so-called “Law of The Hague,” with much of the latter having been incorporated into the former and vice-versa. The “Law of Geneva” is deemed, to a large extent, to have become custom. It should be noted that this crime category is included in the Statutes of the Yugoslavia and Rwanda international tribunals,82 as well as in the jurisdictional competence of the ICC.83 Traditionally, unlawful use of weapons has been included in the category of war crimes. However, for the sake of categorizing the differences between conduct violative of the rules and regulations of armed conflict and prohibitions against unlawful use of certain weapons in times of either war or peace, the latter are placed in a separate category that follows. The unauthorized use of permissible weapons is, of course, a war crime, and remains in this category of crime.84 War crimes are deemed jus cogens. The overlap between war crimes, genocide, and crimes against humanity is nowhere addressed.85 The following expresses the elements as defined by the ICC concerning war crimes:86 80 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, 4 Bevans 853; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S 85; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. 81 United Nations, Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 [1977 Protocol I], U.N. Doc. A/32/144 (1977); United Nations, Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [1977 Protocol II], U.N. Doc. A/32/144 (1977). 82 See ICTY Statute, supra note 57, at arts. 2, 3; ICTR Statute, supra note 58, at art. 4. 83 See ICC Statute, supra note 55, at art. 8; Schabas, supra note 72, at 22; Sadat, supra note 72, at 160; Herman Von Hebel, The Elements of War Crimes, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 109 (Roy S. Lee ed., 2001); Zimmerman, supra note 72, at 102. 84 See Bassiouni, International Humanitarian Law, supra note 1; Droit des Conflits Armés, (Dietrich Schindler & Jiří Toman eds., 1996); M. Cherif Bassiouni, The Regulation, Control, and Prohibition of the Use of Certain Weapons in the Context of War, in 1 Bassiouni, ICL, supra note 2, at 377. 85 See supra note 30. 86 ICC Statute, supra note 55, art. 8; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B; see 1 M. Cherif Bassiouni, The Legislative History Of The International Criminal Court: Introduction, Analysis, And Integrated Text 215–44 (2005).



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1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; Elements 1. The perpetrator killed one or more persons. [footnote 31: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts.] 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. [footnote 32: This mental element recognizes the interplay between articles 30 and 32. This footnote also applies to the corresponding element in each crime under article 8 (2) (a), and to the element in other crimes in article 8 (2) concerning the awareness of factual circumstances that establish the status of persons or property protected under the relevant international law of armed conflict.] [footnote 33: With respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged to an adverse party to the conflict. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).] 4. The conduct took place in the context of and was associated with an international armed conflict. [footnote 34: The term “international armed conflict” includes military occupation. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).] 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ii) Torture or inhuman treatment, including biological experiments; Elements—War Crime of Torture [footnote 35: As element 3 requires that all victims must be “protected persons” under one or more of the Geneva Conventions of 1949, these elements do not include the custody or control requirement found in the elements of article 7 (1)(e).] 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

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2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 4. The perpetrator was aware of the factual circumstances that established that protected status. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Inhuman Treatment 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Biological Experiments 1. The perpetrator subjected one or more persons to a particular biological experiment. 2. The experiment seriously endangered the physical or mental health or integrity of such person or persons. 3. The intent of the experiment was non-therapeutic and it was neither justified by medical reasons nor carried out in such person’s or persons’ interest. 4. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Wilfully causing great suffering, or serious injury to body or health;



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Elements 1. The perpetrator caused great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; Elements 1. The perpetrator destroyed or appropriated certain property. 2. The destruction or appropriation was not justified by military necessity. 3. The destruction or appropriation was extensive and carried out wantonly. 4. Such property was protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; Elements 1. The perpetrator coerced one or more persons, by act or threat, to take part in military operations against that person’s own country or forces or otherwise serve in the forces of a hostile power. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict.

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5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; Elements 1. The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vii) Unlawful deportation or transfer or unlawful confinement; Elements—War Crime of Unlawful Deportation and Transfer 1. The perpetrator deported or transferred one or more persons to another State or to another location. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Unlawful Confinement 1. The perpetrator confined or continued to confine one or more persons to a certain location. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict.



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5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (viii) Taking of hostages. Elements 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Elements 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

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Elements 1. The perpetrator directed an attack. 2. The object of the attack was civilian objects, that is, objects which are not military objectives. 3. The perpetrator intended such civilian objects to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Elements 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Elements 1. The perpetrator launched an attack. 2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the



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natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. [footnote 36: The expression “concrete and direct overall military advantage” refers to a military advantage that is ­foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.] 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. [footnote 3: As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time.] 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Elements [footnote 38: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.] 1. The perpetrator attacked one or more towns, villages, dwellings or buildings. 2. Such towns, villages, dwellings or buildings were open for unresisted occupation. 3. Such towns, villages, dwellings or buildings did not constitute military objectives. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

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Elements 1. The perpetrator killed or injured one or more persons. 2. Such person or persons were hors de combat. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; Elements—War Crime of Improper Use of a Flag of Truce 1. The perpetrator used a flag of truce. 2. The perpetrator made such use in order to feign an intention to negotiate when there was no such intention on the part of the perpetrator. 3. The perpetrator knew or should have known of the prohibited nature of such use. [footnote 39: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Improper Use of a Flag, Insignia, or Uniform of the Hostile Party 1. The perpetrator used a flag, insignia or uniform of the hostile party. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict while engaged in an attack. 3. The perpetrator knew or should have known of the prohibited nature of such use. [footnote 40: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict.



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7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Improper Use of a Flag, Insignia, or Uniform of the United Nations 1. The perpetrator used a flag, insignia or uniform of the United Nations. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict. 3. The perpetrator knew of the prohibited nature of such use. [footnote 41: This mental element recognizes the interplay between article 30 and article 32. The “should have known” test required in the other offences found in article 8 (2) (b) (vii) is not applicable here because of the variable and regulatory nature of the relevant prohibitions.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Improper Use of the Distinctive Emblems of the Geneva Conventions 1. The perpetrator used the distinctive emblems of the Geneva Conventions. 2. The perpetrator made such use for combatant purposes in a manner prohibited under the international law of armed conflict. [footnote 42: “Combatant purposes” in these circumstances means purposes directly related to hostilities and not including medical, religious or similar activities.] 3. The perpetrator knew or should have known of the prohibited nature of such use. [footnote 43: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

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Elements 1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies [footnote 44: The term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law.]; or (b) Deported or transferred all or parts of the population of the occupied territory within or outside this territory. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Elements [footnote 45: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.] 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;



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Elements—War Crime of Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interest. [footnote 46: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the same element for article 8 (2) (b) (x)‑2.] 4. Such person or persons were in the power of an adverse party. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Medical or Scientific Experiments 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of an adverse party. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; Elements 1. The perpetrator invited the confidence or belief of one or more persons that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict.

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2. The perpetrator intended to betray that confidence or belief. 3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xii) Declaring that no quarter will be given; Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; Elements 1. The perpetrator destroyed or seized certain property. 2. Such property was property of a hostile party. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not justified by military necessity. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;



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Elements 1. The perpetrator effected the abolition, suspension or termination of admissibility in a court of law of certain rights or actions. 2. The abolition, suspension or termination was directed at the nationals of a hostile party. 3. The perpetrator intended the abolition, suspension or termination to be directed at the nationals of a hostile party. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; Elements 1. The perpetrator coerced one or more persons by act or threat to take part in military operations against that person’s own country or forces. 2. Such person or persons were nationals of a hostile party. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xvi) Pillaging a town or place, even when taken by assault; Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. [footnote 47: As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging.] 3. The appropriation was without the consent of the owner. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xvii) Employing poison or poisoned weapons;

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Elements 1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Elements 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties. [footnote 48: Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons.] 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; Elements 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are



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inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; Elements [Elements will have to be drafted once weapons, projectiles or material or methods of warfare have been included in an annex to the Statute.] (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Elements 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. [footnote 49: For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.] 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; Elements—War Crime of Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [footnote 50: The concept of “invasion” is intended to be broad enough to be gender-neutral.] 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. [footnote 51: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or

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agerelated incapacity. This footnote also applies to the corresponding elements of article 8 (2) (b) (xxii)-3, 5 and 6.] 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Slavery [footnote 52: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.] 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 53: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.



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Elements—War Crime of Forced Pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. [footnote 54: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.] 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. [footnote 55: It is understood that “genuine consent” does not include consent obtained through deception.] 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

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Elements 1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict. 2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Elements 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; Elements 1. The perpetrator deprived civilians of objects indispensable to their survival. 2. The perpetrator intended to starve civilians as a method of warfare. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.



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Elements 1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; Elements—War Crime of Murder 1. The perpetrator killed one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. [footnote 56: The term “religious personnel” includes those non-confessional noncombatant military personnel carrying out a similar function.] 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interests.

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3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Cruel Treatment 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Torture 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Elements 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. [footnote 57: For this crime, “persons” can include dead persons. It



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is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.] 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Taking of hostages; Elements 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 5. The perpetrator was aware of the factual circumstances that established this status. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. Elements 1. The perpetrator passed sentence or executed one or more persons.[footnote 58: The elements laid down in these documents do not address the different forms of individual criminal responsibility, as enunciated in articles 25 and 28 of the Statute.]

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2. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. There was no previous judgement pronounced by a court, or the court that rendered judgement was not “regularly constituted”, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law. [footnote 59: With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial.] 5. The perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Elements [footnote 60: As amended by resolution RC/Res. 5.] 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.



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(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Elements 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Elements 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and

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places where the sick and wounded are collected, provided they are not military objectives; Elements [footnote 61: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.] 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (v) Pillaging a town or place, even when taken by assault; Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. [footnote 62: As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging.] 3. The appropriation was without the consent of the owner. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; Elements—War Crime of Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator



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with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [footnote 63: The concept of “invasion” is intended to be broad enough to be gender-neutral.] 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. [footnote 64: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements in article 8 (2) (e) (vi)-3, 5 and 6.] 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Slavery [footnote 65: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.] 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 66: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.

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2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Forced Pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct took place in the context of and was associated with an armed conflict not of an international character. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. [footnote 67: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.] 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. [footnote 68: It is understood that “genuine consent” does not include consent obtained through deception.] 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.



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4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; Elements 1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; Elements 1. The perpetrator ordered a displacement of a civilian population. 2. Such order was not justified by the security of the civilians involved or by military necessity. 3. The perpetrator was in a position to effect such displacement by giving such order. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ix) Killing or wounding treacherously a combatant adversary; Elements 1. The perpetrator invited the confidence or belief of one or more combatant adversaries that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict. 2. The perpetrator intended to betray that confidence or belief.

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3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (x) Declaring that no quarter will be given; Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Elements—War Crime of Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interest. [footnote 69: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the similar element in article 8 (2) (e) (xi)-2.]



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4. Such person or persons were in the power of another party to the conflict. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Medical or Scientific Experiments 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused the death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of another party to the conflict. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; Elements 1. The perpetrator destroyed or seized certain property. 2. Such property was property of an adversary. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not required by military necessity. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiii) Employing poison or poisoned weapons; Elements [footnote 70: As amended by resolution RC/Res. 5; see Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 (International Criminal Court publication, RC/11), part II.]

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1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Elements [footnote 71: Ibid.] 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties. [footnote 72: Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons.] 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. Elements [footnote 73: As amended by resolution RC/Res. 5; see Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 (International Criminal Court publication, RC/11), part II.] 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.



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(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. 6.2.4. Unlawful Possession, Use, Emplacement Stockpiling and Trade of Weapons, including Nuclear Weapons Related to war crimes, the crime of unlawful possession, use, and emplacement of weapons contains 61 relevant instruments adopted between 1868 and 2012.87 Many of these conventions embody customary law, but the concept is broader than the specifics contained in these conventions. It should also be noted that some of the norms applicable to this crime have a separate and specific origin, scope, and goal from war crimes. Furthermore, some of these norms apply only in time of war while others apply at all times. More specifically, some conventions apply to use, while others apply to possession. For a variety of reasons, instruments relating to nuclear weapons are not included here, as possession of such weapons is not yet prohibited, though arguably the prohibition of their first use may be an emerging custom. Lastly, some of these conventions apply exclusively to the prohibition of emplacing weapons in certain areas without regard to the legality of the possession or use of the weapon in question. “Unlawful use of weapons” means employment of weapons whose use is prohibited by an international instrument. This is to be distinguished from unauthorized use of permissible weapons. While both crimes have historically been deemed war crimes, the former is discussed separately here, because these weapons are deemed unlawful, irrespective of the manner in which they are used. Most of the prohibitions in the instruments contained here are specifically, or by construction, restricted to the context of war, thus making their use a war crime. However, they are classified separately because many scholars view some of these prohibitions as absolute without regard to the context of their application. More recently, the Chemical Weapons Convention88 and the Biological

87 See Bassiouni, ICL Conventions, supra note 12, at 597–99. 88 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 32 I.LM. 800, January 13, 1993; see also Barry Kellman, Manual for National Implementation of the Chemical Weapons Convention (2d ed. 1998).

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Weapons Convention89 prohibit the development, stockpiling, and use of those weapons at all times and in all contexts. The Convention on the Physical Protection of Nuclear Material90 similarly provides for the control of highly dangerous weapons. The convention is an outgrowth of the world community’s effort to control, regulate, and limit access to and use of nuclear weapons, but it also has an environmental component, in that the protection of nuclear materials prevents harm to the environment. In fact, unlike the other crimes in this category, the primary aim of this convention is the protection of the environment and the prevention of theft, rather than weapons control by states. Over the past fifteen years there has been an increase in international activity to limit the possession of particular weapons, particularly those that have a disproportionate effect on civilian populations. Several important international treaties have been negotiated during that period, including the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-­Personnel Mines and on their Destruction [Ottawa Treaty]91 and the Convention on Cluster Munitions.92 In 2012 the Arms Trade Treaty,93 a comprehensive attempt to regulate the manufacture and trade of conventional weapons was negotiated in New York City, but the assembled states were unable to reach agreement on a final text. Regional arms trade treaties have been adopted however, covering Southern Africa, the Horn of Africa and the Great Lakes Region, Central Africa, and West Africa. Because of the distinction between the contexts of war and peace, the use of certain weapons may be deemed an international crime when used in time of war, but not when used in time of peace. However, the distinction is gradually eroding in contemporary legal doctrine. There are also a number of instruments prohibiting the emplacement of certain weapons in particular areas. The rationale for these prohibitions is to enhance the peace and security of humankind, and the instruments are thus related to the preservation of peace and the prohibition of aggression. They are also intended explicitly or implicitly to protect the environment. Their primary subject matter, however, is weapons, and consequently such documents are included in this category. Whether these instruments are sufficient to make the violation of their provisions an international crime in accordance with the methodology of this book is questionable. 89 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163, 11 I.L.M. 309; see also Barry Kellman, Biological Terrorism: Legal Measures for Preventing Catastrophe, 24 Harv. J.L. & Pub. Pol. 417 (2001). 90 Convention on the Physical Protection of Nuclear Material, March 3, 1980, 18 I.L.M. 1419. 91   Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti­Personnel Mines and on their Destruction [Ottawa Treaty], Sept. 18, 1997, 2056 U.N.T.S. 211. 92 Convention on Cluster Munitions, May 30, 2008. 93 Arms Trade Treaty (the July 2012 Arms Trade Treaty conference failed to agree on a text. For the text of the Preparatory Committee, see Report of the Preparatory Committee for the United Nations Conference on the Arms Trade Treaty, 11, U.N. Doc. A/CONF.217/1).



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Nevertheless, a violation of the obligations contained in these instruments constitutes a violation of international law and may be deemed an emerging customary law violation amounting to a war crime. Most of these conventions do not, on the other hand, contain penal elements and are therefore only the foundation for future criminalization at this time. To the extent that the crimes listed in this category also constitute war crimes, they are deemed jus cogens crimes. 6.2.5. Nuclear Terrorism This crime contains one relevant instrument from 2005,94 which is one in a series of conventions designed to address the problems presented by terrorism. The world community developed the series in a piecemeal fashion for political reasons. The International Convention for the Suppression of Acts of Nuclear Terrorism has eight of ten penal characteristics, and it is intended to prevent the illegitimate use of nuclear materials with the intent to cause death or serious bodily injury, or damage to property or the environment. 6.2.6. Apartheid This crime contains two relevant instruments adopted in 1966 and 1973, though only the latter criminalizes apartheid. There are also fifteen other applicable instruments from 1945 to 1996.95 The 1966 Racial Discrimination Convention96 made a symbolic impact on national legislative policies and practices as it coincided with the international community’s change of values and attitudes. It is relevant for this crime, because racial discrimination is the foundation of apartheid (whose elements are also part of crimes against humanity). There is an essential problem with the International Convention on the Suppression and Punishment of Apartheid, November 30, 1973,97 in that it seems it was intended to apply only to South Africa. Although the practice of apartheid has ended in South Africa, similar practices may develop in other settler-regimes and occupied territories in other areas of the world.

94 See International Convention for the Suppression of Acts of Nuclear Terrorism, G.A. Res 59/290, U.N. Doc. A/RES/59/290 (Apr. 13, 2005). Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004). 95 See Bassiouni, ICL Conventions, supra note 12, at 635–36. 96 International Convention on the Elimination of All Forms of Racial Discrimination, March 7, 1966, 660 U.N.T.S. 195, 3 I.L.M. 352. 97 International Convention on the Suppression and Punishment of the Crime of Apartheid, November 30, 1973, U.N. G.A. Res. 3068 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030 (1973).

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6.2.7. Slavery, Slave-Related Practices, and Trafficking in Human Beings This crime contains 27 relevant instruments from 1815 to 2001. There are also forty-seven other applicable instruments from 1874 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.98 Evidence of traditional slavery practices has now dwindled to a few individual cases throughout the world. Yet the recollection of that historical aberration is so strong that it has led to significant legislative developments in the area that go beyond earlier forms of that practice. Instruments for the protection of women, children, and laborers have expanded protections and prohibitions and increased control mechanisms. The principal moving force behind these developments has been the International Labour Organization, which has sponsored many of these instruments through a well-developed bureaucracy interested in expanding the international protective scheme. Credit must also go to the Anti-Slavery Society, whose continuing efforts to monitor the application of existing instruments, and to spur new ones, has kept this category from the stagnation endemic to some others (e.g., genocide and unlawful human experimentation). It must be emphasized that forms of forced or compulsory labor and other forms of slavery, though prohibited (e.g., International Convention for the Suppression of the Traffic in Women and Children, Concluded at Geneva on September 30, 1921, Amended by the Protocol, November 12, 1947),99 are barely monitored and hardly exposed. Such practices continue in several countries, and thus is an area that needs additional norms and improved mechanisms of ­control. It is interesting to note that the practice of slavery has been greatly diminished since the beginning of the 1900s without the existence of international enforcement machinery. The reason for this is the commonly shared values of the international community have coalesced and concurred with the political will of states to generate the necessary national and international action. Probably no other international crime has witnessed such a positive outcome, though much remains to be done in preventing related practices. Slave-related practices and trafficking in human beings has increased, and new forms have developed that lack specific normative instruments and enforcement modalities. Among these new forms of contemporary slavery are the traffic of

98 For the period up to 1995, see Bassiouni, ICL Conventions, supra note 12, at 730–33. Since then, the U.N. adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, annex II, U.N. Doc. A/RES/55/25 (Jan. 8, 2001) (entered into force Dec. 25, 2003). To date, more than 110 States have signed and ratified the Protocol. 99 Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children; Convention for the Suppression of Traffic in Women of Full Age, October 11, 1933, 53 U.N.T.S. 49 (entered into force April 24, 1950).



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women and children for sexual exploitation,100 and the subjection of persons through drug addiction to the will of purveyors. This crime is deemed part of jus cogens. 6.2.8. Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment This crime contains five relevant instruments from 1955 to 1987. There are also forty-one other applicable instruments from 1899 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.101 Regional European and American instruments also prohibit torture.102 It is noteworthy that until 1975 the subject of torture committed within a state against its own nationals elicited limited interest in the international community, though many NGOs were decrying it. Since then, the efforts of Amnesty International, the International Commission of Jurists (ICJ), and the International Association of Penal Law (IAPL) have contributed to the present heightened interest in stopping this practice. In 1978, the IAPL and the ICJ submitted the text of a Draft Convention on the Prevention and Suppression of Torture to the Sub-Commission on the Prevention and Suppression of Torture, February 1, 1978. The text has been elaborated at the International Institute of Higher Studies in Criminal Sciences by a Committee of Experts under the co-chairmanship of the SecretaryGeneral of the IAPL and Secretary-General of the ICJ. The text of the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment103 is very similar to the original text submitted by the IAPL and ICJ. Torture is also an international crime in the context of war and is deemed a war crime when committed by army personnel and occupying forces against military personnel, persons hors de combat, or a civilian population. Torture has now also become a crime when committed outside the context of an armed conflict. As such, torture is an international crime at all times and in all circumstances, and is now deemed a jus cogens international crime.

  100 See In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, 2002).   101 See Bassiouni, ICL Conventions, supra note 12, at 760–63. 102 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Europ. T.S. No. 126, 27 I.L.M. 1152 (entered into force Feb. 1, 1989); Inter-American Convention to Prevent and Punish Torture, December 9, 1985, AG/Res. 783 (XV-O/85), O.A.S. General Assembly, 15th Sess. IEA/Ser. P. AG/Doc 22023/85 rev. 1 at 46–54 (1986), O.A.S. Treaty Series, No. 67, 25 I.L.M. 519 (entered into force Feb. 28, 1987). 103 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 December 1984, G.A. Res. 39/46 Annex, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. E/ CN.4/1984/72, Annex (1984), reprinted in 23 I.L.M. 1027 (1984); Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, 2375 U.N.T.S. 24841 (2003). The U.S. is not a signatory to the Optional Protocol.

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6.2.9. Unlawful Human Experimentation This crime contains one relevant instrument from 1980 which has not, however, been adopted as an international convention. There are also forty-two other applicable instruments from 1899 to 1996 that have been classified, in accordance with the methodology employed, under other crimes.104 Unlawful human experimentation is an international crime in the context of war, and is deemed a war crime105 when committed by army personnel and occupying forces against military and civilian persons and persons hors de combat. Anachronistic as it is, unlawful human experimentation is not yet a crime under conventional international law in any other context. The Draft Convention for the Prevention and Suppression of Unlawful Human Experimentation, August 13, 1980,106 which was prepared by this writer and submitted to the Sub-Commission on the Protection of Minorities and Prevention of Discrimination by the International Association of Penal Law, does not seem to have drawn particular interest or attention from that body or any other international body. At the 37th Session of the Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, a special resolution entitled Prevention and Suppression of Unlawful Human Experimentation to Promote and Protect Human Rights and Fundamental Freedoms107 was passed, and led to the appointing of a special rapporteur to study the problem. The Sub-commission, in another resolution on the question of human rights violations and fundamental freedoms,108 requested another special rapporteur “to include, on a preliminary basis, an outline of the topic of scientific experimentation as it relates to disability.”109 The document before the rapporteurs and the Commission is the one prepared by this writer and submitted to the U.N. by the International Association of Penal Law. However, there have been no further developments on this subject. Except for the post-Nuremberg trials,110 unlawful medical experimentation is subsumed in crimes against humanity and in war crimes, but there is no specific proscription against this practice in time of peace, save for when it rises to the

104 See Bassiouni, ICL Conventions, supra note 12, at 773–76. 105 See 1 Bassiouni, ICL, supra note 2, at 406. 106 U.N. Commission on Human Rights, Draft Convention for the Prevention and Suppression of Unlawful Human Experimentation U.N. Doc. E/CN.4/Sub.2/NGO/80 (1980); see M. Cherif Bassiouni, An Appraisal of Human Experimentation in International Law and Practice: The Need for Regulation of Human Experimentation, 72 J. Crim. L. & Criminology 1597 (1981). 107 U.N. Doc. E/CN.4/SUB2/1984/L.21 (Aug. 24, 1984). 108 Id. 109 Id. para. 4. 110 See The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (George J. Annas & Michael A. Grodin eds., 1992).



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level of genocide or crimes against humanity. It is also, therefore, part of war crimes during armed conflicts. It also falls within the meaning of torture. To the extent that unlawful human experimentation is part of war crimes, crimes against humanity, genocide, and torture, it is a jus cogens crime. 6.2.10. Enforced Disappearance and Extrajudicial Execution This category is technically composed of two independent but related crimes, but they are often carried out in the same course of conduct. In fact, most situations of enforced disappearance results in an extrajudicial execution. At present there are four instruments dealing with the subject. While not all enforced disappearances are followed by extrajudicial executions, extrajudicial executions are almost always preceded by enforced disappearances. The combined practice was especially common in in Latin America between the 1960’s and the 1980’s, when government forces disappeared and executed members of the opposition, labor leaders and activists, leaving the victims’ families and friends completely in the dark about the fate of the individuals. While the ECHR has found the existence of enforced disappearances without a related finding of an extrajudicial execution111 and the IACHR has made findings of government responsibility for the massacre of villages,112 the general pattern is that disappeared individuals are later executed, thus linking the two crimes. At present there are two conventions dealing with enforced disappearances, one from the Inter-American system113 and the other fully international;114 there are 14 state parties to the Inter-American Convention and 32 state parties to the international convention. Enforced Disappearances are also dealt with in Article 7(i) of the Rome Statute of the ICC as a crime against humanity115 and in the caselaw of the IACHR, which delivered a landmark judgment in VelasquezRodriguez, declaring that enforced disappearances are a violation of international law.116

111 Kurt v. Turkey, ECHR, App. No. 24276/94 (May 25, 1998). But see e.g. Kaya v. Turkey, ECHR, App. No. 22535/93 (March 28, 2000); Tas v. Turkey, ECHR, App. No. 24396/94 (Nov. 14, 2000). 112 See e.g. “Mapiripán Massacre” Case, Judgment of September 15, 2005, Inter-Am. Ct. H.R. (Ser. C) No. 134 (2005); Pueblo Bello Massacre Case, Judgment of January 31, 2006, Inter-Am. Ct. H.R. (Ser. C) No. 140 (2006) 113  Inter-American Convention on Forced Disappearances of Persons, opened for signature June 9, 1994, 33 I.L.M. 1429, entered into force Mar. 28, 1996. 114 International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature Feb. 6, 2007, U.N. Doc. A/RES/61/177, C.N.737.2008.TREATIES-12, entered into force Dec. 23, 2010. See also Procès-verbal of rectification of International Convention for the Protection of All Persons from Enforced Disappearance, Jan. 1, 2009. 115 Rome Statute of the International Criminal Court, Art. 7(i), July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002). 116 Velasquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988).

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Under the International Convention, the elements of Enforced disappearance are: a. The arrest, detention, abduction or deprivation of liberty of an individual; b. By State agents or individuals acting with the authorization, support or acquiescence of the State; c. Where the State refuses to acknowledge the arrest, detention, abduction or deprivation of liberty, or conceals any of the foregoing acts; and d. In the process the victim is placed outside the protection of the law. The Elements of Crimes of the ICC adds that the disappearance must be for a “prolonged period of time”.117 At present there is no international or regional convention dealing with extrajudicial executions, although the General Assembly has passed resolutions denouncing the practice, most recently in March 2011.118 The IACHR has delivered several judgments dealing with the issue in the context of violations of the Right to Life codified in the Inter-American Convention on Human Rights.119 There is a draft convention on extrajudicial executions but it has not been acted upon recently, and there is no interest by States to take up the issue at present or in the near future. Furthermore, the increasing use of drones by the U.S. to execute individuals suspected of membership in Al-Qaeda without any judicial process and the general acceptance or approval by most States of U.S. practice underscores the significant obstacles this important right faces before its incorporation into international law through a treaty. Drones offer a compelling example of the problem with extrajudicial executions and the danger the practice poses. In a drone attack, a pilot-less aircraft is remotely employed to fire missiles at individuals and kill them. The U.S. government has made assurances that the targets of drone strikes are enemies,120 but has failed to provide satisfactory information about the processes by which the individuals are selected for execution or even what threshold standard of proof is applied in making the final determination to kill him/her. There is no legal stan117 “Elements of Crimes”, International Criminal Court, 2011, at p. 11, available at: http://www.icccpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf 118 General Assembly Resolution 65/208 Extrajudicial, Summary or Arbitrary Executions, March 30, 2011, GAOR 65th Sess., U.N. Doc. A/RES/65/208 (2011). 119 See e.g. Valle Jaramillo et al. Case, Judgment of November 27, 2008, Inter-Am. Ct. H.R. (Ser. C) No. 192 (2008); Anzualdo Castro Case, Judgment of September 22, 2009, Inter-Am. Ct. H.R. (Ser. C) No. 202 (2009); Manuel Cepeda Vargas Case, Judgment of May 26, 2010, Inter-Am. Ct. H.R. (Ser. C) No. 213 (2010). 120 At one time the U.S. refused to acknowledge the policy of using drones at all. See Jane Harman, Comments at the Woodrow Wilson Center on the The Efficacy and Ethics of the President’s Counterterrorism Strategy (April 30, 2012), available at: http://www.wilsoncenter.org/event/ the-efficacy-and-ethics-us-counterterrorism-strategy.



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dard and no legal process; the decision on whom to kill, when to kill him/her and by what method is in flagrant violation of the right to life and the due process of law.121 Through the use of drones neither the victim nor the public is aware of which who is targeted for killing, who gave the order to kill the individual, and what recourse or judicial process exists for the victim against the determination to kill him/her. These problems are only magnified when drones are used target lower level victims who necessarily have a smaller dossier by dint of their lower rank or smaller role, thereby increasing the possibility of a strike against someone who is factually innocent and also potentially unaware of his/her inclusion on a strike list. Using drones in this fashion is criminal whether or not there is transparency, although the illegitimacy is heightened when the process is carried out in secret and without any form of transparency. The prohibition against extra-judicial executions is designed to protect the individual’s right to life and right to due process. By removing an individual from the protection of the law and making the execution a discretionary act of the executive and the military (or even more problematically by the CIA), core human rights are violated. International law prohibits extrajudicial executions and political executions for good reason. It is clear that the use of drones to kill individuals is a violation of the prohibition against extrajudicial executions. 6.2.11. Mercenarism This crime contains one relevant instrument adopted in 1989. There are also seven other applicable instruments adopted between 1949 and 1994 that have been classified with other crimes.122 Mercenarism is a threat to peace and security and is therefore in some senses an extension of aggression; it is also prohibited by the conventional regulation of armed conflict and is therefore also a part of war crimes. It is listed separately because it is the subject of a separate convention that partakes of the elements of both aggression and war crimes. 121 See generally, Background Note for the American Society of International Law Annual Meeting, Targeting Operations with Drone Technology: Humanitarian Law Implications, Human Rights Institute, Columbia Law School (March 25, 2011), available at: http://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteASILColumbia.pdf. The defense of drone attacks offered by the Obama administration centers on the permissibility of killing combatants in the course of armed conflict. The Obama administration, while acknowledging the use of drones, fails to address the deeper problems concerning the lack of due process and the lack of transparency over how the individual is selected for execution. While there is mention of a process and a standard of proof, what precisely the standard is and the specifics of the process are not revealed. This is not a legal process in any sense of the term. See John Brennan, Assistant to the President for Homeland Security and Counterterrorism, “The Ethics and Efficacy of the President’s Counterterrorism Strategy” (April 30, 2012), available at: http://www.wilsoncenter. org/event/the-efficacy-and-ethics-us-counterterrorism-strategy. 122 See Bassiouni, ICL Conventions, supra note 12, at 616.

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6.3.1. Piracy and Unlawful Acts against the Safety of Maritime Navigation and the Safety of Platforms on the High Seas This crime contains six relevant instruments from 1937 to 1982. There are also five other applicable instruments from 1841 to 1982 that have been classified, in accordance with the methodology employed, under other crimes.124 Piracy has been recognized as an international crime under customary international law since the 1600s, and has continued to be deemed a customary as well as a conventional international crime. Even though the occurrence of this crime is rare, it can also be said that piracy is an act of terrorism, which explains why the Nyon Arrangement, September 14, 1937,125 is also entered under this crime. There is no specialized convention on piracy, but its prohibition is included in international instruments on the law of the sea. Perhaps the scarcity of such events in contemporary times has obviated the need for a specialized convention on the subject. Some of the provisions of the relevant documents listed in this category (and under other crimes also applicable to piracy) extend the notion of piracy to aircraft hijacking. The modern counterpart of the prohibition of piracy is the prohibition of unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas. Some aspects of piracy on the high seas in time of war fall within the regulation of armed conflict and constitute war crimes. Nevertheless, for historical reasons, piracy, like slavery, is deemed a jus cogens crime.126 6.3.2. Aircraft Hijacking and Unlawful Acts of International Air Safety This crime contains ten relevant instruments from 1937 to 1988. There are also three other applicable instruments from 1971 to 1982 that have been classified, in accordance with the methodology employed, with other crimes.127 There are three specialized conventions128 adopted between 1963 and 1988 that deal with this crime. Other instruments also applicable to this crime stem from piracy, as if aircraft hijacking were another form of piracy, that is, air piracy. 123 For all conventions relative to this category, see Bassiouni, Terrorism Conventions, supra note 7. 124 See Bassiouni, ICL Conventions, supra note 12, at 788; see also Gerhard O.W. Mueller & Freda Adler, Outlaws of the Ocean (1985); Alfred P. Rubin, The Law of Piracy (1998); Sundberg, supra note 2. 125 League of Nations, The Nyon Arrangement, September 14, 1937, 181 L.N.T.S. 135, 34 Martens Nouveau Recueil (ser.3) 666, (entered into force Sept. 14, 1937). 126 See 1 Bassiouni, ICL, supra note 2, at 803. 127 See Bassiouni, ICL Conventions, supra note 12, at 842. 128 Convention on Offences and Certain Other Acts Committed on Board Aircraft [Tokyo Hijacking Convention], 20 U.S.T. 2941, 704 U.N.T.S 219, 2 I.L.M. 1042 (entered into force Dec. 4,



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The existence of the International Civil Aviation Organization (ICAO) has spurred continued interest in the legislative development of this subject, as has a world public opinion concerned with increasing air travel safety. Thus, as more persons feel affected by a given criminal conduct, more international instruments will be developed, and in time, more specificity as to their penal characteristics will emerge from their provisions. But what is needed is a comprehensive convention that incorporates the three specialized conventions. 6.3.3. Threat and Use of Force against Internationally Protected Persons and United Nations Personnel This crime contains six relevant instruments from 1971 to 1994, as well as the 1996 ILC Draft Code of Crimes.129 There are also two other applicable instruments from 1937 to 1977 that have been classified, in accordance with the methodology employed, with other crimes.130 This category of crimes deals primarily with diplomats, on the one hand, and United Nations and related personnel on the other. The protection of diplomats has its roots in customary international law, but the penal prohibitions attached to this protection emerged from conventional international criminal law. The specialized instruments contained in this crime, the number of state parties, and the early dates of entry into effect attest to the fact that when the drafters of a given instrument have a vested interest in it, its conclusion and entry into effect will be swifter than with respect to other areas of international crime. The protected targets in this crime are persons carrying certain functions. This is the same internationally protected interest as in crimes against United Nations and associated personnel, and the taking of civilian hostages. The protection of United Nations and related personnel reflects the expanded use of governments’ contributed personnel, particularly military personnel, to U.N. peace-making and peace-keeping operations. Because of the dangers to which such persons are exposed, the U.N. sought their protection through an international convention. Since the context and personnel involved in this crime are military, it is related to war crimes. But it is also related to threat and use of force against internationally protected persons and the taking of civilian hostages. Because of the overlapping interests between diplomats and United Nations personnel, it would therefore have been preferable to have a single convention for the security of all internationally protected persons. 1960); Convention for the Suppression of Unlawful Seizure of Aircraft [Hague Hijacking Convention], 22 U.S.T. 1641, 860 U.N.T.S. 105, 10 I.L.M. 133, (entered into force Oct. 14, 1971); Convention for the Prevention of Unlawful Acts Against the Safety of Civil Aviation [Montreal Hijacking Convention], 24 U.S.T. 564, 974 U.N.T.S 177, 10 I.L.M. 1151 (entered into force Jan. 26, 1973). 129 See 1991 Draft Code of Crimes, supra note 19. 130 See Bassiouni, ICL Conventions, supra note 12, at 869.

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6.3.4. Taking of Civilian Hostages This crime contains three relevant instruments from 1977 to 1991. There are also thirty-four other applicable instruments from 1937 to 1977 that have been classified, in accordance with the methodology employed, with other crimes.131 6.3.5. Use of Explosives This crime contains one specialized convention adopted in 1997, the International Convention for the Suppression of Terrorist Bombings and the Convention on the Marking of Plastic Explosives for the Purpose of Detection.132 They are two in a series of conventions intended to address problems associated with terrorism that arose in a piecemeal manner. 6.3.6. Financing of Terrorism This crime contains one specialized convention, adopted in 1999, the International Convention for the Suppression of the Financing of Terrorism.133 This convention is also one in a series of conventions intended to address problems associated with terrorism. The convention was created to prevent the spread of worldwide terrorism by proscribing the provision or collection of funds in connection with enumerated acts. It has five of ten penal characteristics. 6.3.7. Unlawful Use of the Mail The Universal Postal Union (originally named the General Postal Union) was initiated in 1874 and was signed at Vienna, July 4, 1891.134 Between 1891 and 1996 there have been fifty-five relevant instruments pertaining to postal regulations. 131   See Bassiouni, ICL Conventions, supra note 12, at 880–82. 132 International Convention for the Suppression of Terrorist Bombings, U.N. Doc. A/Res/52/164 (Dec. 15, 1997); Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature Mar. 1, 1991, 30 I.L.M. 721. 133 International Convention for the Suppression of the Financing of Terrorism, Doc. ONU A/54/1009, Feb. 25, 2000. 134 28 Stat. 1078, 17 Martens Nouveau Recueil (ser. 2) 628 (entered into force July 1, 1892); (with respect to the U.S. July 1, 1892). Language: French. State Signatories: Argentina; Austria; Belgium; Brazil; Bulgaria; Colombia; the Congo; Denmark; Egypt; El Salvador; France; the French Colonies; Germany; Great Britain; Greece; Guatemala; Hawaii; Hungary; India; Italy; Japan; Liberia; Luxembourg; Mexico; Montenegro; the Netherlands; the Netherlands Colonies; Norway; Persia; Peru; Portugal; Romania; Russia; Serbia; Siam; Spain; Sweden; Switzerland; Tunisia; Turkey; United States of America; Uruguay; Venezuela. Its State Parties are: Argentina; Austria; Belgium; Brazil; Bulgaria; Colombia; the Congo; Denmark; Egypt; El Salvador; France; the French Colonies; Germany; Great Britain; Greece; Guatemala; Hawaii; Hungary; India; Italy; Japan; Liberia; Luxembourg; Mexico; Montenegro; the Netherlands; the Netherlands Colonies; Norway; Persia; Peru; Portugal; Romania; Russia; Serbia; Siam; Spain; Sweden; Switzerland; Tunisia; Turkey; United States of America; Uruguay; Venezuela.



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While these instruments are essentially concerned with the regulation of licit international postal activities, they contain prohibitions against the unlawful use of this means of international communications. These prohibitions extend to the use of the mail for certain illegal purposes that apply to different prohibitions. The gist of the offense is the unlawful use of the international mails for any specifically prohibited purpose, such as transport of drugs and obscene materials, which are deemed international crimes. However, the use of the mails for violence is only an international crime under the provisions of the relevant postal conventions included in this crime category. There are at present 191 countries that are members of the Universal Postal Union Convention.135 Since the Convention and its protocols are amended every five years, ratification by so many countries within five-year periods is very difficult. Thus, the Constitution of the Universal Postal Union provides in Article 22 §3 that the conventions are binding without further ratification. Consequently, the state parties of the Universal Postal Union are bound by the subsequent amendments and protocols. In addition to the Constitution of the Universal Postal Union, there are four relevant agreements. The Money Order Agreement Series was begun in 1878, the Postal Parcels Agreement Series was initiated in 1880, the Giro Agreement Series was first established in 1920, and the Cash-on-Delivery Agreement Series was started in 1947. Though these agreements are optional, they become operative under the principle of “tacit approval” applied in practice since the 1934 Cairo Conference. Member-states have followed this practice, which, though anomalous under international law, seems to have been carried out without any objections. This is why no state signatories and no state parties to the individual documents have been included here. Because of the succession and the large number of protocols, the Conference of State Parties to the Universal Postal Union has limited the application of these instruments to the ones whose listing follows in the annex. This entry represents the seventeen relevant instruments presently in force. It is a single entry because the Universal Postal Union considers that with respect to the penal provisions contained in the separate instruments in force, the obligations are cumulative, even though they may arise severally in separate instruments.

135 For a listing of the state parties, see Member Countries, Universal Postal Union, http:// www.upu.int/en/the-upu/member-countries.html (last visited Nov. 7, 2011).

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6.4.1. Unlawful Traffic in Drugs and Related Drug Offenses This crime contains twenty-three relevant instruments from 1912 to 1988. There are also thirty-two other applicable instruments from 1919 to 1982 that have been classified, in accordance with the methodology employed, with this crime.136 The use of mail for drug traffic is prohibited under that crime. The concern of the world community with the dangerous effects of drug traffic and drug use is evidenced by the number of specialized conventions in this crime category. It must be noted that these instruments are essentially designed to regulate the licit cultivation, manufacture, trade, and use of narcotic drugs; the prohibitions and penalties for drug violations contained in these agreements developed as a consequence of this objective, with the exceptions of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,137 which is purely penal in nature, and for the 1972 Protocol Amending the 1961 Single Convention on Narcotic Drugs,138 which is also essentially penal in nature. The creation of specialized bodies to monitor and control the application of these conventions, such as the International Narcotics Control Board, the Commission on Narcotic Drugs, and the UN Drug Control Program, has spurred the development of more detailed instruments. The historical progression of these instruments indicates how, in the course of time, each convention relied on its predecessor and added stricter and more specific penal provisions to enforce its requirements. At present, the international narcotic control system has an international agency, the Commission on Narcotic Drugs, which has certain enforcement powers. It is an enforcement model frequently cited for use in dealing with other international crimes. This result may be explained by the fact that the international community shares a high level of concern about this type of conduct, and also because this type of conduct has no ideological or political dimension. It is a crime committed by individuals, and rarely involves state action. Since there is always greater international cooperation where there is the least ideological or political content in a given regulatory scheme, the international control of drug trafficking has reached a high level of international cooperation. Conversely, aggression, which has a high ideological and political content, has yet to be embodied in a specialized convention with specific penal proscriptions. 136 See Bassiouni, ICL Conventions, supra note 12, at 1018. 137 Convention Against Illicit Traffic in Narcotic Substances and Psychotropic Substances, U.N. Doc. E/CONF.82/15 corr. 1 and corr.2, 28 I.L.M. 493 (entered into force Nov. 11, 1990). 138 Single Convention on Narcotic Drugs, 1961 [Single Convention], 18 U.S.T. 1407, referenced in 14 I.L.M. 302, (entered into force Dec. 13, 1964).



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6.4.2. Organized Crime and Related Specific Crimes This crime contains one convention and three protocols from 2001: the United Nations Convention Against Transnational Organized Crime; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol Against the Smuggling of Migrants by Land, Sea and Air; and the Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition.139 The Protocol to Prevent, Suppress and Punish Trafficking in Persons is also included with the crime of ­Slavery, Slave Related Practices, and Trafficking in Human Beings. These conventions were designed to combat transnational organized crime, and together they contain eighteen of forty penal characteristics. 6.4.3. Destruction and/or Theft of National Treasures This crime contains 12 relevant instruments from 1935 to 1999. There are also thirty-seven other applicable instruments from 1874 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.140 The protection of national monuments and national treasures, as well as of cultural property, from destruction or theft grew out of the regulation of armed conflict. Destruction and/or theft of national treasures in time of war constitute a war crime. Gradually, the concern for the protection of cultural property has extended to peacetime, and also to a broader range of national treasures and art. The instruments covering this area, whether universal or regional, tend to mix the regulation of lawful transfers of art and the prohibition of illicit transfers. They also fail to sufficiently identify the differences between destruction and mutilation, and between theft by states and by individuals in times of war and times of peace. The complex nature of the problem, the enormously large number of objects protected, and the lack of real concern by the world community (especially with regard to illicit traffic in art) make it difficult to control and regulate activity in this area.

139 See United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc. A/RES/55/25 (Jan. 8, 2001); Protocol to Prevent, Suppress and Punish Trafficking in Persons, supra note 98; Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, annex III, U.N. Doc. A/RES/55/25 (Jan. 8, 2001) (entered into force Jan. 28, 2004) (112 signatories); Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/255, annex, U.N. Doc. A/RES/55/255 (May 31, 2001) (entered into force July 3, 2005) (52 signatories); see also Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL, supra note 2, at 939. 140 See Bassiouni, ICL Conventions, supra note 12, at 1058–60.

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6.4.4. Unlawful Acts against Certain Internationally Protected Elements of the Environment This crime contains 37 relevant instruments from 1911 to 1982. There are also eighteen other applicable instruments from 1899 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.141 International concern with the environment has been expressed through the adoption of instruments for the protection of certain animal species. Recent efforts at securing agreements on protecting the air, sea, rivers, and land from harmful or dangerous pollution and contamination have produced only modest results. The international community’s concern for the environment faces a variety of economic, practical, and political hurdles that have rendered the development of relevant international legislation very difficult. Several instruments have been included here because of their complementary, interpretative, and legal relevance, even though they contain no penal provisions. A number of instruments on unlawful use of weapons and unlawful emplacement of weapons have an environmental component, and they have either been re-entered as original entry documents142 or have been noted under the “Also Applicable to Other Categories” heading. It is likely that this area will develop gradually, but consistently, through regional and specific subject-matter conventions. Probably of greater contemporary interest is the inclusion in Protocol I to the Geneva Convention143 of a provision that makes intentional damage to the environment a war crime. 6.4.5. International Traffic in Obscene Materials This category of crime contains eight relevant instruments from 1910 to 1949. There are also thirty-two other applicable instruments from 1920 to 1974 that have been classified, in accordance with the methodology employed, under other crimes.144 The use of the mail for such violations is also prohibited under that crime. World community concern with this type of conduct has abated with a change in social mores that seems to have occurred in many countries. Furthermore, the progress made by advocates of the right of freedom of expression has made the prohibition and control of this type of conduct difficult and has diminished popular support for such prohibitions in many countries. Indeed, the diversity in social values, standards, and mores makes it very difficult to define the content of obscenity. 141 See id. at 1142–43. 142 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, opened for signature May 18, 1977, U.N. G.A. Res. 31/721 (XXXI), 31 U.N. GAOR Supp. (No. 39), at 36, U.N. Doc. A/31/39 (1976), 31 U.S.T. 333, 1108 U.N.T.S. 151, 16 I.L.M. 88 (entered into force Oct. 5, 1978; entered into force with respect to the United States Jan. 17, 1980). 143 1977 Protocol I supra note 81; Annex I, referenced in 16 I.L.M. 1391 (entered into force Dec. 7, 1978). 144 See Bassiouni, ICL Conventions, supra note 12.



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The contemporary problem that has not been sufficiently addressed (though it in fact constitutes the violation par excellence of these instruments) is child pornography, which remains almost uncontrolled. The lack of cooperation in stemming international traffic in obscene materials by some countries has rekindled interest in preparing a new international instrument devoted solely to this problem. Another problem in this crime category is that the existing instruments do not define a substantive crime. Under the present instruments, the international crime is not the production of certain obscene materials, but their international traffic. Effective enforcement is nearly impossible when the object of the offense is not punishable—only the act of its illegal transport may be targeted. 6.4.6. Falsification and Counterfeiting This crime contains one relevant instrument (along with two accompanying protocols) from 1929. There are also fifteen other applicable documents ranging in dates from 1891 to 1979 that have been classified, in accordance with the methodology employed, under other crimes.145 The aim of instruments in this crime category is to protect the economic interests of states and the stability of certain aspects of the international monetary system. The international legislative process in this area has stopped because: (a) modern technology used by governments makes private falsification and counterfeiting very difficult; (b) falsification and counterfeiting is the subject of high level law enforcement cooperation (resulting in increased effectiveness of control); and (c) the modern international monetary and banking system has made detection and control of falsification and counterfeiting easier (and has limited the potential harmful consequences to very low levels). Since effective control exists in this field, the need for additional instruments has been obviated. 6.4.7. Unlawful Interference with International Submarine Cables This crime contains three relevant instruments from 1884 to 1982. There is also one other applicable instrument adopted in 1907 that has been classified, in accordance with the methodology employed, under another category of crime.146 At the time when submarine cables were the only means of transcontinental communication, the world community’s interest in protecting them was significant. As new communication technologies were discovered, the interest in protecting submarine cables diminished. However, the use of the high seas for cable lines of international communication remains of significant interest and needs more adequate protection. Fortunately, no dangers or threats to submarine cables have been evident, and thus more specific legislative instruments have not been

145 Id. 146 See id. at 1189.

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developed, though the Convention on the Law of the Sea (Montego Bay Convention), December 10, 1982,147 extends to interferences with submarine cables. Outer space, which is another international medium used for communications, is not yet covered by any international instrument that proscribes interference with or destruction of communication satellites. Presumably, in this area the threat or danger to these important communication means is not yet accessible to non-state actors, while state-actors have been fully cooperating in this area. Since the international community does not usually anticipate international harm, it tends to react after the harm has manifested itself rather than act to prevent it. 6.4.8. Corruption and Bribery of Foreign Public Officials This category of crime contains nine relevant instruments from 1975 to 2000. There is also one other applicable instrument from 1974 that has been ­classified, in accordance with the methodology employed, under another category of crime.148 This crime category came about because of the significant economic competition in certain markets that are affected by the bribery of foreign public officials. International economic competition in certain markets and with respect to certain products, particularly arms sales and aviation products sales, has brought about conditions where the profit motive is seen as superior to ethical considerations. Governments are somewhat leery of penalizing this type of conduct, since in certain instances such conduct might inure to their benefit or might help their industries. In the face of conflicting interests, and in the absence of a clear commonality of values, it is difficult to develop specific international instruments with penal provisions. Moreover, recent events have disclosed the number of heads of states and government officials who have received bribes and who as a result thereof have caused their country substantial losses. But corruption goes beyond bribery and in this respect the actions of corrupt government officials in developing countries have caused significant harm to their countries’ economy. Section 7. Evolution of the Process of International Criminalization 7.1. Introduction The discussion of substantive international criminal law that follows concerns essentially international crimes, no matter how they are categorized or labeled. 147 Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261 (entered into force Nov. 16, 1994). 148 See Bassiouni, ICL Conventions, supra note 12, at 1205.



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Some of these conventions contain provisions on international cooperation in penal matters. These provisions are not addressed here. The discussion of modalities of international cooperation in penal matters is discussed in Chapter 5. The discussion of each crime contains the historical evolution of conventions applicable to it. It is, in short, the equivalent of the special part of what is contained in national criminal law codifications. These conventions, however, contain a few provisions dealing with what is found in the general part of national criminal law codification.149 But these provisions are few and far between. The reason why there are so few provisions in these ICL conventions relative to the general part is due to the assumption that these conventions are to be incorporated in the domestic laws of the State Parties, and therefore the general part of the domestic criminal law of each State Party shall apply. This, of course, leaves a gap with respect to the direct enforcement of these provisions by international criminal tribunals, unless the latter contained in their statutes a general part. So far, with the exception of the ICC Statute, all other international tribunals which represent the direct enforcement system, i.e., the IMT, IMTFE, ICTY, and ICTR, contain in their statutes only a few provisions concerning the general part. The definition of international crimes, the applicable general part, and the obligations to prosecute or extradite and other aspects of international cooperation all lack in specificity, though in varying degrees. Thus, even though the question of principles of legality should be dealt with in the general part of international criminal law, it is contained in this chapter because it is so relevant to the process of international criminalization and to international crimes. This may seem incongruous to penalists from the civilist and Germanic legal traditions, but it is made necessary by the peculiarities of ICL. The connection between who is a subject of ICL and what principles of criminal responsibility apply to them, which by civilist-Germanic methodological standards should be part of the general part of criminal law, is nonetheless dealt with in this fashion because ICL is not codified and these principles of criminal responsibility derive from international treaties and from the jurisprudence of international criminal tribunals.150 Certain human rights law protections have been incorporated into ICL and, therefore, it can be said that where human rights law is the shield, ICL is the sword. The former is declarative or prescriptive, the latter is proscriptive. The rise of human rights law from statements of values to articulations of penal proscriptions for the protection of such values has generally occurred through an unsystematic process.151 Over time, violations of many of the fundamental 149 See infra Chapter IV. 150 See infra Chapter V. 151 This process can be identified in five stages. The first stage may be termed the “Enunciative Stage.” In this stage, through intellectual and social processes, internationally perceived shard

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human rights norms protecting life, liberty, personal integrity, and physical safety have been criminalized by ICL. This includes, with respect to crimes against the physical safety and integrity of individuals: aggression; genocide; crimes against humanity; war crimes; nuclear terrorism; crimes against United Nations and associated personnel; apartheid; slavery; torture; unlawful human experimentation; piracy; aircraft hijacking; unlawful acts against maritime navigation; ­unlawful acts against internationally protected persons; taking of civilian hostages; and unlawful use of the mail. Crimes that affect social, cultural and economic interests also have a human rights dimension. They include: unlawful traffic in drugs; destruction or theft of national treasures; unlawful acts against the environment, international traffic in obscene materials; falsification and counterfeiting; and bribery of public officials. Of all of the 27 international crimes, theft of nuclear materials can be classified as outside the human rights value-oriented goal of ICL, and that also applies to unlawful interference with international submarine cables. In these crimes, the protective goal is different. International crimes deemed part of jus cogens, as discussed below, embody human rights protection and are the example par excellence of ICL’s role as the ultima ratio method of enforcing those rights. International criminal law conventions rely on the indirect enforcement system.152 That system is predicated on the assumption that each state party to an international criminal convention will enforce its provisions through its national criminal laws and will cooperate in the prosecution and punishment of offenders. Accordingly, an international criminal law convention which explicitly or implicitly recognizes certain conduct as an international crime typically establishes the duty upon signatory states to criminalize the prohibited conduct, to prosecute accused violators or to extradite them to other states desirous of prosecuting them, and to cooperate with other states in the prevention and suppression of the proscribed conduct. As stated above, the 27 international crimes evolved throughout their respective history in a haphazard manner. The adoption of additional conventions

values emerge. In the “Declarative Stage,” these values, generally formulated as broad rights, are declared in legally nonbonding international instruments. In the next stage, termed “Prescriptive,” the values and broad rights are distilled to form specific principles, rights, norms, or standards that are then articulated in a binding international instrument. Next, the “Enforcement Stage” sees the development of administrative and civil implementation modalities through general or particular conventions that aim to enforce compliance with the obligations that are attendant to the prescriptively protected rights. Finally, in the “Criminalization Stage,” human rights violations are criminalized through the development and articulation of penal proscriptions and penal modalities for their prevention. See M. Cherif Bassiouni, Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal, in Human Rights: An Agenda for the Next Century (Louis Henkin & John Lawrence Hargrove eds., 1994). 152 See generally 3 International Criminal Law: International Enforcement (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL].



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c­ oncerning a given crime has been purely the result of contingent or opportunistic factors. There is no overall policy, method, or system by which to explain the development of these conventional norms other than pragmatic and political reasons.153 7.2. Assessing the Characteristics of ICL Conventions and Related Instruments ICL conventions do not have standard type penal provisions (e.g., the duty to criminalize the prohibited conduct under national laws, to prosecute or extradite, or to cooperate in the prevention and suppression of the proscribed conduct). This lack of uniformity in the conventions’ provisions is in part due to the fact that these conventions have been elaborated over a long period of time, from 1815 to 2005, in different venues, by different participants who frequently have not had enough cognizance of developments in ICL techniques. It must be emphasized that the drafters of these conventions, with the exception of those in the area of the regulation of armed conflicts, have been mostly diplomats or political representatives of their respective governments, and that there has been only limited participation by comparative criminal law specialists, and even less so by the few specialists in ICL.154 Consequently, political, rather than legal, considerations have been more prevalent in the drafting of the ICL conventions. For example, if at a given time a representative of a state determines that the notion of universal jurisdiction is not politically palatable to his/her superiors, he/she might influence his/her colleagues not to include such a provision, irrespective of its merits in a particular ICL convention.155 This is especially true with respect to a provision that specifically provides that the prohibited conduct constitutes “a crime under international law.” Political considerations attached to the use of the term “crime under international law” have been an impediment to its inclusion and it has only rarely been included in ICL conventions. Thus, what seemed to be an acceptable terminology in the days of the Nuremberg and Tokyo war

153 The footnotes of this section do not include complete references to the conventions that are cited. Full citations are available in the Appendix following this chapter. 154 See Bassiouni, Draft Code, supra note 12. This is what led this writer to prepare the Draft International Criminal Code, which addresses itself to the problems of harmonization and consistency in international obligations arising under international criminal law conventions. 155 See Bassiouni, Universal Jurisdiction; The Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001); Maximo Langer, The Diplomacy of Universal Jurisdiction: The Role of Political Branches in the Transnational Prosecution of International Crimes, 105 AM. J. INT.L L. 1 (2011); Menno T. Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Universal Jurisdiction (Stephen Macedo ed., 2003).

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crimes trials, and certainly until the adoption of the 1948 Genocide Convention,156 is no longer readily used.157 Instead, as of the 1970s, starting with the Hague Convention on the Suppression of Unlawful Seizure of Aircraft of December 16, 1970,158 the tendency of drafters has been to include short provisions relating to prosecution, extradition, jurisdiction, and judicial assistance. The drafting of these provisions has been less than effective, and at times has created conflict and confusion as to the specific legal obligations that derive from such provisions.159 Nevertheless, the similarity of language has been helpful in establishing international custom.160 Each category of international crimes seems to have its own pattern of historical development.161 In some crimes, such as the regulation of armed conflict, the prohibition against slavery, slave‑related practices, and trafficking in human beings, and international control of drugs, a number of successive conventions have been elaborated,162 each one relying on its predecessor to reinforce its provisions or to develop more specialized texts on specific aspects of the prohibited practice, which reveals a consistent effort to enhance normative obligations and enforcement. This has resulted primarily from the consistent work of international and intergovernmental organizations that have spearheaded the development of new treaties and enhanced mechanisms of enforcement. For example,

156 Genocide Convention, supra note 26. 157 For example, the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment deleted Article I of the original Draft Convention which stated that “torture is a crime under international law.” See Draft Convention on the Prevention and Suppression of Torture, U.N. Doc. E/CN.4/NGO/213 (1978); see also M. Cherif Bassiouni & Daniel Derby, An Appraisal of Torture in International Law and Practice, 48 Revue Internationale de Droit Pénal 17 (1977) (commentary on Article I). 158 22 U.S.T. 1641, 860 U.N.T.S. 105; see also, Terrorism: Documents of International and Local Control (3 vols. Robert A. Friedlander ed., 1979–82). 159 Case Concerning Questions of Interpretations and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114 (Apr. 14) (Provisional Measures); Case Concerning Questions of Interpretations and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.K.), 1992 I.C.J. 3 (Apr. 14) (Provisional Measures); See Mohammed Bedjaoui, The New World Order and the Security Council (1994); Fiona Beveridge, The Lockerbie Affair, 41 Int’l & Comp. L. Q. 907 (1992); Bernhard Graefrath, Leave to the Court What Belongs to the Court: The Libyan Case, 4 Eur. J. Int’l L. 184 (1993); Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie: What Lessons for International Extradition Law?, 14 Mich. J. Int’l L. 222 (1993); Robert Kennedy, Note, Libya v. United States: The International Court of Justice and the Power of Judicial Review, 33 Va. J. Int’l L. 899 (1993); Vaughn Lowe, Lockerbie-Changing the Rules during the Game, 1992 Cambridge L.Q. 408 (1992); Gerald P. McGinley, The I.C.J.’s Decision in the Lockerbie Cases, 22 Ga. J. Int’l & Comp. L. 577 (1992); Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, 48 Int’l Comm’n Jurists Rev. 38 (1992). 160 See, e.g., Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 8; see also Anthony D’Amato, The Concept of Custom in International Law (1977); Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110 (1982). 161 See Bassiouni, ICL Conventions, supra note 12. 162 See Bassiouni, International Humanitarian Law, supra note 1.



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the International Committee of the Red Cross has been principally responsible for the advances made in the regulation of armed conflict, though not with respect to the use of weapons, which has been essentially a product of the customary law of armed conflict. In the slavery, slave-related practices, and trafficking in human beings areas, the International Labour Organisation, the United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities have consistently worked for the development of additional instruments and better enforcement. And significantly, in the last three decades, the role of NGOs has been crucial to the advancement of ICL, mostly through pressure to criminalize certain human rights violations.163 Thus, the critical factor in the progressive development of international criminal law is the existence of organizations and institutional structures that spur its growth and development.164 It is noteworthy that where there has been a progressive development of international instruments in the sphere of ICL, there has also been a progressive development of legal provisions containing more specificity in their content (and in their penal provisions) and in the enforcement duties they place upon state parties.165 Thus, the more conventions that exist on a particular topic of ICL, the greater the likelihood that the terminology embodying specific legal obligations concerning criminalization, prosecution, punishment, extradition, judicial assistance, and jurisdiction is more specific in each successive convention. The following are some observations about the nature of international instruments containing substantive provisions on international crimes: (1) No apparent correlation exists between the number of instruments (281) and the nature of the subject matter (27 crimes). The number of applicable instruments per crime category varies significantly, from five for genocide,166 to fifty-two for aggression, and sixty-nine for war crimes. Also, there is no correlation between the number of instruments and the period of time during which they were adopted (1815–2005), but there were periods of international fecundity stimulated by political circumstances. For example, during the 1970s and 1980s a greater number of instruments relating to terrorviolence and narcotics control were elaborated in response to the increased perception of threats from these activities. Overall, the rate and pace of ICL elaboration started to quicken in the late 1960s and particularly accelerated in the late 1970s. One of the principal ­reasons 163 See, e.g., The Contributions of Specialized Institutes and Non-Governmental Organizations to the U.N. Criminal Justice Program (M. Cherif Bassiouni ed., 1995). 164 See Hanna Saba, The Quasi Legislative Activities of Specialized Agencies, 111 Recueil des Cours de l’Academie de la Haye 281 (1964). 165 This is evident in the conventions on the regulation of armed conflicts, war crimes and drug trafficking. See Bassiouni, ICL Conventions, supra note 12. 166 There is, however, only one convention on genocide.

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for this phenomenon is the relatively recent concern and attention given to human rights and to the criminalization of their violations. There is no correlation between the number of instruments applicable to a particular category of crime and the number of “penal characteristics” in each of these instruments. But, as noted above, the more instruments that exist in a particular crime category, the more specificity there is as to legal obligations of criminalization, prosecution, punishment, extradition, judicial assistance, and jurisdiction. But that, too, depends on the subject matter. (2) As already noted, there are historical periods of greater conventionelaborating productivity, just as there are certain subject matters that seem to generate more political interest and consequently result in more instruments than others. Also, as stated above, a larger number of instruments per category of crime do not always mean more penal characteristics in these instruments, and elaboration of instruments during the same historical period does not always result in greater uniformity of their penal characteristics. Thus, for example, the largest number of instruments on aggression and the regulation of armed conflict were developed during approximately the same span of time, but their penal characteristics vary significantly. The main reason for this is that aggression is regarded as a crime with significantly greater political content than a war crime. But the penal characteristics of the conventions dealing with aggression and war crimes also vary because aggression involves the responsibility of heads of state and senior government officials, while war crimes does not necessarily involve such personalities. For a diplomat or a government representative to support stronger criminalization of aggression is unusual, for obvious reasons, and even more so in the case of the major powers. (3) As stated above, the regulation of armed conflict contains the largest number of instruments with the largest number of penal provisions. This may be explained by the substantial mutual interests in this area among the state parties, and by the fact that measures for the regulation of armed conflict are enforced by highly structured and disciplined bodies, namely, the armed forces. One can also argue that limitations predicated on humanitarian concerns that do not necessarily prejudice a government’s pursuit of political objectives are more acceptable to states because states can expect reciprocal benefits. Clearly, this is not the case with respect to provisions limiting the very use of force, as this has more definite political aspects to it. ICL provisions on aggression preclude resorting to force to secure certain political objectives, and do so without the symmetry of contemporaneous reciprocal disadvantages. Consequently, states do not favor expansion of such penal provisions dealing with aggression. The conclusion, therefore, is that symmetry of reciprocal benefits and mutuality of interests enhances the development of instruments and the specificity of their normative provisions. The same conclusion can be reached when the control and regulatory scheme of the instrument in question does not preclude or hinder states’ political objectives.



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(4) Each of the 27 crimes has developed and evolved independently of the others, and there is no identifiable link between the crime, except where there is subject matter overlap, as in the case of war crimes and unlawful possession or use or emplacement of weapons, or where they cover included or related subjects, such as theft and/or destruction of national treasures. Even such closely related crimes (in terms of the interest they protect) as crimes against humanity, genocide, apartheid, slavery, slave-related practices, and trafficking in human beings, torture and other forms of cruel, inhuman or degrading treatment or punishment, and unlawful human experimentation have evolved separately and independently of one another. Even more telling of this independent evolution are examples of such related crimes as threat and use of force against ­internationally protected persons, taking of civilian hostages, and crimes against U.N. personnel. In each of these crimes there has been one convention, each elaborated at a different period of time, even though all three deal with essentially the same subject matter. Similarly, the “aircraft hijacking” conventions, Tokyo (1969), Hague (1970), and Montreal (1971) and Montreal Protocol (1988), are examples of a piecemeal legislative development of the same subject matter and protection of the same interest. There are thirteen U.N. conventions in force, two draft conventions, and seven regional conventions, yet there is no valid policy justification for such a fragmented approach.167 (5) With respect to instruments that apply to more than one crime, the link between the crimes reflected in the same instrument is not always readily apparent. Nor is it clear why a particular instrument that is intended to deal with a given subject contains norms applicable to other subjects that go beyond the intended scope of the instrument. Again, the answer to these questions may well be found in historical circumstances, political opportunities, and the personalities of those engaged in the drafting process. The answer to these questions may also be that such drafting was simply a practical means to achieve a result that may have otherwise required a separate convention. For example, instruments on the regulation of armed conflict apply both to war crimes and unlawful possession or use or emplacement of weapons. But some of these instruments apply also to crimes against humanity, torture and other forms of cruel, inhuman or degrading treatment or punishment, unlawful human experimentation, and destruction and/or theft of national treasures in time of war. Here, the contextual link exists. But in other conventions that apply to different subjects, the proscribed conduct is only functionally related, such as in the Law of the Sea Conventions of 1958 and 1982, which contain provisions on piracy, slave-trade, and drug traffic. Another convention on submarine warfare (1923), for example, also prohibits the carrying of slaves in a ship’s hull. Also, the 167 See Bassiouni, Terrorism Conventions, supra note 7; M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Assessment, 43 Harv. Int’l L.J. 83 (2002); M. Cherif Bassiouni, Perspectives on International Terrorism, in 1 Bassiouni, ICL, supra note 2, at 697.

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United Nations Convention on Organized Crime has three protocols: (1) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; (2) the Protocol Against the Smuggling of Migrants by Land, Sea and Air; and (3) the Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition. The first two of these protocols relate not just to organized crime, but also to slavery, slave related practices, and trafficking in human beings. (6) A comparative analysis of the number of instruments and the penal provisions they contain reveals that whenever a given crime category contains a more significant political or ideological dimension, the less penal provisions appear in the applicable instruments, and those found therein are mostly implicit or vague. That is the case with aggression, for example. The less a political or ideological dimension exists in a given category of crime, the more penal provisions appear, and these are likely to be formulated explicitly and with specificity. This is, for example, the case with international traffic in drugs. Similarly, the more a given prohibited or regulated conduct involves state sponsorship or state-favored policy, the less penal provisions are contained in the conventions. The converse is equally true; that is, the more the conduct is susceptible to being committed by an individual without any link to state interests or state policy, the more likely it is to be strenuously regulated by additional penal provisions with increased specificity in their formulation (e.g., international traffic in drugs). (7) Whenever a given convention creates a bureaucratic structure, either for enforcement, monitoring, or even simply for administrative support, more international instruments in the area are likely to follow, and these are likely to contain more provisions that are more detailed and enforceable. Bureaucracies usually perpetuate themselves, and in so doing provide a valuable impetus for the evolution and development of the subject matter within their competence. This is evident with respect to slavery, slave-related practices, and trafficking in human beings (twenty-eight instruments) and unlawful traffic in drugs and drug-related offenses (twenty-three instruments). The existence of successive conventions is due, in no small part, to, respectively, the International Labour Organization for slavery and slave-related practices, and the International Narcotics Control Board, the Commission on Narcotic Drugs, and the United Nations Drug Control Program (UNDCP) for drugs. This is also true with respect to conventions dealing with war crimes (sixty-nine instruments) and unlawful possession or use or emplacement of weapons (thirty-five instruments), the most important of which were developed by the International Committee of the Red Cross (i.e., the four Geneva Conventions of August 12, 1949 and their two Additional Protocols of 1977). These instruments constitute the most detailed, specific codification of any aspect of international criminal law with the largest number of penal provisions. But it should be noted that the largest number of instruments pertaining



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to the regulation of armed conflicts is part of the customary law process, and that these instruments have been developed by U.N. bodies such as the United Nations Disarmament Conference. In contrast, genocide, which concerns a subject matter whose quantitative and qualitative harm to the world community is very significant, is the subject of only three instruments (though they contain a large number of penal provisions—twenty-four). Perhaps if the 1948 Genocide Convention had created an investigating commission, a fact-finding body, or another bureaucratic structure, other instruments would have been elaborated since its adoption, particularly because genocide-like mass killings have significantly increased since 1948. Of course, one can also argue that it is not so much the absence of a bureaucratic structure that stymied the evolution of international instruments on genocide and genocide-like conduct as it is the fact that these activities are statesponsored, and that, as in the case of aggression, is the reason for its arrested development. (8) Subject matters that affect human rights, particularly those affecting life, liberty, personal security, safety, and well-being, are addressed in the largest number of instruments containing the largest number of penal provisions. This may be due to the fact that transgressions in the area of human rights may have a lesser political and ideological dimension than other crimes, and thus attract a less sensitive level of state interest. This is the case with respect to crimes against humanity, war crimes, torture and other forms of cruel, inhuman or degrading treatment or punishment, slavery, slave-related practices, and trafficking in human beings, and the many crimes falling under the broad umbrella of “terrorism.” (9) Crimes that affect the largest number of individuals who would perceive themselves as innocent or uninvolved seem to be subject to the most comprehensive enforcement measures and penal provisions. This is, for example, the case with aircraft hijacking and unlawful acts against international air safety (nine instruments), taking of civilian hostages (three instruments), and crimes against civilian maritime navigation (two instruments). The same is true with respect to the threat and use of force against internationally protected persons (four instruments), the speed with which the convention on the protection of diplomats was elaborated and adopted, and the large number of penal provisions contained in it, attests to the fact that when the drafters are personally interested in the outcome, the result is more forthcoming and more positive than if they are not. The same is also true with respect to the 1995 convention on the protection of U.N. personnel. (10) The mass media’s focus on a particular issue combined with the activism of nongovernmental organizations in related areas play significant roles in developing international instruments. This was evidenced in connection with the elaboration of some of the slavery conventions and with the 1984 Convention

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Against Torture. In contrast, the contemporary problems of piracy in the South Asia seas remain largely ignored because of the absence of media coverage, and the absence of an effective and vocal constituency. (11) Instruments of an economic nature, or those concerning economic and social subject matters, such as bribery of foreign public officials, falsification and counterfeiting, and international traffic in obscene materials, seem to be the least in number, and contain the least number of penal provisions. The international harm from these crimes may well be perceived as being of a lesser qualitative level than that from other crimes, and the drafters may be wary of the limits of international enforcement in this area. The observation about the perceived lower level of harm also applies to the “protection of communication means,” which includes two crimes, unlawful use of the mail and unlawful interference with international submarine cables. (12) Interestingly, among the penal provisions contained in international instruments, the largest number is in the category of “implicit recognition” (184), followed by the “duty or right to punish” (118) (emphasis on the “right to punish”), while fewer are in the category of “explicit recognition” (sixty-three), reference to an “international criminal court” (thirty-two), and “defense of obedience to superior orders” (twenty-seven). This indicates the obvious, namely that drafters of international criminal conventions seek less specificity (i.e., “implicit” instead of “explicit”) and make fewer references to an “international criminal court” whose establishment is not yet entirely palatable to some governments. In this respect, it must be noted that throughout the period of history analyzed (1815–2005), only two international instruments have provided for the establishment of an international criminal court: the 1937 Terrorism Convention, which never entered into effect, and the 1972 Apartheid Convention, whose implementation lies dormant in the UN. More typical is the 1948 Genocide Convention that merely provides that in the event an international criminal court is established, it would have jurisdiction over the Convention’s subject matter. (13) The term “international crime” or its equivalent has never been specifically used in international conventions, though at times it was proposed during drafting sessions.168 More frequently, but still very rarely, drafters use the term “crime under international law.”169 In fact, an explicit recognition that a given 168 See Draft Convention for the Prevention and Suppression of Torture, 48 Rev. Int'l. Droit Penal 267 (1977). I stated “torture is a crime under international law.” Subsequently, however the adopted convention did not contain this text. See also J. Herman Burgers & Hans Danelius, The U.N. Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1988); José de la Cuesta, El Delito de Tortura (1990); Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed., 1999); Daniel Derby, The International Prohibition of Torture, in 1 Bassiouni, ICL, supra note 2, at 621. 169 This term has only been used in the Genocide Convention and in the Apartheid Convention.



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conduct constitutes an “international crime” or a “crime under international law” can be found only in thirty-four out of the 281 international instruments, and none of these thirty-four instruments has been drafted in the last two decades. Drafts of the 1984 Convention Against Torture contained such terminology, but the text that was adopted does not. (14) It should also be stated that most of the surveyed instruments were drafted with a view to establishing individual criminal responsibility and do not establish state criminal responsibility. This is so despite the fact that some of the crimes are clearly the product of state policy or, more likely, the product of state sponsorship. Thus, although state responsibility is inherent in certain crimes like aggression and genocide, the drafters of international instruments on the control of such conduct have been careful to avoid its establishment. These observations highlight the fact that there has never been a global vision of international criminal law that would lead to the drafting of a comprehensive international criminal code, as advocated by this and a few other writers. Even the ILC’s fifty-year effort to develop a Code of Crimes produced only a modest result that refers to only five international crimes: aggression, genocide, crimes against humanity, war crimes, and crimes against UN personnel.170 This lack of vision principally accounts for the piecemeal, fragmented approach that has characterized the development and evolution of international criminal law. 7.3. Observations on the Ranking and Classification of International Crimes The value-ranking of international crimes begins with the one most harmful to peace and security, namely aggression,171 under the heading “Protection of Peace.”172 This category is followed by those offenses that are most closely 170 See the ILC’s Code of Crimes Against Peace and Security of Mankind, discussed in 1 Bassiouni, ICL, supra note 2, at 207. 171 See Bassiouni & Ferencz, supra note 16. 172 See, e.g., Mauro Politi & Giuseppe Nesi, The International Criminal Court and the Crime of Aggression (2004); Yoram Dinstein, War, Aggression and Self-Defense (3d ed. 2001); Ahmed M. Rifaat, International Aggression (1979); Benjamin B. Ferencz, Defining International Aggression—the Search for World Peace (1975); Radharaman Chakrabarti, Intervention and the Problem of its Control in the Twentieth Century (1974); F.S. Northedge, The Use of Force in International Relations (1974); Ann Thomas, The Concept of Aggression in International Law (1972); Vespasian V. Pella, La GuerreCrime et les Criminels de Guerre (1964); Ian Brownlie, International Law and the Use of Force by States (1963); Eugene Aronéanu, La Définition de l’Agression: Exposé Objectif (1958); Julius Stone, Legal Controls of International Conflict (1954); Cornelis A. Pompe; Aggressive War: an International Crime (1953); Sheldon Glueck, The Nuremberg Trial and Aggressive War (1946); Wilhelm Gustav Hertz, Das Problem des Völkerrechtlichen Agriffs (1935); see also, e.g., Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620 (1984); Richard A. Falk & Quincy Wright, On Legal Tests of Aggressive War, 66 Am. J. Int’l L. 560 (1972); J.C. Garnett & M. Wright, Concept of Aggression in International Politics, 3 Int’l Relations 702 (1970); John N. Hazard, Why Try Again to Define Aggression? 62 Am. J. Int’l L. 701 (1968);

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related to the protection of peace. These offenses come under the headings of “Humanitarian Protection During Armed Conflicts,” the “Regulation of Armed Conflicts,” and the “Control of Weapons.”173 First in that category is war crimes, S. Boutros Samann, Définition de l’Agression, 24 Revue Égyptienne de Droit International 187 (1968) ; Petr S. Romashkin, Aggressia-Tiagchaishee Prestuplenie Protiv Mira I Chelovechestva, 1 Sov. Gos. I Pravo 55 (1963); Bernard V.A. Röling, On Aggression, on International Criminal Law, on International Criminal Jurisdiction, 2 Nederlands Tijdschrift voor International Recht 167 (1955). 173 International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2006); Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict (2005); Marco Sassoli & Antoine A. Bouvier et. al., How Does Law Protect in War: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (2005); Knut Dormann, Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary (2003); Frits Kalshoven & Lisbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (3d ed. 2001); M. Cherif Bassiouni, A Manual on International Humanitarian Law and Arms Control Agreements (2000); Documents on the Laws of War (Adam Roberts & Richard Guelff eds., 3d ed. 2000); Ingrid Detter, The Law of War (2d ed. 2000); Leslie Green, The Contemporary law of Armed Conflict (2d ed. 2000); Leslie Green, Essays on the Modern Law of War (2d ed. 1999); Geoffrey Best, Law and War Since 1945 (2d ed. 1997); The Law of War Crimes: National and International Approaches (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997); The Handbook of Humanitarian Law in Armed Conflicts (Dieter Fleck ed., 1995); John Keegan, A History of Warfare (1993); Howard Levie, Terrorism in War: The Law of War Crimes (1992); Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts (1987); Howard S. Levie, The Code of International Armed Conflict (1986); Michael Bothe et al., New Rules for Victims of Armed Conflicts (1982); Howard S. Levie, Documents on Prisoners of War (1979); Howard S. Levie, Protection of War Victims (1979); Howard S. Levie, Prisoners of War in International Armed Conflicts (1979); Jean S. Pictet, Le Droit Humanitaire et la Protections des Victimes de la Guerre (1973); Leon Friedman, The Law of War: A Documentary History (1972); The International Law of Civil War (Richard A. Falk ed., 1971); W. Thomas Mallison, Studies in the Law of Naval Warfare: Submarines in General and Limited Wars (1968); Arnold D. McNair & Arthur D. Watts, The Legal Effects of War (1966); Maurice H. Keen, The Laws of War in the Middle Ages (1965); Jean S. Pictet, 2 Commentary on the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1960); Morris Greenspan, Modern Law of Land Warfare (1959); Gerald I.A.D. Draper, The Red Cross Convention (1958); Jean S. Pictet, 3 Commentary on the Geneva Convention Relative to the Protection of Prisoners of War (1956); Jean S. Pictet, 4 Commentary on the Geneva Convention Relative to the Protection of Civilians in Time of War (1956); Pierre Boissier, Völk errecht und Militärbefehl (1953); Jean S. Pictet, 1 Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (1952); Fritz Bauer, Die Kriegeverbrecher vor Gericht (1945); George Creel, War Criminals and Punishment (1944); see also Christian M. Capece, The Ottawa Treaty and its Impact on U.S. Military Policy and Planning, 25 Brook. J. Int’l L. 183 (1999); Paul W. Kahn, Nuclear Weapons and the Rule of Law, 31 N.Y.U. J. Int’l L. & Pol. 349 (1999); Scott Keefer, International Control of Biological Weapons, 6 ILSA J. Int’l & Comp. L. 107 (1999); Stefaan Smis, The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 27 Ga. J. Int’l & Comp. L. 345 (1999); Yvette Politis, The Regulation of an Invisible Enemy: The International Community’s Response to Land Mine Proliferation, 22 B.C. Int’l & Comp. L. Rev. 465 (1999); Kazuomi Ouchi, The Threat or Use of Nuclear Weapons: Discernible Legal Policies of the Judges of the International Court of Justice, 13 Conn. J. Int’l L. 107 (1998); Hugh R. Overholt, The Use of Lasers as Antipersonnel Weapons, Army Law. 3 (1998); Kevin J. Fitzgerald, The Chemical Weapons Convention: Inadequate Protections from Chemical Warfare, 20 Suffolk Transnat’l L.J. 425 (1997); Anne Peters, Blinding Laser Weapons:



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which by reason of its seriousness and potential harm to civilian populations, to the sick and wounded, to those shipwrecked at sea, and to prisoners of war, is of a universal humanitarian concern. Unlawful possession or use or emplacement of weapons follows because of its connection to war crimes. It is placed in a separate category due to its peculiar characteristics and because of the different legal implications arising out of the two sources of law applicable to the regulation of war crimes and unlawful emplacement of weapons, the Law of Geneva and the Law of the Hague, regulating war crimes, and the customary law of armed conflict regulating weapons use. Theft of nuclear materials174 follows insofar as it is designed to protect against the unlawful use of nuclear materials obtained by theft, which goes beyond the specifics of similar weapons control norms.175 Theft of nuclear weapons and Nuclear Terrorism are also related to the category of offenses grouped under the “Protection Against Terror-Violence” heading. It is also related to the category of “Protection of the Environment.” Because of their potential consequences, nuclear terrorism and/or theft of nuclear weapons could also be described as a threat to peace. Mercenarism follows because of its logical connection to the “Regulation of Armed Conflict,” though there is some skepticism about its contemporary potential for harm.176 New Limits on the Technology of Warfare, 18 Loy. L.A. Int’l & Comp. L. Rev. 733 (1996); Adam Steinfield, Nuclear Objections: The Persistent Objector and the Legality of the Use of Nuclear Weapons, 62 Brook. L. Rev. 1625 (1996); Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the Use of Nuclear Weapons in all Circumstances?, 20 Fordham Int’l L.J. 181 (1996); Hans-Peter Gasser, A Brief Analysis of the 1977 Geneva Protocols, 19 Akron L. Rev. 525 (1986); Burris M. Carnahan, The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons, 105 Mil. L. Rev. 73 (1984); Richard John Erickson, Protocol I: A Merging of the Hague & Geneva Law of Armed Conflict, 19 Va. J. Int’l L. 557 (1979); M. Cherif Bassiouni, Repression of Breaches of the Geneva Conventions Under the Draft Additional Protocol to the Geneva Conventions of August 12, 1949, 8 Rutgers-Cam. L.J. 185 (1977); William T. Mallison & R.A. Jabri, Juridical Characteristics of Belligerent Occupation and the Resort to Resistance by the Civilian Population: Doctrinal Development and Continuity, 42 Geo. Wash. L. Rev. 185 (1974); W. Hays Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973); Gerald I.A.D. Draper, Human Rights and the Law of War, 12 Va. J. Int’l L. 326 (1972); John N. Moore, Ratification of the Geneva Protocol on Gas and Bacteriological Warfare: A Legal and Political Analysis, 58 Va. L. Rev. 419 (1972); Tom J. Farer, Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict,” 71 Colum. L. Rev. 37 (1971); Richard R. Baxter & Thomas Buergenthal, Legal Aspects of the Geneva Protocol of 1925, 64 Am. J. Int’l L. 853 (1970); Hamilton DeSaussure, Laws of Air Warfare: Are There Any? 12 A.F. L. Rev. 242 (1970); Claude Pilloud, La Protection Pénale des Conventions Humanitaires Internationales, 24 Revue Internationale de Droit Pénal 661 (1953); William B. Cowles, Trials of War Criminals (non-Nuremberg), 42 Am. J. Int’l L. 299 (1948); Ben J. Dunn, Trial of War Criminals, 19 Aust. L. J. 359 (1946). 174 Barry Kellman, Bioviolence (2007); Barry Kellman & David S. Gualtieri, Barricading the Nuclear Window—A Legal Regime to Curtail Nuclear Smuggling, 96 U. Ill. L. Rev. 667 (1996). 175 The ICJ recently decided in an Advisory Opinion that possession of nuclear weapons is not prohibited by international law, but its first use is. Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 95 (July 8). 176 See Ryan M. Scoville, Note, Toward an Accountability-Based Definition of “Mercenary”, 37 Geo. J. Int’l L. 541 (2006); Jordan Paust, Recruitment, Use, Financing and Training of Mercenaries, 11 Nouvelles Études Penal 271 (M. Cherif Bassiouni ed., 1993). There was a time, however, when “mercenarism” was a threat to peace and security, particularly in Africa—a situation that may no

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Even though genocide177 and crimes against humanity178 may on occasion constitute a threat to peace, they are listed under the heading “Protection of Fundamental Human Rights” because the predominant character of the protected interests is that of individual and collective human rights. Clearly, the quantitative harm resulting from genocide and crimes against humanity, judging from World War II and subsequent conflicts,179 would support ranking them immediately after aggression. However, because of contextual connections among aggression, war crimes, and unlawful possession or use or emplacement of weapons, nuclear terrorism, theft of nuclear materials, and mercenarism, the present order is suggested. It must be noted that genocide and crimes against humanity are crimes of conduct in both wartime and peacetime. Both crimes overlap in some respects and also overlap with war crimes. Even though they fall under different headings, the crimes of aggression, war crimes, crimes against humanity, and genocide are the most serious of all longer exist. See Laura A. Dickinson, Mercenarism and Private Military Contractors, in 1 Bassiouni, ICL, supra note 2, at 355. 177 See Powers, supra note 62; Schabas, supra note 26; Encyclopedia of Genocide (2 vols., Israel Charney ed., 1999); Theodor Meron, War Crimes Law Comes of Age (1998); Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (1998); Guy Richard, L’Histoire Inhumaine: Massacres et Genocides des Origines a Nos Jours (1992); Contemporary Genocides: Causes, Cases, and Consequences (Albert J. Jongman ed., 1996); Leo Kuper, Genocide: Its Political Use in the Twentieth Century (1981); Roger Manvell & Heinrich Fraenkel, The Incomparable Crime: Mass Extermination in the Twentieth Century: The Legacy of Guilt (1967); Antonio Planzer, Le Crime de Genocide (1956); Nehemiah Robinson, The Genocide Convention (1960); Pieter N. Drost, The Crime of State (1959); see also Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B.U. Int’l L.J. 1 (1985); Comment, The Genocide Convention Revisited: A New Case for Ratification, 2 B.U. Int’l L.J. 241 (1983); M. Cherif Bassiouni, International Law and the Holocaust, 9 Cal. W. Int’l L.J. 202 (1978); George A. Finch, La Convention sur le Génocide, 21 Revue Internationale de Droit Pénal 153 (1950); George A. Finch, Genocide Convention, 43 Am. J. Int’l L. 732 (1949); see also Lippman, supra note 26. 178 See Eugene Aroneanu, Le Crime Contre l’Humanité (1961); Bassiouni, Crimes Against Humanity supra note 27; Sorj Chalandon & Pascale Nivelle, Crimes Contre L’Humanité: Barbie Touvier Bousquet Papon (1998); Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d ed. 2002); M. Cherif Bassiouni, Crimes Against Humanity: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L 457 (1994); James T. Brand, Crimes Against Humanity and the Nürnberg Trials, 28 Or. L. Rev. 93 (1949); Jean Y. Dautricort, La Définition du Crime Contre l’Humanité, 25 Revue de Droit International de Sciences, Diplomatiques et Politiques 294 (1947); Jean Graven, Les Crimes Contre l’Humanité, 76 Recueil des Cours de l’Académie de Droit International de la Haye 433 (1950); Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178 (1946); see also M. Cherif Bassiouni, Crimes Against Humanity, in 1 Bassiouni, ICL, supra note 2, at 437. Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 259 (1994). 179 See Rudolph J. Rummel, Death by Government (1994); Transnational Justice: How Emerging Democracies Reckon with Former Regimes (Neil J. Kritz ed., 1995); Jennifer L. Balint, An Empirical Study of Conflict, Conflict Victimization and Legal Redress, 14 Nouvelles Études Pénales 101 (Christopher C. Joyner special ed. & M. Cherif Bassiouni, general ed., 1998); M. Cherif Bassiouni, The Need for International Accountability, in 3 Bassiouni, ICL, supra note 152, at 3.



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international crimes in terms of their impact on humankind; the potential severity of these harms has already been witnessed throughout history. They are, as discussed above, part of jus cogens. It is logical then to proceed from these crimes to others whose harmful effects are also directed against similar interests—the protection of human life and personal safety. This ranking of international crimes is similar to that contained in the penal codes of many legal systems. Offenses against life and personal safety and well-being precede those affecting social, economical, cultural, and other interests. The foregoing grouping of offenses is also based in part on the degree of rational connections between offenses. Thus, all offenses against human life and personal safety are grouped together within the identified international interest sought to be protected, and they follow in sequence on the basis of the gravity of harm. Consequently, the crimes of apartheid,180 slavery, slave-related related practices, and trafficking in human beings181 follow the first five crimes because they are an extension of the threat against protected human interests, that is, a threat against life and personal safety. These are linked to the underlying human rights philosophy that permeates the offenses of aggression, war crimes, unlawful possession or use or emplacement of weapons, crimes against humanity, and genocide. From another perspective, apartheid, slavery and slave-related offenses, and specific crimes within the crimes of genocide and crimes against humanity are also shocking to the conscience of humanity. But, unlike the crimes placed lower on the list, slavery and slave-related practices do not presently have the consequential impact of affecting peace and security. The practice of apartheid in South Africa until 1993 did in fact cause a threat to peace and security in Southern Africa; it is on this account that apartheid is ranked above slavery and slave-related practices. The disappearance of apartheid in South Africa does not mean, however, that this crime cannot occur elsewhere. It must also be noted that these seven crimes, aggression, war crimes, unlawful possession or use or emplacement of weapons, crimes against humanity, genocide, apartheid, and some aspects of slavery and slave-related crimes have historically been committed when state policy supported or abetted their commission. Thus, unlike other international crimes, the first seven crimes involve state action or state policy favorable to their commission (though war crimes and slavery and slave-related practices can be devoid of the element of state

180 See Ozdemir Ozgur, Apartheid, the United Nations and Peaceful Change in South Africa (1982); Roger S. Clark, Apartheid, in 1Bassiouni, ICL, supra note 2, at 599. 181 See John B. Duff & Larry A. Greene, Slavery: Its Origins and Legacy (1975); Judith Ennew, Debt Bondage: A Survey (1981); Ben Whitaker, Slavery: Report of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (1984); M. Cherif Bassiouni, Enslavement as an International Crime, 23 N.Y.U. J. Int’l L. & Pol. 445–517 (1991); see also M. Cherif Bassiouni, Enslavement: Slavery, Slave-Related Practice, and Trafficking in Persons, in 1 Bassioiuni ICL, supra note 2, at 535.

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policy or action). The element of state support or tolerance gives these crimes a special status, and they require concerted international action for their prevention, control, and suppression. The ranking then continues with two crimes that are also enforced to protect a human interest, torture and other forms of cruel, inhuman or degrading treatment or punishment182 and unlawful human experimentation.183 Both of these crimes are also included in war crimes when committed during war, though it should be noted that the latter is not yet specifically recognized as an international crime when committed in peacetime. These crimes also fall into the category of crimes against humanity and genocide when they are the product of state policy and are designed to exterminate a given group (genocide), or because they are a part of a policy of persecution (crimes against humanity). In many respects, these two crimes involve the same state-policy considerations discussed above in relation to the first seven crimes of aggression, war crimes, unlawful possession or use or emplacement of weapons, crimes against humanity, genocide, apartheid, slavery, slave-related practices, and trafficking in human beings. Other international crimes that protect human interests also reflect other protected interests, such as the protection of tangible economic interests or the intangible interest of preserving world order. This is evident in piracy184 and 182 See Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000); Jose Luis de la Cuesta Arzamendi, El Delito de Tortura (1990); J. Herman Burgers & Hans Danelius, The United Nations Convention against Torture (1988); Piero Fiorelli, La Tortura Giudiziaria el Dirritto Comune (2 vols. 1953); John H. Langbein, Torture and the Law of Proof (1977); Jean C. Lauret & Raymond Lassiera, La Torture et les Pouvoirs (1973); The Prevention and Suppression of Torture, 48 Revue Internationale de Droit Pénal (1977); see also Steven Ackerman, Torture and Other Forms of Cruel and Unusual Punishment in International Law, 11 Vand. J. Transnat’l L. 653 (1978); M. Cherif Bassiouni & Daniel Derby, An Appraisal of Torture in International Law and Practice: The Need for an International Convention for the Prevention and Suppression of Torture, 48 Revue Internationale de Droit Pénal 17 (1977); see Derby, supra note 157. 183 See The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (George J. Annas & Michael A. Grodin eds., 1992); Paul A. Freund, Experimentation with Human Subjects (1970); R.J. Lifton, The Nazi Doctors (1986); Alexander Mitscherlich & Fred Mielke, Doctors of Infamy: The Story of the Nazi Medical Crimes (1949); M. Cherif Bassiouni, The Institutionalization of Torture under the Bush Administration, 37 Case W. Res. J. Int’l L. 389 (2006); M. Cherif Bassiouni, Thomas G. Baffes & John T. Evrard, An Appraisal of Human Experimentation in International Law and Practice: the Need for International Regulation of Human Experimentation, 72 J. Crim. L. & Criminology 1597 (1981); Kenneth R. Simmonds, Law and Human Experimentation, 10 U. of Ghana L.J. 81 (1973); George J. Annas, Medical Remedies and Human Rights: Why Civil Rights Lawyers Must Become Involved in Medical Decision-making, 2 Hum. Rts. Q. 151 (1972). 184 See Nancy D. Joyner, Contemporary Concept of Piracy in International Law (1974); Alfred P. Rubin, The Law of Piracy (1998); G.O.W. Mueller & Freda Adler, Outlaws of the Ocean (1985); Barry H. Dubner, The Law of International Sea Piracy (1980); J. Daniel Nyhart & J. Christian Kessler, Ocean Vessels and Offshore Structures, in Legal Aspects of International



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aircraft hijacking and unlawful acts against international air safety,185 unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas, threat and use of force against internationally protected persons,186

Terrorism 187 (Alona E. Evans & John F. Murphy eds., 1978); M.K.A. Malache, De la Piraterie, 26 Revue Égyptienne de Droit International 124 (1970); Jaime Masaveu, La Pirateria y el Corso: un Estedio de Orientation Penal, 29 Criminelia 282 (1963); Thomas M. Franck, To Define and Punish Piracies; the Lessons of the Santa Maria: A Comment, 36 N.Y.U. L. Rev. 839 (1961). See also Natalino Ronzitti, Pirateria, 33 Encyclopedia del Diritto 911 (1983); Ben Atkinson Wortley, Pirata Non Mutat Dominium, 1947 Brit. Y.B. Int’l L. 258 (1974); Nicholas M. Poulantzas, Hijacking v. Piracy: A Substantial Misunderstanding Not a Quarrel Over Semantics, 23 Revue Hellénique de Droit International 80 (1970); Sami Shubber, Is Hijacking of Aircraft Piracy in International Law? 1968 Brit. Y.B. Int’l L. 193 (1968–69); Hersch Lauterpacht, Insurrection et Piraterie, 4 Revue Générale de Droit International Public 513 (1939). 185 See S.K. Agrawala, Aircraft Hijacking and International Law (1973); Richard Philippe, La Convention de Tokyo (1971); see also George Antoniou & Nicoleta Iliescu, La Répression de la Capture Illicite d’Aéronefs, 47 Revue International de Droit Pénal 265 (1976); Alona E. Evans, Aircraft Hijacking in the United States Law and Practice, 47 Revue International de Droit Pénal 44 (1976); XI Congrés International de Droit Pénal, La Répression de la Capture Illicite d’Aéronefs, 47 Revue International de Droit Pénal 1 (1976); Alona E. Evans, Aircraft Hijacking: What is Being Done? in International Terrorism and Political Crimes 219 (M. Cherif Bassiouni ed., 1975); Abraham Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure and Interference with Aircraft, 13 Colum. J. Transnat’l L. 381 (1974); M. Ayo Ajomo, Hijacking or Unlawful Seizure of Aircraft, 7 Nigerian L. J. 13 (1973); C.S. Thomas & M.J. Kirby, The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 22 Int’l & Comp. L.Q. 163 (1973); Yoram Dinstein, Criminal Jurisdiction Over Aircraft Hijacking, 7 Isr. L. Rev. 195 (1972); Carmen M. Argibay, Pirateria Aerea el Derecho Penal Argentino, 1969 Revista Juridica de Buenos Aires 229 (1969); Alona E. Evans, Aircraft Hijacking: Its Cause and Cure, 63 Am. J. Int’l L. 695 (1969); Christopher C. Joyner & Robert A. Friedlander, International Civil Aviation, in 1 Bassiouni, ICL, supra note 2, at 831. 186 See Bassiouni, Terrorism Conventions, supra note 7; International Terrorism: A Compilation of U.N. Documents (M. Cherif Bassiouni ed., 2002) [hereinafter Bassiouni, Terrorism Documents]; Terrorism: Documents of International and Local Control (Howard H. Levie ed., 1996); Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988); Terrorism: Documents of International and Local Control (Robert A. Friedlander ed., 1981); Carol E. Baumann, The Diplomatic Kidnappings: A Revolutionary Tactic of Urban Terrorism (1973); Carol M. Crosswell, Protection of International Personnel Abroad (1952). See also M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); Hostage Taking and Kidnapping as Forms of Terror Violence, in 1 Bassiouni, ICL, supra note 2, at 751; K.E. Dawkins, Crimes (Internationally Protected Persons and Hostages) Act 1980, 9 N.Z.U.L. Rev. 399 (1981); M. Cherif Bassiouni, Protection of Diplomats Under Islamic Law, 74 Am. J. Int’l L. 609 (1980); John F. Murphy, Protected Persons and Diplomatic Facilities, in Legal Aspects of International Terrorism 277 (Alona E. Evans & John F. Murphy eds., 1978); John F. Murphy, Role of International Law in the Prevention of Terrorist Kidnapping of Diplomatic Personnel, in International Terrorism and Political Crimes 336 (M. Cherif Bassiouni ed., 1975); Allen B. Green, Convention on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons: An Analysis, 14 Va. J. Int’l L. 703 (1974); M.C. Wood, Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, 23 Int’l & Comp. L.Q. 791 (1974).

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taking of civilian hostages,187 unlawful use of the mail,188 use of explosives,189 and financing of terrorism.190 In the suggested ranking, there is, therefore, a logical scheme of cohesive continuity among crimes protecting similar or related interests. Because the conduct resulting in these five crimes is associated with strategies of terror-violence, these crimes are grouped under the heading “Protection Against Terror-Violence.” The crimes that follow are those involving other tangible and intangible international interests. Unlawful traffic in drugs and related drug offenses,191 international traffic in obscene publications,192 and organized crime193 are included under the heading of “Protection of Social Interests,” because the essential goal of criminalizing the related conduct is to effectuate and carry out a given social policy based on ethical, moral, and social judgments whose ­enforcement requires international cooperation. Clearly, international traffic in obscene publications

187 See Ronald D. Crelinstin & Denis Szabo, Hostage-Taking (1979); see also Michael A. DeFeo, Hostage Taking and Kidnapping as Forms of Terror Violence, in 1 Bassiouni, ICL, supra note 2, at 859. 188 See Bassiouni, Terrorism Conventions, supra note 7; Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) [hereinafter Bassiouni, Terrorism Responses]. 189 Id. 190 Id. 191 See Christopher Blakesley, Terrorism and Anti-Terrorism (2006); Christopher Blakesley, Terrorism, Drugs, International Law and the Protection of Human Liberty (1992); United Nations Publications, Commentary on the Convention on Psychotropic Substances (1971); Peter D. Lowes, The Genesis of International Narcotic Control (1966); United Nations Publications, Commentary on the Single Convention on Narcotic Drugs (1961); Bertil A. Renborg, International Drug Control: A Study of International Administration By and Through the League of Nations (1947); Arthur Woods, Dangerous Drugs: The World Fight Against Illicit Traffic in Narcotics (1931); Westel W. Willoughby, Opium as an International Problem: the Geneva Conferences (1925); see also M. Cherif Bassiouni, International Aspects of Drug Abuse: Problems and a Proposal, 9 J. Mar. J. Prac. & Proc. 3 (1975); M. Cherif Bassiouni, International Narcotics Control System: A Proposal, 46 St. John’s L. Rev. 713 (1972); M. Cherif Bassiouni, Work Paper on International Control of Drugs, Abidjan World Peace Through Law Conferences (Aug., 26–31, 1973); Bernard Leroy, M. Cherif Bassiouni & Jean-Francois Thony, The International Drug Control System, in 1 Bassiouni, ICL, supra note 2, at 855; Antonio Beristain, Las Drogas y su Leislacion en España, 1973 Anuario de Derecho Penal y Ciencias Penales 41 (1973); Jose A. Cabranes, International Law and Control of the Drug Traffic, 7 Int’l Law 761 (1973); Comment, Toward an International System of Drug Control, 8 U. Mich. J.L. Reform 103 (1974); Moustafa I. El-Kayal, Comparative Study of Narcotics and the Law in the United Arab Republic and the United States, 20 DePaul L. Rev. 859 (1971); Ian G. Waddell, International Narcotic Control, 64 Am. J. Int’l L. 310 (1970); Charles I. Bevans, International Conventions in the Field of Narcotic Drugs, 37 Temp. L.Q. 41 (1963); Bertil A. Renborg, Principles of International Control of Narcotic Drugs, 37 Am. J. Int’l L. 436 (1943). 192 See Stefan Glaser, Droit Pénal International 482–502 (1971); Jean Claude Lombois, Droit Pénal International 196–97 (1971). 193 See Organized Crime: A Compilation of United Nations Documents, 1975–1998 (M. Cherif Bassiouni & Eduardo Vetere ed., 1999) [hereinafter Bassiouni, Organized Crime Documents]; Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL, supra note 2, at 939.



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is not, on the basis of contemporary social values and policy, a category of crime that ranks high in the overall appraisal of international criminal conduct, but because it reflects social and moral values and social policies, it logically belongs under the “Protection of Social Interests” heading. The protection of national treasures of various types comes under the heading “Protection of Cultural Interests.”194 This follows the heading of “Protection of Social Interests” essentially because that grouping encompasses human interests, while protection of cultural interests does not. It is certainly arguable that the “Protection of the Environment” could precede the “Protection of Cultural Interests.” The reason for ranking “Protection of Environment” after cultural interests is not a value judgment on the comparative importance of the protected interests involved in these two groupings. Instead, it is based on the fact that destruction and/or theft of national treasures was an international crime earlier than any crime under the heading of “Protection of the Environment.”195 Furthermore, with respect to its penal characteristics, it is less questionable to characterize destruction and/or theft of national treasures as an international crime than to make such a characterization about conduct covered under “Protection of the Environment.” The “Protection of Communication Means” includes crimes, unlawful use of the mails and unlawful interference with international submarine cables. The first, unlawful use of the mail covers a wide variety of internationally-protected 194 See Barnett Hollander, The International Law of Art for Lawyers, Collectors and Artists (1959); Fabrizio Lemme, Tra Arte E Diritto (1996); Sharon A. Williams, The International and National Protection of Movable Cultural Property: a Comprehensive Study (1978); Karl Ernest Meyer, The Plundered Past (1977); see also Patty Gerstenblith, The Public Interest in Restitution of Cultural Objects, 16 Conn. J. Int’l L. 197–246 (2001); Patty Gerstenblith, Art, Antiquity, and the Law: Preserving our Global Cultural Heritage, 8 Int’l J. Cultural Prop. 327 (1999); James A.R. Nafziger, International Penal Aspects Protecting Cultural Property, 19 Int’l Law. 835 (1985); M. Cherif Bassiouni, Reflections on Criminal Jurisdiction in International Protection of Cultural Property, 10 Syracuse J. Int’l L. & Com. 281 (1983); Mary Colley, Effect of Efforts to Control Illicit Art Traffic on Legitimate International Commerce in Art, 8 Ga. J. Int’l & Comp. L. 462 (1978); Alexander Korthals Altes, Submarine Antiquites: A Legal Labyrinth, 4 Syracuse J. Int’l L. & Com. 77 (1976); F. Mantovani, Lineamenti Della Tutela Penale del Patrimonio Artistico, 19 Rivista Italiana Di Diritto e Procedura Penale 55 (1976); James A.R. Nafziger, UNESCO-centered Management of International Conflict over Cultural Property, 27 Hastings L.J. 1051 (1976); Stanislaw E. Nahlik, International Law and the Protection of Cultural Property in Armed Conflicts, 27 Hastings L.J. 1069 (1976); Halina Nie, Legislative Models of Protection of Cultural Property, 27 Hastings L.J. 1089 (1976); Ronald D. Abramson & Stephen B. Huttler, Legal Response to the Illicit Movement of Cultural Property, 5 L. & Pol’y Int’l Bus. 932 (1973); Raymond H.M. Goy, International Protection of the Cultural and Natural Heritage, 4 Neth. Y.B. Int’l L. 117 (1973); E.J. Roucounas, Aspects Juridiques de la Protection du Patrimoine Mondial Culturel et Naturel, 25 Revue Hellénique de Droit International 42 (1972); B. Gordon, Comment, UNESCO Convention on the Illicit Movement of Art Treasures, 12 Harv. Int’l L.J. 537 (1971); John M.A. Goy, Le Régime International de l’Importation, de l’Exportation et du Transfert de Propriété de Biens Culturels, 1970 Annuaire Français de Droit International 605 (1970). 195 See Stephen C. McCaffrey, Criminalization of Environmental Protection, in 1 Bassiouni, ICL, supra note 2, at 1013.

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interests because it contains prohibitions against the use of the mails for terrorviolence, trafficking in drugs, and obscene materials. However, since instruments in this crime category have been essentially designed to prohibit the utilization of certain means of communication for certain proscribed purposes, they were placed under this heading. The heading “Protection of Economic Interests” contains the crimes of falsification and counterfeiting196 and bribery of foreign public officials. Criminalization of both types of conduct is designed to protect economic interests. Economic interests are perceived as the least important of the international interests that ICL seeks to protect, and it is for this reason that “Protection of Economic Interests” with respect to crimes not considered part of jus cogens has the lowest rank among the groupings. The obvious implication of distinguishing among international criminal violations is the difference in penalties that is to be applied to each category. But there are other differences as well. Crimes that rise to the level of jus cogens, as discussed above, create certain obligations that only exist in other crimes if the specific treaty obligation provides for it. With respect to crimes deemed to be part of jus cogens, states have the obligation to prosecute or extradite, to cooperate with each other in penal matters relating to these crimes, to deny impunity, to disregard statutes of limitation, to reject an absolute defense of “obedience to superior order,” and to forbid immunities, whether for diplomats or heads of state. Additionally, states may exercise universal jurisdiction with respect to jus cogens crimes. With respect to crimes deemed to be part of jus cogens, these obligations must be found in specific treaty provisions, unless they can be found in some general or special custom or recognized as general principles of law. Section 8. Jus Cogens International Crimes197 Jus cogens refers to the legal status that certain international crimes reach, and obligatio erga omnes refers to the legal implications arising out of a certain

196 See League of Nations, Proceedings of the International Conference for the Adoption of a Convention for the Suppression of Counterfeiting Currency (1929); Vespasian V. Pella, Rapport et Projet de Convention Présentés à la Société des Nations (1927); see also Comment, Draft International Counterfeiting Code: Neorealism as a Vehicle for Analyzing the Effect of Nonsignatories’ Perceptions on the Development of an Anti-Counterfeiting Norm, 15 Vand. J. Transnat’l L. 803 (1982); L.H. Dupriez, Répression Internationale du Faux Monnayage, 10 Revue de Droit Internationale et de Legislation Comparé 511 (1929); F. Staempfli, Die Internationale Bekämpfung der Geldfalschungen und die Schweiz, 45 Schweizerische Zeitschrift für Strafrecht 478 (1931). 197 This section is reprinted in M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63 (1996).



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crime’s characterization as jus cogens. Thus, these two concepts are different from each other. International law has dealt with both concepts, but mostly in contexts that do not include ICL.198 The national criminal laws of the world’s major legal systems and ICL doctrine have, however scantily, dealt with each of the two concepts. Furthermore, the positions of publicists and penalists on this question diverge greatly. The main divisions deal with how a given international crime achieves the status of jus cogens and how such crimes satisfy the requirements of the principles of legality.199 With respect to the consequences of an international crime being recognized as jus cogens, the threshold question is whether such a status places upon states obligatio erga omnes, or merely gives states certain rights to proceed against perpetrators of such crimes. This threshold question of whether obligatio erga omnes carries with it the full implications of the Latin word obligatio, or whether it is denatured in international law to signify only the existence of a right and not a binding legal obligation, has not been resolved in international law, and has not been addressed by ICL doctrine. For this writer, the implications of jus cogens are those of a duty and not of optional rights, otherwise jus cogens would not constitute a peremptory norm of international law. Consequently, they are nonderogable in time of war and in time of peace.200 The implication of recognizing certain international crimes as part of jus cogens carries the duty to prosecute or extradite;201 the nonapplicability of statutes of limitation for such crimes;202 and universality of ­jurisdiction203

198 For example, the Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/ CONF.39/27. See G.C. Rozankis, The Concept of Jus Cogens in The Law of Treaties (1976); see also André de Hoogh, Obligatio Erga Omnes and International Crimes (1996); Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (1988). 199 See infra Chapter 5 section 2; see also Gerhard O.W. Mueller & Freda Adler, Outlaws of the Ocean (1985). 200 See, e.g., M. Cherif Bassiouni, States of Emergency and States of Exception: Human Rights Abuses and Impunity Under Color of Law, in Non-Derogable Rights and States of Emergency 125 (Daniel Prémont ed., 1996). 201 See Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 8. 202 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 754 U.N.T.S. 73, 25 I.L.M. 767 (entered into force Nov. 11, 1970); International Criminal Law (Christine Van den Wyngaert ed., 1996). 203 See Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Bassiouni, Universal Jurisdiction, supra note 2; Kenneth Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785 (1988); Luc Reydams, Universal Jurisdiction over Atrocities in Rwanda: Theory and Practice, 4 Eur. J. Crime, Crim. L. and Crim. Just. 18 (1996). The ICJ entered a judgment on February 14, 2002, in the Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), concerning an arrest warrant issued by Belgium against the then incumbent Minister of Foreign Affairs of the Congo for crimes against humanity and war crimes on the basis of its law of 16 June 1993, as amended by its law of 10 February 1999. This law confers to the Belgian judiciary universal jurisdiction for genocide, crimes against humanity and war crimes. The ICJ concluded that the arrest warrant violated customary international law and in particular, the Vienna

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over such crimes, irrespective of where they were committed, or by whom (including heads of state), or against what category of victims, and irrespective of the context of their occurrence (peace or war). Above all, the characterization of certain crimes as jus cogens places upon states an obligatio erga omnes not to grant impunity to the violators of such crimes.204 Positive ICL does not contain such an explicit norm that characterizes a certain crime as part of jus cogens, and the practice of states does not conform to the scholarly writings that espouse the views expressed above. States’ practice evidences that, more often than not, impunity has been allowed for jus cogens ­ onvention on the Law of Diplomatic Immunity (Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95). The C Court did not deal with the merits of the question of universal jurisdiction for such international crimes, nor did it, however, uphold any substantive immunity for these crimes. On the contrary, it found that no such substantive immunity exists. Instead, it found that there is temporal immunity for heads of states, officials on missions pursuant to the United Nations Convention on Special Missions (Dec. 16, 1969, 1035 U.N.T.S. (entered into force June 21, 1985)), and diplomats pursuant to the Vienna Convention on Diplomatic Immunity. By implication, this means that substantive immunity no longer exists, and that such persons are subject to prosecution. The court, however, did not deal with the merits of universal jurisdiction, and whether a state can exercise it without any nexus between the accused and the state, either because of territoriality, passive personality or active personality, or even by reason of physical presence in the territory of the enforcing state. As a consequence of the ICJ’s decision in Congo v. Belgium, the Cour de Cassation held that international immunities apply on a temporal basis. Consequently, the Belgian courts must suspend proceedings against such persons. As a result, an amendment to the 1993 law was introduced before the Belgium Senate and the Conseil d’Etat expressed its position on the proposed law which provides that in cases where there is no “link” to Belgium, the investigatory authority must defer the case to the ICJ or to a state seeking to exercise its jurisdiction. Belgium thus remains the jurisdiction of last resort, but subject to certain limitations. See amendments to the law of 16 June 1993, 5 April 2003, Sénat de Belgique, 2–1256/14. Concerning the Belgian law on universal jurisdiction, see A. Andries, C. Van den Wyngaert, E. David, et J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la répression des violations graves de droit international humanitaire, Revue International de Droit Pénal 1114–84 (1994); E. David, La loi belge sur les crimes de droit international humanitaire, RBDI 668–84 (1995); P. d’Argent, la loi du 10 février 1999 relative à la répression des violations graves de droit international humanitaire, Journal des Tribunaux 549–55 (1999); D. Vandermeersch, Les poursuites et le jugement des infractions de droit international humanitaire en droit belge dans H.D. Bosly et al., Actualités du Droit International Humanitaire 123–80 (Bruxelles, 2001); J. Verhoeven, Vers un ordre répressif universel? Quelques observations, Annuaire français de droit international 55–71 (1999). 204 See, e.g., Progress Report on the Question of Impunity of Perpetrators of Human Rights Violation, Sub-commission on the Prevention and Protection of All Minorities, 45th Sess., Item 10(a), U.N Doc. E/CN.4/Sub.2/1993/6 (1993); Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice 14 (1995); Rudolph J. Rummel, Death by Government (1994); Transnational Justice: How Emerging Democracies Reckon with Former Regimes (Neil J. Kritz ed., 1995); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti? 31 Tex. Int’l L.J. 1, 4 (1996); Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L. J. 857, 867 (1995); Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U. Pa. L. Rev. 463 (1995); Stephen P. Marks, Forgetting the Policies and Practices of the Past: Impunity in Cambodia, 17 Fletcher F. 18 (1994); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2542 (1991); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 451, 475, n.137 (1990).



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crimes, the theory of universality has been far from universally recognized and applied, and the duty to prosecute or extradite is more inchoate than established, except when it arises out of specific treaty obligations. Furthermore, there is much question as to whether the duty to prosecute or extradite is properly understood in the disjunctive or in the conjunctive,205 which of the two has priority over the other and under what circumstances, and finally, whether implicit conditions of effectiveness and fairness exist with respect to the duty to prosecute and with respect to extradition leading to prosecution.206 The gap between legal expectations and legal reality is therefore quite wide. It may be bridged by certain international pronouncements207 and scholarly writings,208 but the question remains whether such a bridge can be solid enough to allow for the passage of these concepts from a desideratum to enforceable legal obligations under ICL, with the consequence of, in case of noncompliance, creating state responsibility.209 In March 1999, however, the House of Lords in the Pinochet case ruled that an international obligation arose to extradite General Augusto Pinochet on the charge of torture insofar as it constituted a jus cogens crime.210 8.1. The Meaning of Jus Cogens The term “jus cogens” means “the compelling law,” and as such, a jus cogens norm holds the highest hierarchical position among all other norms and principles.211 As a consequence of that standing, jus cogens norms are deemed to be “peremptory” and non-derogable.212 205 See Bassiouni, International Extradition ch. 1 (5th ed., 2007). See, e.g., the ICJ cases Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United States) 1992 I.C.J. 89 and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) 1992 I.C.J. 88. 206 See Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 8, at 8. 207 Question of the Punishment of War Criminals and of Persons Who have Committed Crimes Against Humanity, G.A. Res. 2840, U.N. GAOR, 3rd Comm., 26th Sess., Supp. No.29, at 88, U.N. Doc. A/8429 (1971); Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074, U.N. GAOR, 28th Sess., Supp. No.30, at 78, U.N. Doc. A/9030 (1973). 208 Theodor Meron, Human Rights in International law: Legal & Policy Issues (1984). See also Anna Asher, The Legal Regime of Erga Omnes Obligations and International Law, 46 Am. J. Int’l L. 131 (1994); Theodor Meron, On a Hierarchy of International Human Rights, 80 Am. J. Int’l L. 1 (1986); Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int’l L. 291 (2006). 209 See Ian Brownlie, State Responsibility: System of the Law of Nations (1983). 210 See Regina v. Bartle & the Comm’r of Police for the Metropolis & others Ex Parte Pinochet, 38 I.L.M. 581, 589 (H.L. 1999) available at http://www.parliament.the-stationery-office.co.uk/pa/ ld199899/ldjudgmt/jd990324/pino1.htm. 211 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768, 801–09 (1990). 212 See generally Hannikainen, supra note 198.

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Scholars, however, disagree as to what constitutes a peremptory norm and how a given norm rises to that level. The basic reasons for this disagreement are the significant differences in philosophical premises and methodologies of the scholarly protagonist views. These differences apply to sources, content (the positive or norm-creating elements), evidentiary elements (such as universality or less), and value-oriented goals (for example, preservation of world order and safeguarding of fundamental human rights). Furthermore, there is no scholarly consensus on the methods by which to ascertain the existence of a peremptory norm, nor to assess its significance, determine its content, identify its elements, determine its priority over other competing or conflicting norms or principles, assess the significance and outcomes of prior application, and gauge its future applicability in light of the value-oriented goals sought to be achieved.213 Some scholars see jus cogens sources and customary international law as the same,214 others distinguish between them,215 while still others question whether jus cogens is simply not another semantical way of describing certain general principles.216 This situation adds to the level of uncertainty as to whether jus cogens is a source of ICL. The legal literature discloses that the following international crimes rise to the level of jus cogens: aggression; genocide; crimes against humanity; war crimes; piracy; slavery, slave-related practices; trafficking in human beings; and torture. Sufficient legal basis exists to reach the conclusion that all these crimes are part of jus cogens.217 This legal basis consists of: (a) international pronouncements, or what can be called international opinio juris, reflecting the recognition that these

213 See generally Ian Brownlie, Principles of Public International Law 512–15 (3d ed. 1979); George Schwarzenberger, International Law and Order 5 (1971); 1 Hersch Lauterpacht, International Law 113 (Elihu Lauterpacht ed., 1970); Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Comp. L. Rev. 411 (1989); Gordon A. Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, 28 Va. J. Int’l L. 585 (1988); see also N.G. Onuf & Richard K. Birney, Peremptory Norms of International Law: Their Source, Function and Future, 4 Denv. J. Int’l L. & Pol’y 187 (1973), (“Peremptory norms of international law (jus cogens) have been the subject of much recent interest. In light of their extensive and quite unprecedented treatment by the International Law Commission and the Vienna Conference on the Law of Treaties, it may be surprising that attention has not been greater. At the same time, inquiry into the relationship between peremptory norms and the sources and functions of international law has been virtually non-existent. This is indeed surprising, given the recent substantial interest in these areas as part of a larger theoretical explosion in international legal studies.” Id. at 187.) 214 See D’Amato, supra note 160, at 132. 215 See Christenson, supra note 213. Mark Janis, Jus Cogens: An Artful Not a Scientific Reality, 3 Conn. J. Int’l L. 370 (1988); Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 Eur. J. Int’l L. 491 (2008). 216 See Bassiouni, General Principles, supra note 211. 217 The statutes of the 1993 ICTY and the 1994 ICTR include genocide, “crimes against humanity,” and war crimes. See ICTY and ICTR Statutes. The 1996 Code of Crimes includes these three, plus aggression and Crimes Against U.N. Personnel. See Bassiouni, ICL Conventions, supra note 12.



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crimes are deemed part of general customary law;218 (b) language in preambles or other provisions of treaties applicable to these crimes which indicates that these crimes have higher status in international law;219 (c) the large number of states which have ratified treaties related to these crimes;220 and, (d) the ad hoc international investigations and prosecutions of perpetrators of these crimes.221 These foundational elements are further buttressed by the writings of scholars. This legal basis, however, cannot be examined in a cumulative manner, if a certain rigor is to apply. Instead, each one of these crimes must be examined separately to determine whether it has risen to a level above that stemming from specific treaty obligations, so that it can therefore be deemed part of general international law applicable to all states irrespective of specific treaty obligations.222 To pursue the approach suggested, it is also necessary to have a doctrinal basis for determining what constitutes an international crime and when in the historical legal evolution of a given crime it can be said to achieve the status of jus cogens.223 As discussed below, certain crimes affect the interests of the world community as a whole because they threaten the peace and security of humankind and because they shock the conscience of humanity.224 If both elements are ­present 218 See supra note 173. 219 See Bassiouni, ICL Conventions, supra note 12. 220 Id. 221 See generally 3 Bassiouni, ICL, supra note 152. 222 For the proposition that some violations of the Geneva Conventions are jus cogens, see Meron, Human Rights, supra note 208, at 9. See also Judgment of June 27 Concerning the Applicability of the Third Geneva Convention, 1986 I.C.J. 95; Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135; Bassiouni, ICL Conventions, supra note 12, at 341–46. The Vienna Convention on the Law of Treaties specifies in Article 53 that a treaty provision which is contrary to jus cogens is null and void. Article 71, para. 1(a) makes it clear however that the entire treaty is not null and void if the parties do not give effect to the provision in question. The ICJ has also considered the question. In U.S. Diplomatic and Consular Staff in Teheran (U.S. v. Iran), 1980 I.C.J. 3 (May 24), the Court holds that some treaty obligations can also be “obligations under general international law,” and in its advisory opinion on reservations to the Convention on Genocide, 1951 I.C.J 15 (May 28), which holds that the Genocide Convention is part of customary law. 223 In a tongue-in-cheek way, Professor Anthony D’Amato reflected the loose way in which jus cogens is dealt with in international law in the title of his short essay, It’s a Bird, it’s a Plane, it’s Jus Cogens!, 6 Conn. J. Int’l L. 1 (1990). 224 Threats to peace and security are essentially political judgments, and the UN Charter gives that function under Chapter VII to its primary political organ, the Security Council. Thus it is difficult to assess in objective legal terms what constitutes aggression. See, among the many writers on the subject, Yoram Dinstein, War, Aggression and Self-Defense (3d ed. 2001). As to what is (or what is not) shocking to the conscience of humanity, that too, may be a subjective factor. For example, a single killing coupled with the required intent to “destroy in whole or in part” required in Article II, of the Genocide Convention, is sufficient for that single act to be called genocide. But the killing of an estimated two million Cambodians is not genocide because it is not by one ethnic, religious or national group against another, but by the same national, religious and ethnic group against its own members, and for political reasons. Since political and social groups are excluded from the protected groups in the Genocide Convention, such massive killing is not deemed to be genocide, unless it can be factually shown that there is diversity between the perpetrator and

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in a given crime, it can be concluded that the crime is part of jus cogens. The argument is less compelling, though still strong enough, if only one of these two elements is present.225 Implicit in the first, and sometimes in the second element, is the fact that the conduct in question is the product of state action or a state-favoring policy. Thus, a jus cogens crime is essentially characterized, explicitly or implicitly, by state policy or conduct, irrespective of whether it is manifested by commission or omission. This is one of the distinctions between jus cogens and other international crimes, which are not the product of state action or a state-favoring policy. Each of these crimes, however, does not necessarily reflect the co-existence of all three elements. Aggression is on its face a threat to peace and security, but not all acts of aggression factually threaten the peace and security of humankind. Genocide and crimes against humanity shock the conscience of humanity, but do not in every case threaten global peace and security. Slavery, slave-related practices, and trafficking in human beings and torture also shock the conscience of humanity, but they also rarely threaten peace and security. Piracy, almost nonexistent nowadays,226 neither threatens peace and security nor shocks the conscience of humanity, though it may have at one time.227 War crimes may threaten peace and security, but precisely because they occur during an armed conflict, whether of an international or non-international character, their commission is only an aggravating circumstance of an already existing condition of disrupted peace and security. War crimes do, however, shock the conscience of humanity, although to what extent may depend on the context of their occurrence and the quantitative and qualitative nature of the crimes committed.228 Three additional considerations must be taken into account when determining whether a given international crime has reached the status of jus cogens. The first has to do with the historical legal evolution of the crime. Clearly, the more legal instruments exist to evidence the progression and reaffirmation of a victim groups. Thus, one killing would be genocide and consequently jus cogens, while two million killings would not. Such mass killings do however fall under crimes against humanity and war crimes, and are therefore jus cogens crimes under other criminal labels. See Bassiouni, Crimes Against Humanity, supra note 27, at 263–67. 225 ICL doctrine has not however sufficiently dealt with the doctrinal bases of international crimes, elements of international criminalization, and the criteria for their application to each and every international crime. This is evident in the writings of most ICL scholars. 226 Except for the notable problem in the South Asia Seas. 227 See Jacob W.F. Sundberg, The Crime of Piracy, in 1 Bassiouni, ICL, supra note 2, at 799. For a different perspective, see Alfred P. Rubin, The Law of Piracy (1998). 228 See Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int’’l L. 554 (1995) (arguing that artificial legal distinctions between conflicts of an international and noninternational character should be eliminated). This is a position strongly supported by this writer. See M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996); see also Howard Levie, Terrorism in War: the Law of War Crimes (1993).



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particular crime, the better founded the proposition that the crime has risen to the level of jus cogens.229 The second consideration is the number of states that have incorporated the given proscription in their national laws.230 The third consideration is the number of international and national prosecutions for the given crime that have occurred and how they have been characterized.231 Additional supporting sources that can be relied upon in determining whether a particular crime is a part of jus cogens are other evidence of general principles of law232 and the writings of the most distinguished publicists.233 The jurisprudence of the PCIJ and ICJ is also instructive. The ICJ, in its opinion in Nicaragua v. United States: Military and Paramilitary Activities in and Against Nicaragua,234 relied on jus cogens as a fundamental principle of international law. However, that case also demonstrates the tenuous relation between the use of legal principles in the resolution of cases involving ideological or political issues or on the basis of other value judgments.235 Earlier, the ICJ in its Advisory Opinion on Reservations to the Genocide Convention held that the prohibition against genocide is a jus cogens norm that cannot be reserved or derogated from.236 As noted above, jus cogens leaves open differences of values, philosophies, goals, and strategies among those who claim the existence of the norm in a given situation and its applicability to a particular legal issue.237 Thus, jus cogens poses two essential problems for ICL: one is legal certainty and the other is its conformity to the requirements of the principles of legality. The problem of normative positivism becomes more evident in a case where a void in positive law fails to remedy an obvious and palpable injustice, such as with respect to “crimes against humanity” as enunciated in the Statute of the IMT in the London Charter

229 See, e.g., Bassiouni, ICL Conventions, supra note 12. 230 This is particularly true with respect to the military laws of 188 states that embody the normative proscriptions and prescriptions of the Geneva Convention of August 12, 1949; 159 states for Additional Protocol I and 152 for Additional Protocol II. See Bassiouni, ICL Conventions, supra note 12. 231 See M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 Bassiouni, ICL, supra note 152, at 29. 232 See Bassiouni, General Principles, supra note 211; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) [hereinafter Cheng, General Principles]. 233 Emmerich De Vattel, The Law of Nations, Book II, (Charles G. Fenwick trans., 1916). 234 Military and Paramilitary Activities (Nicar. v. U.S.) Merits, 1986 I.C.J. 14 (June 27). See generally Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits), 81 Am. J. Int’l. L. 77 (1987). 235 See Law and Force in the New International Order (Lori Fisler Damrosch & David Scheffer eds., 1991). 236 Advisory Opinion of the International Court of Justice on Reservations to the Genocide Convention, 1951 I.C.J. 1, 15 (May 28). 237 One example in ICL is the non-applicability of the “defense of obedience to superior orders” to a patently illegal order. But when is such an order deemed illegal on its face and on what normative basis?

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of August 8, 1945.238 The specific crimes defined in Article 6(c) of the London Charter fall into the category where there existed a void in positive law, but where other sources of law implicitly supported the formulation of a crime.239 Proponents of natural law advocate that jus cogens is based on a higher legal value that is to be observed by prosecuting offenders, while proponents of legal positivism argue that another principle whose values and goals are, at least in principle, of that same dignity, namely the principle of legality—nullum crimen sine lege—should prevail.240 A value-neutral approach is impossible, thus the only practical solution is the codification of ICL.241 8.2. The Scope of Obligatio Erga Omnes The erga omnes and jus cogens concepts are often presented as two sides of the same coin. The term “erga omnes” means “flowing to all,” and so obligations deriving from jus cogens are presumably erga omnes.242 Indeed, legal logic supports the proposition that what is “compelling law” must necessarily engender an obligation “flowing to all.” The problem with such a simplistic formulation is that it is circular. What “flows to all” is “compelling,” and if what is “compelling” “flows to all,” it is difficult to distinguish between what constitutes a general principle creating an obligation so self-evident as to be “compelling” and so “compelling” as to be “flowing to all,” that is, binding on all states.243

238 IMT Charter, supra note 52. 239 See, e.g., Bassiouni, Crimes Against Humanity, supra note 27, at 117–36; M. Cherif Bassiouni, International Law and the Holocaust, 9 Cal. W. Int’l. L.J. 201, 208–14 (1979). 240 See Bassiouni, Crimes Against Humanity, supra note 27, at 264. 241 See Bassiouni, Draft Code, supra note 12; see also 1996 Draft Code of Crimes, supra note 22; M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in 1 Bassiouni, ICL, supra note 2, at 207. 242 Randall, supra note 203, at 785, 829–30; Reydams, supra note 203. 243 In an important study bearing on the erga omnes and jus cogens relationship, Professor Randall notes that “traditionally international law functionally has distinguished the erga omnes and jus cogens doctrines. . . .” Randall, supra note 203, at 830. However, he, too, seems to accept the sine qua non relatively. Jus cogens means “compelling law.” The jus cogens concept refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate to invalidate a treaty or agreement between States to the extent of the inconsistency with any such principles or norms. While authoritative lists of obligations erga omnes and jus cogens norms do not exist, any such list likely would include the norms against hijacking, hostage taking, crimes against internationally protected persons, apartheid, and torture. Traditionally, international law functionally has distinguished the erga omnes and jus cogens doctrines, which addresses violations of individual responsibility. These doctrines nevertheless, may subsidiarily support the right of all states to exercise universal jurisdiction over the individual offenders. One might argue that “when committed by individuals,” violations of erga omnes obligations and peremptory norms “may be punishable by any State under the universality principle.”



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In the Barcelona Traction case, the ICJ stated: [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.244

Thus, the first criterion of an obligation rising to the level of erga omnes is, in the words of the ICJ, “the obligation(s) of a State towards the international Community as a whole.”245 The ICJ goes on in Barcelona Traction in paragraph 34 to give examples,246 but it does not define or list precisely what it means by “obligations of a state towards the international community as a whole.”247 The ICJ and the PCIJ never clearly articulated the relationship between jus cogens and obligatio erga omnes, nor did the jurisprudence of either court explicitly articulate how and why a given norm becomes jus cogens, and what consequences derive from an erga omnes characterization. Obviously, a jus cogens norm rises to that level when the principle it embodies has been universally accepted through consistent practice, accompanied by the necessary opinio juris, of most states.248 Thus, the principle of territorial sovereignty has risen to the level of a “peremptory norm” because all states have consented to the right of states to exercise exclusive territorial jurisdiction.249 Erga omnes, as stated above, however, is a consequence of a given international crime having risen to the level of jus cogens.250 It is not therefore a cause of or a condition for a crime’s inclusion in the category of jus cogens. The contemporary genesis of the concept obligatio erga omnes for jus cogens crimes is found in the ICJ’s advisory opinion 244 Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5). 245 Id. 246 Id. The Court further stated in the ensuing paragraph: “Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention and Punishment of the Crime of Genocide Advisory Opinion, I.C.J. Reports 1951, at 23); others are conferred by international instruments of a universal or quasi-universal character.” 247 Id. at 32. 248 In Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 123, 135 (Apr. 12) (Fernandes, J. dissenting), Judge Fernandes states: “It is true that in principle special rules will prevail over general rules, but to take it as established that in the present case the particular rule is different from the general rule is to beg the question. Moreover, there are exceptions to this principle. Several rules cogestes prevail over any special rules. And the general principles to which I shall refer later constitute true rule of jus cogens over which no special practice can prevail.” See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1971 I.C.J. 66 (Ammoun. J., dissenting). 249 See S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7). 250 See Meron, Human Rights, supra note 208, at 188–97.

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on Reservations to the Convention on the Prevention and Punishment of Genocide.251 It also finds support in the ICJ’s South West Africa cases.252 Additional support can be drawn from the Barcelona Traction case.253 But it should be noted that the ICJ’s South West Africa cases254 dealt, inter alia, with human rights violations and not with international crimes stricto sensu,255 and that the Barcelona Traction256 case dealt with a civil law issue. It is still uncertain in ICL whether the inclusion of a crime in the category of jus cogens creates rights or, as stated above, nonderogable duties erga omnes. The universal acceptance of a permanent international criminal court having inherent jurisdiction over these crimes would be the convincing argument that such crimes as genocide, crimes against humanity, and war crimes are part of jus cogens and that obligations erga omnes to prosecute or extradite flow from them.257 Section 9. The Principles of Legality and the Ratione Materiae of ICL International crimes are created only by international law, mostly through conventions258 but also through custom. General principles of law are also a source of ICL, but this source is much less susceptible to legal specificity than the other two.259 No matter what the source, legal proscriptions established in ICL must satisfy the requirements of the principles of legality.260 These principles require that there be no crime without a law (nullum crimen sine lege), no punishment without a law (nulla poena sine lege), and no ex post

251 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of Genocide, 1951 I.C.J. 15 (May 28). See George Christenson, The World Court and Jus Cogens, 81 Am. J. Int’l L. (1987). 252 South West Africa Cases (Preliminary Objections) (Eth. v. S. Afr.; Liber. v. S. Afr.), 1963 I.C.J. 319 (December. 21); see Christenson, supra note 213. 253 Barcelona Traction, Light and Power Co. Ltd., supra note 244. See also, Christenson, supra note 213. 254 South West Africa Cases, supra note 248. 255 Lech Gardocki, Rapport, Les Crimes Internationaux et le Droit Pénal Interne, 60 Revue Internationale de Droit Pénal 91 (1989); Otto Triffterer, Rapport, Les Crimes Internationaux et le Droit Pénal Interne, 60 Revue Internationale de Droit Pénal 31 (1989). 256 Barcelona Traction, Light and Power Co. Ltd., supra note 244. 257 On the establishment of the permanent international criminal court, see Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1, U.N. GAOR, 5 Sess., Supp. No.22, U.N. Doc. A/51/22 (1996). See generally 13 Nouvelles Études Pénales (1997). 258 See Bassiouni, ICL Conventions, supra note 12. For earlier works, see M. Cherif Bassiouni, International Crimes: Digest/Index of International Instruments 1815–1985 (1985). 259 See International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976); Article 15 (Prohibition of Retroactive Criminal Laws) [hereinafter ICCPR]; see also Bassiouni, General Principles, supra note 211. 260 See Bassiouni, Crimes Against Humanity, supra note 27, at 296–306.



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facto application of laws.261 To satisfy the principles of legality, a crime must be sufficiently defined to put people on notice that a particular conduct has been characterized as criminal. The principles of legality thus require a clear and unambiguous identification of the prohibited conduct. These principles are deemed part of fundamental justice because they protect against potential judicial abuse and arbitrary application of the law. But they also have policy content, in that they are believed to enhance deterrence and thus increase compliance, which prevents disruptions of public order. The same fundamental concerns for justice and the same policy considerations also apply to ICL. An examination of all 281 international instruments262 reveals that the language used in ICL instruments to define crimes and other penal matters is less specific than that found in many contemporary penal codes. This difference may be due to the expectation that ICL is to be embodied in national legislation through which it is to be enforced, and that therefore ICL norms need only be declarative and can suffer from certain generalities that would otherwise contravene the specificity requirement of most legal systems. But the fact that states are to incorporate ICL proscriptions into their national criminal law does not justify the lack of rigor that has been evidenced in ICL texts. The principal explanation for the deficiency in ICL texts, as has been said repeatedly throughout this chapter, is the lack of technical expertise of the officials who draft them. Indeed, it should be remembered that if ICL’s normative proscriptions are to be applied directly to individuals even without the mediation of national criminal justice systems, then the standards of specificity of ICL norms must rise to the higher standards required by many existing legal systems. Concern for the specificity requirement of the principles of legality has recently emerged, as is seen in the statutes of the ICTY, ICTR, and the ICC. Thus, particularly because ICL can be enforced through a direct enforcement system, it has to meet the same standards of specificity that apply in the general principles of criminal law recognized in the world’s major legal systems. Direct enforcement systems of ICL are, for the purposes of this discussion, indistinguishable from national criminal justice systems, and thus there is no justification for applying a lesser standard of legality to this ICL enforcement method. The Statute of ICTY, for example, provides, “The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former ­Yugoslavia

261 African Charter on Human and People’s Rights, art. 7(2), June 26, 1981, O.A.U. Doc. CAB/ LEG/67/3 rev. 5, 21 I.L.M. 58; American Convention on Human Rights, art. 9, Nov. 22, 1969, 1144 U.N.T.S 123, O.A.S.T.S. 36; ICCPR, art. 15(1), Dec. 19, 1966, 999 U.N.T.S. 171; European Convention on Human Rights, art. 7(1), Nov. 4, 1950, EUR. TS. Nos. 5, 213 U.N.T.S. 221; Universal Declaration of Human Rights, art.11(2), Dec. 10, 1948, GA Res. 217 A (III), U.N. Doc. A/810 (1948). 262 See also Bassiouni, ICL Conventions, supra note 12.

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since 1991 in accordance with the provisions of the present statute.”263 With respect to this statement of ratione materiae competence, the U.N. Secretary General commented as follows: In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of the customary law so that the problem of adherence of some but not all States to specific convention does not arise. This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law.264

Additionally, the 1996 Draft Code of Crimes addresses the issue of legality in Article 13, where it provides that “[n]o one shall be convicted under the present Code for acts committed before its entry into force.”265 Finally, the ICC Statute provides for the principles of legality in the following articles: Article 20 (Non bis in idem) 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried before another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under articles 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. Article 22 (Nullum crimen sine lege) 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

263 See ICTY Statute, supra note 57. 264 Reprinted in Bassiouni, Yugoslavia Tribunal, supra note 36 at 254. 265 See ILC Draft Code of Crimes, supra note 39.



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Article 23 (Nulla poena sine lege) A person convicted by the Court may be punished only in accordance with this Statute. Article 24 (Non-retroactivity ratione personae) 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgment, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

The problems of legality arise more acutely with respect to the other sources of ICL, such as customary international law. ICL conventions, at times, reflect customary international law, in whole or in part, either at the time of formation or subsequently. What may have been at one time an international agreement binding only upon states parties can later become part of general customary law that bind all states. Customary international law as embodied in treaties of course, binds states-parties to these practices.266 Customary law is a dynamic process of practices, opinio juris, and international legal expectations. Thus, a custom can be created and can also be abandoned. Customs emerge, evolve, and either become consecrated in the practice of states with the requisite supporting opinio juris, or they wane and disappear or fall into desuetude. As one scholar expresses it: General practice of states which is accepted and observed as law, i.e., from a sense of legal obligation, builds norms of customary international law. Article 38(1)(b) of the Statute of the International Court of Justice describes international custom “as evidence of a general practice accepted as law.” Because general practice demonstrates custom and not vice versa, §102(2) of the Restatement Third, of the Foreign Relations Law of the United States of 1987, provides, more accurately, that customary international law ‘results from a general and consistent practice of states which is followed by them from a sense of legal obligation.’ In the highly codified humanitarian law context, the primary and the most obvious significance of a norm’s customary character is that the norm binds states that are not parties to the instrument in which that norm is restated. It is, of course, not the treaty norm, but the customary norm with identical context, that binds such states. Additionally, because instruments of international humanitarian law do not address all of the

266 A well-known example of this transformation from custom to treaty is the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which embodies customary law. The convention itself was recognized by the IMT in 1946 as customary international law and thus binding on Germany (a non-signatory) and on its nationals. This is also the contemporary position of the Restatement of the Foreign Relations Law of the United States §102(2) and comments b & c (3 ed. 1987); see also Adriaan Bos, The Identification of Custom in International Law, 25 Ger. Y.B. Int’l L. 9 (1982); Louis Sohn, Generally Accepted International Rules, 61 Wash. L. Rev. 1973 (1986); Luigi Condorelli, Consuetudine Internazionale, Digest 3 (1988).

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The ICJ in the merits phase of Military and Paramilitary Activities in and Against Nicaragua discussed the relationship between treaty and custom. The ICJ stated that “even if two norms belonging to two sources of international law appear identical in content and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.”268 National judicial decisions also play a role in the recognition of international customary law and its application in national law.269 The traditional view is that custom rests upon the consent of states, but another view is that it rests on the general consent of the international community.270 This is evident in the preamble to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which contains an early recognition that the “law of nations . . . [results] from the usages established among civilized peoples, from

267 See Meron, Human Rights, supra note 208. 268 Military and Paramilitary Activities (Nicar. v. U.S.) Merits, 1986 I.C.J. 14 (June 27). Art. 38(1) (b) of the Statute of the International Court of Justice refers to “international custom, as evidence of a general practice accepted as law.” An important statement of the constitutive elements of custom, general practice, and opinio juris is contained in the Columbian-Peruvian Asylum Case: “The Party which relies on a [regional] custom . . . must prove that this custom is established in such a manner that it has become binding on the other Party. The Columbian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court . . .’ 1950 I.C.J. Rep. 266, 276 (Nov. 20). In the North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), the Court emphasized that “[n]ot only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a rule of law is implicit in the very notion of the opinio juris sive necessitatis.” 1969 I.C.J. 3, 44 (Feb. 20). In the Nicaragua case, the I.C.J. stated that “[t]he Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice.” 1986 I.C.J at 98. 269 See, e.g., The Paquete Habana, 175 U.S. 677 (1900); Hilton v. Guyot, 159 U.S. 113, 163 (1895); The Scotia, 81 U.S. (14 Wall.) 170, 187–88 (1871); cf. Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch) 191, 198 (1815) (Marshall, C.J.); 1 Op. Att’y Gen. 30, 32 (1793); see also Jordan J. Paust, Customary International Law: Its Nature, Sources and Status as Law of the United States, 12 Mich. J. Int’l L. 59 (1990). But cf. Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 816 (1997). 270 This position was recognized in some landmark U.S. decisions. See, e.g., The Scotia, supra note 269; The Prize Cases, 67 U.S. (2 Black), 635, 670 (1863) (“founded on the common consent as well as the common sense of the world”); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 227 (1796) (“established by the general consent of mankind”). It had been previously enunciated in 4 William Blackstone, Commentaries 66.



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the laws of humanity, and from the dictates of the public conscience.”271 Similar language appears in the 1949 Geneva Conventions.272 The problems that arise with customary international law as a source of substantive ICL fall into two categories. One category reflects the very nature of custom as a source of international law, namely its binding nature on some or all states, and as a consequence, its spatial application; and because it can be extinguished by all or some of the states to which it applies, its temporal application. The second category reflects the exigencies of criminal legislation, namely the binding legal nature of the norm, its specificity, and the notoriety attached to it for purposes of attribution, by legal fiction, of a presumption or even an assumption of knowledge of the law by those to whom it purportedly applies. This second category also includes the entire range of requirements inherent in the principles of legality. Indeed, customary international law cannot always satisfy the requirement of legality that applies to national criminal laws and therefore this source of ICL needs to be codified.273 General principles of law can also be a source of ICL’s ratione materiae provided that they satisfy the principles of legality. Article 15 of the ICCPR states: 1. No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person 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.274

Paradoxically, even though the principles of legality are part of general principles, as evidenced in paragraph 1 of Article 15 of the ICCPR, general principles as a source of ICL are the most likely to lack the requirements of the principles of legality.275 Thus, in the area of ICL, general principles better serve the function of interpreting and clarifying international legal obligations and customary 271 T.S. No. 539; League of Nations Treaty Series vol. XCIV (1929), No. 2138; 36 Stat. 2277 (Oct. 18, 1907). 272 See, e.g., Article 158 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, 75 U.N.T.S. 287 (Aug. 12, 1949). 273 See Bassiouni, Crimes Against Humanity supra note 27, at 494–505. The 1996 Code of Crimes does so with respect to only five of the 27 categories of international crimes. For an index of all 281 conventions applicable to these categories and their relevant provisions, see Bassiouni, ICL Conventions supra note 12. For a draft codification, see Bassiouni, Draft Code. 274 ICCPR, supra note 259; see also, e.g., Symposium, The Ratification of the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1167 (1993). 275 See Bassiouni, Crimes Against Humanity supra note 27, at 354.

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i­ nternational law276 than as a normative source of legal proscriptions. They may also serve as a source of law to determine certain aspects of ICL, such as: theories of jurisdiction;277 criteria for resolution of jurisdictional conflicts;278 principles of criminal responsibility and exonerating conditions (the general part of ICL);279 and, principles of fairness in legal processes and basic rights of the accused in criminal proceedings (adjudicative ICL).280 The very fact that questions exist with respect to the enforceability or legality of certain international obligations, and more particularly as to their specific content, reveals the extent of the problem posed by ICL to the principles of legality, or mutatis mutandis, on how the requirements of the principles of legality create an obstacle to the validity and enforcement of ICL. Uncertainty as to the applicable law only adds to the uncertainty of the content of ICL. In ICL, there is thus a threshold challenge to the presumption or assumption that ICL proscriptions are known, or could have been known by the ordinary reasonable person anywhere in the world. If this threshold challenge is overcome, then a challenge pertaining to the specificity of the normative proscriptions must be met. The issue of knowledge is clearly less significant in cases involving decisionmakers and senior commanders than it is in cases of junior subordinates and, for example, soldiers and civilians. Yet, nowhere in ICL do we see the definitions of substantive international crimes drawing a distinction between the elements of criminal responsibility for decision-makers and leaders and those that apply to lower echelon executors. This is particularly true with respect to international crimes that are based on or derived from state action or state-favoring policy. In these cases, decision-makers are the ones who, by their conduct, set in motion events that are then carried out by others in execution of superior orders, completing the commission of the crime in question. Cases involving aggression, genocide, and crimes against humanity serve as specific examples on point. In these crimes, the head of state or the head of the military may decide on a policy and either issue specific orders to subordinates or set in motion events through which such orders are issued; in any case, others then execute these orders. Thus, the decision-makers do not engage in the actual material element of the many specific acts that constitute the totality of these crimes. Their conduct bears on the decision-making process. It is therefore necessary to distinguish between the conduct and intent of decision-makers and conduct and intent of executors. The latter, especially if they are at the lower levels of the chain of command, may not

276 See Bassiouni, General Principles, supra note 211. 277 See The Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (Ser.A) No. 10, at 25. 278 See Bassiouni, International Extradition, supra note 205. 279 See Bassiouni, Yugoslavia Tribunal, at 281. 280 See M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994).



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know the intent and purpose of what they are doing. Thus, a camp guard or a soldier who kills a prisoner may not be guilty of a war crime or murder if he/she did not know and did not intend to fulfill a policy of genocide or crimes against humanity. In the case of the lower-level executor, additional specific intent may be required to prove him/her guilty of genocide or crimes against humanity. In the case of the decision-maker, specific intent would be required as to the overall purpose, but not as to each and every act and each and every victim. On the whole, ICL in its present form, as it emanates from various international law sources without codification of offenses, their definitions, and of the other components of the general part of criminal law (such as prescription of requisite mental states, defenses, and penalties), only marginally meets the requirements of the principles of legality test. Only a codification of ICL can remedy this situation.281 Section 10. Conclusion The ratione materiae of ICL derives from conventional and customary international law, as well as in some respects, from general principles of law. The evolution of international crimes under all three sources has been haphazard, and one can even say without coherence. International conventions, which are the most reliable and specific sources of international crimes, have not evolved as a result of legislative policy. Probably because of reliance upon their application through the indirect enforcement system, they have lacked the specificity required by principles of legality that most legal systems follow, and which are reflected in international human rights law norms. In addition to the haphazard evolution of conventional international crimes and their lack of specificity and precision as to their special part, they also lack as to the general part, and completely lack in specificity with respect to penalties, also as required by the principles of legality. These and other deficiencies regarding legislative policy and drafting techniques are discussed extensively throughout this chapter, which also offers some explanations as to the reasons for this state of affairs, though by no means justifying it. The chapter offers a theory for the identification of international crimes, and their classification and categorization on the basis of criteria recognized in the world’s major criminal justice systems. It also contains empirical data as to the number of crimes, their categories, classification, and penal elements, which

281 See M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987).

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characterize them. In so doing, the chapter contains this writer’s theoretical approach to international crimes. Because of the requirements of the principles of legality, customary international law has been dealt with in a much more limited way as a source of ICL than other experts confer upon it. General principles of law are used as a way of interpreting international conventions and customary international law, but in a way which seeks to reconcile the weaknesses of these two sources of ICL with the requirements of specificity of the principles of legality. Most of the international conventions discussed above lack specificity as to their definitions and elements, and none of them contain a provisions on sanctions. These weaknesses which characterize ICL are compounded by the fact that they do not include provisions on what in domestic criminal law is called the “general part.” Even when some material or mental element is included in these conventions, it is not always sufficiently clear. There are two reasons for these flaws. The first is that ICL conventions are drafted by diplomats who rarely have expertise in ICL and comparative criminal law and procedure. The second is the assumption by the drafters of these ICL conventions that they will be incorporated in national legislation and that the national legislator will supply whatever is needed to conform these international conventions to national legal requirements. But these two reasons fail to take into account that international judicial institutions may have to apply these conventions in what this writer refers to as the “direct enforcement system.” In these cases, the international tribunals will rely on their jurisprudence to supplement that which the substantive international conventions lack. Thus, the general procedural, evidentiary, and sanctions parts of ICL are still a work in progress.282

282 See generally 3 Bassiouni, ICL, supra note 152.



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Appendix: ICL Conventions and Related Materials 1. Aggression Conventions  1. Convention for the Pacific Settlement of International Disputes [First Hague, I], July 29, 1899, 32 Stat. 1779, T.S. No. 392, 26 Martens Nouveau Recueil (ser. 2) 920.    2. Protocol of Adherence to the Conventions of The Hague (Inter-American), Jan. 15, 1902, 6 Martens Nouveau Recueil (ser. 3) 145.    3. Protocol to Facilitate Adhesion to the Convention for the Pacific Settlement of International Disputes, July 29, 1899, 2 Martens Nouveau Recueil (ser. 3).    4. Convention for the Pacific Settlement of International Disputes [Second Hague, I], Oct. 18, 1907, 36 Stat. 2199, T.S. No. 536, 3 Martens Nouveau Recueil (ser. 3) 360.    5. Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts [Second Hague, II], Oct. 18, 1907, 36 Stat. 2241, 3 Martens Nouveau Recueil (ser. 3) 414.    6. Convention Relative to the Opening of Hostilities [Second Hague, III], Oct. 18, 1907, 36 Stat. 2259, 3 Martens Nouveau Recueil (ser. 3) 437.    7. Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land [Second Hague, V], Oct. 18, 1907, 36 Stat. 2310, 205 Consol. T.S. 299, 24 Martens Nouveau Recueil (ser. 3) 504.    8. Convention Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities [Second Hague, VI], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 533.    9. Convention Relative to the Conversion of Merchant-ships into Warships [Second Hague, VII], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 557. 10. Convention Concerning the Rights and Duties of Neutral Powers in Naval War [Second Hague, XIII], Oct. 18, 1907, 36 Stat. 2415, 205 Consol. T.S. 395, 3 Martens Nouveau Recueil (ser. 3) 713.   11. Treaty of Peace Between the Allied and Associated Powers and Germany [Treaty of Versailles], June 28, 1919, 11 Martens Nouveau Recueil (ser. 3) 323. 12. The Covenant of the League of Nations, June 28, 1919, 11 Martens Nouveau Recueil (ser. 3) 323. 13. Convention for the Limitation of Armaments of Central American States (Inter-American), Feb. 7, 1923, Conference on Central American Affairs 339 (1923). 14. Treaty to Avoid or Prevent Conflicts Between the American States [Gondra Treaty] (Inter-American), 3 May 1923, 44 Stat. 2527, 33 L.N.T.S. 25, 2 Bevans 413.

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15. Protocol for the Pacific Settlement of International Disputes, opened for signature Oct. 2, 1924, 1008 League of Nations O.J. 1521 (1925), League of Nations Doc. C.606.M.211.1924.IX. 16. Treaty of Mutual Guarantee [Treaty of Locarno], Oct. 16, 1925, 54 L.N.T.S. 289, 16 Martens Nouveau Recueil (ser. 3) 9. 17. Convention Concerning the Duties and Rights of States in the Event of Civil Strife (Inter-American), Feb. 20, 1928, 46 Stat. 2749, 134 L.N.T.S. 45, 2 Bevans 694. 18. Convention on Maritime Neutrality (Inter-American), Feb. 20, 1928, 47 Stat. 1989, 135 L.N.T.S. 187, 2 Bevans 721. 19. General Treaty for Renunciation of War as an Instrument of National Policy [Kellogg-Briand Peace Pact or Pact of Paris], Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57, 2 Bevans 732. 20. General Act of Arbitration [Pacific Settlement of International Disputes], Sept. 26, 1928, 93 L.N.T.S. 343, 4 Hudson 2529. 21. General Convention of Inter-American Conciliation (Inter-American), Jan. 5, 1929, 46 Stat. 2209, 100 L.N.T.S. 399, 2 Bevans 745. 22. Convention to Improve the Means of Preventing War, opened for signature Sept. 20, 1931, League of Nations Doc. C.658(I).M.269(I).1931.IX. 23. Convention for the Definition of Aggression, signed at London, July 3, 1933, 147 L.N.T.S. 69, 29 Martens Nouveau Recueil (ser. 3) 33. 24. Convention for the Definition of Aggression Between Romania, the Union of Soviet Socialist Republics, Czechoslovakia, Turkey and Yugoslavia, July 4, 1933, 145 L.N.T.S. 213, 29 Martens Nouveau Recueil (ser. 3) 37. 25. Anti-War Treaty of Non-Aggression and Conciliation [Saavedra Lamas Treaty] (Inter-American), Oct. 10, 1933, 49 Stat. 3363, 163 L.N.T.S. 393, 32 Martens Nouveau Recueil (ser. 3) 655. 26. Convention on Rights and Duties of States (Inter-American), Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19, 3 Bevans 145. 27. Convention for the Maintenance, Preservation and Reestablishment of Peace (Inter-American), Dec. 23, 1936, 51 Stat. 15, 188 L.N.T.S. 9, 3 Bevans 338. 28. Additional Protocol Relative to Nonintervention (Inter-American), Dec. 23, 1936, 51 Stat. 41, 188 L.N.T.S. 31, 3 Bevans 343. 29. Treaty on the Prevention of Controversies (Inter-American), Dec. 23, 1936, 51 Stat. 65, 188 L.N.T.S. 53, 3 Bevans 357. 30. Convention to Coordinate, Extend and Assure the Fulfillment of the Existing Treaties Between the American States (Inter-American), Dec. 23, 1936, 51 Stat. 116, 195 L.N.T.S. 229, 3 Bevans 348. 31. Treaty of Non-Aggression [Saadabad Pact] (Inter-Arab), July 8, 1937, 190 L.N.T.S. 21, 36 Martens Nouveau Recueil (ser. 3) 714. 32. Declaration on General Security [Moscow Declaration of 1943], Oct. 30, 1943, 9 U.S. Dept. of State Bulletin 308 (1943), 9 Hudson 82.



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33. The Cairo Declaration, Dec. 1, 1943, 1943 For. Rel. (Conference at Cairo and Tehran) 448, 3 Bevans 858. 34. Resolution on Reciprocal Assistance and American Solidarity [Act of Chapultepec] (Inter-American), Mar. 6, 1945, 60 Stat. 1831, 3 Bevans 1024. 35. Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. 36. Control Council Law No. 10 (Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity), Dec. 20, 1945, Official Gazette Control Council for Germany 50–55 (1946); 1 Benjamin B. Ferencz, An International Criminal Court: A Step Toward World Peace 488 (1980). 37. Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27. 38. Treaty of Reciprocal Assistance [Rio Treaty] (Inter-American), opened for signature Sept. 2, 1947, 62 Stat. 1681, 21 U.N.T.S. 77, 4 Bevans 559. 39. Charter of the Organization of American States (Inter-American), Apr. 30, 1948, 2 U.S.T. 2394, 119 U.N.T.S. 3, 4 Bevans 724. 40. American Treaty on Pacific Settlement [Pact of Bogota] (Inter-American), Apr. 30, 1948, 30 U.N.T.S. 55. 41. North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243, 4 Bevans 828. 42. Protocol to the Convention on Duties and Rights of States in the Event of Civil Strife (Inter-American), opened for signature May 1, 1957, 284 U.N.T.S. 201. 43. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 5, 1979, 1363 U.N.T.S. 3, 18 I.L.M. 1434. 44. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3. Related Materials  1. U.N. Charter, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (June 26, 1945).  2. Statute of the International Court of Justice, 3 Bevans 1179, 59 Stat. 1031, T.S. 993, 39 Am. J. Int’l L. Supp. 215 (1945).  3. Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal (United Nations General Assembly Resolution), Dec. 11, 1946, U.N. G.A. Res. 95(I), U.N. Doc. A/64/Add.1 (1946).  4. Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, July 29, 1950, 5 U.N. GAOR Supp. (No. 12), at 11, U.N. Doc. A/1316 (1950), 44 Am. J. Int’l L. 126 (1950).  5. Draft Code of Offenses Against the Peace and Security of Mankind (International Law Commission), July 28, 1954, 9 U.N. GAOR Supp. (No. 9), at 11, U.N. Doc. A/2693 (1954) 45 Am. J. Int’l L. 123 (1951).  6. Charter of Economic Rights and Duties of States (United Nations General Assembly Resolution), Dec. 12, 1974, U.N. G.A. Res. 3281 (XXIX), 29 U.N. GAOR (Supp. No. 31), at 50, U.N. Doc. A/9946 (1974), 14 I.L.M. 251.

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7. Definition of Aggression (United Nations General Assembly Resolution), Dec. 14, 1974, U.N. G.A. Res. 3314 (XXIX), 29 U.N. GAOR Supp. (No. 31), at 142, U.N. Doc. A/9631 (1974), 13 I.L.M. 710. 8. 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR Int. Law Comm., 48th Sess., U.N. Doc. A/CN.4/L.532 (1996), 15 July 1996, revised by U.N. Doc. A/CN.4/L.532/corr. 1, U.N. Doc. A/CN.4/L.532/corr. 3. 2. Genocide Conventions 1. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, 28 I.L.M. 763. 2. Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159. 3. Statute of the International Tribunal for Rwanda, Nov. 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598. 4. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3. Related Documents 1. 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR Int. Law Comm., 48th Sess., U.N. Doc. A/CN.4/L.532 (1996), July 15, 1996, revised by U.N. Doc. A/CN.4/L.532/corr. 1, U.N. Doc. A/CN.4/L.532/corr. 3. 3. Crimes against Humanity Conventions 1. Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.



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2. Control Council Law No. 10 (Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity), Dec. 20, 1945, Official Gazette Control Council for Germany 50–55 (1946); 1 Benjamin B. Ferencz, An International Criminal Court: A Step Toward World Peace 488 (1980). 3. Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27. 4. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature Nov. 26, 1968, 754 U.N.T.S. 73, 8 I.L.M. 68. 5. European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes (Inter-European), Jan. 25, 1974, Europ. T.S. No. 82, 13 I.L.M. 540. 6. Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159. 7. Statute of the International Tribunal for Rwanda, Nov. 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 8. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3. Related Materials 1. Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal (United Nations General Assembly Resolution), Dec. 11, 1946, U.N. G.A. Res. 95(I), U.N. Doc. A/64/Add.1 (1946). 2. Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, July 29, 1950, 5 U.N. GAOR Supp. (No. 12), at 11, U.N. Doc. A/1316 (1950), 44 Am. J. Int’l L. 126 (1950). 3. 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR Int. Law Comm., 48th Sess., U.N. Doc. A/CN.4/L.532 (1996), July 15, 1996, revised by U.N. Doc. A/CN.4/L.532/corr. 1, U.N. Doc. A/CN.4/L.532/corr. 3. 4. War Crimes Conventions 1. Convention Relative to the Rights of Neutrals at Sea, July 22, 1854, 10 Stat. 1105, 16 Martens Nouveau Recueil (ser. 1) 571.

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  2. Declaration Respecting Maritime Law [Declaration of Paris], Apr. 16, 1856, 15 Martens Nouveau Recueil (ser. 1) 791.   3. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field [First Red Cross Convention], Aug. 22, 1864, 22 Stat. 940, 18 Martens Nouveau Recueil (ser. 1) 607.   4. Additional Articles Relating to the Condition of the Wounded in War, Oct. 20, 1868, 22 Stat. 946, 18 Martens Nouveau Recueil (ser. 1) 612.   5. Final Protocol (Brussels Conference on the Laws and Customs of War, No. 19), Aug. 27, 1874, 4 Martens Nouveau Recueil (ser. 2) 226.   6. Convention with Respect to the Laws and Customs of War on Land [First Hague, II], July 29, 1899, 32 Stat. 1803, 1 Bevans 247.   7. Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864 [First Hague, III], July 29, 1899, 32 Stat. 1827, 26 Martens Nouveau Recueil (ser. 2) 979.   8. Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field [Second Red Cross Convention], July 6, 1906, 35 Stat. 1885, 2 Martens Nouveau Recueil (ser. 3) 620.   9. Convention Respecting the Laws and Customs of War on Land [Second Hague, IV], Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631. 10. Regulations Respecting the Laws and Customs of War on Land, T.S. No. 539, 1 Bevans 643.   11. Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land [Second Hague, V], Oct. 18, 1907, 36 Stat. 2310, 205 Consol. T.S. 299, 24 Martens Nouveau Recueil (ser. 3) 504. 12. Convention Concerning Bombardments by Naval Forces in Time of War [Second Hague, IX], Oct. 18, 1907, 36 Stat. 2351, U.S.T.S. 542, 3 Martens Nouveau Recueil (ser. 3) 604. 13. Convention for the Adaptation of the Principles of the Geneva Convention to Maritime Warfare [Second Hague, X], Oct. 18, 1907, 36 Stat. 2371, 3 Martens Nouveau Recueil (ser. 3) 630. 14. Convention Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War [Second Hague, XI], Oct. 18, 1907, 36 Stat. 2396, 3 Martens Nouveau Recueil (ser. 3) 663. 15. Convention Relative to the Establishment of an International Prize Court [Second Hague, XII], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 688. 16. Convention Concerning the Rights and Duties of Neutral Powers in Naval War [Second Hague, XIII], Oct. 18, 1907, 36 Stat. 2415, 205 Consol. T.S. 395, 3 Martens Nouveau Recueil (ser. 3) 713. 17. Final Protocol and Declaration Concerning the Laws of Naval War [Code of Naval Law] (London Naval Conference), Feb. 26, 1909, 7 Martens Nouveau Recueil (ser. 3) 39.



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18. Additional Protocol to the Convention Relative to the Establishment of an International Prize Court of October 18, 1907, Sept. 19, 1910, 7 Martens Nouveau Recueil (ser. 3) 73. 19. Treaty Between the Allied and Associated Powers and Germany [Treaty of Versailles], June 28, 1919, 2 Bevans 43. 20. Treaty of Peace Between the Allied and Associated Powers and Austria [Treaty of St. Germain-en-Laye], Sept. 10, 1919, 11 Martens Nouveau Recueil (ser. 3) 691. 21. Protocol Supplementary to the Treaty of Peace Between the Allied and Associated Powers and Austria, 226 Consol. T.S. 163. 22. Treaty of Peace Between the Allied and Associated Powers and Bulgaria, Nov. 27, 1919, 226 Consol. T.S. 332. 23. Protocol to the Treaty of Peace Between the Allied and Associated Powers and Bulgaria, 226 Consol. T.S. 434. 24. Treaty of Peace Between the Allied Powers and Turkey [Treaty of Sevres], Aug. 10, 1920, 15 Am. J. Int’l L. 179 (1920). 25. Treaty of Peace Between the Allied Powers and Hungary [Treaty of Trianon], June 4, 1920, 15 Am. J. Int’l L. 1 (1921). 26. Treaty of Peace with Turkey Signed at Lausanne [Treaty of Lausanne], July 24, 1923. 27. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field [Third Red Cross Convention], July 27, 1929, 47 Stat. 2074, 118 L.N.T.S. 303, 2 Bevans 965. 28. Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 343, 30 Martens Nouveau Recueil (ser. 3) 846. 29. International Treaty for the Limitation and Reduction of Naval Armament [London Naval Treaty], Apr. 22, 1930, 46 Stat. 2858, 112 L.N.T.S. 65, 23 Martens Nouveau Recueil (ser. 3) 645. 30. Declaration Regarding Italy [Moscow Conference of Foreign Secretaries, Secret Protocol, Annex 4], Nov. 1, 1943, 1943 For. Rel.(I) 749 at 759, 3 Bevans 816 at 824. 31. Declaration of German Atrocities [Moscow Conference of Foreign Secretaries, Secret Protocol, Annex 10], Nov. 1, 1943, 1943 For. Rel.(I) 749 at 768, 3 Bevans 816 at 834. 32. Agreement Between the Governments of United States of America, the United Kingdom, and the Union of Soviet Socialist Republics, on the One Hand, and the Government of Rumania, on the Other Hand, Concerning an Armistice, Sept. 2, 1944, 59 Stat. 1712, 3 Bevans 901. 33. Agreement Between the Governments of United States of America, the United Kingdom, and the Union of Soviet Socialist Republics, on the One Hand, and the Government of Bulgaria, on the Other Hand, Concerning an Armistice, Oct. 28, 1944, 58 Stat. 1498, 3 Bevans 909.

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34. Agreement Concerning An Armistice Between The Union Of Soviet Socialist Republics, The United Kingdom Of Great Britain And Northern Ireland, And The United States Of America On One Hand And Hungary On The Other, Jan. 20, 1945, 59 Stat. 1321. 35. Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany, June 5, 1945, T.I.A.S. No. 1520, 60 Stat. 1649, 68 U.N.T.S. 189, 3 Bevans 1140. 36. Proclamation by the Heads of Governments, United States, China and the United Kingdom (Terms for Japanese Surrender) [Berlin (Potsdam) Conference], July 26, 1945, China-United Kingdom-United States, 1945 For. Rel. [Conference of Berlin (Potsdam) II] 1474, 3 Bevans 1204. 37. Protocol of Proceedings [Berlin (Potsdam) Conference], signed at Berlin, Aug. 2, 1945, 1945 For. Rel. [Conference of Berlin (Potsdam), II] 1478, 3 Bevans 1207. 38. Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. 39. Control Council Law No. 10 (Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity), Dec. 20, 1945, Official Gazette Control Council for Germany 50–55 (1946); 1 Benjamin B. Ferencz, An International Criminal Court: A Step Toward World Peace 488 (1980). 40. Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27. 41. Agreement on the Machinery of Control in Austria, June 28, 1946, 62 Stat. 4036, 138 U.N.T.S. 85, 4 Bevans 79. 42. Treaty of Peace with Bulgaria, Feb. 10, 1947, 61 Stat. 1915, 41 U.N.T.S. 21, 4 Bevans 429. 43. Treaty of Peace with Hungary, Feb. 10, 1947, 61 Stat. 2065, 41 U.N.T.S. 135, 4 Bevans 453. 44. Treaty of Peace with Romania, Feb. 10, 1947, 61 Stat. 1757, 42 U.N.T.S. 3, 4 Bevans 403. 45. Treaty of Peace with Italy, Feb. 10, 1947, 61 Stat. 1245, 49 & 50 U.N.T.S. 1, 4 Bevans 311. 46. Treaty of Peace Between the Allied Powers and Finland, Feb. 10, 1947, 48 U.N.T.S. 203, 42 Am. J. Int’l L. 203 (1948). 47. Charter of the Allied High Commission for Germany, concluded at Paris, June 20, 1949, 2 U.S.T. 691, 128 U.N.T.S. 141. 48. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, 4 Bevans 853. 49. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85.



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50. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, 47 Am. J.Int’l L. 119 (1953). 51. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, 50 Am. J. Int’l L. 119. 52. Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169, 136 U.N.T.S. 45, 46 Am. J. Int’l L. 71 (1952). 53. Convention on the Settlement of Matters Arising Out of the War and the Occupation, May 26, 1952, 322 U.N.T.S. 219, 49 Am. J. Int’l L. 69 (1955). 54. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature Nov. 26, 1968, 754 U.N.T.S. 73, 8 I.L.M. 68. 55. European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes (Inter-European), Jan. 25, 1974, Europ. T.S. No. 82, 13 I.L.M. 540. 56. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts of June 8, 1977 [1977 Protocol I], opened for signature Dec. 12, 1977, U.N. Doc. A/32/144 (1977) Annex I, referenced in 16 I.L.M. 1391. 57. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [1977 Protocol II], opened for signature Dec. 12, 1977, U.N. Doc. A/32/144 (1977) Annex II, referenced in 16 I.L.M. 1391. 58. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 103–21, 32 I.L.M. 800. 59. Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/ 827 (1993), 32 I.L.M. 1159. 60. Statute of the International Tribunal for Rwanda, Nov. 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd Mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598. 61. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3. Related Materials  1. Instrument of Surrender of Italy, Italy-United States, Sept. 29, 194361 Stat. 2742, 3 Bevans 775. 2. Protocol Amending the Instrument of Surrender of Italy of September 29, 1943, Italy-United States, Nov. 9, 1943, 61 Stat. 2761, 3 Bevans 854. 3. Report on the Tripartite Conference of Berlin [Berlin (Potsdam) Conference], July 26, 1945, China-United Kingdom-United States, 1945 For. Rel. [Conference of Berlin (Potsdam) II] 1474, 3 Bevans 1224.

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4. Agreement on Certain Additional Requirements to be Imposed on Germany, Sept. 20, 1945, S. Exec. Doc. No. 123, 81st Cong., 1st Sess. 513 (1949), 3 Bevans 1254. 5. Report of the Crimea (Yalta) Conference, Feb. 11, 1945, 1945 For. Rel. [Conference at Malta and Yalta] 968, 3 Bevans 1005.   6. Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal (United Nations General Assembly Resolution), U.N. G.A. Res. 95(I), U.N. Doc. A/64/Add.1 (Dec. 11, 1946).   7. Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 5 U.N. GAOR Supp. (No. 12), at 11, U.N. Doc. A/1316 (July 29, 1950), 44 Am. J. Int’l L. 126 (1950).   8. 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against Peace and Security of Mankind adopted by the International Law Commission on its forty-eighth session (1996), U.N. GAOR Int. Law Comm., 48th Sess., U.N. Doc. A/CN.4/L.532 (1996), July 15, 1996, revised by U.N. Doc. A/CN.4/L.532/corr. 1, U.N. Doc. A/CN.4/L.532/corr. 3.   9. Project of an International Declaration Concerning the Laws and Customs of War [Declaration of Brussels] (Brussels Conference on the Laws and Customs of War, No. 18), Aug. 27, 1874, 4 Martens Nouveau Recueil (ser. 2) 219. 10. Proces-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of Apr. 22, 1930, Nov. 6, 1936, 173 L.N.T.S. 353, 33 Martens Nouveau Recueil (ser. 3) 3. 5. Unlawful Possession, Use, Emplacement Stockpiling, and Trade of Weapons, including Nuclear Weapons Conventions   1. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight [St. Petersburg Declaration], Dec. 11, 1868, 18 Martens Nouveau Recueil (ser. 1) 474.   2. Declaration Concerning the Prohibition, for the Term of Five Years, of the Launching of Projectiles and Explosives from Balloons or Other New Methods of a Similar Nature [First Hague, IV, 1], July 29, 1899, 32 Stat. 1839, 26 Martens Nouveau Recueil (ser. 2) 994.   3. Declaration Concerning the Prohibition of the Use of Projectiles Diffusing Asphyxiating Gases [First Hague, IV, 2], July 29, 1899, 26 Martens Nouveau Recueil (ser. 2) 998.



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  4. Declaration Concerning the Prohibition of the Use of Expanding Bullets [First Hague, IV, 3], July 29, 1899, 26 Martens Nouveau Recueil (ser. 2) 1002.   5. Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land [Second Hague, V], Oct. 18, 1907, 36 Stat. 2310, 205 Consol. T.S. 299, 24 Martens Nouveau Recueil (ser. 3) 504. 6. Convention Relative to the Laying of Automatic Submarine Contact Mines [Second Hague, VIII], Oct. 18, 1907, 36 Stat. 2332, 3 Martens Nouveau Recueil (ser. 3) 580. 7. Convention Concerning Bombardments by Naval Forces in Time of War [Second Hague, IX], Oct. 18, 1907, 36 Stat. 2351, U.S.T.S. 542, 3 Martens Nouveau Recueil (ser. 3) 604. 8. Convention Concerning the Rights and Duties of Neutral Powers in Naval War [Second Hague, XIII], Oct. 18, 1907, 36 Stat. 2415, 205 Consol. T.S. 395, 3 Martens Nouveau Recueil (ser. 3) 713. 9. Declaration Relative to Prohibiting the Discharge of Projectiles and Explosives from Balloons [Second Hague, XIV], Oct. 18, 1907, 36 Stat. 2439, 3 Martens Nouveau Recueil (ser. 3) 745. 10. Convention Relating to the Non-Fortification and Neutralisation of the Aaland Islands, Oct. 20, 1921, 9 L.N.T.S. 211. 11. Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, 25 L.N.T.S. 202, 13 Martens Nouveau Recueil (ser. 3) 643. (Not in force.) 12. Treaty on the Limitation of Naval Armament, Feb. 6, 1922, L.N.T.S. 671. 13. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65, 14 I.L.M. 49. 14. Protocol No. III on the Control of Armaments [Treaty for Collaboration in Economic, Social and Cultural Matters and for Collective Self-Defence], Oct. 23, 1943, 211 U.N.T.S. 362. 15. The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71, 54 Am. J. Int’l L. 477 (1960). 16. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43, 2 I.L.M. 883. 17. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, 6 I.L.M. 386. 18. Treaty for the Prohibition of Nuclear Weapons in Latin America [Treaty of Tlatelolco] (Inter-American), opened for signature Feb. 14, 1967, 22 U.S.T. 762, 634 U.N.T.S. 281, 6 I.L.M. 521. 19. Additional Protocol I to the Treaty of Feb. 14, 1967 for the Prohibition of Nuclear Weapons in Latin America (Inter-American), Feb 14, 1967, T.I.A.S. No. 10147, 634 U.N.T.S. 362, 28 I.L.M. 1405.

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20. Additional Protocol II to the Treaty of Feb. 14, 1967 for the Prohibition of Nuclear Weapons in Latin America (Inter-American), Feb. 14, 1967, 22 U.S.T. 754, 634 U.N.T.S. 364, 28 I.L.M. 1413. 21. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161, 7 I.L.M. 809. (This convention does not contain any of the ten penal characteristics required for a given international or regional instrument to be included in ICL, but it is listed herein because the prohibition contained in the treaty is categoric.) 22. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof, Feb. 11, 1971, 23 U.S.T. 701, T.I.A.S. No. 7337, 955 U.N.T.S. 115. 23. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163, 11 I.L.M. 309. 24. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, opened for signature May 18, 1977, U.N. G.A. Res. 31/72 (XXXI), 31 U.N. GAOR Supp. (No. 39), at 36, U.N. Doc. A/31/39 (1976), 31 U.S.T. 333, 1108 U.N.T.S. 151, 16 I.L.M. 88. 25. Convention on the Physical Protection of Nuclear Material, Mar. 3, 1980, 18 I.L.M. 1419. 26. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 5, 1979, 1363 U.N.T.S. 3, 18 I.L.M. 1434. 27. Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, Oct. 10, 1980, U.N. Doc. A/CONF.95/15, 1342 U.N.T.S. 7, 19 I.L.M. 1523. (This convention does not contain any of the ten penal characteristics required for a given international or regional instrument to be included in ICL, but it is listed herein because the prohibition contained in the treaty is categoric.) 28. Protocol on Non-Detectable Fragments to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons [Protocol I], Oct. 10, 1980, U.N. Doc. A/CONF.95/15 (1980), 19 I.L.M. 1529. 29. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, Appendix C, [Protocol II], Oct. 10, 1980, U.N. Doc. A/CONF.95/15 (1980), 19 I.L.M. 1529. 30. Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons [Protocol III], Oct. 10, 1980, U.N. Doc. A/CONF.95/15 (1980), 19 I.L.M. 1534.



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31. South Pacific Nuclear-Free Zone Treaty [Treaty of Rarotonga], Aug. 6, 1985, 24 I.L.M. 1440. (This convention does not contain any of the ten penal characteristics required for a given international or regional instrument to be included in ICL, but it is listed herein because the prohibition contained in the treaty is categoric.) 32. Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature Mar. 1, 1991, 30 I.L.M. 721. (See also Category 18 on the Use of Explosives.) 33. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 103–21, 32 I.L.M. 800. 34. Protocol on Blinding Laser Weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons [Protocol IV], Oct. 12, 1995, 90 AM. J. INT’L L. 484 (1996). 35. Treaty on Southeast Asia Nuclear Weapon-Free Zone, Dec. 15, 1995, 35 I.L.M. 635. (This convention does not contain any of the ten penal characteristics required for a given international or regional instrument to be included in ICL, but it is listed herein because the prohibition contained in the treaty is categoric.) 36. African Nuclear-Weapon-Free Zone Treaty, June 21–23, 1996, 35 I.L.M. 698. (This convention does not contain any of the ten penal characteristics required for a given international or regional instrument to be included in ICL, but it is listed herein because the prohibition contained in the treaty is categoric.) 37. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction [Ottawa Treaty], Sept. 18, 1997, 2056 U.N.T.S. 211. 38. Southern African Development Community (SADC), Protocol on Control of Firearms, Ammunition and other related materials, Aug. 14, 2001, http:// www.sadc.int/index/browse/page/125. 39. Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects [Protocol V], Nov. 28, 2003, 2399 U.N.T.S. 100. 40. Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa, Apr. 21, 2004, http://www.recsasec.org/pdf/Nairobi%20Protocol.pdf. 41. Economic Community of West African States, Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials, June 14, 2006, http://www.iag-agi.org/bdf/docs/ecowas_convention_small_arms .pdf.

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42. Treaty on a Nuclear-Weapon-Free Zone in Central Asia, Kaz.-Kyrg.-Taj.Turkm.-Uzb., Sept. 8, 2006, http://nwp.ilpi.org/wp-content/uploads/2011/10/ Treaty-of-Semipalatinsk1.pdf [hereinafter Treaty of Semiipalatinsk]. (This convention does not contain any of the ten penal characteristics required for a given international or regional instrument to be included in ICL, but it is listed herein because the prohibition contained in the treaty is ­categoric.) 43. Convention on Cluster Munitions, May 30, 2008, 48 ILM 357. 44. Central African Convention for the Control of Small Arms and Light Weapons, their Ammunition and all Parts and Components that can be used for their Manufacture, Repair and Assembly, Apr. 10, 2010, http://treaties.un.org/ doc/Treaties/2010/04/20100430%2001-12%20PM/xxvi-7.pdf [hereinafter Kinshasa Convention]. 45. Arms Trade Treaty (the July 2012 Arms Trade Treaty conference failed to agree on a text. For the text of the Preparatory Committee, see Report of the Preparatory Committee for the United Nations Conference on the Arms Trade Treaty, 11, U.N. Doc. A/CONF.217/1) Related Materials 1. Treaty on the limitation of anti-ballistic missile systems [ABM Treaty], May 26, 1972, 944 U.N.T.S. 13. (The ABM Treaty was a bilateral agreement between the U.S. and the U.S.S.R. However, it has a multi-lateral effect as it is binding upon the U.S.S.R.’s multiple successor states through the doctrine of state succession.) 2. Interim Agreement Between the United States Of America and The Union of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms [SALT I], May 26, 1972. (The SALT I Treaty was a bilateral agreement between the U.S. and the U.S.S.R. However, it has a multi-lateral effect as it is binding upon the U.S.S.R.’s multiple successor states through the doctrine of state succession.) 3. Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Underground Nuclear Weapon Tests (Threshold Test Ban Treaty, TTBT), July 3, 1974, 13 I.L.M. 967. 4. Treaty Between the United States of America and the Union of Soviet Socialist Republics on Underground Nuclear Explosions for Peaceful Purposes (Peaceful Nuclear Explosions Treaty, PNET), May 28, 1976, 15 I.L.M. 891. 5. Treaty on the Limitation of Strategic Offensive Arms, U.S.-U.S.S.R., June 18, 1979, 18 I.L.M 1112 (not in force) [hereinafter Salt II Treaty]. (The SALT II Treaty was a bilateral agreement between the U.S. and the U.S.S.R. However, it has a multi-lateral effect as it is binding upon the U.S.S.R.’s multiple successor states through the doctrine of state succession.)



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6. Protocol to the Treaty on the Limitations of Strategic Offensive Arms, U.S.U.S.S.R., June 18, 1979, 18 I.L.M. 1121 (not in force) [hereinafter Salt II Protocol] (The protocol was a bilateral agreement between the U.S. and the U.S.S.R. However, it has a multi-lateral effect as it is binding upon the U.S.S.R.’s multiple successor states through the doctrine of state succession.) 7. Treaty on the Elimination of their Intermediate-Range and Shorter-Range Missiles, U.S.-U.S.S.R., Dec. 8, 1987, 27 I.L.M. 90 [Hereinafter INF Treaty]. (The treaty was a bilateral agreement between the U.S. and the U.S.S.R. However, it has a multi-lateral effect as it is binding upon the U.S.S.R.’s multiple successor states through the doctrine of state succession.) 8. Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990, 1696 U.N.T.S. 115. 9. Treaty on Conventional Armed Forces in Europe, Dec. 8, 1987, 30 I.L.M. 1. 10. Treaty on the Reduction and Limitation of Strategic Offensive Arms, U.S.U.S.S.R., July 31, 1991, S. Treaty Doc. 102-20 [hereinafter START I Treaty]. (The START II Treaty was a bilateral agreement between the U.S. and the U.S.S.R. However, it has a multi-lateral effect as it is binding upon the U.S.S.R.’s multiple successor states through the doctrine of state succession.) 11. Comprehensive Nuclear-Test-Ban Treaty [CTBT], Sept. 10, 1996, U.N. Doc. A/50/1027. (Not in force.) (The CTBT does not contain any of the 10 categories of crimes, but it establishes an absolute prohibition on nuclear explosions for any purpose.) 12. General Assembly, Convention on the Prohibition of the Use of Nuclear Weapons, G.A. Res 53/78, U.N. Doc. A/RES/53/78 (D) (Jan 8, 1999) 13. Treaty on Open Skies, Mar. 24, 1992, S. Treaty Doc. No. 102-37. 14. International Code of Conduct against Ballistic Missile Proliferation, Nov. 25, 2002, http://www.armscontrol.org/documents/icoc [hereinafter ICOC]. 15. Report of the First Committee, General and Complete Disarmament, U.N. Doc. A/59/459 (Nov. 22, 2004) 16. Working paper submitted by Costa Rica, Model Nuclear Weapons Convention, NPT/CONF.2010/PC.I/WP.17 (May 1, 2007) 6. Nuclear Terrorism Conventions 1. International Convention for the Suppression of Acts of Nuclear Terrorism, G.A. Res. 59/290, U.N. Doc. A/RES/59/290 (Apr. 13, 2005).

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1. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195, 5 I.L.M. 352. 2. International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature Nov. 30, 1973, U.N. G.A. Res. 3068 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030 (1973), 13 I.L.M. 50, 1015 U.N.T.S. 243. 8. Slavery, Slave-Related Practices, and Trafficking in Human Beings Conventions 1. Declaration Relative to the Universal Abolition of the Slave Trade [Congress of Vienna, Act XV], Feb. 8, 1815, 2 Martens Nouveau Recueil (ser. 1) 432. 2. Treaty for the Suppression of the African Slave Trade [Treaty of London], Dec. 20, 1841, 2 Martens Nouveau Recueil (ser. 1) 392. 3. General Act of the Conference Respecting the Congo [General Act of Berlin], Feb. 26, 1885, 10 Martens Nouveau Recueil (ser. 2) 414. 4. Convention Relative to the Slave Trade and Importation into Africa of Firearms, Ammunition, and Spirituous Liquors [General Act of Brussels], July 2, 1890, 27 Stat. 886, 17 Martens Nouveau Recueil (ser. 2) 345. 5. International Agreement for the Suppression of the “White Slave Traffic,” May 18, 1904, 35 Stat. 1979, 1 L.N.T.S. 83, 1 Bevans 424. 6. International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 7 Martens Nouveau Recueil (ser. 3) 252. 7. Convention Revising the General Act of Berlin, Feb. 26, 1885, and the General Act and Declaration of Brussels, July 2, 1890, Sept. 10, 1919, 49 Stat. 3027, 14 Martens Nouveau Recueil (ser. 3) 12. 8. International Convention for the Suppression of the Traffic in Women and Children, Sept. 30, 1921, 9 L.N.T.S. 415, 1 Hudson 726. 9. Slavery Convention, Sept. 25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253, 19 Martens Nouveau Recueil (ser. 3) 303. 10. Convention Concerning Forced or Compulsory Labour [Forced Labour Convention, 1930], June 28, 1930, 39 L.N.T.S. 55, 5 Hudson 609. 11. International Convention for the Suppression of the Traffic in Women of Full Age, Oct. 11, 1933, 150 L.N.T.S. 431, 6 Hudson 469. 12. Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children, concluded at Geneva on September 30, 1921, and the



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Convention for the Suppression of Traffic in Women of Full Age, concluded at Geneva on October 11, 1933, Nov. 12, 1947, 53 U.N.T.S. 13. 13. Annex to the Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children, concluded at Geneva on September 30, 1921, and the Convention for the Suppression of Traffic in Women of Full Age, concluded at Geneva on October 11, 1933. 14. International Convention for the Suppression of the Traffic in Women and Children, concluded at Geneva on September 30, 1921, amended by the Protocol signed at Lake Success, New York, Nov. 12, 1947, 53 U.N.T.S. 39. 15. International Convention for the Suppression of the Traffic in Women of Full Age, concluded at Geneva on October 11, 1933, amended by the Protocol signed at Lake Success, New York, Nov. 12, 1947, 53 U.N.T.S. 49. 16. Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, signed at Paris on May 18, 1904, and the International Convention for the Suppression of the White Slave Traffic, signed at Paris on May 4, 1910, May 4, 1949, 2 U.S.T. 1997, 30 U.N.T.S. 23. 17. Annex to the Protocol Amending the Agreement for the Suppression of the White Slave Traffic, May 18, 1904, and the International Convention for the Suppression of the White Slave Traffic, May 4, 1910, May 4, 1949. 18. International Agreement for the Suppression of the White Slave Traffic, signed at Paris on 18 May 1904, amended by the Protocol signed at Lake Success, New York, on May 4, 1949, 2 U.S.T. 1997, 92 U.N.T.S. 19. 19. International Convention for the Suppression of White Slave Traffic signed at Paris on May 4, 1910, and amended by the Protocol, May 4, 1949, 98 U.N.T.S. 101, 4 Bevans 844. 20. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature Mar. 21, 1950, 96 U.N.T.S. 271. 21. Protocol Amending the Slavery Convention, Sept. 25, 1926, Dec. 7, 1953, 7 U.S.T. 479, 182 U.N.T.S. 51. 22. Annex to the Protocol Amending the Slavery Convention, Sept. 25, 1926. 23. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 18 U.S.T. 3201, 266 U.N.T.S. 3, 35 I.L.M. 520. 24. Convention (No. 105) Concerning the Abolition of Forced Labour, June 25, 1957, 320 U.N.T.S. 291. 25. Convention on the High Seas [Geneva Convention on the Law of the Sea], Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 52 Am. J. Int’l L. 842 (1958). 26. Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261.

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27. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc. A/RES/55/25 (Jan. 8, 2001). (See also Category 22 on Organized Crime and Related Specific Crimes.) 9. Torture and Other Forms of Inhuman and Degrading Treatment Conventions 1. Inter-American Convention to Prevent and Punish Torture, Dec. 9, 1985, AG/ Res. 783 (XV-0/85), O.A.S. General Assembly, 15th Sess. IEA/Ser.P. AG/ Doc. 22023/85 rev. 1 at 46–54 (1986), O.A.S. Treaty Series, No. 67, 25 I.L.M. 519. 2. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. G.A. Res. 39/46, opened for signature Feb. 4, 1985, 23 I.L.M. 1027. 3. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, opened for signature Jan. 9, 2003, 2375 U.N.T.S. 24841. 4. Treaty or European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Inter-European), opened for signature Nov. 26, 1987, Europ. T.S. No. 126, 27 I.L.M. 1152. Related Materials 1. United Nations Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Resolution), 1955, ECOSOC Res. 663C (XXIV), 31 July 1957, and 2076 (XXII), 13 May 1977, U.N. Doc. A/CONF.6/1, Annex I.A. 10. Unlawful Human Experimentation Related Materials 1. Draft Convention for the Prevention and Suppression of Unlawful Human Experimentation (U.N. Commission on Human Rights), Aug. 13, 1980, U.N. Doc. E/CN.4/Sub.2/NGO/80 (1980).



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11. Enforced Disappearances and Extra-Judicial Executions Conventions 1. International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature Feb. 6, 2007, U.N. Doc. A/RES/61/177, C.N.737.2008.TREATIES-12. (See also Proces verbal of rectification of International Convention for the Protection of All Persons from Enforced Disappearance, Jan. 1, 2009.) 2. Inter-American Convention on Forced Disappearances of Persons, opened for signature June 9, 1996, 33 I.L.M. 1429. 3. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3. Related Materials 1. General Assembly Resolution 65/208 Extrajudicial, Summary or Arbitrary Executions, GAOR 65th Sess., U.N. Doc. A/RES/65/208 (Mar. 30, 2011). 12. Mercenarism Conventions 1. International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, U.N. G.A. Res. 44/34, U.N. Doc. A/RES/44/34 (Dec. 4, 1989), 29 I.L.M. 89. 13. Piracy and Unlawful Acts against the Safety of Maritime Navigation and the Safety of Platforms on the High Seas Conventions 1. The Nyon Arrangement, Sept. 14, 1937, 181 L.N.T.S. 135, 34 Martens Nouveau Recueil (ser. 3) 666. 2. Agreement Supplementary to the Nyon Arrangement, Sept. 17, 1937, 181 L.N.T.S. 149, 34 Martens Nouveau Recueil (ser. 3) 676. 3. Convention on the High Seas [Geneva Convention on the Law of the Sea], Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 52 AM. J. INT’L L. 842 (1958).

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4. Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261. 5. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, IMO Doc. SUA/CON/15 (1988), 27 I.L.M. 668. 6. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, Mar. 10, 1988, IMO Doc. SUA/CON/16/ Rev.1 (1988), 27 I.L.M. 685. 14. Aircraft Hijacking and Unlawful Acts against International Air Safety Conventions 1. Convention for the Prevention and Punishment of Terrorism, Nov. 16, 1937, League of Nations O.J. 19, at 23 (1938), League of Nations Doc. C.546(I).M.383(I).1937.V (1938), 7 Hudson 862. (Not in force.) 2. Convention on Offences and Certain Other Acts Committed on Board Aircraft [Tokyo Hijacking Convention], Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219, 2 I.L.M. 1042. 3. Convention for the Suppression of Unlawful Seizure of Aircraft [Hague Hijacking Convention], Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105, 10 I.L.M. 133. 4. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation [Montreal Hijacking Convention], Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177, 10 I.L.M. 1151. 5. European Convention on the Suppression of Terrorism [European Terrorism Convention] (Inter-European), opened for signature Jan. 27, 1977, Europ. T.S. No. 90, 15 I.L.M. 1272. 6. Convention on the High Seas [Geneva Convention on the Law of the Sea], Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 52 Am. J. Int’l L. 842 (1958). 7. Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261. 8. Regional Convention on Suppression of Terrorism (Inter-Asian), Nov. 4, 1987, U.N. Doc. A/51/136. 9. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (International Civil Aviation Organization), Feb. 24, 1988, S. Treaty Documents 100–19, 27 I.L.M. 627 (1988). 10. League of Arab States, Arab Convention for the Suppression of Terrorism, 22 April 1998 (entered into force on 7 May 1999).



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15. Threat and Use of Force against Internationally Protected Persons and United Nations Personnel Conventions 1. Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance (Inter-American), Feb. 2, 1971, O.A.S. Doc. A6/Doc. 88 rev.1, corr. 1, 27 U.S.T. 3949, 10 I.L.M. 255. 2. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents [New York Convention], opened for signature Dec. 14, 1973, U.N. G.A. Res. 3166 (XXVIII), 28 U.N. GAOR Supp. (No. 30), at 146, U.N. Doc. A/9030 (1974), 28 U.S.T. 1975, 1035 U.N.T.S. 167, 13 I.L.M. 41. 3. European Convention on the Suppression of Terrorism [European Terrorism Convention] (Inter-European), opened for signature Jan. 27, 1977, Europ. T.S. No. 90, 15 I.L.M. 1272. 4. Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature Mar. 1, 1991, 30 I.L.M. 721. 5. Convention on the Safety of United Nations and Associated Personnel, opened for signature Dec. 15, 1994, U.N. Doc. A/49/742 (1994). Related Materials 1. 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR Int. Law Comm., 48th Sess., U.N. Doc. A/CN.4/L.532 (1996), revised by U.N. Doc. A/ CN.4/L.532/corr. 1, U.N. Doc. A/CN.4/L.532/corr. 3. 16. Taking of Civilian Hostages Conventions 1. European Convention on the Suppression of Terrorism [European Terrorism Convention] (Inter-European), opened for signature Jan. 27, 1977, Europ. T.S. No. 90, 15 I.L.M. 1272. 2. International Convention Against the Taking of Hostages, Dec. 17, 1979, U.N. G.A. Res. 34/146 (XXXIV), 34 U.N. GAOR Supp. (No. 46), at 245, U.N. Doc. A/34/46 (1979), T.I.A.S. No. 11081, 18 I.L.M. 1456.

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1. Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature Mar. 1, 1991, 30 I.L.M. 721. (See also Category 18 on the Use of Explosives.) 2. International Convention for the Suppression of Terrorist Bombings, U.N. Doc. A/Res/52/164 (Dec. 15, 1997). 18. Unlawful Use of the Mail Conventions 1. Constitution of the Universal Postal Union, July 10, 1964, 611 U.N.T.S. 7. 2. Additional Protocol to the Constitution of the Universal Postal Union of July 10, 1964, Nov. 14, 1969 16 U.S.T. 1292, 810 U.N.T.S. 7. 3. Second Additional Protocol to the Constitution of the Universal Postal Union of July 10, 1964, July 5, 1974, 27 U.S.T. 345, 1005 U.N.T.S. 7. 4. Third Additional Protocol to the Constitution of the Universal Postal Union of July 10, 1964, July 27, 1984, 1415 U.N.T.S. 11. 5. Fourth Additional Protocol to the Constitution of the Universal Postal Union of July 10, 1964, Dec. 14, 1989, 1687 U.N.T.S. 103. 6. Fifth Additional Protocol to the Constitution of the Universal Postal Union of July 10, 1964, Sept. 14, 1994, Hein’s No. KAV 5602. 7. General Regulation of the Universal Postal Union, Sept. 14, 1994, Hein’s No. KAV 5602. 8. Universal Postal Convention, Sept. 14, 1994, Hein’s No. KAV 5602. 9. Agreement Concerning Postal Parcels, Sept. 14, 1994, Hein’s No. KAV 5602. 10. Agreement Concerning Postal Money Orders, Sept. 14, 1994, with its Final Protocol, Hein’s No. KAV 5602. 11. Agreement Concerning Postal Checks Service [Giro Agreement], Sept. 14, 1994, Hein’s No. KAV 5602. 12. Agreement Concerning “C.O.D.” Service [Cash-on-Delivery Agreement], Sept. 14, 1994, Hein’s No. KAV 5602. Related Materials 1. Implementing Regulation of the Agreement Concerning Postal Parcels terminated by the Postal Council February 16, 1995, with its Final Protocol [Detailed Regulations of the Universal Postal Convention].



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2. Implementing Regulation of the Universal Postal Convention, terminated by the Postal Council February 16, 1995, with its Final Protocol [Detailed Regulations of the Postal Parcels Agreement]. 3. Implementing Regulation of the Agreement Concerning Postal Money Orders, terminated by the Postal Council February 16, 1995, with its Final Protocol [Detailed Regulations of the Money Order Agreement]. 4. Implementing Regulation of the Agreement Concerning Postal Checks Service, terminated by the Postal Council February 16, 1995 [Detailed Regulations of the Giro Agreement]. 5. Implementing Regulation of the Agreement Concerning “C.O.D.” Service, terminated by the Postal Council February 16, 1995 [Detailed Regulations of the Cash-on-Delivery Agreement]. 19. Financing of Terrorism Conventions 1. International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 54/109, U.N. Doc. A/Res/54/109 (Feb. 25, 2000). 20. Unlawful Traffic in Drugs and Related Drug Offenses Conventions 1. International Opium Convention, Jan. 23, 1912, 38 Stat. 1912, 8 L.N.T.S. 187, 1 Bevans 855. 2. Agreement Concerning the Suppression of the Manufacture of, Internal Trade in, and Use of, Prepared Opium, Feb. 11, 1925, 51 L.N.T.S. 337, 3 Hudson 1580. 3. International Opium Convention, Feb. 19, 1925, 81 L.N.T.S. 317, 23 Am. J. Int’l L. 135 (1929). 4. Protocol to the International Opium Convention, 19 Feb. 1925, 81 L.N.T.S. 356, 23 Am. J. Int’l L. 155 (1929). 5. Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, 13 July 1931, 48 Stat. 1543, 139 L.N.T.S. 301, 3 Bevans 1. 6. Agreement Concerning the Suppression of Opium-Smoking, Nov. 27, 1931, 177 L.N.T.S. 373, 5 Hudson 1149. 7. Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, June 26, 1936, 198 L.N.T.S. 299, 7 Hudson 359.

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8. Protocol Amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on Jan. 23, 1912, at Geneva on February 11, 1925, February 19, 1925 and July 13, 1931, at Bangkok on November 27, 1931, and at Geneva June 26, 1936, Dec. 11, 1946, 61 Stat. 2230, 12 U.N.T.S. 179, 4 Bevans 267. 9. Annex to the Protocol Amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on 23 Jan. 1912, at Geneva on February 11, 1925, February 19, 1925, and July 13, 1931, at Bangkok on November 27, 1931, and at Geneva on June 26, 1936. 10. International Opium Convention, Jan. 23, 1912, amended by the Protocol signed at Lake Success, New York, Dec. 11, 1946. 11. Agreement Concerning the Suppression of the Manufacture of, Internal Trade in and Use of, Prepared Opium, February 11, 1925, amended by the Protocol signed at Lake Success, New York, Dec. 11, 1946. 12. International Opium Convention, with Protocol, Feb. 19, 1925, amended by the Protocol signed at Lake Success, New York, Dec. 11, 1946. 13. Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, July 13, 1931, amended by the Protocol signed at Lake Success, New York, Dec. 11, 1946. 14. Agreement Concerning the Suppression of Opium Smoking, Nov. 27, 1931, amended by the Protocol signed at Lake Success, New York, Dec. 11, 1946. 15. Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, June 26, 1936, amended by the Protocol signed at Lake Success, New York, Dec. 11, 1946. 16. Protocol Bringing under International Control Drugs Outside the Scope of the Convention of July 13, 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, amended by the Protocol of Dec. 11, 1946, Nov. 19, 1948, 12 U.S.T. 1629, 44 U.N.T.S. 277, 4 Bevans 485. 17. Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium [Opium Convention], June 23, 1953, 14 U.S.T. 10, 456 U.N.T.S. 56. 18. Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205. 19. Single Convention on Narcotic Drugs, 1961 [Single Convention], Mar. 30, 1961, 18 U.S.T. 1407, referenced in 14 I.L.M. 302. 20. Convention on Psychotropic Substances [Psychotropic Convention], Feb. 21, 1971, T.I.A.S. No. 9725, 1019 U.N.T.S. 175, 10 I.L.M. 261. 21. Protocol Amending the Single Convention on Narcotic Drugs, 1961, Mar. 25, 1972, 26 U.S.T. 1439, 976 U.N.T.S. 3, 11 I.L.M. 804. 22. Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261.



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23. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 20, 1988, U.N. Doc. E/ CONF.82/15 corr.1 and corr.2, 28 I.L.M. 493. 21. Organized Crime and Related Specific Crimes Conventions 1. United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc. A/RES/55/25 (Jan. 8, 2001). (See also Category 5 on the Unlawful Possession, Use, Emplacement and Trade of Weapons, including Nuclear Weapons.) 2. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, annex II, U.N. Doc. A/RES/55/25 (Jan. 8, 2001). (See also Category 8 on Slavery, Slave Related Practices, and Trafficking in Humans.) 3. Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, annex III, U.N. Doc. A/RES/55/25 (Jan. 8, 2001). 4. Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/255, annex, U.N. Doc. A/RES/55/255 (May 31, 2001). (See also Category 5 on the Unlawful Possession, Use, Emplacement and Trade of Weapons, including Nuclear Weapons.) 22. Destruction and/or Threat to National Treasures Conventions 1. Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments [Roerich Pact] (Inter-American), Apr. 15, 1935, 49 Stat. 3267, 167 L.N.T.S. 289, 33 Martens Nouveau Recueil (ser. 3) 650. 2. Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240. 3. Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 358. 4. European Cultural Convention (Inter-European), Dec. 19, 1954, 218 U.N.T.S. 139.

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5. European Convention on the Protection of the Archaeological Heritage (Inter-European), May 6, 1969, Europ. T.S. No. 66, 8 I.L.M. 736. 6. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property [UNESCO Cultural Convention], Nov. 14, 1970, 823 U.N.T.S. 231, 10 I.L.M. 289. 7. Convention for the Protection of the World Cultural and Natural Heritage, Nov. 29, 1972, 27 U.S.T. 37, 11 I.L.M. 1358. 8. Convention on the Protection of the Archeological, Historical, and Artistic Heritage of the American Nations [Convention of San Salvador] (Inter-American), June 16, 1976, O.A.S. G.A. Res. 210 (VI-0/76) Organization of American States, I Proceedings of the General Assembly, 6th Regular Session, Santiago, June 4–18, 1976, 15 I.L.M. 1350. 9. Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261. 10. European Convention on Offenses Relating to Cultural Property (Inter-European), prepared at Delphi, June 23, 1985, Europ. T.S. No. 119. 11. Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999, 38 I.L.M. 769. Related Materials 1. Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. 23. Unlawful Acts against the Environment Conventions 1. Convention for the Preservation of Fur Seals in the North Atlantic, July 7, 1911, 37 Stat. 1542, T.S. 564, 5 Martens Nouveau Recueil (ser. 3) 720. 2. Convention for the Regulation of Whaling, Sept. 24, 1931, 49 Stat. 3079, 155 U.N.T.S. 349, 3 Bevans 26. 3. Convention Relative to the Preservation of Fauna and Flora in Their Natural State, Nov. 8, 1933, 172 L.N.T.S. 241, 4 Hudson 504. 4. International Agreement for the Regulation of Whaling, June 8, 1937, 52 Stat. 1460, 190 U.N.T.S. 79, 3 Bevans 455. 5. Protocol Amending the International Agreement of June 8, 1937 for the Regulations of Whaling, June 24, 1938, 53 Stat. 1794, 196 L.N.T.S. 131, 3 Bevans 519. 6. Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Inter-American), Oct. 12, 1940, 56 Stat. 1354, 161 U.N.T.S. 193, 3 Bevans 630.



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7. Protocol Amending the International Agreement of June 8, 1937 and the Protocol of June 24, 1938, for the Regulation of Whaling, Nov. 26, 1945, 61 Stat. 1213, 11 U.N.T.S. 43, 3 Bevans 1328. 8. Convention for the Regulation of the Meshes of Fishing Nets and the Size Limits of Fish, Apr. 5, 1946, 231 U.N.T.S. 199. 9. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72, 4 Bevans 248. 10. International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, 12 U.S.T. 2989, 327 U.N.T.S. 3. 11. Interim Convention on Conservation of North Pacific Fur Seals, Feb. 9, 1957, 8 U.S.T. 2283, 314 U.N.T.S. 105. 12. Convention on the High Seas [Geneva Convention on the Law of the Sea], Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 52 Am. J. Int’l L. 842 (1958). 13. The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T 794, 402 U.N.T.S. 71, 54 Am. J. Int’l L. 477 (1960). 14. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43, 2 I.L.M. 883. 15. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, 6 I.L.M. 386. 16. Treaty for the Prohibition of Nuclear Weapons in Latin America [Treaty of Tlatelolco] (Inter-American), opened for signature Feb. 14, 1967, 22 U.S.T. 762, 634 U.N.T.S. 281, 6 I.L.M. 521. 17. Convention on International Trade in Endangered Species of Wild Fauna and Flora, with Appendices, Mar. 3, 1973, 27 U.S.T. 1087, 995 U.N.T.S. 243, 12 I.L.M. 1085. 18. Agreement for the Conservation of Polar Bears, Nov. 15, 1973, 27 U.S.T. 3918, T.I.A.S. No. 8409, 13 I.L.M. 13. 19. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, opened for signature May 18, 1977, U.N. G.A. Res. 31/72 (XXXI), 31 U.N. GAOR Supp. (No. 39), at 36, U.N. Doc. A/31/39 (1976), 31 U.S.T. 333, 16 I.L.M. 88. 20. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts of June 8, 1977 [1977 Protocol I], opened for signature Dec. 12, 1977, U.N. Doc. A/32/144 (1977) Annex I, 16 I.L.M. 1391. 21. Protocol of 1978 to the International Convention for the Prevention of Pollution from Ships, with Annexes, Feb. 17, 1978, 17 I.L.M. 546. 22. Annex I: Regulations for the Prevention of Pollution by Oil, 12 I.L.M. 1335. 23. Annex II: Regulations for the Control of Pollution by Noxious Substances in Bulk, 12 I.L.M. 1386.

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24. Annex III: Regulations for the Prevention of Pollution by Harmful Substances Carried by the Sea in Packaged Forms, or in Freight Containers, Portable Tanks or Road and Rail Tank Wagons, Feb. 17, 1978, 12 I.L.M. 1421. 25. Annex IV: Regulations for the Prevention of Pollution by Sewage from Ships, Feb. 17, 1978, 12 I.L.M. 1424. 26. Annex V: Regulations for the Prevention of Pollution by Garbage from Ships, Feb. 17, 1978, 17 I.L.M. 546. 27. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 5, 1979, 1363 U.N.T.S. 3, 18 I.L.M. 1434. 28. Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, T.I.A.S. No. 10541, 18 I.L.M. 1442. 29. Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, 33 U.S.T. 1476, T.I.A.S. No. 10240, 19 I.L.M. 837. 30. Convention on the Law of the Sea [Montego Bay Convention], 516 U.N.T.S. 205, 21 I.L.M. 1261. Related Materials 1. International Convention for the Prevention of Pollution from Ships, with Annexes, Nov. 2, 1973, 12 I.L.M. 1319. (Not in force.) 2. Annex I: Regulations for the Prevention of Pollution by Oil, 17 I.L.M. 550. 3. Annex II: Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk, 17 I.L.M. 578. 4. Annex III: Regulations for the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Forms, or in Freight Containers, Portable Tanks or Road and Rail Tank Wagons, 12 I.L.M. 1421. 5. Annex IV: Regulations for the Prevention of Pollution by Sewage from Ships. 6. Annex V: Regulations for the Prevention of Pollution by Garbage from Ships. 7. Draft Articles on State Responsibility adopted at the 1642nd mtg., [1980], 2 Y.B. Int’l L. Comm’n 30, U.N. Doc. A/35/10 (1980). 24. International Traffic in Obscene Materials Conventions 1. Agreement for the Suppression of the Circulation of Obscene Publications, May 4, 1910, 37 Stat. 1511, 7 Martens Nouveau Recueil (ser. 3) 266.



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2. International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, opened for signature Sept. 12, 1923, 27 L.N.T.S. 213, 7 Martens Nouveau Recueil (ser. 3) 266. 3. Protocol to Amend the Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications, concluded at Geneva on 12 September 1923, Nov. 12, 1947, 46 U.N.T.S. 169. 4. Annex to the Protocol to Amend the Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications, concluded at Geneva, September 12, 1923. 5. International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, concluded at Geneva on September 12, 1923, as amended by the Protocol, Nov. 12, 1947, 46 U.N.T.S. 169. 6. Protocol Amending the Agreement for the Suppression of the Circulation of Obscene Publications, signed at Paris on May 4, 1910, May 4, 1949, 1 U.S.T. 849, 30 U.N.T.S. 3, 4 Bevans 844. 7. Annex to the Protocol Amending the Agreement for the Suppression of the Circulation of Obscene Publications, May 4, 1910. 8. Agreement for the Suppression of the Circulation of Obscene Publications, signed at Paris, on May 4, 1910, as amended by the Protocol, May 4, 1949, 47 U.N.T.S. 159. 25. Falsification and Counterfeiting Conventions 1. International Convention for the Suppression of Counterfeiting Currency, Apr. 20, 1929, 112 L.N.T.S. 371, 4 Hudson 2692. 2. Protocol to the International Convention for the Suppression of Counterfeiting Currency, Apr. 20, 1929, 112 L.N.T.S. 389. 3. Optional Protocol to the International Convention for the Suppression of Counterfeiting Currency, Apr. 20, 1929, 112 L.N.T.S. 395. 26. International Submarine Cables Conventions 1. Convention for the Protection of Submarine Cables, Mar. 14, 1884, 24 Stat. 989, 11 Martens Nouveau Recueil (ser. 2) 281.

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2. Convention on the High Seas [Geneva Convention on the Law of the Sea], Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 52 Am. J. Int’l L. 842 (1958). 3. Convention on the Law of the Sea [Montego Bay Convention], opened for signature Dec. 10, 1982, 516 U.N.T.S. 205, 21 I.L.M. 1261. 27. Corruption and Bribery of Foreign Public Officials Conventions 1. International Agreement on Illicit Payments (Economic and Social Council Committee), May 25, 1979, U.N. Doc. E/1979/104, 18 I.L.M. 1025. 2. Inter-American Convention Against Corruption, Mar. 29, 1996, S. Treaty Doc. No. 105–39, 35 I.L.M. 724 (1996). 3. Convention On Combating Bribery Of Foreign Public Officials In International Business Transactions (Organization for Economic Cooperation and Development), Nov. 21, 1997, 37 I.L.M. 1. 4. United Nations Convention Against Corruption, G.A. Res. 55/61, U.N. Doc. A/ RES/55/61 (Dec. 4, 2000). Related Materials 1. Resolution on the Behavior of Transnational Enterprises [Organization of American States Resolution] (Inter-American), July 10, 1975, O.A.S. OEA/ Ser.G., CP/RES. 154 (167/75) corr. 1 (1975), 14 I.L.M. 1326. 2. Declaration on International Investment and Multinational Enterprises [OECD Declaration], June 21, 1976, OECD Press Release PRESS/A(76)20, 15 I.L.M. 967. 3. Draft United Nations Code of Conduct on Transnational Corporations, May 21, 1983, U.N. Doc. E/1983/17/Rev.1, Annex II (1983), 23 I.L.M. 626 Resolution on the Behavior of Transnational Enterprises [Organization of American States Resolution] (Inter-American), July 10, 1975, O.A.S. OEA/Ser.G., CP/RES. 154 (167/75) corr. 1 (1975), 14 I.L.M. 1326. 4. Declaration on International Investment and Multinational Enterprises [OECD Declaration], June 21, 1976, OECD Press Release PRESS/A(76)20, 15 I.L.M. 967. 5. Draft United Nations Code of Conduct on Transnational Corporations, May 21, 1983, U.N. Doc. E/1983/17/Rev.1, Annex II (1983), 23 I.L.M. 626.

Chapter four

Principles of Criminal Responsibility: The General Part1 Section 1. Introduction Generally speaking, the general part in most national criminal codifications is based on a theoretical scheme from which certain legal consequences follow. Even when such a scheme does not exist, a certain method is followed which determines the order and sequence of the legal provisions contained in the general part. The general part of national criminal law usually reflects certain values and policies that determine the requirements for criminal responsibility and the factors or conditions that exonerate a person from such responsibility. This is particularly evident with respect to vicarious criminal responsibility, responsibility for the conduct of another, group criminal responsibility, command responsibility, state responsibility, joint criminal enterprise, statute of limitations, as well as certain defenses and certain immunities.2 The same is true with respect to the various types of mens rea required for different crimes of ICL. Almost everything in the general part reflects legal policies and value-choices. However, these policies and choices are not evident with respect to ICL. The general part of ICL developed haphazardly, first in the context of the IMT and IMTFE, and later in the ICTY and ICTR statutes and their respective case law. The statutes of these four tribunals provide very little of a general part other than the elimination of immunities, the defense of obedience to superior orders, and the reaffirmation of the principle of command responsibility. It was left to the jurisprudence of these tribunals to provide, ex post facto, the elements of criminal responsibility and conditions of exoneration. Thus, everything from defining the required mental state to whether mistake of law or fact can be a defense was left to judicial determination after individuals had been indicted and prosecuted. By the standards of many legal systems, this violates the principle of nullum crimen sine lege.3 A particularity of ICL is its general lack of specificity when compared to domestic criminal provisions, whether, the definition of international crimes, the contents of a general part, the obligations to prosecute or extradite, and other aspects of international cooperation. For example, the connection in ICL 1 This chapter is based in part on M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011). 2 See supra Chapter I. 3 See supra Chapter III, section 9.

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between the accused and the applicable principles of criminal responsibility, which by Civilist-Germanic methodological standards should be part of the general part, is nonetheless dealt with as part of the overall ratione personae because ICL is not codified. These principles of criminal responsibility derive either from international treaties or from the jurisprudence of international criminal tribunals. The reason why there are so few provisions in ICL conventions relative to the general part is due to the flawed assumption that the general part of the domestic criminal law of each State Party will control once the convention is incorporated into the laws of the State Parties. This assumption was based on the idea that the general part of only the developed countries would apply—a number much smaller during early multi-national treaty negotiations. Among common law or Civilist systems there are differences that are overlooked by this assumption. Even within a domestic system ideas of the general part can differ. In the United States, for example, not all state courts uniformly apply the idea of general or specific intent. The judicial process in the cases of the IMT, IMTFE, ICTY and ICTR was, for all practical purposes, an inductive judicial method of ascertaining and applying what they believe to be part of “general principles of law.”4 The term “intuitive” means that the judges in a given case, acting on the basis of their knowledge and individual research, reach a conclusion without following a method recognized in comparative criminal law technique. The haphazard nature of the process, however, did not necessarily exclude the reaching of correct outcomes consonant with what a proper methodology would have reached. But that also meant that the process was unpredictable and the outcomes not always consistent with a given theory of law. Each judge was made to rely on precedent and concepts native to their national systems and, in many cases, the information available in their native languages.5 The absence of pre-existing norms of the general part also meant that the prosecution was frequently uncertain as to what it had to prove, and the defense was equally uncertain as to its ability to challenge it, or to advance arguments for exoneration. The Rome Statute sought to remedy this situation by providing articles on the general part in Part 3 of the Statute. Presumably, that codification represented general principles of criminal law, but the negotiating history of the Statute reveals that this was not the case, as it was in fact the outcome of political negotiations.6 Thus, many of the principles of criminal responsibility contained

4 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990). 5 See, e.g. Michael Bohlander, The General Part: Judicial Developments, in 3 International Criminal Law: International Enforcement 515 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL]. 6 See M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell Int’l L.J. 443 (1999).



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in Part 3 reflect either a common law or a civilist approach. The choice between these two approaches depended on two factors. The first, which was prevalent, depended on the nature of diplomatic negotiations, which center on comprise based on consensus. The second depended on the forcefulness and knowledge of the diplomatic negotiators. In both cases, it can hardly be said that the choice reflected a method of comparative legal analysis that is required to ascertain the existence of a general principle in the major legal systems of the world, reflecting the families of legal systems.7 The result of this process thus leaves much to be desired. Suffice it to mention that the ICC Statute has a lacunae, in that it fails to mention, let alone define, the actus reus, or material element of the crimes. The reason for that was the inability of the Working Group on the Principles of Responsibility to agree on such a definition.8 A few of the delegates who participated in the Working Group, which was chaired by an able diplomat, could not agree to the inclusion of omission as a basis for the material element. Thus, consensus could not be reached, and the result was the omission of a definition of actus reus. This and other similar problems are evident throughout the “general part” of the ICC Statute, as noted by commentators.9 Another peculiarity due to the historical development of ICL is that its ratione personae10 includes several aspects of the general part. Thus, the ratione personae includes the removal of immunities, obedience to superior orders as a defense, group criminal responsibility, and command responsibility. All of these should have been included in the general part. This is why they are discussed contextually as part of chapter II on the ratione personae. To the comparatist, this is an anomaly. Thus, commonly, the general part will start with the elements of criminal responsibility, such as minimum age and mental capacity, followed by the elements required for specific crimes such as the material element (act or omission), the mental element (specific and general intent, recklessness or criminal negligence), and causation. Some of the exonerating conditions may however be classified as conditions negating criminal responsibility and they would therefore appear earlier in the general part under the heading of elements of criminal responsibility. Other conditions may be classified under the categories of justification and excuse. The following exonerating conditions are most commonly found in national criminal codes, irrespective of how they are legally characterized. 7 See Bassiouni, General Principles, supra note 4; René David, Les Grands Systèmes de Droit Contemporains (1973). 8 See Bassiouni, Negotiating the Treaty of Rome, supra note 6, at 454. 9 See Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 1999) [hereinafter Commentary on the Rome Statute]; International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999); see also infra Chapter VII. 10 See supra Chapter II.

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They are: insanity, intoxication, self-defense, defense of others, necessity, coercion or duress, mistake of law, and mistake of fact. ICL’s general part11 traces its sources to the IMT Charter, which addressed, inter alia, attempt, conspiracy, planning, command responsibility, defense of obedience to superior orders, and immunities of heads of state.12 More detail, however, followed in the ILC’s 1991 draft of the Code of Crimes Against the Peace and Security of Mankind,13 which addressed certain issues of individual criminal responsibility and defenses.14 The development of ICL’s general part continued haltingly and sparingly with the adoption of the Statutes of the ICTY and ICTR. The ICTY Statute does not contain a general part, but Article 7 addresses individual responsibility, the defense of obedience to superior orders, and responsibility of superiors for failure to prevent or punish criminal acts of subordinates.15 The latest and most promising development of ICL’s general part appears in the ICC’s Statute, which contains exclusive provisions on principles of criminal responsibility.16 It should be noted, however, that the general part in the ICC Statute, which is established by treaty, binds only its State Parties, and is not, at this point in time, sufficient in and of itself to be deemed part of customary international law. Thus, these general part provisions will not in and of themselves be conclusive as to ICL’s general part, unless they are buttressed by other evidence that a particular norm is part of customary international law or derives from general principles of law.

11 The general part of criminal law usually defines the basic principles applicable to the determination of responsibility and punishment. It generally contains: (a) definitions of terms used in definition of crimes; (b) constitutive elements of crimes, such as definitions of actus reus and mens rea; (c) definitions of inchoate offenses, such as attempt, solicitation, and conspiracy; (d) conditions of exoneration, such as excuses and justifications; and (e) mitigating factors. See M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996). 12 See Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]. The Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter] followed suit. 13 For commentaries on the Draft Code, see 11 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1993). 14 See Albin Eser, Commentary: The Need for a General Part, 11 Nouvelles Études Pénales 43 (M. Cherif Bassiouni ed., 1993). The 1996 draft did not expand the 1991 text. On the contrary, it significantly reduced it. See Draft Code of Crimes Against the Peace and Security of Crimes of Mankind, May 6–July 26, 1996, Report of the International Law Commission, GAOR Supp. No. 10, U.N. Doc. A/51/10 (1996) [hereinafter 1996 ILC Draft Code of Crimes]. 15 See Statute 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 1991, (1993) art. 7(3), 32 I.L.M. 1159, as amended by Security Council Resolution 1660 of 28 February 2006 [hereinafter ICTY Statute]. For a detailed commentary, see Bassiouni, Yugoslavia Tribunal, supra note 11 at 337–423. 16 See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002) [hereinafter ICC Statute].



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Currently, one could argue that ICL’s general part norms include: individual and group criminal responsibility; attempt and conspiracy; responsibility of superiors for the conduct of their subordinates if they planned or ordered crimes, or if they failed to prevent or failed to punish the perpetrators of crimes; the limitation of the defense of obedience to superior orders to cases where the subordinate had no other moral choice but to comply (which is analogous to compulsion or coercion in various national legal systems); the removal of immunity for superiors up to and including heads of state; and that with respect to genocide, crimes against humanity, and war crimes there is no defense of ignorance of the law. Other than these few general part norms, there are so far no others that have widespread international recognition. However, it could be argued that general principles of law can be relied upon for other norms, such as self-defense, defense of insanity, and mistake of fact. Since there is no codification of ICL’s general part other than the ICC Statute and some academic proposals,17 these questions remain open. Section 2. General Considerations Since ICL is not yet codified, it has no defined general part, except for that which emerged from the practices of ad hoc international tribunals, that is: IMT, IMTFE, ICTY, ICTR,18 and the ICC.19 The general part elements that emerged from these four precedents include responsibility for the conduct of others, command responsibility, removal of the absolute defense of obedience to superior orders, and removal of any immunities from responsibility for certain international crimes. All other questions relating to the general part have been dealt with on an ad hoc and sometimes improvised manner by justices relying on their own backgrounds and understandings. The relevant provisions of the Rome Statute depart from these precedents as evidenced in Articles 27 and 28.20

17 See M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal 81–114 (1987) [hereinafter Bassiouni, Draft Code]. 18 See generally Bassiouni, supra note 1. 19 See ICC Statute, supra note 16, arts. 20, 25–33. 20 See ICC Statute, supra note 16, arts. 27–28, which provide: Article 27 Irrelevance of official capacity 1. 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. 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.

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In general, criminal responsibility has always been based on: (a) direct responsibility for a person’s actions; (b) direct responsibility for incitation of another to commit a crime without further involvement; (c) complicity (which varies from one legal system to another) in planning, executing or in connection with anything subsequent to the commission of the crime and related thereto; (d) responsibility for the conduct of another on the basis of solicitation, conspiracy, and other forms of aiding and abetting, as well as direct or indirect responsibility for what the ICTY jurisprudence refers to as joint criminal enterprise; and (e) enhanced direct responsibility as well as indirect responsibility under legislative policy in connection with the commission of a particularly serious crime such as the felony murder rule and the common law system.21

Article 28 Responsibility of Commanders and Other Superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: 1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (a) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 2. With respect to superior and subordinate relationships not described in paragraph 1, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (b) The crimes concerned activities that were within the effective responsibility and control of the superior; and (c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 21 Article 25 of the ICC statute addresses participation. In it there are several models of participation which are distinguished on the basis of their purposes, namely for determining responsibility and for determining punishment. See ICC Statute, supra note 16, art. 25. Pursuant to Article 25 of the Statute, an individual is criminally responsible for conduct that constitutes a crime within the jurisdiction of the Court, regardless of whether it is committed individually or jointly, if that person: (a) orders, solicits, or induces the commission of the crime that either occurs or is attempted; or (b) facilitates the commission of such a crime, aids, abets, or otherwise assists in the commission or its attempted commission. An individual may also be guilty if that person contributes to the commission or attempted commission of a crime by a group with a common purpose [Article 25(d)]. The conduct of the individual must be intentional and made either with the aim of furthering the criminal activity of the group where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or made with the knowledge of the intention of the group to commit the crime [Article 25(d)(i)–(ii)].



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The imputation or attribution of criminal responsibility, either for purposes of establishing such responsibility or for the purposes of establishing or enhancing punishment, is essentially a legislative policy choice. There are different criteria for such a determination, including the cumulative effect of group participation in the commission of a given crime and the gravity or harmful outcome of a given crime. Individual criminal responsibility can therefore be based either on the narrow scope of that individual’s specific contribution to the commission of a crime (or by reference to the specific conduct of the individual) or by reference to that individual’s contribution to the cumulative effect generated by the group enterprise. One of the consequences of ICL’s policy on criminal responsibility is the extent to which a person can be held accountable for the conduct of others. A concomitant of that policy is the extent to which a person can be held criminally accountable for the conduct of subordinates, and the extent to which the defense of obedience to superior orders can be allowed as a mitigating factor. Another particularity of ICL, especially with respect to major crimes that involve state plan or policy, including the conduct of non-state agents,22 involves the distinction between decision-makers and senior executors, intermediate level public personnel who facilitate the mobilization of state capabilities to carry out the policy and execute higher directives, and those in the lower echelons who carry out the policy and directives and who commit the material element of the given crime.23 A criminal justice policy judgment is therefore needed to distinguish between these strata of responsibility for purposes, inter alia, of determining a form of mental element (specific or general intent, or recklessness) as may be required for each strata of perpetrators. Thus, for example, such defenses as insanity and intoxication would not apply to decision-makers, since it would be inappropriate, to say the least, to have a leader ordering mass-victimization escape criminal punishment because he/she was intoxicated when giving such orders. Similarly, self-defense would be inapplicable since it applies to immediate personal danger. In short, classic defenses in general principles of criminal law that are based on specific policies and goals, and predicated on individual and interpersonal actions and reactions are not applicable to decision-makers and senior executors of crimes against humanity and genocide. This is why ICL needs a general part which reflects the policies and goals of the discipline, and does not just randomly or selectively borrow from different national legal doctrines. The Rome Statute, however, fails to take these important distinctions into account.24 22 See generally supra Chapter II, section 3.2, on criminal responsibility of non-state actors. 23 Id. 24 See ICC Statute, supra note 16, art. 30, (“Mental element”). For an analysis of that provision, see Roger Clark, The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12 Crim. L.F. 291 (2001).

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Another problem arising in connection with responsibility for the conduct of another, and in particular complicity (however defined in the various legal systems), is the legally required causal connection between the completed criminal act (committed usually by those in the lower strata of perpetrators), and the conduct of executors and decision-makers in the intermediate and higher strata. No matter whether one starts from the final act that constitutes the crime and moves up the chain of causation, or from the initial conduct that brought about the final result and seeks to identify contributing causal factors, the relationship between the final result and any causal conduct must be established. Such a causal connection can be of a direct or contributive nature and it must be rationally established. In that connection, most legal systems are divided between the objective standard of reasonableness, and the subjective one of personal knowledge. The former is subject to the test of foreseeability, because criminal justice policy, unlike policy considerations in civil liability law, seeks to achieve deterrence. Indeed, if criminal responsibility would attach on the sole basis of a criminal result, it would hold individuals to the standard of insurers of safety without providing meaningful deterrence. Criminal law doctrine in most legal systems rejects criminal responsibility that is not based at least on the standard of reasonable foreseeability. Again, the Rome Statute fails to take these important distinctions into account.25 For the most part, these and other norms and problems of the general part are not covered by ICL’s conventional or customary law sources, but they can be adduced from general principles of criminal law. But because ascertainment of a given norm as constituting a general principle is sometimes uncertain or insufficiently specific, it may not satisfy the principles of legality that apply not only to the content of specific crimes (i.e., nullum crimen sine lege), but also extend to the principles of criminal responsibility and penalties (i.e., nulla poena sine lege).26 The ICC specifically provided for these principles. It states in Articles 22, 23 and 24: Article 22 Nullum Crimen sine Lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 25 Id. 26 See generally supra Chapter III, section 9; see also Bassiouni, Crimes Against Humanity, supra note 1, at 301–307. Concerning penalties, most national legal systems contain certain principles applicable to penalties in the general part, while the penalties applicable to specific crimes either follow the definition of the crimes or they are contained in a separate part. But ICL does not have a conventional or customary law track record sufficient enough to rely upon. Consequently, penalties in ICL pose a problem with respect to the principles of legality, which require that there be no penalty without law. For penalties in the ICC Statute, see supra note 16, arts. 77–80.



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2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. Article 23 Nulla Poena sine Lege A person convicted by the Court may be punished only in accordance with this Statute. Article 24 Non‑Retroactivity Ratione Personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgment, the law more favourable to the person being investigated, prosecuted or convicted shall apply

The finding that a given general principle exists requires substantial similarity as to any given issue between the world’s major criminal justice systems,27 something very difficult to obtain in comparative criminal law, particularly with respect to the general part.28 Consequently, the identification of the general part of ICL is a very difficult task to accomplish in the absence of codification.29 This is likely the reason why the drafters of the Charter did not address these questions. It also explains why the judgments of the IMT, IMTFE, and Subsequent Proceedings only superficially touched upon most of these issues. Almost fifty years later, the drafters of the ICTY and ICTR Statutes were equally daunted by the task and only addressed a few of the pertinent questions. Because the drafters also wanted to obtain quick approval of the statutes by the Security

27 See generally Bassiouni, Crimes Against Humanity, supra note 1, at 301–307. 28 See Stefan Glaser, Culpabité en Droit International Pénal, 99 Recueil des Cours 473 (1960). Glaser also states at 525 “en matiére de culpabilité le droit international pénal emprunte les idées et les constructions juridiques au droit intern contre.” Id. at 482. In support of this position, see also Jean S. Graven, Les Crimes Contre l’Humanité, 76 Recueil des Cours 433 (1950); and Donnedieu de Vabres, La répression du génocide, in Recueil Dalloz (1948). Indeed, so long as ICL is not codified, it must rely on the domestic general part of criminal law. This can be easily accomplished by applying the general part of the criminal law of the state where the crime occurred. To attempt the development of a general part for ICL from general principles of the world’s major criminal justice systems, is a very arduous task in the absence of codification. Professors Donnedieu de Vabres, Graven, and Glaser, while generally supporting this view, nevertheless felt that general principles are more easily identifiable than does this writer. They probably reached this conclusion because, at that time, the French-Civilist system was dominant in the world and the identification of similar principles was easier to make. But the topography of legal systems has changed significantly since the 1960s and the diversity that now exists is much more difficult to reconcile. 29 See Bassiouni, Draft Code, supra note 17, at 81–114.

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Council, they omitted detailed general and procedural parts simply to obtain Security Council approval.30 To have done otherwise would have meant that the Security Council member states would have sent these texts to their respective ministries of justice, as probably the drafters of the London Charter might have felt compelled to do. This step would have surely prolonged and complicated the process. So, in this writer’s judgment, it was mostly because of these political considerations that both the general part and the procedural part were not developed by the ICTY and ICTR. Interestingly, at the ICC Prepatory Committee (PrepCom), the general part and the procedural part benefited from a number of criminal law experts from justice ministries who were part of their government’s delegation, and from informal inter-sessional meetings that substantially advanced the process, although not to the extent that it provided a coherent and consistent approach.31 The IMT Charter did, however, unequivocally establish the principle of individual criminal responsibility under ICL, irrespective of any mandates under national law or the doctrine of act of state and other immunities, and eliminated the defense of obedience to superior orders.32 In the opening statement before the IMT, Justice Jackson eloquently stated: Of course, it was under the law of all civilized peoples a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made a legally innocent act? The doctrine was that one could not be regarded as criminal for committing the usual violent acts in the conduct of legitimate warfare . . . An International Law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare . . . the only answer to recalcitrance was impotence of war . . . Of course, the idea that a state, any more than a corporation, commits crimes is a fiction. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity. The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states . . . The Charter also recognizes a vicarious liability, which responsibility is

30 See Bassiouni, Yugoslavia Tribunal supra note 11, at 337–423. 31 See 1996 ICC Preparatory Committee Report, reprinted in The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) [hereinafter Bassiouni, Statute of the ICC], vol. II, at pp. 80–104, 150–234. See also Report of the InterSessional Meeting From 19 to 30 January 1998 in Zutphen, The Netherlands, A/AC.249/1998/L.13, at arts. 15–28 and arts. 55–67; and Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1, at arts. 21–34 and arts. 62–74. See also generally The International Criminal Court: Observations and Issues Before the 1997–98 Preparatory Committee; and Administrative and Financial Implications, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1998), Observations on the Consolidated ICC Text Before the Final Session of the Preparatory Committee, 13 bis Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998); Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15–July 17, 1998, 13ter Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1998). 32 See Bassiouni, Crimes Against Humanity, supra note 1, at 497–500.



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recognized by most modern systems of law, for acts committed by others in carrying out a common plan or conspiracy to which a defendant has become a party . . . . [M]en are convicted for acts that they did not personally commit but for which they were held responsible because of membership in illegal combinations or plans or conspiracies.33

The ICTY and ICTR essentially followed the IMT’s example. However, this is not the case with the Rome Statute, which codifies both the general part and the procedural part in a precise and detailed manner. Because of the diversity of legal conceptions and approaches, the ICC approach was essentially pragmatic. The Statute furthers the resort to general principles of law as an applicable source of law. It states in Article 21: Article 21 Applicable Law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

33 Robert H. Jackson, The Nürnberg Case 82–83, 88–89 (1971). However, Hugo Grotius, who advocated individual criminal responsibility, was opposed to punishing one person for the wrongs of another. Thus, he implicitly opposed various forms of imputed criminal responsibility for the conduct of another. Hugo Grotius, De Jure Belli ac Pacis, Bk. III, Ch. IV, 643–48 (Carnegie Endowment ed. 1925). Grotius stated “that no one who was innocent of wrong may be punished for the wrong done by another.” Id. at 539. He also cites Vittoria’s De Jure Belli in support of that position. Id. at 723. Alberico Gentili was also contrary to collective punishment. See De Jure Belli, Bk. III, Ch. VIII, 322–27 (Carnegie Endowment ed. 1933).

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Section 3. National Legal Standards and Their Relevance to ICL The reason why there are so few provisions on the general part in these ICL conventions is due to the assumption that these conventions are to be incorporated in the domestic laws of the State Parties, and therefore the general part of the domestic criminal law of each State Party shall apply. This leaves a gap with respect to the direct enforcement of these provisions by international criminal tribunals, unless the latter contained in their statutes a general part. So far, with the exception of the Rome Statute, all other international tribunals that represent the direct enforcement system (i.e., the IMT, IMTFE, ICTY, and ICTR) contain in their statutes only a few provisions concerning the general part. Complicating this idea is the fact that national criminal laws vary as to the types and degrees of direct responsibility, participatory responsibility, and imputed responsibility, and as to the legal techniques employed to determine their application.34 There are also wide-ranging diversities in national criminal laws pertaining to conditions that constitute a bar to criminal responsibility, justify or excuse the conduct, reduce the level of responsibility, or mitigate the punishment.35 In some national legal systems the question of individual participatory or imputed responsibility and exonerating factors are deemed part of the concept of culpability, while in other systems they may be deemed part of the elements or conditions of responsibility. These differences have certain consequences pertaining to the criteria for criminal responsibility to be applied to those charged with crimes under ICL. Furthermore, national military laws and regulations applicable to military personnel, in time of war or peace, differ in some respects from their criminal law counterparts applicable to civilians. This is particularly true with respect to

34 For the German system, see Hans-Heinrich Jescheck, Lehrbuch des Strafrechts 365 et. seq. (4th ed. 1988). For the French system, see Stefani et al., Droit Pénal Général 241 et. seq. (11th ed. 1995) (stating “l’intention criminelle réside dans la connaissance ou la conscience chez l’agent qu’il accomplit un acte illicit”). See also Roger Merle & André Vitu, Traité de Droit Criminel 425 et. seq. (1967); Henri Donnedieu de Vabres, Traité de Droit Criminel et de Législation Pénale Comparé (3d ed. 1947). For the Italian system, see Ferrando Mantovani, Diritto Penale: Parte Generale 303 et. seq. (1988). For the United States system, see M. Cherif Bassiouni, Substantive Criminal Law 158 et. seq. (1978); Helen Silving, The Constituent Elements of Crime (1967); Jerome Hall, General Principles of Criminal Law (2d ed. 1960). For a critical appraisal of the United States system, see George P. Fletcher, Rethinking Criminal Law (1978). For a contemporary English common law perspective, see Herbert L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 187 et. seq. (1968). For a survey of different legal conceptions of culpability, see Giuliano Vassalli, Copevolezza, Encyclopedia Guiridica Treccani, 1–24 (vol. 6 1988). 35 See Justification and Excuse (Albin Eser & George P. Fletcher eds., 1987); Paul H. Robinson, Criminal Law Defenses (4 vols. 1984); Hall, supra note 34, at 360–588; Hart, supra note 34.



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the question of obedience to superior orders, which is treated differently in the various national military and criminal laws.36 Because discipline is of such critical importance to a military system, a subordinate is duty-bound to obey a superior’s orders. A logical corollary of the duty to obey is therefore the defense of obedience to superior orders.37 To remove or reduce the defense implicitly removes or reduces the duty to obey. But to maintain the duty to obey requires the imposition of command responsibility, as discussed below. Thus, military regulations struggle with the extent of the duty to obey, the limits of the defense, as well as the legal standards and tests to be applied to command responsibility and to the defense of obedience to superior orders. Criminal responsibility for genocide, crimes against humanity, and war crimes by those who do not personally carry out the specific acts, centers on the role of a given person in the chain of events ranging from the highest levels of the decision-making process to any conduct performed before, during, or after the commission of any crime in whole or in part, or conduct, which in some way aided or abetted the commission in whole or in part of any crime. Persons who are part of a collective decision-making body or group are also individually responsible for the group’s collective decisions, subsequent actions by all or some of those who carry out decisions to commit specific crimes, and for the harmful results caused by such collective decision-making groups. Responsibility persists even when the accused dissented or opposed the crime or withdrew from the group but did nothing to oppose the wrongful decision or prevent the harm from occurring. Thus, the more closely a person is involved in the decision-making process and the less he/she does to oppose or prevent the decision, or fails to dissociate himself/herself from it, the more likely that person’s criminal responsibility will be at stake. The combination of common and Civilist ideas in the making of the ad hoc tribunals and later the Rome Statute, allowed for the inclusion of joint criminal enterprise as a form of criminal responsibility. Akin, but not identical, to the common law doctrine of conspiracy, or the idea of “common-purpose liability,” joint criminal enterprise has now been firmly rooted in the jurisprudence of the ICTY, the ICTR, the Special Court for Sierra Leone (SCSL), the Special Panel for Serious Crimes in East Timor, and the Extraordinary Chambers in the Courts of Cambodia (ECCC).38 National criminal laws also vary significantly as to the applicable legal standard in criminal adjudication for the determination of responsibility or culpability. One such issue that is particularly relevant to ICL is knowledge of the law; whether knowledge is legally presumed or if the prosecution has to prove actual 36 Compare, e.g., U.S. v. Calley, infra note 179 (military) with U.S. v. Barker, 546 F.2d. 940 (D.C. Cir. 1976) and U.S. v. Barker, 514 F.2d. 208 (D.C. Cir. 1975) (criminal). 37 See supra note 31. 38 See infra section 9.

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knowledge, and by what legal standards. The application of either one or the other of these standards could have diametrically opposed results with respect to proof of guilt. The next level of issues is the choice of general legal standards and tests. These standards range from the strictly objective to the purely subjective. And the choice of one test over the other can also produce different outcomes as to guilt or innocence. Crimes against humanity are the product of state plan or policy.39 But only individuals, by commission or omission, are the ones who perform such crimes for, on behalf of, or under color of authority, of their public position, function, or the power they are given by public authority. While that conduct can be abstractly ascribable to the state, it extends to each individual person who has been part of the decision-making process or part of the execution of those decisions that resulted in the violation of an existing legal norm. At this point, the question becomes one of apportioning legal responsibility between the individual and the collective decision imputable to the group of persons that shared in the decision, planned and executed the decision, or contributed to its realization. Obviously, these questions do not arise with respect to those who physically carry out the acts described in the definition of crimes against humanity. For them, the responsibility is direct. But can it be for crimes against humanity in the absence of specific intent or knowledge that their specific acts furthered the state plan or policy? In other words, while it is possible to rely on the objective standard of general intent for some, it may be necessary in the interests of justice to require specific intent of those in the lowest echelons of the state’s apparatus who carry out these acts. There are many questions pertaining to the various forms of responsibility, their typology, the means and methods of ascertaining them, the appropriate sanctions and remedies, and the enforcement modalities employed. In national systems, certain general doctrines exist that apply to all or most crimes. In ICL, these issues depend largely on the nature of each type of transgression. Thus, the elements of criminal responsibility for international crimes that are predicated on state plan or policy,40 like aggression, crimes against humanity, genocide, and apartheid, differ from other international crimes performed by an individual on his/her own, such as international traffic in drugs or hostage-taking. Adjudication of individual conduct for purposes of assessing criminal responsibility is mostly after the fact, except for attempts, the adjudication of which is justified by the pre-existence of a law that provides specificity as to the prohibited 39 See generally supra Chapter III, section 6.2.2 on crimes against humanity, and Chapter II, sections 4 and 6 on criminal responsibility of states; see also Bassiouni, Crimes Against Humanity, supra note 1, at 14–19. 40 Id.



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conduct and whose knowledge is available to those who are expected to heed it or incur the legal consequences of its violation. This principle of pre-existing law—specificity of its mandates and knowledge of those to whom it applies— is the foundation of every criminal justice system. Yet the boundaries between lawful and unlawful conduct are not always clear in national criminal law,41 let alone in ICL. This is particularly true with respect to the fundamental question of whether and the extent to which a person may be legally held to the knowledge of ICL, and more particularly to the requirements of the 27 categories of specific international crimes.42 There are also other questions of law, and mixed questions of law and fact, for which ICL does not provide conduct rules. In fact, rules of conduct in ICL are mostly unarticulated, because of the absence of a general part. Furthermore, there is no indication as to whether ICL is cause-oriented or result-oriented in its unarticulated premises of criminal responsibility.43 Some of these unanswered questions make it very difficult to determine other questions, such as the secondary basis of criminal responsibility provided by various national criminal law techniques,44 which are also not articulated in ICL. Yet, the three general categories of imputability found in the world’s major criminal justice systems, namely responsibility for the conduct of another, responsibility for completed crimes arising out of partial conduct, and responsibility for lawful conduct producing an unlawful result, have been relied upon in international prosecutions, but without much explanation.45 Furthermore, ICL does not distinguish between risk-creation and risk-taking, which is particularly relevant in the determination of causal responsibility,46 whose consequences with respect to lesser included offenses are quite significant. This is particularly true with respect to homicides in crimes against humanity that are not murder and could be part of extermination (which does not include necessarily only murder).47

41 See Paul H. Robinson, Rules of Conduct and Principles of Adjudication, 57 U. Chi. L. Rev. 729 (1990). 42 See, e.g., International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997) [hereinafter Bassiouni, ICL Conventions]. 43 See Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. Pa. L. Rev. 1497 (1974). For a comparison between the United States, English, and German systems see Fletcher, supra note 34, at 759–69 (1978). For a legalphilosophical perspective based on positivism in the common law of England see Hart, supra note 34, at 13–14 (1968). 44 For some views of United States problems of criminal imputability and their common law origins see, e.g., Paul H. Robinson, Imputed Criminal Liability, 93 Yale L.J. 613 (1984); M. Cherif Bassiouni, Substantive Criminal Law 140–58, 201–22 (1978); Otto Kirchheimer, Criminal Omissions, 55 Harv. L. Rev. 615 (1942). For an English common law approach, see Jeremy Bentham, The Works of Jeremy Bentham 164 (John Bowring ed. 1859). 45 See generally supra Chapter II, sections 3–6; Bassiouni, Crimes Against Humanity, supra note 1, at 34–40; 481–82. 46 See generally Bassiouni, Crimes Against Humanity, supra note 1, at 473–82. 47 Id. at 365–74 (discussing “murder” and “extermination”).

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ICL does not provide for any legal test such as the common law’s “ordinary reasonable person,”48 which is so important for the subjective or mental element and for the determination of criminal responsibility and exonerating factors.49 In most legal systems, these factors are deemed to remove the existence of a culpable state of mind, which is one of the basic requirements for criminal responsibility in the world’s major criminal justice systems, even though there are many divergences in and among these systems as to fundamental doctrines and their application.50 Indeed, the intersection of responsibility and exoneration is the grey area of criminal law in the world’s major criminal justice systems, and it is even more so in ICL.51 Individual criminal responsibility under ICL raises the same set of legal issues that exists in national criminal law, starting with concepts of responsibility and culpability. Indeed, the world’s major legal systems differ in their conceptual and doctrinal approaches as to the legal bases of criminal responsibility and culpability. This is reflected in the use of such diverse terminology as criminality, culpability, responsibility, and punishability. In some legal systems these terms are predicated on another level of legal abstractions represented by value-laden terms that have different legal significance and impact; they include such terms as “right,” “wrong,” and “blameworthiness.” But ICL’s policies and goals are somewhat different from those of national criminal laws because of the different types of crimes, particularly those like crimes against humanity that require state plan or policy. Thus, ICL needs a separate and distinct general part, and that is what the ICC statute accomplishes in large part.52 But the relevant provisions lack norms on several elements of general criminal responsibility as well as norms on the applicable standards of evidence. The statute contemplates however two additional instruments intended to address these aspects, namely the Elements of Crimes and the Rules of Procedure and Evidence. Article 9 states:

48 Even though it appears to have become the accepted test with respect to such doctrines as “military necessity,” “command responsibility,” and defense of “obedience to superior orders.” See Dinstein, Green, Keijzer and Müller-Rappard, infra at note 551. 49 See generally Bassiouni, Crimes Against Humanity, supra note 1, at 512–649; see also supra note 33. 50 See Vassalli, supra note 34. 51 See Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984); see also George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985). 52 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1, at arts. 21–34.



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Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.

And Article 51 states: Article 51 Rules of Procedure and Evidence 1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; or (c) The Prosecutor. Such amendments shall enter into force upon adoption by a two‑thirds majority of the members of the Assembly of States Parties. 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties. 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.

Section 4. Some Problems in Identifying the General Part from the Charter to the Rome Statute Prior to the London Charter, ICL was in its early stages. It consisted of some conventional and customary international law, mostly concerning piracy, slavery, drug trafficking and the regulation of armed conflicts, and some legal doctrine

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by a few specialists.53 It did not, however, have a counterpart in national criminal law’s general part. Few, if any, of the conventional ICL instruments prior to 1945 contained provisions on the general part.54 As to the customary practice of states, it consisted essentially of a body of domestic jurisprudence and private international law doctrine on questions of jurisdictional conflicts between different national criminal systems.55 For instance, the London Charter’s Article 6(c) defines the substantive contents of crimes against humanity,56 but it does not contain general elements of criminal responsibility and exonerating factors which are usually found in the general part of criminal law in the world’s major criminal justice systems,57 except for: (1) the notions of accomplice responsibility and conspiracy; and (2) the removal of the absolute defense of obedience to superior orders and the immunity of heads of state, as discussed below.58 It can be assumed that the London Charter’s drafters wanted to avoid the difficulties inherent in reconciling the different legal conceptions in the four legal systems represented by the negotiators.59 Surely, they were not oblivious to these questions, as evidenced by the fact that they specifically dealt with one of them, the defense of obedience to superior orders.60 But maybe more troublesome to the principles of legality61 was the absence of any reference to penalties in the Charters of the IMT, IMFTE, and Command Council Law 10 (CCL10). ICL instruments after 1945 seldom contained provisions relating to a general part question.62 The specific elements of the 27 categories of international crimes, whenever they are found in the 281 international instruments applicable

53 See Bassiouni, Crimes Against Humanity, supra note 1, at 307–22. 54 See generally Bassiouni, ICL Conventions, supra note 42. 55 See e.g., Henri Donnedieu de Vabres, Les Principes Modernes du Droit Pénal International (1928); and Introduction à l’Étude du Droit Pénal International (1922); Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910); August Hegler, Prinzipien des Internationalen Strafrecths (1906). The most noteworthy case decided by the PCIJ was the S.S. Lotus case, which involved questions of jurisdiction and conflict of jurisdiction. See also M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th rev. ed. 2007) at ch. 6. 56 See supra Chapter II, section 6.2.2; see also Bassiouni, Crimes Against Humanity, supra note 1, at 361–445, and 505–507. 57 The London Charter, however, contains a provision on conspiracy (“common design”) in Article 6. This charge came out of a specific common law substantive crime which was, and still is, unknown to other legal systems. Since it was used in the Law of the Charter as a specific crime, it cannot be viewed as referring to a form of imputed criminal responsibility. 58 See IMT Charter, supra note 12, arts. 7 and 8. 59 See Bassiouni, Crimes Against Humanity, supra note 1 at 296–322. 60 See IMT Charter, supra note 12, art. 8. 61  See supra Chapter III, section 9; see also Bassiouni, Crimes Against Humanity, supra note 1, at 512–20. 62 See generally Bassiouni, ICL Conventions, supra note 42.



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to these crimes,63 usually identify the objective or material element of the crime, but seldom do they identify the subjective or mental element of the offense.64 The causation element is rarely identified and the result is occasionally found in these instruments though more frequently by implication only. With the exception of this writer’s Draft International Criminal Code,65 there was, until recently, no source for the general part of ICL whether for all or part of it, except for the scholarly writings on some aspects of the general part, notably those of the late Professor Stefan Glaser.66 In 1993 and 1994 the statutes of both the ICTY and ICTR borrowed from Articles 7 and 8 of the London Charter and provided for the elimination of the defense of obedience to superior orders. The two statutes strengthened the principle of command responsibility as developed by the IMT’s judgment. But in substance those two statutes did not add much to what had already been developed almost fifty years earlier, except for provisions on ne bis in idem. Furthermore, neither the ICTY nor ICTR dealt with penalties. Thus, these tribunals were left to answer the same questions faced by the IMT, IMTFE, and the courts of the Subsequent Proceedings. By 1996, however, the ICC’s PrepCom took a decidedly different approach and boldly dealt with the codification of General Principles of Criminal Responsibility.67 The PrepCom’s work between 1997 and 1998 continued, and, difficulties notwithstanding, produced a comprehensive and well-drafted text that could have been elaborated by any group of comparatists representing the world’s entire array of national legal systems.68 The Rome Statute refined the text proposed by the PrepCom and produced two relevant parts, one dealing with General Principles of Criminal Law, Part (3), Articles 22 through 33, and one Article in Part 2 63 See Bassiouni, ICL Conventions, supra note 42 and Bassiouni, Draft Code, supra note 17 at 115–78. 64 The Genocide Convention in Article 2 requires a “specific intent,” and Article 6(c) of the Charter requires a policy of “persecution” which could also be deemed to be of a specific intent type. See Bassiouni, Crimes Against Humanity, supra note 1, at 30–33; see also Kai Ambos, What Does “Intent to Destroy” in Genocide Mean?, 91 Int’l Rev. of the Red Cross 833 (2009) (arguing that the “traditional knowledge-based approach can no longer be maintained” and “should be replaced by a combined structure- and knowledge-based approach that distinguishes according to status and role of the (low-, mid-, and top-level) perpetrators. Thus, the purpose-based intent should be upheld only with regard to the top- and mid-level perpetrators, whereas for the low-level perpetrators knowledge of the genocidal context should suffice.”). 65 See Bassiouni, Draft Code, supra note 17, at 81–114. 66 See Stefan Glaser, Infraction Internationale, Ses Eléments Constitutifs et ses Aspects Juridiques (1957). The late Professor Glaser has also published numerous articles on international criminal law and some of them dealt with the general part, like L’élément moral des infractions de commission par omission en droit international pénal, 73 Revue Pénal Suisse 263 (1958); and Culpabilité en Droit International Pénal, 99 Recueil des Cours 473 (1960). 67 1996 ICC Preparatory Committee Report, supra note 31, vol. II, at pp. 79–104. 68 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1 (1998).

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on ne bis in idem, Article 20, and Part 7, Articles 77 through 80 on Penalties. The Rome Statute also clearly refers to general principles as a source of applicable law. Article 21 (contained in Part 2) states: Article 21 Applicable Law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

It may well be that in the future the general part of the Rome Statute and other provisions will be viewed as the embodiment of general principles and thus become the principle legal source for the general part of ICL. Section 5. Some Specific Problems 5.1. The Mental Element The mental or subjective element is required in major crimes and in some lesser ones in almost every legal system of the world. It is considered the essential basis for the determination of criminal responsibility or culpability, depending upon whether national legal systems consider the mental element an element of responsibility or culpability. But in all systems it is predicated on a number of legal assumptions or presumptions, most notably freedom of will, mental capacity, and knowledge of the law. Articles 6(c) and 5(c) of the London and Tokyo Charters and CCL 10 Article II, 1(c) declared that the crimes defined therein are punishable irrespective of whether they constitute a violation of the laws of the state where they were performed. Although this provision removes the effect of national legislation



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designed to “legalize” what would otherwise be criminal,69 the implications of this provision carry over into the mental element. Thus, if a person engaged in conduct on the basis of a superior orders and relied on the existence of national legislation that permitted such conduct, then for such a person the order cannot be patently unlawful unless that individual has specific knowledge of the wrongdoing. Without such knowledge there is no objective basis to ascertain the existence of intent which would have to include knowledge of the illegality or conscious wrongdoing. The outcome would be exoneration from culpability. Knowledge of wrongdoing, however, is distinguished by positivists from knowledge of committing a violation of the law. The first conception derives from materialism, while the second from positivism, and the choice between the two is essentially a question of legal philosophy.70 In Romanist-Civilist legal systems the problems related to intent and knowledge are more acute than in the common law system. In these systems, the mental element is called l’Jugement moral de l’infraction, which highlights the subjective dimension of intent.71 In the German system, knowledge does not mean the specific or formal illegal character of the conduct, but its general prohibition or punishability.72 German legal doctrine and jurisprudence debated that question extensively in the 1920s, particularly with respect to the post-World War I Leipzig trials.73 But the views of the German dogmatic school, in contradiction to other views, gave rise to many subtleties as to the distinction between the various aspects of knowledge of the lawfulness or unlawfulness of the conduct and the prohibition. The judges and prosecutors at the IMT and Subsequent Proceedings who were not German scholars would have been at a significant disadvantage in facing German defense counsels had they been permitted to argue these questions. This is probably another reason that German law was not relied upon in the Subsequent Proceedings under CCL 10 of the Americans, British, and French, though it was relied upon before German courts when they decided to apply German law in place of CCL 10.74 The critical problem with knowledge, or lack thereof, can be characterized in the Nazi era, as well as in all totalitarian regimes, in negative terms: it is the will not to know the essential nature of one’s wrongdoing or that of others which

69 See generally Bassiouni, Crimes Against Humanity, supra note 1, at 307–335. 70 See generally infra Chapter X; see also Bassiouni, Crimes Against Humanity, supra note 1, at 42–45. 71  See Stefani et al., supra note 34; Merle & Vitu, supra note 34; and Donnedieu de Vabres, supra note 34. 72 See Jescheck, supra note 34, at 252–54. 73 See W. Hofacker, Die Leipziger Kriegsverbrecher prozess, ZSTW 649 et. seq. (1922). 74 See Henri Meyrowitz, La Repression par les Tribunaux Allemands des crimes contre l’Humanite et de l’Appartenance a leurs organizations criminelles 197–98 (1960).

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one aids and abets.75 Whether international law had, by 1945, imposed a duty on individuals that went beyond the positive legal norms of national systems is surely questionable. Nevertheless, Article 6 of the London Charter specifically enunciated that its provisions applied irrespective of national law. The closest analogy to such a policy is the right or duty to disobey an order that is patently unlawful. The German military regulations applicable at the time required it.76 And later, the Geneva Conventions also contained similar provisions on the nonexecution of a patently unlawful order.77 The Roman law maxim ignorantia iuris neminem scusat (ignorance of the law is no defense to anyone) is recognized in the world’s major criminal justice systems. As such, it constitutes a general principle of law applicable to ICL. However, this presumption is predicated on the assumption that the law in question should be known to the person upon whom it imposes criminal responsibility whenever it is breached. The world’s major criminal justice systems assume that the proper promulgation and dissemination of information about laws fulfill the legal requirement, which permits the operation of the legal presumption that the criminal law is known to all. Such a presumption of knowledge of the law thus rationalizes the validity of the maxim ignorantia non scusat. But the validity of this presumption is not without question or challenge in legal systems, particularly with the contemporary inflation of criminal and quasi-criminal legislation in all countries of the world. Thus, if the question arises in national legal systems as to the reasonableness of this presumption, it surely also arises in ICL. What then can be reasonably attributed to the public knowledge of all or some persons throughout the world about international crimes? And what is the degree of specificity of knowledge as to the legal infraction that is required in order to insure the legal validity of such a presumption? The unarticulated premises of this legal presumption in the national legal systems is that criminal law is known to everyone because crimes are an emanation of social values that national communities deem so significant that they seek to protect them through penal sanctions. Thus, their prohibition is a matter of public and general awareness. The absence of these unarticulated premises would deny the legal support for the validity of the irrebuttable presumption 75 In the case of Walther Funk, the Minister of Economy and President of the Reichsbank, he claimed not to have seen nor to have had knowledge that the gold deposited by the SS with his authorization in the bank’s vaults (actually in the basement of the building where his office was located) had come from dispossessed Jews, including gold that had been removed from the teeth and glasses of those who had been sent to the death camps. Assuming this contention to be true, Mr. Funk must have gone to great length not to see or know what he claimed he didn’t see or know existed in his own basement and which was placed there by his authorization. See 1 IMT 326. 76 See Eberhard Schmidt, Militärstrafrecht (1936). For a German perspective on breaches of the law of war, see Fritz Bauer, Die Kriegsverbrecher vor Gericht (1945). 77 As a result of the Geneva Conventions, the military laws of all the parties thereto include a similar provision.



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of knowledge of the criminal law. Applying these basic considerations to ICL in light of the peculiarities of that legal system raises a number of closely related legal issues. They are: (1) whether the presumption of knowledge of ICL satisfies the principles of legality; (2) whether it is rebuttable or irrebuttable; (3) whether legal defenses can include ignorance of the law as exoneration by way of justification or excuse; (4) whether ignorance of the law can be viewed as a factor eliminating criminal intent; and (5) whether ignorance of the law, if it is not considered as exonerating, can nevertheless be considered in mitigation of punishment. The presumption of knowledge of ICL is predicated on whether a given international crime satisfies the principles of legality of that discipline.78 But, if legality, in its turn, is predicated on the validity of the presumption of knowledge, the inquiry is a vicious circle, one remanding to the other, thus assuming the character of a perpetual renvoi. To break the vicious cycle, each of these two concepts must be considered independently. The peculiarities of ICL often result in the formulation of international crimes in a way that is less certain and less specific than what the principles of legality in many of the world’s major criminal justice systems would require.79 Thus, the presumption of knowledge of ICL cannot be irrebuttable because its unarticulated premises of public knowledge and certainty and sufficiency of content would be lacking in violation of the minimum standards of legality. Not all international crimes lack certainty or specificity of content, though their levels differ from crime to crime. The reasons for these differences include the absence of a singular legislative source, the occasional and even episodic process by which conventional ICL develops, as a consequence of the above, the absence of cohesion, harmony, and consistency in drafting international instruments, and the inherent uncertainty and lack of specificity of non-codified customary ICL. Thus, the doctrinal dilemma for ICL is: (1) Whether to accept, reject or qualify the presumption of knowledge in ICL; (2) If the presumption is accepted in principle, whether it is realistic to assume the world public’s general knowledge of ICL (which is the unarticulated premises upon which the presumed knowledge of national criminal law is founded); (3) If the presumption is rejected, whether it results in a requirement of proving in each case the individual’s specific knowledge of the international crime that is charged; and,

78 See supra Chapter III, section 9; Bassiouni, Crimes Against Humanity, supra note 1, at 512–20. 79 Id.

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(4) If the presumption is accepted as rebuttable or qualified, whether ignorance of the law becomes part of the mental element of the specific crime (which when established, results in removing criminal responsibility) or whether it would be only a mitigating factor in punishment. There are two doctrinal approaches as to the presumption of knowledge and ignorance of ICL. One approach is to treat the question as part of the mental element of criminal responsibility; the other is to treat it as an evidentiary question needed to prove the mental element. The consequence of the first hypothesis is that absence of knowledge or culpability negates responsibility altogether, and with respect to the second, it becomes an exonerating factor in the nature of a legal excuse or non-punishability. In both of these instances, however, there are also questions of legal standards and burdens of proof that will depend on a variety of doctrinal approaches as to the questions raised in the various legal systems. Thus, irrebuttable presumptions need no proof by the prosecution and only in cases of rebuttable presumption can the defense raise the question. In this case another question arises and that is the quantum of proof required to rebut the presumption. Because of the wide diversity in the world’s major criminal justice systems, some judgments are needed in ICL. It is this writer’s conclusion that they should be as follows:  he presumption of knowledge of ICL should exist as a policy choice for the (1) T same reasons recognized in the world’s major criminal justice systems, even though in this case with lesser degrees of validity because of the questionable unarticulated premises of public awareness and public knowledge upon which the presumption is founded. Precisely for this reason, the presumption must be rebuttable and not irrebuttable; otherwise it would violate the minimum standards of legality. (2) Ignorance of the existence of ICL law is, in principle, no defense, but ignorance of a specific crime would be a legal excuse if it negates the mental element of the crime. (3) If the international crime also exists in the national criminal law of the individual’s state of nationality or residence, ignorance of the ICL should not be deemed as negating the mental element. (4) Ignorance of a specific violation of ICL should, however, be taken into account in mitigation of punishment. (5) ICL should not recognize the principle of strict criminal responsibility (that is, responsibility without intent). Furthermore, intent presupposes actual knowledge of the law. (6) None of the above should affect other bases of criminal responsibility such as those pertaining to omissions, or responsibility for the conduct of another,



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except that these and other principles of imputed criminal responsibility should not be based on strict responsibility. For the reasons stated above, the legal presumption of knowledge in ICL should be deemed a rebuttable presumption. This rebuttable presumption includes knowledge of the illegality of the act performed, based on the standard of reasonableness. Notwithstanding this standard of reasonableness, an individual may present the defense of ignorance of the law. Thus, this legal standard is not ultimately objective, but subjective, reconciling the common law and the Romanistic/ Civilist/Germanic legal systems. This standard may be gleaned from various instruments on the regulation of armed conflicts, particularly with respect to norms concerning discretionary judgment, as in the defense of military necessity. With respect to these and other issues, both national and international regulation of armed conflicts indicates that a reasonableness test is applicable, but not as a purely objective one, since it includes the subjective knowledge and intent of the accused.80 The test for this legal standard can be formulated as follows: whether the ordinary reasonable person, possessed of the intellectual capacity and background of the actor, should have reasonably known or believed the act to be unlawful under international or national law. Thus, an actor who knows the act to be unlawful would clearly be found to have satisfied this mental element, as would the actor who intentionally commits the act, with malice at common law or with motive in the Romanist/Civilist/Germanic theories of the subjective element. Complete knowledge of all aspects of the international criminality of the act is therefore unnecessary. It could also be argued that conscious knowledge of moral wrongdoing should be enough to trigger a duty to inquire.81 However, such an inquiry could lead to an interpretation of the law or of a mixed question of law and facts. Thus, the outcome of this inquiry could lead to the negation of intent and exoneration from criminal responsibility or culpability, depending on the applicable substantive law. Crimes against humanity are mala in se acts, which are manifestly contrary to the norms, rules, and principles of ICL, and to those of the world’s major 80 See supra note 75. 81  Raymond Cartier, Les Secrets de la guerre Dévoilés par Nuremberg 20 (1967) (reporting that Field Marshall Halder stated at his trial that Hitler had told his generals in 1941, that since the U.S.S.R. did not ratify the 1907 Hague Convention, its provisions, particularly those applying to POWs and civilians, should not be respected). It is this writer’s assumption that if Hitler, who was not a jurist, made such a statement, it was because some legal advisor had suggested it. Such advice must have been founded on the notion that the 1907 Hague Convention abrogated the 1899 one, and that The Hague rules were not part of the customary international law. But the point here is that knowledge of the law did exist, even though it was erroneously interpreted. That, in turn, raises a question as to the consequences of mistake of law which bears on intent and consequently on criminal responsibility. Id. at 359.

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criminal justice systems, for which most reasonable persons would not have consciousness of wrongdoing. Consequently, a perpetrator cannot take refuge in the act of state doctrine or in the defense of obedience to superior orders unless exigent circumstances necessitated compliance with such orders. Such a perpetrator must necessarily face individual criminal responsibility for whatever violative acts he/she committed and for his/her aiding and abetting others in the commission of such acts. Whether such a perpetrator is found culpable is a question of judicial ascertainment based on the facts and on the applicable substantive criminal law. The latter depends on whether the adjudication jurisdiction will apply its own law, the law of the state wherein the act was committed, or if it is different, the law of the actor’s nationality or that of the victim’s nationality. ICL must, therefore, necessarily rely on general principles of law, which will either emerge from the national legal systems or from relevant international legal experiences and practices, to determine what substantive law the adjudication jurisdiction will apply.82 International practice with respect to violations of the regulation of armed conflicts reveals that the prosecuting state having in personam and subject matter jurisdiction may apply its own precepts of imputability, culpability, and punishment.83 However, it is not clear what substantive law the adjudicating state can use if it has only in personam and not subject matter jurisdiction. Consequently, one has to turn to that state’s rules of private international law applicable to conflicts of laws in the criminal context and which allow the prosecuting state to apply its own conflicts of law rules to determine the applicable general part of substantive criminal law.84 This, in turn, will determine the rules of imputability of criminal responsibility, with all that these rules comport of standards of individual and group responsibility, responsibility for the conduct of another, responsibility based on commission or omission, exonerating conditions (including justifiable and excusable conditions and circumstances), measuring standards of conduct, applying legal tests (i.e., subjective or objective), the meting of punishment, and, of course, mitigating or aggravating circumstances or conditions.

82 See, e.g., Donnedieu de Vabres, supra note 34. For contemporary works on theories of international criminal jurisdiction, see Bassiouni, International Extradition, supra note 55, at Chapter 6. Christopher L. Blakesley, Jurisdictional Issues and Conflicts of Jurisdiction, in Legal Responses to International Terrorism (M. Cherif Bassiouni ed. 1988); Christopher L. Blakesley, Extraterritorial Jurisdiction, in 2 Bassiouni, ICL, at 3–55; Shneur-Zalman Feller, Jurisdiction over Offenses with a Foreign Element, in 2 Bassiouni & Nanda Treatise, at 5–61. 83 See Meyrowitz, supra note 74; Jean Pierre Maunoir, La Répression des Crimes de Guerre devant les Tribunaux Français et Alliés (1956); Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, in 2 Bassiouni & Nanda Treatise, at 65–96. 84 See Hofacker, supra note 73.



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The forum having jurisdiction thus controls both the applicable substantive and procedural law and all relevant issues bearing on responsibility.85 But the question remains as to whether international crimes impose certain substantive legal requirements that transcend or override the prosecuting state’s norms and rules. So far, no clear answer is discernible in positive international criminal law because, as stated above, conventional ICL has not been formally codified and no general part of ICL exists, except for the writings of some scholars.86 The London Charter and CCL 10 provide that national law cannot be a bar to criminal responsibility for acts constituting international crimes as specified in Article 6. One of the consequences of this principle is that knowledge of national law is displaced by the presumed knowledge of international law. But it does not resolve two basic issues: (1) which specific aspect of international law overrides national law and under what circumstances it does so; and (2) whether it is proper to place the burden of resolving questions of conflict between international and national law on the individual. This is particularly significant with respect to ICL that is not codified, and more so with respect to its general part. One way to solve these problems is to revert back to applying the national criminal law of the situs where the crime was committed or the national law of the perpetrator. In this perspective, all Article 6(c) crimes, except for “persecution,” were crimes under the 1871 German Penal Code in effect in 1945.87 Thus, there can be no valid claim that the perpetrators did not know of the legal prohibition. However, they could still argue lack of intent on the basis of mistake of law if they reasonably believed that their national law obligated them to do what they otherwise perceived to be a crime or a malum in se act. This presupposes a consciousness of wrongdoing, which also evokes the questions of whether such consciousness is purely moral because of the potential conflict of legal mandates and legal duties. Some of these mandates and legal duties derive from international law, while others derive from national law. How, and on what basis should the individual resolve these conflicts? And how and on what basis is the individual going to be judged? These are questions that neither the London Charter nor Post-Charter legal developments have addressed, let alone resolved. Furthermore, the interrelationship between knowledge of international and national law, intent, consciousness of wrongdoing, and the factors negating intent such

85 This approach was taken by this writer in the proposal for the establishment of an international criminal court presented to the VIII United Nations Congress on Crime Prevention and the Treatment of Offenders (Havana, Aug.–Sept. 1990) as Draft Statute for an International Criminal Tribunal, E/Conf./144/NGO ISISC, July 31, 1990, reprinted in 15 Nova L. Rev. 372 (1991). 86 See, e.g., Glaser, supra note 66; Donnedieu de Vabres, supra note 34, and Donnedieu de Vabres, supra note 34. 87 See the German Penal Code, a translation of which is available at http://www.iuscomp.org/ gla/statutes/StGB.htm (last visited Nov. 11, 2011).

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as mistake of law are also among the issues that neither the Charter, nor the post-Charter legal developments have resolved. Since the London Charter, ICL has not significantly evolved these concepts of responsibility, but the national laws of several states have. For example, in a civil case involving an assassination plot by Chile against its former Ambassador to the United States, the District Court for the District of Columbia held that: [T]here is no discretion to commit, or to have one’s officers or agents commit, an illegal act. Whatever policy options may exist for a foreign country, it has no discretion to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.88

The Rome Statute defines the “mental element” in Article 30 as follows: Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

That formulation is a significant improvement over what existed before, but it is far short from covering all of the issues pertaining to the mental element. That is why Article 21 on the Applicable Law states: Article 21 Applicable law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 88 Letelier v. Republic of Chile, 488 F. Supp. 665, 673 (D.D.C. 1980).



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2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

Thus, Article 21 permits the interpretation of Article 30 and other questions concerning the general part by resorting to other sources of law. However, such a technique may well be deemed in contradiction of the principles of legality contained in Articles 22 and 23. 5.2. Theories of Criminal Responsibility Comparative criminal law offers diverse models and approaches to types of criminal responsibility. Unfortunately, the diversity in the family of legal systems and in the many hybrid approaches that have developed in the last fifty years in many countries do not allow for an easy reconciliation of these approaches. Today, nearly all criminal law systems rely heavily on case law, while the common law systems also rely heavily on statutes and codes. Out of necessity, a pragmatic approach has to be chosen. The approach is, to a large extent, devoid of a particular intellectual foundation and also without much methodological continuity. Almost all legal systems distinguish between direct and indirect or vicarious criminal responsibility. The latter can also include responsibility for the conduct of another. The demarcation lines between direct individual criminal responsibility and indirect responsibility, either for ones own conduct or the conduct of another, are not always clearly delineated. In all legal systems, a person is responsible for his/her direct personal conduct, including attempt as a partial conduct. A person is also responsible for the criminal acts of aiding and abetting, solicitation, and in some legal systems conspiracy. More recently, the notion of a common criminal enterprise has been added as a different version of conspiracy or as a form of individual responsibility for collective criminal conduct. Nevertheless, with respect to aiding and abetting, solicitation, conspiracy, and criminal enterprise there are also consequences in terms of a person’s responsibility for the conduct of others.89 In some cases, the responsibility is directly derivative of the conduct of the individual in question. In other cases, it is a matter of 89 For a discussion of aiding and abetting in the ICTY, see infra section 7.2. See also Frédéric Bostedt & Joakim Dungel, The International Criminal Tribunal for the Former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law, 7 Chinese J. Int’l L. 389 (2008); Gideon Boas, James L. Bischoff, & Natalie L. Reid, International Criminal Law Practi­ tioner Library 278 (vol. 1, Cambridge University Press 2007).

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legislative policy as to how far causal criminal responsibility extends. For example, legislative policy based on a theory of deterrence may establish criminal responsibility based on a theory of foreseeable causation, even when the perpetrator does not specifically intend the consequences. The common law felony murder rule, for instance, extends responsibility for the death of an innocent person during the commission of a felony to the perpetrator or perpetrators of the felony on the grounds that they could have foreseen this outcome. In fact as well as in law, the act of accidentally killing a person in the course of a commission of a felony does not qualify for the specific intent to commit murder, but legislative policy establishes that what would otherwise be an involuntary manslaughter becomes aggravated by reason of the felony to being a murder. Similarly, the notion of common criminal enterprise can be described either as a form of direct individual responsibility for having participated in such a common enterprise (which in this respect is no different than conspiracy), or by having somebody being held accountable for the overall criminal design or purpose whereby acts are carried out by other individuals. The extension of individual responsibility for belonging or participating in a common criminal enterprise to being imputed the consequences of the acts of another falls more into the category of indirect responsibility than direct responsibility.90 Indirect criminal responsibility extends to the consequences of the acts of another and the consequences of ones own unintended acts when they are enhanced by legislative policy, but it may also be based on a specific type of responsibility predicated on a certain legal assumption. This is the case with respect to command responsibility when the commanding person fails to prevent the commission of a crime that he/she foresees is likely to occur or fails to investigate information about the occurrence of such a crime, and if that is established, to punish the person committing such a crime. Command responsibility theory developed out of military law and includes an element of direct criminal responsibility for the orders issued by that person. However, there is still some uncertainty as to the extent to which the theories of command responsibility for action or failure to act extend to civilian personnel.91 Typologies of criminal responsibility are to be distinguished from levels of responsibility, which the general part of most criminal laws seldom addresses. However, with respect to international crimes, a distinction as to levels of responsibility is much more relevant. Considering crimes which, because of their widespread or systematic basis, require state policy or at least the involvement of the state and/or agencies of the state, it is important to distinguish between the levels of responsibility

90 See infra section 9. 91  See infra section 8.3.



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of decision-makers and senior executors and those of low-level executors/ perpetrators. The relevance of this distinction is also significant with respect to evidentiary questions and penalties. A crime such as genocide or crimes against humanity may require specific intent. But when it comes to decision-makers, it may be very difficult to prove general intent since it is so easy for such perpetrators to conceal their responsibility by claiming that they lacked adequate information or knowledge of the conduct performed by others in the commission of the crime. In other words, plausible deniability is much easier to achieve for decision-makers whose orders or hints are much more readily understood by obedient subordinates, making it nearly impossible to subsequently prove specific intent. This is not only a question of ease and difficulty of proof, it is simply that experience has indicated how decision-makers are able to conceal their decisions and thus avoid criminal responsibility. It would therefore behoove criminal justice policy to make the mental element in this case one of general intent as opposed to special intent, thereby allowing proof by inferential evidentiary material. The same may be said of senior executors, even though, depending upon where one draws the line as to the level of seniority, it could be arguable that establishing a general intent requirement for such persons is appropriate for the same policy reasons as in the case of decision-makers. If nothing else, senior executors, who should know that they cannot benefit from the defense of obedience of superior orders in ICL or with respect to international crimes, are likely to resist carrying out the orders of decision-makers if they feel themselves more exposed to criminal responsibility through a general intent standard than through the more difficult specific intent standard. However, the policy should be different with respect to low-level executors/perpetrators. This policy requires a showing of specific intent, meaning that the perpetrator should have known that he/she was participating in a policy or plan to carry out, for example, genocide or crimes against humanity. The policy in this case is reversed since there is not much that low-level perpetrators can do to prevent the occurrence of the larger-scale plan. The considerations mentioned above extend to certain legal consequences having to do with defenses and immunities. With respect to the latter, ICL has clearly established a strong basis for the denial of heads of state immunity and other senior government officials including the removal of temporal immunity.92

92 ICC Statute, supra note 16, art. 27. However, in Congo v. Belgium the ICJ held that temporal immunity still applied. This is presently being considered in the case of Sudanese President Omar Al Bashir who was indicted by the prosecutor of the ICC on the basis of a referral from the Security Council (U.N. Doc. S/RES/1593 (March 31, 2005)). The questions is whether the Security Council when referring a Situation to the ICC of a non-state party should do so subject to customary international law, which would have precedence over ICC provisions that apply only to state parties.

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Outside criminal responsibility, defenses vary between legal systems such as insanity/mental incapacity.93 For example, some systems recognize mistake of law and mistake of fact as a defense, while others recognize only mistake of fact.94 Some recognize intoxication95 as a defense while others do not. Two of the most difficult issues in ICL are the defenses of duress96 and necessity.97 Duress can be invoked as a substitution for the defense of obedience to superior orders when a subordinate receives an order but is not claiming that defense, instead claiming that failure to carry out the order would result in a serious threat or harm to himself/herself or his/her immediate family.98 On the other hand, necessity, as understood in most legal systems, cannot be used as a substitute to obedience to superior orders. It will largely depend on the applicable legal test. If the traditional test of weighing the respective harms prevails, it is hard to see how necessity can be invoked as a defense for the killing of others. Typologizing criminal responsibility not only poses problems with respect to individual criminal responsibility but also with respect to whether there is responsibility of legal entities, which some systems call moral entities and groups. As discussed above, state criminal responsibility is largely rejected by international law though civil responsibility and quasi-criminal responsibility exists with respect to the wrongful conduct of states.99 There was at one time a major effort to establish state criminal responsibly, particularly in connection with ILC’s Draft Principles.100 For some particular reason, the notion of reparations, which has a very strong quasi-criminal component, has been moved in ICL into the category of civil responsibility, even though some damages could be deemed punitive as opposed to merely compensatory. This is obviously due to the pressure of states that are reluctant to accept a concept of state criminal responsibility, since its implications might include the responsibility of heads of state and senior officials under the theory of command responsibility.101 State agencies could be considered as criminally responsible, but, as an extension of the state and also as an extension of the concept of states sovereignty, state 93 See infra section 10.6. 94 See infra section 10.9. 95 See infra section 10.7. 96 See infra section 10.2. 97 See infra section 10.2. 98 A number of writers have advanced this argument. See, e.g., Yoram Dinstein, The Defence of Obedience to Superior Orders in International Law (1965). 99 This is particularly true with regard to harm caused by ultra-hazardous materials. See, e.g., International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/83 (2001); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 U.N.T.S. 125, 28 I.L.M. 657, available at http://www.basel.int/text/con-e-rev.pdf; Bassiouni, ICL Conventions, supra note 42; International Environmental Law and Policy (Stephen McCaffrey et al. ed., 1998). 100 1979 Draft Articles on State Responsibility, U.N. Doc. A/CN.4/L.289/Rev.1 (May 22, 1979).   101 See supra Chapter II, section 6.



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agencies have so far not been included within the category of criminally responsible legal or moral entities. Conversely, there has been an effort to provide for such responsibility for corporations and other forms of business entities, although there again most of the international efforts have been civil.102 Responsibility for these types of entities has become particularly acute in light of contemporary experiences, such as business entities buying and selling what are commonly referred to as “blood diamonds,”103 as well as recycling these funds in order to facility the acquisition of ammunition and weapons used to further the commission of international crimes, such as genocide, crimes against humanity, war crimes, slavery and slave related practices, and torture. Like states, such business entities have managed to avoid the implications of criminal responsibility.104 The criminal responsibility of political bodies and organizations was been established with the responsibility of the SS and SA at Nuremberg.105 Several modern criminal statutes, particularly in the US, Italy, and France, establish the responsibility of groups and criminal organizations.106 But so far, there is very little in connection with the responsibility of individuals who are part of nonstate actor groups that engage in the commission of international crimes. But significantly, at least in terms of harmful conduct, non-state actors in the context of conflicts of a non-international character or purely domestic conflicts commit the largest volume of international crimes, particularly genocide, crimes against humanity, war crimes, slavery and slave-related crimes, and torture.107 The intent of this provision is to extend the meaning of “state policy” to a policy

102 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, available at: http://www.oecd.org/document/21/0,3343,en_2649_34859_201781 3_1_1_1_1,00.html#Text_of_the_Convention, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 37 I.L.M. 1, entry in to force, February 15, 1999. For U.S. laws, see Corrupt Practices Amendments Act of 1988 at § 5003(d), Pub. L. No. 100-418, 102 Stat. 1424. 103 Winston P. Nagan & Marcio Santos, Globalism From an African Perspective: The Training of Lawyers for a New and Challenging Reality, 17 Transnat’l L. & Contemp. Probs. 413 (2008). 104 For example, with respect to blood diamonds, these companies have developed a voluntary process called the “Kimberley Process” of marking diamonds that come from conflict-free areas. However, commentators have been critical of the lack of oversight on this process and in the case of Zimbabwe the system itself appears to have failed. See Mireya Navarro, Diamonds are for Never?, N.Y. Times, Dec. 14, 2006, at G1. Additionally, U.S. oil company Chevron was sued by twelve Burmese under the Alien Tort Claim Act under the theory that the company funded the Government of Burma’s repressive tactics. In the end, the U.S. softened sanctions against the company, issuing a non-binding recommendation that Chevron leave Burma. See Elana Schor, U.S. Removes Oil Giant from Burma Sanctions, The Guardian, July 23, 2008, available at http://www.guardian. co.uk/business/2008/jul/23/oil.burma. 105 See supra Chapter II, section 5. 106 Id. 107 See M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9 (1996). ICC Statute, supra note 16, art. 7(2)(a) (stating “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack).

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developed by an organization within the state, such as an organizational policy in the armed forces or police that does not exist in other sectors of the state. Some writers have sought to expand that meaning of these words to apply to any organizational policy, such as that of a non-state actor or group.108 Lastly, typologizing criminal responsibly and levels of criminal responsibility has a bearing on penalties. Quite clearly, if there is a policy of deterrence (based on the assumption that retributive punishment causes deterrence and thus ultimately produces prevention), there has to be an important connection between legislative policy on the typology of criminal responsibility, the required elements of proof (in particular the mental element), the standards of evidence required, and the penalties to be applied. So far ICL has not demonstrated the existence of such a policy and the jurisprudence of the ICTY and ICTR cannot be considered a substitute to legislative policy.109 While that jurisprudence has tried to provide some consistency, though not always succeeding, it has demonstrated the need for a methodologically-oriented legislative approach to the general part and its linkages to the elements of crimes, the standards of evidence, and the penalties. Section 6. The Application of the General Part by the IMT, IMTFE, and in Other Proceedings: A Historical Analysis In general, the indictments, judgments, and records of the IMT, IMTFE, and the Subsequent Proceedings do not particularly deal with general part questions. Various judgments held that crimes against humanity were international crimes, but without stating the elements of such a crime. Others stated the proposition that the mental element of “knowingly and intentionally” is required, or is found to exist in a particular case, but did not explain or discuss the requirements of the mental element, its legal standards, and tests. Other related questions of intent such as knowledge and mistake of law and facts were superficially addressed in the IMT judgment, and in the Subsequent Proceedings. The IMTFE judgment on these questions was the worst of the three. Command responsibility as a basis for imputed criminal responsibility and the defenses of obedience to superior orders and military necessity were frequently raised and broadly discussed in all the proceedings and in the judgments, while other general part questions were hardly addressed. One reason may well be that most of the accused were military men, they had operated in what could

108 See Roberta Arnold, The ICC as a New Instrument for Repressing Terrorism (2004) (introduction by M. Cherif Bassiouni). 109 See infra section 7.



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be termed as a military environment, the judges and prosecutors were predominantly military, and the investigators were almost all military. Naturally, the issues that are so much part of the military law of the countries involved became the subject of concentration by all concerned. In fact, these legal issues of a military nature became the common denominator of judges, prosecutors, defendants, and defense counsels. In a sense, these issues were the legal ligaments of these proceedings which otherwise could have turned into a tragedy of the absurd as each one of the participants would have approached the law and the proceedings from a different perspective. As is evident from the record of the proceedings, the responses of the IMT and IMTFE judges and prosecutors were overwhelmingly negative to the defenses’ raising of general part issues, except for their readiness to tackle with the major issues relating to military law, namely: obedience to superior orders, command responsibility, military necessary reprisals, and tu quoque. The readiness of judges and prosecutors to deal with these issues when raised by the defense does not however mean that they were more ready to consider and apply customary law as it then existed. These issues were amply debated. It can almost be surmised from these attitudes and from the tribunals’ rulings that there was a tacit agreement between judges and prosecutors not to let the proceedings get out of control by allowing the defendants to effectively use legal arguments to override factual arguments on which criminal responsibility was to be assessed.110 With the exception of the military law issues mentioned above, the tribunals ignored the cumbersome and complicated general part issues as much as they could. This situation can be explained in several ways, but the three most likely hypotheses are: (1) The defendants were selected for having been part of the highest echelons of decision-makers and executors of the crimes charged,111 (2) The law was driven by the facts because of the enormity of the human harm that occurred; and,

110 One noted scholar said: Il s’agissait en effet de trouver les règles juridiques preciser permettant de frapper, tous les coupables. Il fallait éviter deux écueils opposés: d’un côté une extension illimité du cercle des personnes considérées comme responsables; de l’autre côté la dilution de la culpabilité par l’admission des causes justificatives ou de non-imputabilité tirées de l’ordre juridique nazi. Henri Meyrowitz, La Répression par les Tribunaux Allemands des crimes contre l’Humanité et de l’Appartenance à leurs organizations criminelles 290 (1960). See also Henri Donnedieu de Vabres, Le Procés de Nuremberg devant les Principes Modernes du Droit Pénal International, 70 Recueil des Cours 480 (1947) (taking the same position as Meyrowitz). 111 Some of the defendants before the IMTFE were not the actual decision-makers, and some of the cases brought before the United States Military Commission in the Philippines, particularly in the Yamashita case, discussed infra at section 6.2, were a miscarriage of justice.

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(3) The tangible evidence, at least at the IMT, overwhelmingly showed that almost all the defendants at these trials committed or ordered these crimes or allowed them to occur when they presumably could have avoided or prevented them.112 Section 7. The Jurisprudence of the ICTY, the ICTR, and the ICC The term general part is associated with legal systems that codify their criminal laws and divide them between a special part, which defines the crimes, and the general part, which applies to all the crimes in the special part. The latter consists of identifying the elements of crimes, the principles of criminal responsibility, and conditions for exoneration from criminal responsibility (which in turn distinguishes between excuse and justification). However, not all codified systems characterize the different components of the general part in the same way, though they may have the same or similar methodological approaches to its structure. Thus, what may be a condition for criminal responsibility in one system may be a condition for exoneration in another. What may be deemed an excusable condition in one system may be a justifiable condition in another system. The distinctions between the general part’s existing and codified systems will depend primarily on the origins of that legal system, namely whether it derives from the Romanist-Civilist tradition (commonly associated since the early 1800s with the Napoleonic codification), and the Germanic system (which also has some roots in the Roman system).113 In time, these two families of legal systems, which are essentially characterized by the system of codification and by certain methods, have been implanted or absorbed by non-European cultures, which have added elements of their own traditions and customs. A new family of hybrid legal systems formed, marked by varying degrees of distinction. Two other families, the common law114 and Islamic law families,115 share the absence of a codified system, relying instead on a jurisprudential approach developed mostly from custom and practice. However, these two systems differ significantly as to their higher background of law and, more specifically, their

112 With the reservations expressed supra in note 33. 113 René David, Les grands systèmes de droit contemporains (1973); René David and John E.C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (1978); Henry Wigmore, A Panorama of World Legal Systems (1936). 114 Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (5th ed. 1986). 115 M. Cherif Bassiouni with Gamal Badr, The Shari’ah: Sources, Interpretation, and Rule-Making, 1 UCLA J. Islamic & Near E. L. 135 (2000).



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sources. Both the common law and Islamic systems of criminal justice have been absorbed into other legal systems in different ways.116 After World War II, a number of states developed national constitutions, many of which have incorporated basic rights contained in international human rights treaties. This enhanced the harmonization of fundamental rights in different legal systems, no matter their origin. This is particularly evident with regard to the inclusion of such fundamental rights as are enunciated in the Universal Declaration of Human Rights117 and both the International Covenant on Civil and Political Rights118 and the International Covenant on Social, Economic and Cultural Rights.119 Another influence on national constitutions and national legal systems, particularly at the procedural level but also at the substantive level, were the European Convention for the Protection of Human Rights and Fundamental Freedoms120 and the Inter-American Convention.121 In particular, the jurisprudence of the European Court and the Inter-American Court has directly impacted the domestic criminal laws of their respective State Parties. The African Charter on Human and Peoples’ Rights,122 though adopted in 1981, has not had the same effect, and the African Commission on Human and Peoples’ Rights was only established in 1986. Thus, the development of international and regional human rights law impacted both national constitutions and national criminal justice systems, engendering a higher level of harmonization. But, because these conventions are more procedurally oriented, they have had a greater influence on criminal procedure than they have on the general part of substantive criminal law. However, there are three exceptions, namely the principles of legality, the presumption of innocence, and proof of guilt (though even these three vary significantly, such as, for example, the resort to analogy in the interpretation of legislation as being permissible in some legal systems while not in others, and the reversal

116 Thus, for example, there are presently over 40 countries that have absorbed the common law system in whole or in part, though not necessarily identical to that which it was originally, nor how it evolved in time. The United States common law based system is distinctively different from that of the United Kingdom, New Zealand, or Nigeria. The Islamic law system has been absorbed in part in some 50 states, though only a few apply its criminal law component. The Islamic Criminal Justice System (M. Cherif Bassiouni ed., 1983). 117 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948). 118 International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). 119 International Covenant on Economic, Social and Cultural Rights, 1976, 993 U.N.T.S. 3. 120 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, ETS 5. 121 Inter-American Convention on Human Rights, Nov. 22, 1969, O.A.S. Official Records Ser. K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 (Jan. 7, 1970). 122 African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 T.L.M. 58 (1982) (entered into force Oct. 21, 1986).

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of the burden of proof or its shifting from prosecution to defense in some legal systems).123 With such diversity, it is difficult to identify enough commonality in the world’s major criminal justice systems to reach conclusions as to what constitutes general principles in international law.124 Historically, the identification of a general principle required almost universality in legal systems,125 which up to World War II meant seventy-four states.126 However, presently there are 197 countries and universality is nearly impossible. It is possible to rely on a different analytical method to identify general principles,127 but that is more complicated with regard to the general part, because many of the distinctions arising between legal systems derive from different doctrinal conceptions that imply different consequences.128 It is possible that some conventions, particularly the Rome Statute, embody specific norms applicable to the general part of ICL, but that source is limited to its State Parties. Customary international law would hardly be adequate, since international law is not customarily practiced with regard to the general part of the criminal law of domestic criminal justice systems. Moreover, relying on that source of law is likely to violate the principles of legality because it would lack the necessary specificity as to its contents. Admittedly, general principles may also lack that level of certainty as required by the different national criminal justice systems with regard to the application of the principles of legality. This source of law and methodological set of issues first arose in ICL with the ICTY,129 followed by the ICTR,130 whose respective statutes adopted by the Security Council contain very few norms concerning the general part. This meant that the identification of general principles was left to the jurisprudence of the courts. This jurisprudence applied to both the principles of criminal responsibility and the conditions of exoneration. But, as evidenced by what follows, that jurisprudence substantially failed in developing a clear methodology and applying it consistently. Instead, the jurisprudence was either ad hoc or simply the product of judicial determination based on the experience of the judges in a given Trial Chamber. Experience now reveals that these judges relied heavily on their legal assistants, who have never been more than recently graduated young 123 Bassiouni, Principles of Legality in International and Comparative Criminal Law, in International Criminal Law: Sources, Subjects and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008). 124 Bassiouni, A Functional Approach to General Principles of International Law, supra note 4. 125 S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7). 126 Bassiouni, A Functional Approach to General Principles of International Law, supra note 4. 127 Id. 128 Fletcher, Rethinking Criminal Law, supra note 34. 129 ICTY Statute, supra note 15. 130 Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 995, U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute].



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jurists. Nevertheless, this jurisprudence seems to have been accepted as authoritative, which it certainly is with regard to the two Tribunals in question. This is especially true with respect to the ICTR, which continuously cites to and disposes of issues by deferring to the jurisprudence of the ICTY. The Special Court for Sierra Leone has continued this trend, citing the ICTY and ICTR as authority to define planning,131 instigating,132 ordering,133 and committing;134 aiding and 131 Prosecutor v. Brima et al. (AFRC Case), Case No.SCSL-04-16-T, Defence Motions for Judgement of Acquittal Pursuant to Rule 98, ¶ 284 (Mar. 31, 2006) (“ʻPlanning’ implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.”); Prosecutor v. Radoslav Brdjanin (Trial Judgment), Case No. IT-99-36-T, International Criminal Tribunal for the former Yugoslavia, ¶ 268 (Sept. 1, 2004); Prosecutor v. Stakic, Case No. IT97-24-T, ¶ 443 (Jul. 31, 2003); Prosecutor v. Radislav Krstic Judgment, ¶ 601. The actus reus requires the accused, alone or together with others, designed the criminal conduct constituting the crimes charged. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct. Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-A, ¶ 26 (Dec. 17, 2004). The mens rea requires that the accused acted with direct intent in relation to his own planning or with the awareness of the substantial likelihood that a crime would be committed in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime. Kordic & Cerkez, supra, ¶¶ 29, 31. 132 AFRC Case, supra note 131, ¶ 293 (“Instigating’ means prompting another to commit an offence.”); Akayesu Trial Judgment, ¶ 482. Both acts and omissions may constitute instigating, which covers express as well as implied conduct. Brdjanin, supra note 131, ¶ 269. A nexus between the instigation and the perpetration must be proved, but it is not necessary to demonstrate that the crime would not have been perpetrated without the involvement of the accused. Brdjanin, supra note 131, ¶ 269. The actus reus requires that the accused prompted another person to commit the offence (Kordic & Cerkez Appeals Judgment, supra note 131, ¶ 27) and that the instigation was a factor substantially contributing to the conduct of the other person(s) committing the crime. Kordic & Cerkez Appeals Judgment, supra note 131, ¶ 27. The mens rea requires that the accused acted with direct intent or with the awareness of the substantial likelihood that a crime would be committed in the execution of that instigation. Kordic & Cerkez Appeals Judgment, supra note 131, ¶¶ 29, 32. 133  AFRC Case, supra note 131, ¶¶ 295–96 (“Responsibility for ordering requires proof that a person in a position of authority uses that authority to instruct another to commit an offence.”); Krstic Judgment, supra note 131, ¶¶ 80, 601; see also Brdjanin Trial Judgment, supra note 131, ¶ 270. A formal superior/subordinate relationship between the accused and the perpetrator is not required. Kordic & Cerkez Appeals Judgment, supra note 131, ¶ 28. It is sufficient that the accused possessed the authority to order the commission of an offence and that such authority can be reasonably implied. Kordic & Cerkez Appeals Judgment, supra note 131 ¶ 388; Akayesu Trial Judgment, supra note 132, ¶ 483. There is no requirement that the order be given in writing or in any particular form, and the existence of an order may be proven through circumstantial evidence. Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Trial Judgment, ¶ 281 (Mar. 3, 2000). It is not necessary for the order to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. What is important is the commander’s mens rea, not that of the subordinate executing the order. Id. at ¶ 282; Kordic & Cerkez Appeals Judgment, supra note 131, ¶ 388. The actus reus of “ordering” requires that the accused, as a person in a position of authority, instructed another person to commit an offence. Kordic & Cerkez Appeals Judgment, supra note 131, ¶ 28. The mens rea requires that the accused acted with direct intent in relation to his own ordering or with the awareness of the substantial likelihood that a crime would be committed in the execution of the order. Kordic & Cerkez Appeals Judgment, supra note 131, ¶¶ 29, 30.). 134 AFRC Case, supra note 131, ¶ 277 (“An individual can be said to have ‘committed’ a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law.”); Tadic, Case No. IT-94-1-A, Appeals Judgment, ¶ 188 (July 15,

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abetting;135 and joint criminal enterprise.136 Likewise, the Special Panels for Serious Crimes in East Timor and the ECCC have also turned to the jurisprudence of the ICTY and ICTR with regard to joint criminal enterprise.137 Whether that will also be the case with regard to the ICC is yet to be seen.138 The problem with regard to the ICC is less significant than with regard to the ICTY and ICTR because the former is based on provisions of the Statute. Nevertheless, there are ample reasons to question the general part provisions of the ICC if it is assumed that they are derived from general principles of criminal law as evidence by the world’s major criminal justice systems. Hardly one comparatist specializing in criminal law has failed to criticize the contents of the ICC’s general part contained in Articles 22 to 33.139 Articles 25 to 30 concern the elements of individual criminal responsibility, while Articles 31 to 33 are general provisions applicable to all crimes within the Court’s jurisdiction. In conclusion, it is impossible, for all practical purposes, to develop a general part of ICL in reliance upon existing sources of international law because of the divergence of national criminal justice systems and the methods employed in comparative criminal law approaches. However, it is possible to identify some common traits that, if couched in more general terms than the principles of legality would require, can provide a range within which to identify a specific principle or rule. In contrast, comparative criminal procedure has proven much easier for purposes of identifying both general principles and specific norms. 1999). There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfills the requisite elements of the definition of the substantive offence. Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23-/1-T, ¶ 390 (Feb. 22, 2001). 135 AFRC Case, supra note 131, ¶¶ 301–02 (The actus reus of “aiding and abetting” requires that the accused gave practical assistance, encouragement, or moral support which had a substantial effect on the perpetration of the crime. Prosecutor v. Tihomir Blaskic, Appeals Judgment, ¶ 46 (July 29, 2004). The mens rea requires that the accused knew that his acts would assist the commission of the crime by the perpetrator or he/she was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. However, it is not necessary that the aider and abettor had knowledge of the precise crime that was intended and which was actually committed, as long as he/she was aware that one of a number of crimes would probably be committed, including the one actually committed. Id. at ¶ 50. 136 AFRC Case, supra note 131, ¶¶ 308–11 (“Article 6.1. does not make explicit reference to “joint criminal enterprise”. However, the Appeals Chamber of the ICTY has previously held that participation in a joint criminal enterprise is a form of liability which existed in customary international law at the time (that is in 1992), and that such participation is a form of “commission” under (the equivalent provision to) Article 6.1. of the Statute. Tadic Appeals Judgment, supra note 134, ¶¶ 188, 226; Vasiljevic Appeals Judgment, T-98-32-A, ¶ 101.”). 137 See infra section 9. 138 The judges of the ICC, at least thus far, have not come from a criminal law background, whether practical or academic. Reliance on young legal assistants seems to be even heavier in the ICC than in the ICTY. 139 The reason, as described by this writer, has to do with the composition of the Working Groups of the ICC’s legislative process, who were mostly diplomats. M. Cherif Bassiouni, 1 The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text 157–61 (M. Cherif Bassiouni ed., 2005).



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7.1. Participation Article 7(1) of the ICTY Statute provides: “Any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 . . . shall be individually responsible for the crime.”140 Likewise, Article 6(1) of the ICTR Statute provides: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 . . . shall be individually responsible for the crime.”141 Thus, both Statutes provide for 5 forms of participation that can lead to individual criminal responsibility: planning, instigating, ordering, committing, and aiding and abetting. 7.1.1. Planning According to the jurisprudence of the ICTY, “planning constitutes a discrete form of responsibility under Article 7(1) of the Statute and . . . an accused may be held criminally responsible for planning alone.”142 Both the ICTY and ICTR have defined the actus reus of planning as requiring that “one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.”143 Both Tribunals have held that planning “implies that one or several persons plan or design the commission of a crime at both the preparatory and execution phases.”144 The Prosecutors at both Tribunals must demonstrate that “the planning was a factor substantially contributing to such criminal

140 ICTY Statute, supra note 15, at art. 7(1). 141 ICTR Statute, supra note 130, at art. 6(1). 142 Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 386. See also Prosecutor v. Bagilishema (Bagilishema Trial Judgment), Case No. ICTR-95-1A-T, ¶ 30 (Jun. 7, 2001) (“An individual who participates directly in planning to commit a crime under the Statute incurs responsibility for that crime even when it is actually committed by another person.”). 143  Id. at ¶ 26; see also Prosecutor v. Limaj et al. (Limaj et al. Trial Judgment), IT-03-66-T, ¶ 513 (Nov. 30, 2005) (similar language); Prosecutor v. Nahimana et al. (Nahimana et al. Appeals Judgment), Case No. ICTR-99-52-A ¶ 479 (Nov. 28, 2007). 144 Limaj et al. Trial Judgment, supra note 143, ¶ 513; Brđanin Trial Judgment, supra note 131, ¶ 268 (Sept. 1, 2004) (similar language); Prosecutor v. Stakić (Stakić Trial Judgment), Case No. IT-97-24-T, ¶ 443 (Jul. 31, 2003) (similar) (similar); Prosecutor v. Krstić (Krstić Trial Judgment), Case No. IT-9833-T, ¶ 601 (Aug. 2, 2001) (similar); Blaškić Trial Judgment, supra note 133, ¶ 279. For similar jurisprudence from the ICTR, see Prosecutor v. Seromba, Case No. ICTR-2000-66-I, ¶ 303 (Dec. 13, 2006) [hereinafter Seromba Trial Judgment] (“Participation by ‘planning’ presupposes that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.”) See also Prosecutor v. Gacumbitsi, ICTR-2001-64-T, ¶ 271 (Jun. 17, 2004) [hereinafter Gacumbitsi Trial Judgment] (similar language); Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, ¶ 592 (Jan. 22, 2004) [hereinafter Kamuhanda Trial Judgment] (similar); Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, ¶ 761 (Dec. 1, 2003) [hereinafter Kajelijeli Trial Judgment] (similar); Prosecutor v. Musema, Case No. ICTR-96-13-T, ¶ 119 (Jan. 27, 2000) [hereinafter

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conduct.”145 Both Tribunals further define the mens rea of planning as entailing “the intent to plan the commission of a crime or, at a minimum, the awareness of substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.”146 7.1.2. Instigating Both the ICTY and ICTR have defined the actus reus of “instigating” as “prompting another person to commit an offence.”147 Both Tribunals require a clear or substantial contribution to the conduct of the other person.148 Both have similarly defined the mens rea of “instigating” to mean “the accused intended to provoke or induce the commission of the crime, or was aware of the substantial like­ lihood that a crime would be committed in the execution of that instigation.”149

Musema Trial Judgment] (similar); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, ¶ 480 (Sept. 2, 1998) [hereinafter Akayesu Trial Judgment] (similar). 145 Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 26; Limaj et al. Trial Judgment, supra note 143, ¶ 513 (same language). For the ICTR, see Nahimana et al. Appeals Judgment, supra note 143, ¶ 479. 146 Nahimana et al. Appeals Judgment, supra note 143, ¶ 479. For similar language from the ICTY, see Limaj et al. Trial Judgment, supra note 143, ¶ 513 (“A person who plans an act or omission with an intent that the crime be committed, or with an awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute for planning.”). 147 Nahimana et al. Appeals Judgment, supra note 143, ¶ 480; see also Prosecutor v. Zigiranyirazo, Case No. ICTR-01-73-T, ¶ 382 (Dec. 18, 2008) [hereinafter Zigiranyirazo Trial Judgment] (similar language); Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, ¶ 504 (Apr. 28, 2005) [hereinafter Muhimana Trial Judgment] (similar); Gacumbitsi Trial Judgment, supra note 144, ¶ 279 (same language as Muhimana Trial Judgment); Kamuhanda Trial Judgment, supra note 144, ¶ 593 (same language as Muhimana Trial Judgment); Kajelijeli Trial Judgment, supra note 144, ¶ 762 (similar language); Prosecutor v. Karera (Karera Appeals Judgment), Case No. IT-01-74-A, Judgment, ¶ 317 (Feb. 2, 2009). For the ICTY, see Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 27 (“The actus reus of ‘instigating’ means to prompt another person to commit an offence.”); see also Limaj et al. Trial Judgment, supra note 143, ¶ 514 (similar language); Brđanin Trial Judgment, supra note 131, ¶ 269 (same language as Limaj et al. Trial Judgment). 148 Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 27 (“While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.”); see also Limaj et al. Trial Judgment, supra note 143, ¶ 514 (similar language as Kordić & Čerkez Appeals Judgment). For the ICTR, see also Nahimana et al. Appeals Judgment, supra note 143, ¶ 660 (“The Appeals Chamber recalls that, for a defendant to be convicted of instigation to commit a crime under Article 6(1) of the Statute, it must be established that the acts charged contributed substantially to the commission of the crime, but they need not be a sine qua non condition for its commission.”); Karera Appeals Judgment, supra note 147, ¶ 317. 149 Limaj et al., supra note 143, ¶ 514. For the ICTR, see also Nahimana et al. Appeals Judgment, supra note 143, ¶ 480; Zigiranyirazo Trial Judgment, supra note 147, ¶ 382 (same language). The ICTY Trial Chamber applied instigation in the Brđanin case, wherein the accused was charged with deportation as a crime against humanity:



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7.1.3. Ordering Both the ICTY and ICTR have defined the actus reus of “ordering” to mean that “a person in a position of authority instructs another person to commit an offence.”150 Neither Tribunal requires a formal superior-subordinate relationship, so long as the accused possessed de jure or de facto authority to order or that authority may be implied.151 Finally, neither Tribunal requires direct intent in their respective definitions of the mens rea: “A person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the

The Trial Chamber has found that decisions of the [Autonomous Region of Krajina] Crisis Staff regarding the disarmament, dismissal and resettlement of non-Serbs [from the Autonomous Region of Krajina] were systematically implemented by the municipal Crisis Staffs, the local police, and the military. Moreover, it has been abundantly proved that the Accused made several inflammatory and discriminatory statements, inter alia, advocating the dismissal of non-Serbs from employment, and stating that only a few non-Serbs would be permitted to stay on the territory of the [Autonomous Region of Krajina]. In light of the various positions of authority held by the Accused throughout the relevant time, these statements could only be understood by the physical perpetrators as a direct invitation and a prompting to commit crimes. Against this background, the Trial Chamber is satisfied that the Accused instigated the commission of some crimes charged in the Indictment [namely, deportations from the Autonomous Region of Krajina to Karlovac and forcible transfer from the Autonomous Region of Krajina to Travnik, and the crime of persecution]. Brđanin Trial Judgment, supra note 131, ¶ 360. 150 Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 28. See also Limaj et al., supra note 143, ¶ 515 (same language as Kordić & Čerkez Appeals Judgment); Brđanin Trial Judgment, supra note 131, ¶ 270 (similar). For the ICTR, see Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-A, ¶ 365 (Jul. 7, 2006) [hereinafter Ntagerura et al. Appeals Judgment] (“the material element (or actus reus) is established when a person uses his position of authority to order another person to commit a crime . . .”). See also Nahimana et al. Appeals Judgment, supra note 143, ¶ 481 (“With respect to ordering, a person in a position of authority may incur responsibility for ordering another person to commit an offence, if the person who received the order actually proceeds to commit the offence subsequently.”). 151 For the ICTY, see Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 28 (“A formal superior-subordinate relationship between the accused and the perpetrator is not required.”); Prosecutor v. Strugar, Case No. IT-01-42-T, ¶ 331 (Jan. 31, 2005) [hereinafter Strugar Trial Judgment] (similar language as Kordić & Čerkez Appeals Judgment); Limaj et al. Trial Judgment, supra note 143, ¶ 515 (“It is not necessary to demonstrate the existence of a formal superior-subordinate command structure or relationship between the orderer and the perpetrator; it is sufficient that the orderer possesses the authority, either de jure or de facto, to order the commission of an offence, or that his authority can be reasonably implied.”); Brđanin Trial Judgment, supra note 131, ¶ 270 (similar language to Limaj et al. Trial Judgment). For the ICTR, see Prosecutor v. Seromba, Case No. ICTR-2001-66-A, ¶¶ 201–02 (Mar. 12, 2008) [hereinafter Seromba Appeals Judgment] (“To be held responsible under Article 6(1) of the Statute for ordering a crime . . . it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial threat on the commission of the illegal act.”); Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, ¶¶ 181–82 (Jul. 7, 2006) [hereinafter Gacumbitsi Appeals Judgment] (“The Appeals Chamber agrees with the Prosecution that ordering does not require the existence of a formal superior-subordinate relationship.”).

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execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering.”152 7.1.4. Committing Both Tribunals define “committing” as covering “ ‘physically perpetrating a crime or engendering a culpable omission in violation of criminal law.’ ”153 Likewise, both Tribunals define the mens rea of “committing” to mean “the accused acted with an intent to commit the crime, or with an awareness of the probability, in the sense of the substantial likelihood, that the crime would occur as a consequence of his conduct.”154 The ICTY and ICTR both treat the doctrine of joint criminal enterprise,” discussed below, as a form of commission, though “joint criminal enterprise” takes a less broad form.155

152  Kordić & Čerkez Appeals Judgment, supra note 131, ¶ 30; Blaškić, supra note 135, ¶ 166 (similar language as Kordić & Čerkez Appeals Judgment). For the ICTR’s jurisprudence, see Nahimana et al. Appeals Judgment, supra note 143, ¶ 481 (“Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.”); Ntagerura et al. Appeals Judgment, supra note 150, ¶ 365 (“the requisite mental element (or mens rea) is established when such person acted with direct intent to give the order.”). 153 Limaj et al. Trial Judgment, supra note 143, ¶ 509; Prosecutor v. Galić, Case No. IT-98-29-T, ¶ 168 (Dec. 5, 2003) [hereinafter Galić Trial Judgment] (“ ʻCommitting’ means that an ‘accused participated, physically or otherwise directly, in the material elements of a crime under the Tribunal’s Statute’ Thus, it ‘covers first and foremost the physical perpetration of a crime by the offender himself.’”); Stakić Trial Judgment, supra note 144, ¶ 439 (“The Trial Chamber prefers to define ‘committing’ as meaning that the accused participated, physically or otherwise directly or indirectly, in the material elements of the crime charged through positive acts or, based on a duty to act, omissions, whether individually or jointly with others.”). For the ICTR, see Nahimana et al. Appeals Judgment, supra note 143, ¶ 478 (“The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law . . . .”); Seromba Trial Judgment, supra note 144, ¶ 302 (similar language). But see Seromba Appeals Judgment, supra note 151, ¶ 161 (“The Trial Chamber erred in finding that “committing” requires direct and physical perpetration of the crime by the offender. The correct legal standard is whether Seromba’s actions were ‘as much an integral part of the genocide as were the killings [they] enabled.”). 154 Limaj et al. Trial Judgment, supra note 143, ¶ 509. See also Seromba Appeals Judgment, supra note 151, ¶ 173 (“an accused evinces the requisite mens rea for committing a crime when he acts with an intent to commit that crime.”). 155 Stakić Trial Judgment, supra note 144, ¶¶ 438, 528 (“The Trial Chamber emphasizes that joint criminal enterprise is only one of several possible interpretations of the term ‘commission’ under Article 7(1) of the Statute and that other definitions of co-perpetration must equally be taken into account. Furthermore, a more direct reference to ‘commission’ in its traditional sense should be given priority before considering responsibility under the judicial term ‘joint criminal enterprise.’ ” “ ‘Commission,’ as a mode of liability, is broadly accepted, and joint criminal enterprise provides one definition of ‘commission.’ ”). For the ICTR, see Nahimana et al. Appeals Judgment, supra note 143, ¶ 478 (“Commission covers ‘participation in a joint criminal enterprise.’ ”); Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, ¶ 463 (Sept. 12, 2006) [hereinafter Muvunyi Trial Judgment] (similar



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7.2. Aiding and Abetting “Aiding and abetting,” as opposed to “commission,” is a form of accessory liability. In Vasiljević, the ICTY Appeals Chamber set forth the actus reus and mens rea of “aiding and abetting:” (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. [. . .] (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal.156

The ICTY’s “detailed investigation” of post-World War II case law found a “clear pattern” of requiring a mens rea of knowledge for “aiding and abetting.”157 language as Nahimana et al. Appeals Judgment); Prosecutor v. Simba, Case No. ICTR-01-76-T, ¶ 385 (Dec. 13, 2005) [hereinafter Simba Trial Judgment] (similar). Note that joint criminal enterprise is a mode of responsibility and not a crime itself. See also the discussion of joint criminal enterprise infra section 9. Joint criminal enterprise is recognized by both Tribunals and the ICTR applies the ICTY’s jurisprudence. Note that joint criminal enterprise is a mode of responsibility and not a crime itself. See also the discussion of joint criminal enterprise infra section 9. Joint criminal enterprise is recognized by both Tribunals and the ICTR applies the ICTY’s jurisprudence. 156 Blaškić Appeals Judgment, supra note 135, ¶ 45; see also Strugar Trial Judgment, supra note 151, ¶ 349 (“Aiding and abetting has been defined in the case-law of the Tribunal as the act of rendering practical assistance, encouragement or moral support, which has a substantial effect on the perpetration of a crime, before, during or after the commission of the crime, and irrespective of whether these acts took place at a location other than that of the principal crime.”). 157 Prosecutor v. Delalić, Case No. IT-96-21-T, ¶¶ 321, 325–29 (Nov. 16, 1998) [hereinafter Delalić Trial Judgment] (endorsing the approach of the Tadić Trial Judgment, CC/PIO/188-E ¶ 692, under which “the accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law.”); see also Furundžija Trial Judgment, IT-95-17/1 ¶ 245: [I]t is not necessary for the accomplice to share the mens rea of the perpetrator, in the sense of positive intention to commit the crime. Instead, the clear requirement in the vast majority of the cases is for the accomplice to have knowledge that his actions will assist the perpetrator in the commission of the crime. The ICTY has systematically reaffirmed this principle. See, e.g., Delalić Trial Judgment, supra, ¶ 321; Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, ¶¶ 60–64 (Jun. 25, 1999) [Aleksovski Trial Judgment] (citing Tadić, Čelebići, Furundžija, and Akayesu); Prosecutor v. Kunarac et al., Case No. IT96-23-T & IT-96-23-/1-T, ¶ 392 (Feb. 22, 2001) (“The mens rea of aiding and abetting consists of the knowledge that the acts performed by the aider and abettor assist in the commission of a specific crime by the principal.”); Prosecutor v. Krnojelac, Case No. IT-97-25-A, ¶ 51 (Sept. 17, 2003) [hereinafter Krnojelac Appeals Judgment]; Prosecutor v. Vasiljević, Case No. IT-98-32-A, ¶ 102 (Feb. 25, 2004) [hereinafter Vasiljević Appeals Judgment] (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal.”). The ICTY Appeals Chamber has confirmed this standard. See Tadić Appeals Judgment, supra note 134, ¶ 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist in the commission of a specific crime by the principal.”); Prosecutor v. Blagojević & Jokić, Case No. IT-02-60-A, ¶ 127 (May 9, 2007) (“The

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The ICTR’s jurisprudence has closely followed the ICTY with regard to “aiding and abetting.”158 It follows that the ICTR has also recognized the same knowledge standard.159 This knowledge standard for the “aider and abettor” has also been recognized as the customary norm at the Special Court for Sierra Leone.160

requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”); Prosecutor v. Brđanin, Case No. IT99-36-A, ¶ 484 (Apr. 3, 2007) [hereinafter Brđanin Appeals Judgment] (same language); Prosecutor v. Milutinović, Case No. IT-05-87-T, ¶ 94 (Feb. 26, 2009) [hereinafter Milutinović Trial Judgment] (for aiding and abetting “[a]lthough the accused’s lending of practical assistance, encouragement, or moral support must itself be intentional, intent to commit the crime or underlying offence is not required. Instead, the accused must have knowledge that his acts or omissions assist the principal perpetrator or intermediary perpetrator in the commission of the crime or underlying offence. Such knowledge need not have been overtly expressed and may be inferred from the circumstances.”) (emphasis added); Blaškić Appeals Judgment, supra note 135, ¶ 50 (“It is not necessary that the aider and abettor . . . know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”); Prosecutor v. Simić, Case No. IT-95-9-A, ¶ 82 (Nov. 28, 2006) [hereinafter Simić Appeals Judgment] (“The requisite mens rea for aiding and abetting is knowledge that the acts performed by the aider and abettor assist in the commission of the specific crime of the principal perpetrator.”) (emphasis added). 158 Muvunyi Trial Judgment, supra note 155, ¶ 79 (“[A]n aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.”); Prosecutor v. Muhimana, Case No. ICTR-95-1B-A, ¶ 189 (May 21, 2007) [hereinafter Muhimana Appeals Judgment] (similar to Muvunyi Trial Judgment); Seromba Appeals Judgment, supra note 151, ¶ 44 (“[T]o establish the actus reus of aiding and abetting . . . , it must be proven that the alleged aider and abettor committed acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime.”); Nahimana et al. Appeals Judgment, supra note 143, ¶ 482 (similar language). 159 Akayesu Trial Judgment, supra note 144, ¶ 545 (“[A]n accused is liable as an accomplice to the genocide if he knowingly aided and abetted or instigated one or more persons in the commission of genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.”) (emphasis added); Prosecutor v. Rutaganda, Case No.: ICTR-96-3-T, ¶¶ 389–91, 416, 439 (Dec. 6, 1999) (convicting defendant for aiding and abetting a massacre by distributing weapons to militia, knowing an attack would take place) (emphasis added); Musema Trial Judgment, supra note 144, ¶ 180 (“The intent or mental element of complicity in general implies that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly.”) (emphasis added); Ntagerura et al. Appeals Judgment, supra note 150, ¶ 370 (“The requisite mens rea is the fact that the aider and abettor knows that his acts assist in the commission of the specific crime of the principal.”) (emphasis added); Prosecutor v. Ndindabahizi, Case No. ICTR-01-71-A, ¶ 122 (Jan. 16, 2007) (citing Blaškić Appeals Judgment); Nahimana et al. Appeals Judgment, supra note 143, ¶ 482 (“The mens rea for aiding and abetting is knowledge that acts performed by the aider and abettor assist in the commission of the crime by the principal. It is not necessary for the accused to know the precise crime which was intended and which in the event was committed.”) (emphasis added). 160  See, e.g., Prosecutor v. Brima et al., Case No. SCSL-04-16-A, ¶¶ 242-43 (Feb. 22, 2008) (“The mens rea required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would [do so].”) (emphasis added); Prosecutor v. Fofana, Case No. SCSL-04-17-T, ¶ 231 (Aug. 2, 2007) (“The Chamber recognizes that the mens rea of aiding and abetting is the knowl-



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7.3. Omission Omission is accepted by most national criminal law systems and is often referred to as “commission by omission” or “indirect omission.”161 “Commission by omission” requires three elements: (1) the realization of a result—i.e., the death of an individual; (2) the existence of a duty to act; and (3) a causal nexus between the omissive behavior and the result.162 The jurisdiction of the ICTY,163 ICTR,164 and ICC165 extends to both acts and omissions. The ICTY and ICTR statutory provisions are constructed so as to require judges to “[s]upplement by providing the additional elements found in most penal statutes, such as the mental state that must be proved along with the acts and the specific elements of the offenses.”166 The judges of the ICTY and ICTR have held that most of their statutory offenses can be committed by both acts and omissions.167 The ICTY Appeals Chamber has also recognized aiding and abetting liability for omission.168

edge that the acts performed by the Accused assist the commission of the crime by the principal offender.”) (emphasis added). 161 “Commission by omission” must be distinguished from “genuine” or “direct” omissions, in which the definition of the crime constitutes criminal inaction. 162 E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law 54 (2003). 163 ICTY Statute, supra note 15, at art. 7 (superior orders). 164 ICTR Statute, supra note 130, at art. 6 (superior orders). 165 ICC Statute arts. 28, 8(2)(b)(xxv), supra note 16 (penalizing a superior’s failure to prevent or punish crimes committed by subordinates and defining intentional starvation of civilians as a method of warfare as a war crime, respectively). 166 John Ackerman and Eugene O’Sullivan, Practice and Procedure of the International Criminal Tribunals for the Former Yugoslavia 11 (2000). 167 See, e.g., Blaskic Trial Judgment, supra note 133, ¶¶ 154, 186 (concluding that “inhuman treatment” under Article 2(b) and “cruel treatment” under Article 3 could consist of both acts and omissions); Kvocka et al. Appeals Judgment, IT-98-30/1-A ¶ 261 (recognizing that the war crime of murder can consist of omission); Galic Trial Judgment, supra note 153, ¶ 149 (concluding that murder as a crime against humanity can consist of omission). See also Prosecutor v. Kambanda, Case No. ICTR-97-23-S, ¶ 40 (Sept. 23, 1998) (ruling that all acts of genocide could be committed by omission). See also William A. Schabas, Genocide in International Law 156 (2000). 168 Oric Appeals Judgment, IT-03-68-A, ¶ 43: [A]t a minimum, the offender’s conduct [has] to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetrator of a crime and have a substantial effect upon the perpetration of the crime (actus reus). The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).

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chapter four Section 8. Command Responsibility: Policy Considerations

Command responsibility was first codified in Protocol I of the Geneva Conventions,169 but the doctrine now clearly encompasses civilians with duties and powers that are similar to those of military commanders. International tribunals have utilized the broader concept of superior responsibility to convict prominent officials in both civilian governments and the private sector.170 For our purposes, the term “superior responsibility” will be used unless exclusively referring to military commanders, in which case “command responsibility” will be used.171 Thus, superior responsibility is best defined as “a form of culpable omission by superiors—usually military commanders—leading subordinates to violate humanitarian law.”172 Command responsibility includes two different concepts of criminal responsibility. The first is the direct responsibility for a commander’s orders that may be unlawful. The second is the imputed criminal responsibility for a subordinate’s unlawful conduct that is not based on the commander’s orders. The latter is essentially based on the commander’s failure to act in order to: (1) prevent a specific unlawful conduct; (2) provide for general measures likely to prevent or deter unlawful conduct; (3) investigate allegations of unlawful conduct; and (4) prosecute, and upon conviction, punish the author of the unlawful conduct. Since these four categories of imputed responsibility for the conduct of another are based on failure to act, the legal standards and tests used to determine whether the omission is culpable or not are outcome determinative of guilt or innocence. Thus, if the legal standard is an objective one, i.e. the ordinary reasonable person having the commander’s knowledge of the facts and operating under like circumstances, it will produce a different outcome than a subjective standard that relies on the actual personal knowledge of the commander, whether he/she acted with or without conscious wrongdoing. Similarly, if the test for the objective standard is whether the commander “could have reasonably known under the circumstances,” it would produce a different outcome

169 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts arts. 86–87, adopted June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Geneva Protocol]. 170 Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Summary, ¶¶ 5–7 (Dec. 3, 2003) [hereinafter Nahimana et al. Summary of Trial Judgment]. 171  See Mark Osiel, The Banality of Good: Aligning Incentives against Mass Atrocity, 105 Colum L. Rev. 1751 (2005), at 1760 n.39. Military commanders have a duty to ensure that subordinates observe humanitarian law, as recognized in international treaties, national military codes, and army training manuals. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War art. 127, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85. 172 Osiel, supra note 171, at 1773 (arguing that “[p]rosecutors should look to superior responsibility when a chain of command exists but culpable elites have been too careful to have issued orders that are clearly criminal.”).



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than if the test is that he/she “should have known.” The former is more speculative than the latter. The choice of any legal standard and test is ultimately a matter of legal policy. Thus, to place a reasonably higher level of duty on commanders on the assumption that this would maximize their vigilance and thus minimize the potential violations of subordinates is a policy that favors the adoption of a “should have known” test. An unreasonably high standard of responsibility on commanders, particularly in combat situations, is not likely to be accepted nor followed. Commanders cannot be held to be insurers of the proper conduct of their subordinates, and no concept of imputed criminal responsibility for the conduct of another can deter anyone who is unable to foresee the unlawful conduct that the law requires him/her to prevent. A person in command is not necessarily part of a military or paramilitary organization. If a person in command of a governmental or police unit issues an order for the performance of any of the specific acts within the meaning of crimes against humanity, and that crime is committed by those under his/her command, he/she is criminally responsible. Similarly, such a non-military commander is responsible for his/her omissions if they lead to the commission of such crimes. However, the source of law that applies to military and paramilitary personnel differs from that which is applicable to others in the civilian hierarchy of government or in the police, unless they can be linked by an agency relationship to the military. Members of the armed forces are subject to national military law and the international regulation of armed conflicts. Nonmilitary personnel are subject to national criminal law, unless an agency relationship can be established between such persons and the armed forces, in which case military law and the international regulation of armed conflicts also apply to them. The doctrine of command responsibility originated in national military law and gradually became a basis of international criminal responsibility.173 Command responsibility is the legal and logical concomitant to the defense of obedience to superior orders.174 Indeed, if a subordinate is to be exonerated from criminal responsibility for carrying out a superior’s order, that superior should be accountable for the issuance of an order that violates international criminal law. Thus, a nexus exists between the legal policies underlying each of these two conceptions. When a violation of the international regulation of armed conflict takes place, it usually results in harm to protected persons or protected targets. Consequently, the responsibility of the violator must be assessed. The inquiry will usually start with the perpetrator of the violation and then gradually move 173 See William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973); see also Leslie C. Green, Superior Orders and Command Responsibility, 27 Can. Y.B. Int’l L. 167 (1989). 174 See Bassiouni, Crimes Against Humanity, supra note 1, at 526–60, 583–613 and accompanying text.

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up the chain of command to the superior who issued the order. Depending upon the factual circumstances, such a chain of command can reach up to the highest echelon in the military hierarchy. In this respect, the London Charter removed any limits up to and including the head of state. Article 7 of the Charter states that “the official position of the defendants or responsible officials in Government Departments, should not be considered as freeing themselves for responsibility or mitigation of punishment.”175 The London Charter followed the postulate of Article 227 of the Treaty of Versailles, which provided for the prosecution of Kaiser Wilhelm II for the supreme offense against peace. But the Tokyo Charter in Article 6 differed from its counterpart, Article 7 of the London Charter, in that it provided that an official’s position could “be considered in mitigation of punishment if the tribunal determines that justice so requires.” Throughout the process of inquiry into the chain of command, different legal standards may apply depending upon whether the person who is the focus of inquiry is the one who committed the violative act, the one who ordered it, or the one who could or should have prevented its occurrence.176 The reason for such different standards derives from deterrence policy considerations. However, criminal responsibility remains personal and is individually judged based on whether such a person issued the order, related the order, failed to act to prevent illegal conduct by others, or failed to punish a subordinate after the illegal act had been established. A person who issues an order is obviously responsible for that order and bears individual criminal responsibility for it. This is clearly a standard of direct personal responsibility, a standard well recognized in the world’s major criminal justice systems and in international criminal law. This responsibility is direct for those who command another to commit a crime, not secondary as it is in some national legal systems. A commander’s responsibility for failure to prevent, if no prior knowledge of the possible violation exists, is ancillary. This is the case in national criminal law, even though there are separate legal elements and exonerating conditions in military law and international regulation of armed conflicts, such as the doctrine of military necessity, which have no counterpart in the national criminal law. Furthermore, those in a superior position have the legal duty to supervise, control, and prevent unlawful conduct by subordinates. Their failure to do so becomes the basis for their criminal responsibility. But these duties differ in military law and national criminal law applicable to civilians. 175 The IMTFE refused to recognize the diplomatic immunity of Ambassador Oshima, who was sentenced to life imprisonment. See Arnold C. Brackman, The Other Nuremburg: The Untold Story of the Tokyo War Crimes Trials 207 (1987). 176 For the application of various legal standards to command responsibility and obedience to superior orders, see work by Parks and Green, supra note 173.



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The military standards are higher than their civilian counterparts for essentially two policy reasons: (1) the need to preserve a higher standard of discipline in a military structure, whose concomitant is the superior’s responsibility; and (2) the effectiveness of deterrence within the two contexts. The difficult problems in military criminal responsibility arise in four areas, all of which fall under the general category of omission. They are: (1) responsibility of a superior who does not initiate an unlawful order but who conveys it to a subordinate; (2) responsibility for the conduct of a subordinate where that superior ordinarily exercises direct command and control, but in this case fails to do so; (3) responsibility for the conduct of a subordinate where the superior ordinarily exercises indirect command control, but in this case fails to do so; and (4) responsibility for the conduct of all subordinates under the general command of a senior officer or commanding general officer up to and including the military commander-in-chief, for failure to establish policies and procedures for the prevention of violations and for the punishment of violators, and for failure to implement them. A subordinate actor’s responsibility for a violative act does not necessarily eliminate command responsibility because the latter includes failure to act, failure to prevent, and failure to punish upon discovery of the violation. But failure to act depends on knowledge and opportunity to act: (1) in the prevention of the criminal act; (2) subsequent to the act if the superior failed to supervise, discover, and take remedial action as needed under the circumstances; and (3) prosecute and, if found guilty, punish the violator. Conversely, a subordinate actor’s exoneration under the defense of obedience to superior orders does not necessarily imply that the immediate superior officer and those in the chain of command above him/her are criminally responsible if the order was wrongly understood or applied by the subordinate. Because military law is based on a hierarchical structure of command and control, those in the chain of command have the duty to develop measures designed to prevent the commission of violative acts, to investigate information about violative acts, to punish the perpetrators, and to institute measures to prevent and correct situations leading to potential violations. The essential element in cases of command responsibility, particularly with respect to those in the higher echelons in the chain of command, is causation. Establishing a chain of cause and effect is more difficult in these cases than in other cases of criminal violation. Thus, the policy of deterrence, as perceived by policymakers, is more determinative than any other legal consideration. Furthermore, the more removed a superior is from the scene of the violative act, the more difficult it is to factually assess his/her responsibility, particularly in combat situations.

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The applicable legal standard, which is embodied in the military laws and civilian criminal law of the world’s major legal systems, is the objective standard of “reasonableness” in light of the existing circumstances, in terms of actual knowledge or knowledge that should have been known. The reasons for this standard are consonant with the personalization of criminal responsibility in light of the potential deterrent of the criminal sanction. Indeed, greater compliance with the requirements of the law is not achieved if individuals are unable to prevent the conduct that the criminal law seeks to avert. No one can be deterred from conduct beyond the control of the person whose responsibility may be called into question. Therefore, to hold a superior accountable on the basis of omission for the conduct of a subordinate requires intent or knowledge that the omission can actually or reasonably and foreseeably lead to a violative act and that the superior is in a position or has the ability to act in the prevention of the violative act. 8.1. The Evolution of Command Responsibility in the Regulation of Armed Conflicts Issues involving command responsibility are not new. In 6th century BCE, Sun Tzu wrote, “When troops flee, are insubordinate, distressed, collapse in disorder, or are routed, it is the fault of the general. None of these disorders can be attributed to natural causes.”177 In the Western world, an early comment on command responsibility came from Grotius, who asserted that rulers “may be held responsible for the crime of a subject if they knew it and do not prevent it when they could and should prevent it.”178 During the same period, in 1621, King Gustavus Adolphus of Sweden promulgated his “Articles of Military Lawwes to be Observed in the Warres,” which, in Article 46, provided, “No Colonel

177 See Sun Tzu, The Art of War 125 (Samuel B. Griffith trans., 1963) (noting that several thousand years ago that commanders are responsible for the action of their men). Later, Napoleon emphasized the responsibility of military commanders when he quipped “There are no bad regiments; there are only bad colonels.” Robert D. Heinl, Dictionary of Military and Naval Quotations 56 (1956). 178 Hugo Grotius, 2 De Jure Belli ac Pacis 523 (Francis W. Kelsey trans., 1925). Grotius further stated: “Kings and public officials are liable for neglect if they do not employ the remedies which they can and ought to employ for the prevention of robbery and piracy.” Hugo Grotius, De Jure Belli Ac Pacis Libri Tres BK. II, Ch. XVII, pt. XX (1) (Carnegie ed., Francis W. Kelsey trans., 1925) (supporting Jean Bodin’s similar view in Six Livres de la République (1577)); Alberico Gentili, De Iure Belli Libri Tres 99 (Carnegie ed., John C. Rolfe trans., 1933).; see also Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, at art. 146; Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1124 U.N.T.S. 609, 16 I.L.M. 1442 (1977) at art. 86.



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or Captain shall command his soldiers to do any unlawful thing which who so does, shall be punished according to the discretion of the Judges . . . .”179 In the United States, the Articles of War, enacted on June 30, 1775, provided that: Every Officer commanding, in quarters, or on a march, shall keep good order, and to the utmost of his power, redress all such abuses or disorders which may be committed by any Officer or Soldier under his command; if upon complaint made to him of Officers or Soldiers beating or otherwise ill-treating any person, or committing any kind of riots to the disquieting of the inhabitants of this Continent, he, the said commander, who shall refuse or omit to see Justice done to this offender or offenders, and reparation made to the party or parties injured, as soon as the offender’s wages shall enable him or them, upon due proof thereof, be punished, as ordered by General Court-Martial, in such manner as if he himself had committed the crimes or disorders complained of.180

In 1863, the United States promulgated the Instructions for the Government of the Armies of the United States in the Field, which became known as the Lieber Code. Article 71 provides: Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.181

In the late 19th century, in the authoritative “Military Law and Precedents,” Winthrop expounds upon the duty of a commander during an armed conflict. He stated: “It is indeed the chief duty of the commander of the army of occupation to maintain order and the public safety, as far as practicable without oppression of the population, and as if the district were a part of the domain of his own nation.”182 He further adds: The observance of the rule protecting from violence the unarmed population is especially to be enforced by commanders in occupying or passing through towns or villages of the enemy’s country. All officers or soldiers offending against the rule of immunity of non-combatants or private persons in war forfeit their right to be treated as belligerents, and together with civilians similarly offending, become liable to the severest penalties as violators of the laws of war.183

179 Quoted in Parks, supra note 173, at 5. 180 Francis Lieber, The Lieber Code of 1863: Instructions for the Government of Armies of the United States in the Field, General Order No. 100 (Apr. 24, 1863). 181  Id. art. 71. 182 William Winthrop, Military Law and Precedents (2d ed. 1895). 183 Id. at 799.

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In international conventional law regulating the conduct of armed conflict, Article 1 of the 1907 Hague Convention provides the condition that a combatant must fulfill so as to be accorded the rights of a lawful belligerent. That condition also exists under the 1949 Geneva Conventions and the 1977 Protocols and requires such a force to be “commanded by a person responsible for his subordinates.”184 This condition affirms the responsibility of commanders. The 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties concluded after World War I that: The ex-Kaiser and others in high authority were cognizant of and could at least have mitigated the barbarities committed during the course of the war. A word from them would have brought about a different method in the action of their subordinates on land, at sea and in the air . . . All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including chiefs of State, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.185

Thus, the Treaty of Versailles called for the trial by an international military tribunal of the Kaiser, the Supreme German Commander, for the same crime that the London Charter in 1945 called “Crimes Against Peace” in Article 6(a). The Versailles Treaty provided that: The Allied and Associated Powers publicly arraign William II of Hohenzollen, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties . . . . The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.186

This provision established the personal responsibility of a commander-in-chief. The Versailles Treaty also provided for the prosecution, before an international military tribunal or Allied military tribunals, of those accused of violating the laws of war. Article 228 stated: The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in

184 1907 Hague Convention, art. 1; see also Frederick Pollock, Criminal Responsibility: The Defense of Superior Orders, in The Work of the League of Nations, 35 Law Q. Rev. 195 (1919). The same requirements exist in the four Geneva Conventions of 1949, and in the 1977 Additional Protocols, supra note 178. 185 Report of the Majority, and Dissenting Reports of American and Japanese Members of the Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties, Violations of the Laws and Customs of War, Conference of Paris, 1919 (Carnegie Endowment for International Peace, Division of International Law, Pamphlet No. 32 (1919)), reprinted in 14 Am. J. Int’l L. 95, 117 (1920). 186 Treaty of Peace Between the Allied and Associated Powers of Germany arts. 228–230, June 28, 1919, 225 C.T.S. 188, 285, 2 Bevans 43, 136–37, at art. 227.



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violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies. The German Governor shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office, or employment which they held under the German authorities.187

After World War I, the Allies did not form an international military tribunal, nor did they prosecute accused German military personnel before their military tribunals.188 Instead, the German Supreme Court sitting at Leipzig heard only a handful of cases resulting from criminal acts conducted during the War.189 Some of these trials, however, dealt with the issues of obedience to superior orders and command responsibility. The issues of command responsibility were plentiful in the post-World War II prosecutions before the IMT, IMTFE, and Subsequent Proceedings.190 For instance, the IMT applied command responsibility for ordering crimes. Yet, on the whole, the major precedents concerning command responsibility are associated with the Subsequent Proceedings under CCL 10, while the defense of obedience to superior orders was more central to the trials of the major Third Reich leaders at Nuremberg. In the Nuremberg Judgment, in the case against the Chief of the RHSA, Ernst Kaltenbrunner, whose role as a penal administrator and executioner of the Final Solution was primarily non-military, the Tribunal ruled: During the period in which Kaltenbrunner was head of RSHA, the Gestapo, and SD in occupied territories continued the murder and ill-treatment of the population, using methods which included torture and confinement in concentration camps, usually under orders to which Kaltenbrunner’s name was signed.191

In the case of Alfred Rosenberg, the Reichs Minister for the Occupied Eastern Territories, who was liable for ordering and actively participating in crimes, the Tribunal concluded: 187 Id. at art. 228. 188 The Allies seem to have accepted the objections of the Commission members from the United States, Lansing and Scott, who objected to the “unprecedented proposal” to put on trial before an international criminal court the heads of States not only for having directly ordered illegal acts of war but for having abstained from preventing such acts. This would be to subject chiefs of State to a “degree of responsibility hitherto unknown to municipal or international law, for which no precedents are to be found in the modern practice of nations.” James W. Garner, International Law and the World War vol. II, 492, n.1 (1920). 189 See Bassiouni, Crimes Against Humanity, supra note 1, at 656; Claud Mullins, The Leipzig Trials (1921). 190 See generally supra Chapter III, sections 9–10. 191  Nuremberg Judgment, in 2 Friedman, at 979.

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chapter four Rosenberg had knowledge of the brutal treatment and terror to which the Eastern people were subjected. He directed that the Hague Rules of Land warfare were not applicable in the Occupied Eastern territories. He had knowledge of and took an active part in stripping the Eastern territories of raw materials and foodstuffs, which were sent to Germany. He stated that feeding the German people was first on the list of claims on the East, and that the Soviet people would suffer thereby. His directives provided for the segregation of Jews, ultimately in ghettos [. . .]. He gave his civil administrators quotas of laborers to be sent to the Reich [. . .]. His signature of approval appears on the order of 14 June 1944 [. . .]. Upon occasion Rosenberg objected to the excesses and atrocities committed by his subordinates [. . .] but these excesses continued and he stayed in office until the end.192

In the case of Wilhelm Frick, the first Minister of Interior and later Reichs Protector of Bohemia and Moravia and the author of the anti-Semitic Nuremberg Laws, the Tribunal provided: During the war nursing homes, hospitals, and asylums in which euthanasia was practiced as described elsewhere in this Judgement, came under Frick’s jurisdiction. He had knowledge that insane, sick, and aged people, “useless eaters,” were being systematically put to death. Complaints of these murders reached him, but he did nothing to stop them.193

The major military defendants prosecuted at the IMT were Field Marshal Wilhelm Keitel, Hitler’s ranking officer in the Wehrmacht; General Alfred Jodl, Hitler’s chief of staff; and Admirals Erich Raeder and Karl Dönitz, the successive commanders of the German navy. Each of these defendants were found guilty of following and disseminating “The Commando Order,” which mandated the execution of enemy commandos in violation of Article 23 of the Hague Convention, which gave commandos status as prisoners of war if captured. Keitel and Jodl were convicted by the Tribunal on all counts and hanged. Raeder was convicted of planning, preparing, initiating, and conducting a war of aggression but not participating in the conspiracy to carry out the war. While Dönitz was convicted of war crimes, he was found not guilty of crimes against humanity. Thus, only those convicted of crimes against humanity under command responsibility— Raeder, Keitel, and Jodl—were executed. The most notorious of the post-World War II trials involved the case of the Japanese General Tomoyuki Yamashita,194 which even today remains a 192 Id. at 982. 193 Id. at 987. 194 For detailed examinations of the Yamashita trial, see A. Frank Reel (one of Yamashita’s defense attorneys), The Case of General Yamashita (1949); Richard L. Lael, The Yamashita Precedent: War Crimes and Command Responsibility (1982). See also Parks, supra note 173, at 22–38. Reel, supra, provides a first hand account of the trial, he states: But let us assume that General Yamashita had been given a fair trial, that the rules of evidence and the constitutional guaranty of due process of law had been adhered to. In my opinion, even then the condemnation was unjust because Yamashita was held accountable for crimes



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controversial ruling. General Yamashita served as the commanding general of the Japanese forces in the Philippines as well as the military governor of the islands during the last year of the war. On October 2, 1945, a month after his surrender, Yamashita was served with this charge: Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October 1944 and 2 September 1945, at Manila and at other places in the Philippine Islands, while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and its allies and dependencies, particularly, the Philippines; and he, General Tomoyuki Yamashita, thereby violated the law of war.195

Subsequently, the prosecution submitted two separate bills of particulars, which contained an aggregate of 123 specifications.196 These specific charges included the murder and mistreatment of over 32,000 Filipino civilians and captured Americans, the rape of 500 Filipino women, and also the arbitrary and unwarranted destruction of private property.197 These facts notwithstanding, the bills of particulars did not establish a direct link between the perpetration of those unlawful acts and Yamashita.198 Yamashita was tried before a Military Commission (comprised of American officers, none of whom had legal training) sitting in the Philippines and convened under the authority of General Douglas MacArthur at the United States Army Forces, Western Pacific. It began on October 19, 1945 (contemporaneous with the IMT). After hearing 286 witnesses and receiving 423 documents into evidence, it ended with a judgment rendered on a particularly significant date, December 7, 1945, the four-year anniversary of the Japanese attack on Pearl Harbor. During this period, the prosecution “sought to demonstrate the bestiality, enormity, committed by persons other than himself, crimes committed without his knowledge and, in fact, against his orders. He was held so accountable on the basis of a “principle” of command responsibility, a principle that in this perverted form has no basis in either law or logic. Id. at 242. See In Re Yamashita, 327 U.S. 1 (1945) and particularly the dissents of Justices Murphy and Rutledge. 195 The record of the trial is found in United States of America v. Tomoyuki, a Military Commission appointed by General Douglas MacArthur by Special Order 110, & 24 Headquarters United States Army Forces, Western Pacific, dated October 1, 1945, at 23 [hereinafter Commission Record] (emphasis added); reprinted in Lael, supra note 194, at 80. Colonel Clark, Yamashita’s senior defense counsel, commenting on the charge, argued: The Accused is not charged with having done something or having failed to do something, but solely with having been something. For the gravamen of the charge is that the Accused was the commander of the Japanese forces, and by virtue of that fact alone, is guilty of every crime committed by every soldier assigned to his command. Id. at 82. 196 See Parks, supra note 173, at 24. 197 See Lael, supra note 194, at 80. 198 See id. at 80–81.

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and widespread nature of Japanese war crimes in the Philippines, and sought to convict Yamashita of dereliction of duty.”199 The Military Commission learned how Japanese soldiers executed priests in their churches, murdered patients in their hospitals and burned alive or beheaded American prisoners of war during the Japanese defense against the American reconquest of the Philippines.200 Two specific instances of Japanese atrocities were more than appalling. One involved a Japanese soldier tossing a baby in the air, driving his bayonet through the child, thereby impaling the baby in the ceiling, and the other involved twenty Japanese soldiers raping a girl and then cutting off her breasts.201 Yamashita’s defense team argued that although these forces were under his formal command, Yamashita did not have effective control of them because of his inability to communicate orders or receive reports from them, due to American disruption of his command infrastructure. The prosecution could not prove that General Yamashita had ordered the atrocities, or that he had direct knowledge of them.202 Consequently, their case depended on the argument that Yamashita “must have known” of the widespread and enormity of the atrocities. As one author states: Of the hundreds of witnesses produced by Kerr and his colleagues [the prosecutors], almost all emphasized the actual commission of atrocities and war crimes rather than any evidence linking them to high-ranking Japanese officers. By proving the commission of the numerous murders and rapes, the prosecution hoped to convince the court that there was no way for Yamashita not to have known, unless he had made a determined effort not to know. In either case, he was guilty of failure to control his men, guilty of failing to exercise his command responsibility.203

The Commission accepted this argument. It found General Yamashita guilty and sentenced him to death, stating, inter alia: The Prosecution presented evidence to show that the crimes were so extensive and wide-spread, both as to time and area, that they must have been wilfully permitted by the Accused, or secretly ordered by the Accused . . . . Clearly, assignment to command military troops is accompanied by broad authority and heavy responsibility. This has been true in all armies throughout recorded history. It is absurd, however, to consider a commander a murderer or rapist because one of his soldiers commits a murder or a rape. Nonetheless, where murder and rape and vicious, revengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding 199  Id. at 83. 200 Id. 201  Id. at 83–84. 202 The prosecution did present two witnesses who linked Yamashita to these crimes, but the two, former Japanese collaborators imprisoned by the Americans, were shown to be not very credible. See id. at 84–86; Parks, supra note 173, at 29–30. 203 Lael, supra note 194, at 86.



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them. Should a commander issue orders which lead directly to lawless acts, the criminal responsibility is definite and has always been so understood . . . . The Commission concludes: (1) That a series of atrocities and other high crimes have been committed by members of the Japanese armed forces under your [i.e., Yamashita’s] command against people of the United States, their allies and dependencies throughout the Philippine Islands; that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and noncommissioned officers; (2) that during the period in question you failed to provide effective control of your troops as was required by the circumstances.204

Along the same lines, a staff judge advocate that reviewed a summary of the evidence daily concluded: The evidence affirmatively shows a complete indifference on the part of the accused as a commanding officer either to restrain those practices or to punish their authors. The evidence is convincing that the overall responsibility lay with the Army Commander, General Yamashita, who was the highest commander in the Philippines; that he was charged with the responsibility of defending the Philippines and that he issued a general order to wipe out the Philippines if possible and to destroy Manila; that subsequently he said he would not revoke the order. The pattern of rape, murder, mass execution and destruction of property is widespread both in point of time and of area to the extent a reasonable person must logically conclude the program to have been the result of deliberate planning. From all the facts and circumstances of record, it is impossible to escape the conclusion that the accused knew or had the means to know of the widespread commission of atrocities by members and units of his command; his failure to inform himself through official means available to him of what was common knowledge throughout his command and throughout the civilian population can only be considered as a criminal dereliction of duty on his part.205

As a last resort, defense counsel filed a writ of certiorari to the United States Sup­reme Court and In re Yamashita206 was argued before the Court on January 204 Commission Record, supra note 195, at 4059–63. Based on the commission’s opinion, William H. Parks concludes that the verdict could have been based on any one of four theories of command responsibility: (1) that General Yamashita ordered the offenses committed; (2) that, learning about the commission of the offenses, General Yamashita acquiesced in them; (3) that, learning about the commission of the offenses, General Yamashita failed to take appropriate measures to prevent their reoccurrence or to halt them; (4) the offenses committed by the troops under General Yamashita were so widespread that under the circumstances he exhibited a personal neglect or abrogation of his duties and responsibilities as a commander amounting to wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Parks, supra note 173, at 30–31. 205 Cited in Parks, supra note 173, at 32. For other cases that also contributed to the command responsibility doctrine, see also id. at 58–77 (discussing, inter alia, The Hostage Case and the trial of Japanese Admiral Toyoda). 206 327 U.S. 1 (1946).

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7, 1946. A majority of the Court, in addressing the issue of whether the charge against Yamashita failed to specify an offense against the laws of war, stated: [I]t is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by “permitting them to commit” the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result . . . . It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect the civilian population and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.207

However, the impassioned dissent of Justice Murphy, joined in with a concurring opinion by Justice Rutledge, argued that: He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge.208

207 Id. at 14–15. 208 Id. at 28. Justice Murphy did affirm “inaction or negligence may give rise to liability, civil or criminal.” Id. at 39. General Telford Taylor, who succeeded Justice Jackson as Chief U.S. prosecutor at Nuremberg and who supervised the CCL 10 trials, in his book Nuremberg and Vietnam: An American Tragedy (1970) compares the positions of General Westmoreland and General Yamashita in terms of their ability to supervise their troops. He states: From General Westmoreland down they were more or less constantly in Vietnam, and splendidly equipped with helicopters and other aircraft, which gave them a degree of mobility unprecedented in earlier wars, and consequently endowed them with every opportunity to keep the course of the fighting and its consequences under close and constant observation. Communications were generally rapid and efficient, so that the flow of information and orders was unimpeded. These circumstances are in sharp contrast to those that confronted General Yamashita in 1944 and 1945, with his forces reeling back in disarray before the oncoming American military powerhouse. For failure to control his troops so as to prevent the atrocities they committed,



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On February 23, 1946, Yamashita was hanged, but the infamous legacy of his trial survives. The IMT and Subsequent Proceedings did not rely upon the controversial “must have known” command responsibility standard from Yamashita, but both the Hostages and High Command cases adopted the “dereliction of duty” argument from Yamashita. In The High Command Case, General Wilhelm Ritter Von Leeb was acquitted of charges relating to the atrocities committed by his subordinates, including the participation in a plan or conspiracy to implement the Commissars Order, an illegal order for German forces to execute Soviet Commissars and other Soviet Communist officials, and the Command Order, an illegal order for German forces to execute enemy personnel captured in areas to the rear of conventional combat operations.209 Von Leeb argued that while the acts may have occurred in territory under his command, the perpetrators of the crimes were agencies of the Nazi German state over which he exercised no supervision or control. Addressing the issue of command responsibility, the Tribunal did not pursue the almost strict liability approach taken by the Yamashita Commission and rejected the theory that a commander could be held criminally responsible solely on the basis of the commander/subordinate relationship in which he is under the duty to know. The tribunal stated: Military subordination is a comprehensive but not conclusive factor in fixing criminal responsibility. The authority, both administrative and military, of a commander and his criminal responsibility are related but by no means coextensive. Modern war such as the last war entails a large measure of decentralization. A high commander cannot keep completely informed of the details of military operations of subordinates and most assuredly not of every administrative measure. He has the right to assume that details entrusted to responsible subordinates will be legally executed. The President of the United States is Commander-in-Chief of its military forces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory of subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction that can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal law as known to civilized nations.210 Brig. Gens. Egbert F. Mullene and Morris Handwerk and Maj. Gens. James A. Lester, Leo Donovan and Russel B. Reynolds found him guilty of violating the laws of war and sentenced him to death by hanging. Id. at 181. The conclusion is inescapable: by the Yamashita standards, Gen. Westmoreland is guilty. 209 United States v. Von Leeb (The High Command Case), 11 N.M.T. 462, 486 (Nuremberg 1948), reprinted in 2 Friedman 1456. 210 2 CCL Trials at 543–44 (emphasis added).

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With regard to Von Leeb, the Tribunal specifically delineates the standard of knowledge by which a commander can be held criminally responsible, stating: “[I]t is not considered under the situation outlined that criminal responsibility attaches to him merely on the theory of subordination and over-all command. He must be shown both to have had knowledge and to have been connected to such criminal acts, either by way of participation or criminal acquiescence.”211 Thus, according to The High Command Case, clearly a commander must have actual knowledge of criminal conduct or must acquiesce to such conduct. But it should be noted that the Tribunal also recognized that commanders have specific duties, and that failure to carry them out subjects them to responsibility. The High Command Case established a “should have known” test,212 as was applied by the Tribunal in The Hostages Case involving the duty of military commanders in occupied territories, wherein it held: The commanding general of occupied territories having executive authority as well as military command will not be heard to say that a unit taking unlawful orders from someone other than himself was responsible for the crime and that he is thereby absolved from responsibility. It is here claimed, for example, that certain SS units under the direct command of Heinrich Himmler committed certain of the atrocities herein charged without the knowledge, consent, or approval of these defendants. But this cannot be a defence for the commanding general of occupied territory. The duty and responsibility for maintaining peace and order, and the prevention of crime rests upon the commanding general. He cannot ignore obvious facts and plead ignorance as a defence.213

Furthermore, the Tribunal in The Hostages Case distinguished between the command responsibility of field commanders and the commanders of occupied territories: The U.S. military tribunal in the High Command case seemed to have been of the view that with regard to the latter type of commander it is not a matter of course that there is actual control over subordinates, and an ability to intervene. “Occupation commanders” might have a formal position of command but not posses the actual powers of command. Legal authority to direct the actions of subordinates was not considered an absolute requirement for the imposition of superior responsibility.214

In The Hostages Case, a U.S. military tribunal held General Wilhelm List criminally responsible for the executions of thousands of civilians in Greece, Yugoslavia, Norway, and Albania from September 1939 to May 1945. The Tribunal ruled

211  Id. at 555. 212 Id. 213 Id. at 631–32. 214 van Sliedregt, supra note 162, at 126 (emphasis added).



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that List’s position of command required duties of control of the area within his authority. Regarding the knowledge element, the tribunal stated as follows: The defendant List also asserts that he had no knowledge of many of the unlawful killings of innocent inhabitants which took place because he was absent from his headquarters where the reports came in and that he gained no knowledge of the acts. A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. [. . .] If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defense [. . . .] His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal liability.215

Ultimately, the tribunal concluded that List failed to acquire information of the atrocities that had been available to him through reports. But while the judges seemed to apply a “should have known” standard, unlike Yamashita, responsibility arose because of the availability of concrete information (in the form of reports) and not the widespread nature of the atrocities.216 The issue of control was also considered in relation to non-military superiors in both the The WVHA Case and The Doctors’ Case. In The WVHA Case,217 the defendant Karl Mummenthey was an officer of the Waffen SS and managed businesses that employed concentration camp labor. Mummenthey was found criminally liable for the ill-treatment of prisoners by concentration camp guards over whom he was deemed to have had control. The Tribunal held that as an officer of the SS, Mummenthey “wielded power of command.”218 Furthermore, the Tribunal applied the “must have known” standard regarding the ill-treatment: If excesses occurred in the industries under his control he was in a position not only to know about them, but to do something. From time to time he attended meetings of the concentration camp commanders where all items pertaining to concentration camp routine such as labour assignment, rations, clothing, quarters, treatment of prisoners, punishment, etc., were discussed.219

In The Doctors’ Case,220 doctors and military officers were prosecuted for having conducted medical experiments on concentration camp inmates of the Dachau, Buchenwald, and Ravensbrueck camps. While not using the terms command or superior responsibility in the case of the defendant Karl Brandt, the tribunal

215  United States v. Wilhelm List et al. (The Hostages Case), reprinted in 2 Friedman 1323–24. 216  van Sliedregt, supra note 162, at 125–26. 217  V Trials of War Criminals 1052. 218  Id. at 1052–53. 219  Id. 220 II Trials of War Criminals 193.

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imposed on Brandt, a doctor and Hitler’s personal physician, the duty to investigate medical experiments, and the related responsibility for failing to intervene: In the medical field Karl Brandt held a position of the highest rank directly under Hitler. He was in a position to intervene with authority on all medical matters; indeed, it appears that such was his positive duty [. . .] Occupying the position he did and being a physician of ability and experience, the duty rested upon him to make some adequate investigation concerning the medical experiments which he knew had been, were being, and doubtless continue to be, conducted in the concentration camps.221

However, the Tribunal imposed an affirmative duty to prevent or intervene on the military officials prosecuted in The Doctors’ Case: As has been pointed out in this judgment, the law of war imposes on a military officer in a position of command an affirmative duty to prevent or intervene with authority on all medical matters; indeed, it appears that such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war [. . .] With all this knowledge, or means of knowledge, before him as a commanding officer, he blindly approved a continuation of typhus research by Haagen, supported by the program, and was furnished reports of its progress, without so much as taking one step to determine the circumstances under which the research had been or was being carried on, to lay down rules for the conduct of present or future research by his subordinates, or to prescribe the conditions under which the concentration camp inmates could be used as experimental subjects.222

As for the IMTFE,223 twenty-eight former leaders of Japan were prosecuted at the Tokyo Tribunal, including the Japanese Cabinet, senior military officers, and administrative officials charged with crimes against peace, murder and conspiracy to commit murder, war crimes, and crimes against humanity.224 The IMTFE focused on the “operational aspect in attributing responsibility, the failure to act, anticipate, or react, and the functional aspect, the person’s function which entails a duty to act.”225 Concerning the Cabinet, the Tribunal provided: [a] member of a Cabinet which collectively, as one of the principle organs of the Government, is responsible for the care of prisoners is not absolved from responsibility if, having knowledge of the commission of the crimes in the sense already discussed, and omitting or failing to secure the taking of measures to prevent the commission of such crimes in the future, he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the

221  Id. at 193–94. 222 Id. at 212–13. 223 International Military Tribunal for the Far East, 29 April 1946–12 November 1948, The Tokyo War Crimes Trial (Tokyo Judgment), in 2 Friedman 1029–1183 (1972). 224 Parks, supra note 173. 225 van Sliedregt, supra note 162, at 128.



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charge is not directly concerned with the care of prisoners. A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, is powerless to prevent future ill-treatment, but elects to remain in the Cabinet thereby continuing the participate in its collective responsibility for protection of prisoners he willingly assumes responsibility for any ill-treatment in the future.226

In the Koiso case, Kuniaki Koiso, who served in two cabinets as a minister and was appointed Prime Minister in 1944, was found to have known of war crimes being committed in “every theater of war” through information from the Supreme Council for the Direction of War, which he attended.227 Though it was established that he had requested a directive to be issued to the competent authorities prohibiting ill-treatment of prisoners of war, the fact that Koiso served in office for six months more, when the treatment of POWs and internees did not improve, was held to amount to a “deliberate disregard of duty.”228 The IMTFE applied superior responsibility in a war crimes context in the Hirota trial of Kōki Hirota, Foreign Minister of Japan, who received reports of the atrocities committed by the Japanese troops in Nanking, known as the “Rape of Nanking.” Hirota brought Nanking to the attention of the War Ministry, which assured him such atrocities would not continue. The atrocities continued for at least another month after the assurances of the Ministry. Hirota was found guilty even though subordinates who committed the crimes were not in his ministry. Thus, the Hirota decision has been criticized for its overreliance on Hirota’s function, when he lacked actual control over the subordinates: Evidence [. . .] shows that it was far from easy for a Foreign Minister to deal with the military . . . . The peculiar structure in Japan, where the armed forces possessed an independent position, made it the more difficult for the government to intervene in Army affairs. . . . Generally speaking, a Tribunal should be very careful in holding civil government officials responsible for the behavior of the Army in the field.229

Hideki Tōjō, who successively served as Head of the War Ministry, Prime Minister, and Head of the Home Ministry, was held responsible for Japanese soldiers’ mistreatment of civilian internees and prisoners of war.230 Tōjō was judged

226 2 Friedman at 1039. 227 Id. at 1141. 228 Id. 229 1 The Tokyo Judgment: The International Military Tribunal for the Far East (IMTFE) 1126–1127 (B.V.A. Röling and C.F. Rüter eds., 1977); G.R. Vetter, Command Responsibility of Non-Military Superiors in the ICC, 25 YJIL 125–127 (2000); see also van Sliedregt, supra note 162, at 129 (“Emphasis on his function as Foreign Minister entailed the disregard of the reality of his actual power.”). 230 Tokyo Judgment, in 2 Friedman (1972) at 1154.

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criminally liable because he was aware of the atrocities and failed to take effective action to end them.231 As a Prime Minister, the IMTFE imposed on Tōjō a “continuing responsibility for the care of prisoners and civilian internees.”232 As for the requisite standard of knowledge, the Tribunal held that superiors with a duty to secure proper treatment of prisoners could not be excused for a failure to acquire knowledge of the crimes when they should have.233 In most cases the evidence established that the defendants had actual knowledge of the atrocities.234 In addition to the IMT and IMTFE, Allied military courts applied superior responsibility to prosecute lower-echelon superiors in judgments documented by the United Nations War Crimes Commission (UNWCC). In a case before a British military court, Franz Schonfeld et al., the defendant Harders was charged along with Schonfeld for the killing of American, Canadian, and Royal Air Force personnel in Tilburg, The Netherlands. The Judge Advocate referred to domestic law, providing: In English law, a person can be held responsible for the commission of criminal offences committed by others, if he employs them or orders them to act contrary to law. He would, in such circumstances, be criminally responsible for the crimes of his employees whether he was present or not at their commission. Criminal responsibility might also arise, in the case of a person occupying a position of authority, through culpable negligence, for example, if Harders had reasonable grounds for supposing that his men were going to indulge in committing a war crime against their opponents [. . .] and in fact they did so, and he failed to take all reasonable steps to prevent such an occurrence.235

Almost at the same time as the Yamashita trial, the Canadian Military Court in Germany was hearing the case of Brigadeführer Kurt Meyer.236 The trial was conducted in accordance with the Canadian War Crimes Regulations. Article 10 of these regulations states:

231  Id. 232 Id. 233 Superiors deemed to have a duty to secure proper treatment of prisoners included (1) members of the government, (2) military or naval officers in command of formations having prisoners in their possession; (3) officials in those departments concerned with the well-being of prisoners; and (4) officials, whether civilian, military, or naval, having direct and immediate control of prisoners. Id. at 1038–39. 234 For example, Shigetarō Shimada, an admiral of the Japanese Navy who also served as Navy Minister, was acquitted because he had not order, authorized, or permitted crimes, nor had he known of the murders of prisoners in the Pacific. Tokyo Judgment, in 2 friedman (1972) at 1149–1150; see also M.R. Lippman, The Evolution and Scope of Command Responsibility, 13 LJIL 145–47 (2000). 235 XI UNWCC at 70–71. 236 The extracts quoted here are taken from the unpublished transcript, at 839–45 as cited in Leslie C. Green, Superior Orders and Command Responsibility, 1989 Can. Y.B. Int’l L. 167, 196 (1989).



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(4) Where there is evidence that more than one war crime has been committed by members of a formation, unit, body, or group while under the command of a single commander, the court may receive that evidence as prima facie evidence of the responsibility of the commander for those crimes. (5) Where there is evidence that a war crime has been committed by members of a formation, unit, body or group and that an officer or non-commissioned officer was present at or immediately before the time when such crime was committed, the court may receive that evidence as prima facie evidence of the responsibility of such officer or non-commissioned officer, and of the commander of such formation, unit, body, or group, for that crime.237

Meyer was found responsible for inciting and counseling his men to deny quarter to prisoners of war and for the shooting of prisoners at his headquarters.238 In summation, the Judge Advocate said: [T]he Regulations do not mean that a military commander is in every case liable to be punished as a war criminal for every war crime committed by his subordinates, but once certain facts have been proved by the Prosecution, there is an onus cast upon the accused to adduce evidence to negative or rebut the inference of responsibility which the Court is entitled to make . . . . The rank of the accused, the duties and responsibilities of the accused by virtue of the command he held, the training of the men under his command, their age and experience, anything relating to the question whether the accused either ordered, encouraged or verbally or tacitly acquiesced in the killing of prisoners, or willfully failed in his duty as a military commander to prevent, or to take action as the circumstances required to endeavour to prevent, the killing of prisoners are matters affecting the question of the accused’s responsibility.239

In the Takashi Sakai case before a Chinese court, Lieutenant General Sakai was convicted of inciting and permitting his troops to engage in the atrocities against civilians and prisoners in Kwantung and Hainan. Sakai argued that he had not known of his subordinates’ acts, but the court rejected this in recognition of the “accepted principle” that “a field commander must hold himself responsible for the discipline of his subordinates.”240 In the Masao case, Lieutenant General Baba Masao of Japan’s Borneo Campaign was held criminally liable for the ill-treatment and killing of American and British prisoners who were evacuated by his subordinates and forced to march sixty-five miles—many prisoners died on the march and the survivors were shot. At trial, Masao claimed that he had no knowledge of the killings, as the Allies had cut off his communication with his subordinates. However, the Australian military court refused Masao’s claim and followed the precedent of Yamashita,

237 War Crimes Regulations (Canada), P.C. 5831, Aug. 30, 1945. 238 See Green, supra note 236, at 197. 239 Id. at 198. 240 XIV UNWCC at 7.

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citing Masao’s affirmative duty to do everything within his power to intervene in order to protect the prisoners.241 One national prosecution in the United States arising out of the Vietnam War is notable because it brings the command responsibility doctrine full circle from Yamashita (“must have known”), through The High Command Case (“should have known”), to simple actual knowledge.242 The case was that of Captain Ernest Medina, the immediate superior (company commander) to Lieutenant William L. Calley, Jr., who the U.S. Court of Military Appeal determined had directed and participated in the killing of men, women, and children who were in the custody of armed soldiers under Calley’s command in the My Lai (Son My) massacre of March 16, 1968.243 While the village of Son My included families of local Viet Cong forces operating in the area, no military or insurgent personnel were found there, and the American forces did not sustain any casualties, aside from one self-inflicted injury. The summary findings of the official investigation of the My Lai massacre by the Department of the Army documented the mass murder of between 175 and 400 civilians, including “individual and group acts of murder, rape, sodomy, maiming, and assault on noncombatants.”244 Lt. Calley unsuccessfully pled the defense of obedience to superior orders and was sentenced to life imprisonment for premeditated murder. In the end, he served three and a half months in a military prison. Lt. Calley was the only officer the army successfully convicted for the My Lai massacre. Captain Medina was prosecuted for involuntary manslaughter of one hundred Vietnamese.245 The Peers Commission held Captain Medina, the senior commander on the ground, responsible for planning, ordering, and supervising “the

241  XI UNWCC at 59. 242 U.S. v. Medina, 20 USCMA 403; 43 CMR 243 (1971); see also 2 Friedman at 1729. 243 U.S. v. Calley (1971, 1973) CM 426402, 46 CMR 1131; 48 CMR 19; I MLR 2488; 22 USCMA 534 (1973). In a review of Michael Bilton & Kevin Sim, Four Hours in My Lai: The Soldiers of Charlie Company (1992), Marc Leepson states: To criticize the author’s analysis of the war, the Army and the causes of My Lai in no way excuses the reign of terror exacted by most, but by no means all, of the soldiers of Charlie Company (of the American Division’s 11th Infantry Brigade). Under Capt. Ernest Medina and Lt. William L. Calley, Jr. the company—which never was fired upon, took no enemy prisoners and recovered no enemy weapons—killed some 400 men, women and children. Calley himself murdered dozens of unarmed people, including young children and babies. Medina was aware of what was happening and did nothing to stop the raping, sodomizing and killing. Lt. Col. Frank Barker, Col. Warren K. Henderson and General Samuel H. Koster, the officers directly above Calley and Medina, deliberately suppressed the facts of the massacre. Only Calley was convicted of war crimes, and he was given lenient treatment by the Nixon administration and the army. Marc Leepson, Book Review, Chi. Trib., Feb. 23, 1992, at Sec. 14, p. 3. 244 Report of the Department of the Army Review of the Preliminary Investigations in to the My Lai Incident: Volume I, The Report of the Investigation (Department of the Army, 1970) [hereinafter Peers Reports]. 245 Lippman, supra note 234, at 154.



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execution by his company of an unlawful operation against inhabited hamlets in Son My Village which included the destruction of homes by burning, killing of livestock, and the destruction of crops and other foodstuffs, and the closing of wells; and directed the killing of any person there.”246 Captain Medina also claimed that he was following superior orders. However, because his immediate superior, Lieutenant Colonel Frank Barker, had died in Vietnam four months after the massacre, direct responsibility for illegal orders for the massacre could not climb any higher up the chain of command than Captain Medina. In his comments to the jury, the military Judge Colonel Kenneth Howard explained a commander’s responsibilities: After taking action or issuing an order, a commander must remain alert and make timely adjustments as required by a changing situation. Furthermore, a commander is also responsible if he has actual knowledge that troops or other persons subject to his control are in the process of committing or are about to commit a war crime and he wrongfully fails to take the necessary and reasonable steps to insure compliance with the law of war. You will observe that these legal requirements placed upon a commander require actual knowledge plus a wrongful failure to act. Thus mere presence at the scene without knowledge will not suffice. That is, the commander subordinate relationship alone will not allow an inference of knowledge. While it is not necessary that a commander actually see an atrocity being committed, it is essential that he know that his subordinates are in the process of committing atrocities or are about to commit atrocities.247

Captain Medina was acquitted because of lack of actual knowledge. This standard of “actual knowledge” for command responsibility blatantly contradicted the United States Military Tribunal at Nuremberg in The Hostages Case of the Subsequent Proceedings by abandoning the phrase “should have known”.248 The Medina case seems to be an anomaly in United States jurisprudence on the subject of command responsibility, especially in light of the Yamashita precedent.249 246 Peers Report, supra note 244, at 439–41. 247 Cited in Lael, supra note 194, at 130–31; see also 2 Friedman at 1729–39. 248 The Hostages Case, supra note 215, at 1323. 249 In light of this, Professor Clark states that it is “hard to avoid a feeling that there is a certain amount of hypocrisy lurking somewhere.” Lippman, supra note 234, at 154. To date, no high-level superiors have been charged or brought to trial for having failed to supervise the operation at My Lai. General Koster, commanding officer of the unit that launched the My Lai operation, received administrative penalties as a replacement to court-martial charges. Lippman, supra note 234, at 154; see also van Sliedregt, supra note 162 at 132–33. See also Lawrence P. Rockwood, Walking Away from Nuremberg: Just War and the Doctrine of Command Responsibility (2007). Rockwood convincingly states: The fact that American officers were held to a lesser standard of command responsibility [than the leaders of the forces in The Hostage Cases] cannot be explained in terms of any distinction between conditions under which separate criminal acts were perpetrated; rather, it must be explained in terms of the specific identity and/or nationality of the respective perpetrators. . . . The Vietnam-era failure of America to hold its own citizens to the same standards it held out to its defeated enemies has contemporary consequences that includes

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The Army Field Manual provides responsibility for actual knowledge of a commander and also knowledge that the commander should have had, specifically: Responsibility for Acts of Subordinates In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.250

This position reflects contemporary international norms on the subject. Protocol I of the Geneva Conventions provides: The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled him to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.251

Furthermore, Article 87 of the Protocol establishes affirmative duties for the commander to prevent any breaches of the Conventions: 1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. 2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol. 3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this the U.S. possession of a unilateralist legal precedent concerning command responsibility that conflicts not just with its military doctrine, but also with a developing international consensus in humanitarian law. Id. at 115. 250 U.S. Dept. of Army, Law of Land Warfare, & 501 (Field Manual 27-10, 1956) (emphasis added). 251  Protocol I art. 86(2), supra note 178.



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Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or their Protocol, and where appropriate, to initiate disciplinary or penal actions against violators thereof.252

The 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity provides: If any of the crimes mentioned in article I is committed [i.e., “war crimes” and “crimes against humanity”], the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.253

The 1991 Draft Code of Crimes, in Article 12, proposes the following: The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had information enabling them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all feasible measures within their power to prevent or repress the crime.254

This final formulation differs from the evolution that has taken place since the Subsequent Proceedings. The Report of the Secretary-General on the statute of the ICTY stated: Virtually all of the written comments received by the Secretary-General have suggested that the statute of the International Tribunal should contain provisions with regard to the individual criminal responsibility of heads of State, government officials and persons acting in an official capacity. These suggestions draw upon the precedents following the Second World War. The Statute should, therefore, contain provisions which specify that a plea of head of State immunity or that an act was committed in the official capacity of the accused will not constitute a defence, nor will it mitigate punishment. A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew or had reason to know that his subordinates were about to commit or had committed crimes

252 Id. at art. 87; see also art. 43, & 1, which provides that armed forces must be placed “under a command responsible . . . for the conduct of its subordinates.” 253 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, 754 U.N.T.S. 73, at art. II. 254 Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 94, UN Doc. A/46/10 (1991) [hereinafter 1991 Draft Code].

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chapter four and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them. Acting upon an order of a Government or a superior cannot relieve the perpetrator of the crime of his criminal responsibility and should not be a defence. Obedience to superior orders may, however, be considered a mitigating factor, should the International Tribunal determine that justice so requires. For example, the International Tribunal may consider the factor of superior orders in connection with other defences such as coercion or lack of moral choice. The International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon “general principles” of law recognized by all nations.255

The Final Report of the Commission of Experts stated: The Commission addressed the matter of command responsibility in paragraphs 51 through 53 of its first interim report as follows: 51. A person who gives the order to commit a war crime or crime against humanity is equally guilty of the offence with the person actually committing it. This principle, expressed already in the Geneva Conventions of 1949, applies to both the military superiors, whether of regular or irregular armed forces, and to civilian authorities. 52. Superiors are moreover individually responsible for a war crime or crime against humanity committed by a subordinate if they knew, or had information which should have enabled them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such an act and they did not take all feasible measures within their power to prevent or repress the act. 53. Military commanders are under a special obligation, with respect to members of the armed forces under their command or other persons under their control, to prevent and, where necessary, to suppress such acts and to report them to competent authorities. The Commission notes with satisfaction that article 7 of the statute of the International Tribunal uses an essentially similar formulation. The doctrine of command responsibility is directed primarily at military commanders because such persons have a personal obligation to ensure the maintenance of discipline among troops under their command. Most legal cases in which the doctrine of command responsibility has been considered have involved military or paramilitary accused. Political leaders and public officials have also been held liable under this doctrine in certain circumstances. It is the view of the Commission that the mental element necessary when the commander has not given the offending order is (a) actual knowledge, (b) such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences, or (c) an imputation of

255 Report of the Secretary General Pursuant to paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25/94, May 3, 1993.



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constructive knowledge, that is, despite pleas to the contrary, the commander, under the facts and circumstances of the particular case, must have known of the offences charged and acquiesced therein. To determine whether or not a commander must have known about the acts of his subordinates, one might consider a number of indices, including: (a) The number of illegal acts; (b) The type of illegal acts; (c) The scope of illegal acts; (d) The time during which the illegal acts occurred; (e) The number and type of troops involved; (f) The logistics involved, if any; (g) The geographical location of the acts; (h) The widespread occurrence of the acts; (i) The tactical tempo of operations; (j) The modus operandi of similar illegal acts; (k) The officers and staff involved; (l) The location of the commander at the time. The military commander is not absolutely responsible for all offences committed by his subordinates. Isolated offences may be committed of which he has no knowledge or control whatsoever. As a fundamental aspect of command, however, a commander does have a duty to control his troops and to take all practicable measures to ensure that they comply with the law. The arguments that a commander has a weak personality or that the troops assigned to him are uncontrollable are invalid. In particular, a military commander who is assigned command and control over armed combatant groups who have engaged in war crimes in the past should refrain from employing such groups in combat, until they clearly demonstrate their intention and capability to comply with the law in the future. Thus, a commander has a duty to do everything reasonable and practicable to prevent violations of the law. Failure to carry out such a duty carries with it responsibility. Lastly, a military commander has the duty to punish or discipline those under his command whom he knows or has reasonable grounds to know committed a violation.256

In its first interim report, the Commission of Experts made the following statement: 54. A subordinate who has carried out an order of a superior or acted under government instructions and thereby has committed a war crime or a crime against humanity, may raise the so-called defence of superior orders, claiming that he cannot be held criminally liable for an act he was ordered to commit. The Commission notes that the applicable treaties unfortunately are silent on the matter. The Commission’s interpretation of the customary international law, particularly as stated in the Nuremberg principles, is that the fact that a person

256 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674 (May 27, 1994).

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chapter four acted pursuant to an order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact available to him. The Commission notes with satisfaction that Article 7, paragraph 4, of the statute of the International Tribunal adopts an essentially similar approach on this subject.257

The 1996 Draft Code of Crimes addresses these issues in several articles. Article 4 states: Responsibility of States The fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law.258

Article 5 states: Order of a Government or a superior The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if justice so requires.259

Article 6 states: Responsibility of the superior The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had reason to know, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all necessary measures within their power to prevent or repress the crime.260

Finally, Article 7 states: Official position and responsibility The official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of State or Government, does not relieve him of criminal responsibility or mitigate punishment.261

The doctrine of command responsibility now clearly exists in conventional and customary international law. This was evidenced by the Report of the Kahan Commission set up by Israel to inquire into criminal events that took place at 257 First Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, Annex, U.N. Doc. S/25274 (Feb. 10, 1993). 258 1996 ILC Draft Code of Crimes, supra note 14, at art. 4. 259 Id. at art. 5. 260 Id. at art. 6. 261  Id. at art. 7.



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the Palestinian refugee camps Sabra and Shatila in Lebanon on September 16, 1982.262 On that day, to prevent an escalation of violence after the assassination of Lebanese Christian Phalangist leader Bachir Gemayel, the Israeli Defense Forces occupying Beirut after the June invasion of Lebanon authorized a force of the Phalange militia to enter Sabra and Shatila in order to discover and detain Palestinian guerillas.263 The Israeli leaders, including military Chief of Staff Lieutenant General Rafael Eitan and Defence Minister Ariel Sharon, were aware of the desire for revenge of the Phalange and cautioned them to respect the civilian inhabitants of the camps. However, from approximately 6:00 P.M. September 16 until 8:00 A.M. September 18, this force massacred unarmed civilians consisting mostly of older men and women, and children including Palestinians, Lebanese, Iranians, Syrians, Pakistanis, and Algerians.264 The exact number of those killed cannot be determined because bodies were burned in the ruins, deposited in mass graves, and carried from the site in truckloads.265 Estimates of those massacred have ranged from roughly 800 to as many as 3,000 people.266 The Israeli government established the Kahan Commission, headed by the President of the Israeli Supreme Court, Yitzhak Kahan, in order to establish who amongst the political and military leadership bore responsibility for the decision to authorize the agreement with the Phalange and for failing to end the massacre.267 The Commission found Prime Minister Menachem Begin was blamed for relying on calming reports and failing to continue to monitor.268 Defence Minister Ariel Sharon was found “indirectly responsible” for not having anticipated the slaughter.269 The Commission stated: It is true that no clear warning was provided by military intelligence or the Mossad about what might happen if the Phalangist forces entered the camps [. . .] But . . . even without such warning, it is impossible to justify the Minister of Defence’s disregard of the danger of the massacre [. . .] [There was] the widespread knowledge regarding the Phalangists’ combat ethics, their feelings of hatred toward the Palestinians, and their leaders’ plans for the future of the Palestinians when said leaders would assume power [. . .] In the circumstances that prevailed after [the] assassination, no

262 1973, 22 I.L.M. 473 (1983). 263 Linda A. Malone, The Kahan Report, Ariel Sharon and the Sabra-Shatilla Massacres in Lebanon: Responsibility Under International Law for Massacres of Civilian Populations, 1985 Utah L. Rev. 373, 374 (1985). 264 Id. 265 Id. 266 Id.; see Lippman, supra note 234, at 156; Leslie C. Green, Command Responsibility in International Humanitarian Law, 5 Transn. L & Contemp. Probs. 319, 361 et seq. (1995). 267 Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut (7 February 1983), 22 ILM 473 (1983) [hereinafter Kahan Commission]. 268 Id. at 501. 269 Malone, supra note 263, at 374.

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chapter four prophetic powers were required to know that concrete danger of acts of slaughter existed.270

The Commission further held that Sharon had the duty to prevent the entry of the Phalangist forces into the camps.271 Chief of Staff Eitan was held responsible for having approved the entry of the Phalangist force without taking precautionary measures for the Palestinian inhabitants of the camps.272 Foreign Minister Yitzhak Shamir was held responsible for having ignored a statement from a fellow minister on the dangers posed by the Phalange, and was found responsible due to his inaction.273 As one author notes: [I]t would appear that the members of the Commission were aware of the relevant articles of the Geneva Convention and the Protocols for their comments regarding direct and indirect, as well as personal responsibility of the various commanders involved, not only reflect these provisions, but may be considered to go beyond them.274

The Kahan Commission, however, was not a criminal court. As the doctrine of command responsibility is evident in both conventional and customary international law, one may wonder as to the responsibility of Captain Will Rogers III, the commander of the U.S.S. Vincennes, who shot down an Iranian civilian airliner, Flight 665, on a scheduled flight in July, 1988.275 Rogers relied on his crew’s mistaken reading of the instruments due to the stress of the situation and assumed he was about to be attacked by a military aircraft.276 As one author states: “One may apply to the commander, especially in view of his rank and long service, responsibility for weakness in organization and morale of his troops and failure to show the standards of inspection and training to be expected of a senior officer in the American forces.”277 The ad hoc Tribunals have also considered the doctrine of superior responsibility. Reflecting the theory of complementarity, the Tribunals have generally followed a policy of prosecuting individuals in positions of political or military superior authority, although the ICTY and ICTR have statutory jurisdiction over

270 Kahan Commission, supra note 267, at 501–02. 271  Id. at 502. 272 Id. at 505–07. 273 Id. at 519. 274 See Green, supra note 266. 275 David K. Linnan, Iran Air Flight 665 and Beyond: Free Passage, Mistaken Self-Defense, and State Responsibility, 16 Yale J. Int’l L. 245, 248 (1991). See also Aerial Incident of July 3, 1988 (Islamic Republic of Iran v. United States of America), Dec. 13, 1989, I.C.J. Reports 1989, 132. 276 See Green, supra note 266, at 196. 277 Id.



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both superiors and the individuals who execute crimes.278 Conversely, the Special Court for Sierra Leone has more limited jurisdiction, as its statue only permits prosecution of the “persons who bear the greatest responsibility for serious violations of international humanitarian law.”279 The case of Mucić et al. (known as The Čelebići Case), marks the first time that the ICTY heard arguments regarding superior responsibility.280 Until Čelebići, accused before the ICTY were charged and convicted for direct participation under Article 7(1) of the Statute. The Trial Chamber in Čelebići listed the three criteria for superior responsibility, which reflect the doctrine as it developed in the post-World War II jurisprudence: (i) the existence of a superior-subordinate relationship (superior-subordinate relationship); (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed (mens rea); and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or to punish the perpetrator thereof ( failure to prevent/ punish).281

It should be noted that command responsibility is a theory of liability under international humanitarian law.282 Importantly, an accused under the command responsibility doctrine will be held individually criminally liable for participation in war crimes, crimes against humanity, genocide, or for command over

278 Evan Wallach & Maxime Marcus, Command Responsibility, in 3 Bassiouni, ICL, supra note 5, at 468–69. 279 Special Court for Sierra Leone Statute art. 1(1) (January 16, 2002). 280  Prosecutor v. Mucić et al. (Čelebići Trial Judgment), Case No. IT-96-21-T (Nov. 10, 1998), aff ’d Prosecutor v. Mucić et al. (Čelebići Appeals Judgment), Case No. IT-96-21-A (Feb. 20, 2001). For more on the Čelebići case, see I. Bantekas, The Contemporary Law of Superior Responsibility, 93 AJIL 573 (1999); M. Feria Tinta, Commanders on Trial: The Blaškić Case and the Doctrine of Command Responsibility under International Law, 47 NILR 293 (2000); Lippman, supra note 234, at 139; L.S. Sunga, The Čelebići Case: a Comment on the Main Legal Issue’s in the ICTY’s Trial Judgment, 13 LJIL 105 (2000); Commentary on the Čelebići Judgment by Harmen van der Wilt in Klip/Sluiter, ALC-III-669-683. 281 Čelebići Trial Judgment, supra note 280, ¶ 346, aff’d Čelebići Appeals Judgment, supra note 280, at ¶¶ 189–98, 225–226, 238–239, 256, 263; Blaškić Appeals Judgment, supra note 152, ¶ 484; Aleksovski Trial Judgment, supra note 157, aff ’d Prosecutor v. Aleksovski (Aleksovski Appeals Judgment), Case No. IT-95-14/1-A, ¶ 72 (Mar. 24, 2000) (author’s additions in italics); see also Prosecutor v. Kordić & Čerkez (Kordić & Čerkez Trial Judgment), Case No. IT-95-14/2, Judgment, ¶ 827 (Dec. 17, 2004); Blaškić Trial Judgment, supra note 133, ¶ 294; Prosecutor v. Kvočka et al. (Kvočka et al. Trial Judgment), Case No. IT-98-30/1-T, Judgment, ¶ 314 (Nov. 2, 2001); Prosecutor v. Halilović (Halilović Trial Judgment), Case No. IT-01-48, Judgment, ¶ 56 (Nov. 16, 2005); Prosecutor v. Mrkšić et al. (Mrkšić et al. Trial Judgment), Case No. IT-95-13/1-T, Judgment, ¶ 558 (Sept. 27, 2007). 282 Allison Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 121 (2005); Wallach & Marcus, supra note 278, at 471–72.

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individuals who committed such crimes, and not for a lesser offense, such as dereliction of duty.283 The Trial Chamber in Čelebići held that pursuant to the text of Article 7(3) of the ICTY Statute, the concept of “superior” is not limited to military superiors, when read in light of Article 7(2), which affirms individual criminal responsibility for heads of state or responsible government officials. Thus, Article 7(2) of the ICTY Statute extends superior responsibility doctrine beyond military commanders (command responsibility) to political leaders and other non-military superiors in positions of authority.284 The existence of the position of command may arise from de jure status of a superior, or from the existence of de facto powers of control.285 A position of command derives essentially from the “actual possession or non-possession of powers of control over the actions of subordinates.”286 To determine the degree of control to be exercised by the superior over the subordinate, the ICTY Appeals Chamber has endorsed the “effective control” standard, which is defined as the material ability to prevent or punish criminal conduct.287 The existence of a superior-subordinate relationship does “not [. . .] import a requirement of direct or formal subordination.”288 A permanent relationship of command and subordination is not required.289 Furthermore, a unit’s temporary nature has been held not to be, in itself, sufficient to conclude that a superior-subordinate relationship does not exist.290 The ICTY has held that the “effective control” test “implies that more than one person may be held responsible for the same crime committed by a subordinate.”291 The elements of “effective control,” and the capacity to prevent or punish subordinates’ wrongs raise evidentiary issues that have frustrated the ICTY Prosecutor’s Office, which prefers the more elastic concept of “joint criminal enterprise”:292 283 Id. 284 Aleksovski Appeals Judgment, supra note 281, ¶ 76; Čelebići Trial Judgment, supra note 280, ¶ 356. 285 Mrkšić et al. Trial Judgment, supra note 281, ¶ 560. 286 Čelebići Trial Judgment, supra note 280, ¶ 370; Prosecutor v. Strugar (Strugar Trial Judgment), Case No. IT-01-42, Judgment, ¶ 362 (Jan. 31, 2005); Limaj et al. Trial Judgment, supra note 143, ¶ 552; Mrkšić et al. Trial Judgment, supra note 281, ¶ 560. 287 See Osiel, supra note 171, at 1174. 288 Čelebići Appeals Judgment, supra note 280, ¶ 303. 289 Strugar Trial Judgment, supra note 286, ¶ 362. 290 Kunarac et al. Trial Judgment, supra note 157, ¶ 399. 291 Blaškić Trial Judgment, supra note 133, ¶ 303, referring to Aleksovski Trial Judgment, supra note 157, ¶ 106; see also Strugar Trial Judgment, supra note 286, ¶ 365. 292 See Blaškić Appeals Judgment, supra note 135, ¶¶ 407–08, 421 (holding that defendant lacked effective control over brigades committing the criminal acts); see also Čelebići Appeals Judgment, supra note 280, ¶¶ 268, 293, 313–14 (similarly affirming acquittals of defendants Zejnil Delalić and Hazim Delić). In the Kunarac et al. case, the ICTY acquitted Bosnian Serb reconnaissance commander Dragoljub Kunarac of command responsibility for rape even though the Tribunal found that for several months he had often chosen Muslim women at a detention center and escorted



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The control requirement might mean many things. It might mean, for instance, that the superior decides which subordinate or subordinates will perform the criminal actions; he would then, of course, have to know their names in advance of the wrongful acts. Or the requirement might mean that the superior determines which offenses—torture, murder, rape—the subordinates will commit, perhaps also the conditions under which these might occur. The control requirement might even be understood to entail that the superior chooses the particular persons whom the subordinate will victimize in these ways. Or it could mean that he merely identifies the type of person to be subjected to such treatment, such as Bosnians or Shiites.293

Thus, if a judge chooses the most demanding interpretation of the control requirement, he/she risks defeating that requirement’s purpose. The existence of “effective control” in a given case is addressed when determining liability, forcing the law into a predicament. Professor Osiel states: If it is very difficult to find effective control, then serious risk arises of acquitting many of those whose contributions were considerable—even if they did not completely dominate the behavior of other participants. If the law makes it easy to show sufficient control, however, then it risks classifying too many as superiors, when their contributions were little different from those of many around them, including those of inferior rank. Often the nominal commander greatly influences the behavior of others without completely controlling it, and the law should reflect as much. This is especially true when he offers them positive incentives rather than threatening punishment, as by tacitly authorizing—not ordering—looting and pillaging.294

At the ICTY, defendants almost always challenge the inference of formal authority over criminal subordinates that is based the defendant’s position within an official chain of command. These defendants often claim that their de facto power was significantly less than, or different from, their du jure authority.295 However, the superior-subordinate relationship may also exist de facto, without a legal basis—as in the case of Slobodan Milošević, who lacked de jure authority over Bosnian Serb forces during the Srebrenica massacre, though he may have exercised de facto control.296 The ICTY also has a strict view on the mens rea requirement for superior responsibility. Prosecutors must show that the defendant received information putting him/her on actual notice of a developing problem concerning his/her

them to suites where they were repeatedly raped by militia members. Kunarac et al., supra note 157, ¶¶ 583, 626–29. Because members of Kunarac’s unit were picked for particular missions on an ad hoc basis, the Tribunal held that that the time and place of the rapes there was no clear superior-subordinate relationship between Kunarac and the specific subordinates. Id. at ¶ 628. 293 Osiel, supra note 171, at 1774. 294 Osiel, supra note 171, at 1776–77. 295 Čelebići Appeals Judgment, supra note 280, ¶ 197. 296  Id. ¶ 193. See Tim Judah, Milošević on Trial, Survival (Summer 2002), at 157, 162, 164; cf. Gary Bass, Stay the Hand of Vengeance 227 (2000) (“Relations between Milošević’s regime in Belgrade and the Bosnian Serb leaders in Pale were always fractious and often poisonous.”).

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subordinates’ adherence to humanitarian law.297 In determining whether a superior “had reason to know” that his/her subordinates were committing or about to commit a crime, it must be shown that specific information was in fact available to the superior that would have provided notice of the offences committed or about to be committed by his/her subordinates.298 Importantly, the Tribunals have rejected treating the command responsibility doctrine as a form of strict liability or vicarious liability;299 additionally, based on case law from the ICTY and ICTR, the standard to trigger liability is greater than ordinary negligence.300 Even establishing de jure authority has been difficult at the ICTY. For instance, in the Krstić case, General Radislav Krstić argued that General Ratko Mladić had created a separate chain of command that went around Krstić.301 In the Kvočka case, the Tribunal acquitted the deputy commander and the shift leader of police guards at the Omarska death camp because it was established that multiple lines of authority existed in Omarska, and the police who performed the interrogations that involved torture and murder did not report to the defendants.302 Furthermore, the crime committed by the defendants’ subordinates was so

297 Blaškić Appeals Judgment, supra note 135, ¶ 407. But see Osiel, supra note 171, at 1778–79 n.116 (arguing that postmodern views of power are irrelevant to legal assessment of superiorsubordinate relations within a military, which locates power in the professional discourses and “actuarial” practices persons are authorized to deploy, not in the persons themselves). A superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed, but may be established by circumstantial evidence, including the number, type and scope of the illegal acts, the time during which the illegal acts occurred, number and type of troops and logistics involved, geographical location, whether the occurrence of the acts is widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers and staff involved, and location of the commander at the time. Čelebići Trial Judgment, supra note 280, ¶ 386. See also Kordić & Čerkez Trial Judgment, supra note 281, ¶ 427; Blaškić Trial Judgment, supra note 133, ¶ 307; Strugar Trial Judgment, supra note 286, ¶ 368. 298 Čelebići Trial Judgment, supra note 280, ¶ 393; Strugar Trial Judgment, supra note 286, ¶ 369; Limaj et al. Trial Judgment, supra note 143, ¶ 525. It is not required that the superior actually familiarized himself/herself with the information, it must only be available to him. Čelebići Appeals Judgment, supra note 280, ¶ 239. Furthermore, if the superior deliberately refrains from obtaining further information, even though he/she had the means to do so, he may well be considered to have “had reason to know” of the crimes. Čelebići Appeals Judgment, supra note 280, ¶ 226; Blaškić Appeals Judgment, supra note 135, ¶ 406; Halilović Trial Judgment, supra note 281, ¶ 69. 299 Danner & Martinez, supra note 282, at 127–28; Chantal Meloni, Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?, 5 J. Int’l Crim. Just. 619, 630 (2005) (further noting that, based on emerging ICTY case law, the mens rea of the superior is not required to be established for all objective and subjective elements of the subordinates’ crimes and such case law is “more consistent with a responsibility for failure to act rather than with a form of participation in the crime of subordinates”); Wallach & Marcus, supra note 278, at 473. 300 Danner & Martinez, supra note 282, at 129 (citing the ICTY case Blaškić and the ICTR case Bagilishema); Meloni, supra note 299, at 637. 301  See John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal 156, 168 (2003). 302 Prosecutor v. Kvočka et al. (Kvočka Trial Judgment), Case No. IT-98-30/1-T, Judgment, ¶¶ 410–12 (Nov. 2, 2001).



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spontaneous, disorganized, and chaotic that the perpetrators seemed to have “acted without accountability.”303 In the Blaškić case, the Appeals Chamber similarly acquitted General Tihomir Blaškić of murders and other crimes in the village of Ahmići during the Lašva Valley ethnic cleansing campaign on the grounds that the members of the police and paramilitary groups to whom he sometimes issued orders were under the command of Rajic Kordić at the time of the massacre and did not recognize Blaškić’s authority.304 Moreover, superior control can be fluid, depending on such factors the degree of disruption of the lines of authority and communication.305 These evidentiary burdens on the prosecutor may help to explain why the ICTY Prosecutor has favored enterprise participation liability to superior responsibility.306 The ICTY has also held that a superior’s duty to take the necessary and reasonable measures to prevent the commission of a crime or punish the perpetrators thereof relates to his/her possession of effective control, i.e., his/her material ability to take such measures. A superior may be held liable for failing to take measures even in the absence of explicit legal capacity to do so, if it is proven that it was within his/her material ability.307 There is no requirement for the ICTY prosecution to prove causality between the failure to punish and the crime’s commission.308 The Tribunal has further ruled that ICTY Statute Article 7(3) contains two distinct legal obligations309—the duty to prevent the commission of the offence and to punish the perpetrators—and that these are not alternative obligations.310 The duty to prevent arises from the time a superior acquires knowledge, or has reason to know that a crime is being or is about to be committed, while the duty to punish arises after the superior acquires

303 Id. ¶ 411. Though there was no evidence that the defendants had tried to punish the crimes reported to them, the character of the subordinates’ violence suggested that the perpetrators did not constitute a disciplined force and that they did not acknowledge Kvočka as a commander with authority over them. Id. 304 Blaškić Appeals Judgment, supra note 135, ¶¶ 382–400. 305 This was the claim of Japanese General Yamashita before the IMTFE. In re Yamashita, 327 U.S. 1, 32–33 (1946) (Murphy, J., dissenting). 306 See van Sliedregt, supra note 162, at 364 (stating that “the role superior responsibility used to play” has been partially supplanted by enterprise participation, which “has become the concept par excellence on which to base the criminal responsibility of senior military and political figures”). 307 Čelebići Trial Judgment, supra note 280, ¶ 395; Kordić & Čerkez Trial Judgment, supra note 281, ¶ 443; Halilović Trial Judgment, supra note 281, ¶ 73; Limaj et al. Trial Judgment, supra note 143, ¶ 526; Strugar Trial Judgment, supra note 286, ¶ 373; see also Prosecutor v. Blagojević & Jokić (Blagojević & Jokić Trial Judgment), Case No. IT-02-60-T, Judgment, ¶ 73 (Jan. 17, 2005); Brđanin Trial Judgment, supra note 131, ¶ 279; Stakić Trial Judgment, supra note 131, ¶ 461. 308 Wallach & Marcus, supra note 278, at 476. 309 Blaškić Appeals Judgment, supra note 135, ¶ 83; Halilović Trial Judgment, supra note 279, ¶ 72; Limaj et al. Trial Judgment, supra note 143, ¶ 527. 310 Blaškić Appeals Judgment, supra note 135, ¶ 83; Limaj et al. Trial Judgment, supra note 143, ¶ 527.

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knowledge of the commission of the crime.311 A superior is required to act from the moment that he/she acquires such knowledge, and his/her duty to prevent will not be met by simply waiting and punishing afterwards.312 Finally, there are a variety of defenses that an accused superior can assert with respect to the command responsibility doctrine. Such defenses include lack of effective control and inability to command, lack of knowledge, proactive conduct to prevent or punish, and reasonable response under the circumstances.313 In Hadžihasanović & Kabura, the Trial Chamber held that a superior could only be held liable for crimes committed while the superior-subordinate relationship was in place.314 The Chamber’s judgment in the case dedicated almost fifty pages to this topic.315 The Chamber used mostly its own precedent as justification for its holding.316 The Appeals Chamber in Hadžihasanović & Kabura concluded that there was no basis in customary international law to hold a superior liable for the crimes of his/her subordinates when such crimes are committed prior to the superior’s assumption of his/her position of command.317 Judge Mohamed Shahabuddeen penned a dissent in Hadžihasanović & Kabura318 that he reworked in Orić as a declaration319 that was joined by Judges Liu Daqun320 and Wolfgang Schomberg.321 The declaration urged the Tribunal to overrule its decision in Hadžihasanović & Kabura. Nevertheless, since a majority of judges

311 Blaškić Appeals Judgment, supra note 135, ¶ 83; Kordić & Čerkez Trial Judgment, supra note 281, ¶¶ 445–46; Limaj et al. Trial Judgment, supra note 143, ¶ 527; Strugar Trial Judgment, supra note 286, ¶ 372; cf. Charles Garraway, Criminal Liability and Command Responsibility, in The Legal Regime of the International Criminal Court: Essays in Honour of Professor Ignor Blishchenko 723 (José Doria, Hans-Peter Gasser, M. Cherif Bassiouni eds., 2009) (noting that a commander cannot be required to punish, as a the commander may have no power to do so, but the commander must refer relevant matters to the proper authorities). 312 Strugar Trial Judgment, supra note 286, ¶ 373; Limaj et al. Trial Judgment, supra note 143, ¶ 527; see also Meloni, supra 299, at 632 (arguing that command responsibility is “a sui generis mode of liability for failure to act”); Garraway, supra note 311, at 723–24 (discussing the liability differences between a superior who was in command when the crimes were committed and a superior who learns of the crimes after taking command). 313 Wallach & Marcus, supra note 278, at 476–79. 314 See Prosecutor v. Hadzihasanović & Kabura (Hadžihasanović et al. Trial Judgment), Case No. IT-01-47-T, Judgment, ¶ 199 (Mar. 15, 2006); Hadzihasanović & Kabura (Hadzihasanović & Kabura Interlocutory Appeal), Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (July 16, 2003). 315 Hadžihasanović et al. Trial Judgment, supra note 314. 316 See 1 Global Cmty Y.B. Int’l L. & Jurisprudence 371 (2007). 317 Hadzihasanović & Kabura Interlocutory Appeal, supra note 314, ¶ 45. 318 Hadžihasanović et al. Interlocutory Appeal, supra note 314, Dissent by Judge Shahabuddeen (July 16, 2003). 319 Prosecutor v. Orić (Shahabuddeen Orić Declaration), Case No. IT-03-68-A, Declaration of Judge Shahabuddeen (July 3, 2008). 320 Prosecutor v. Orić (Liu Orić Dissent), Case No. IT-03-68-A, Partially Dissenting Opinion and Declaration of Judge Liu (July 3, 2008). 321 Prosecutor v. Orić (Schomburg Orić Dissent), Case No. IT-03-68-A, Separate and Partially Dissenting Opinion of Judge Schomburg (July 3, 2008).



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were unwilling to formally dissent, the Appeals Chamber declined to reconsider the ratio decidendi of Hadžihasanović & Kabura even though the parties briefed the issue.322 In the Orić case,323 the Trial Chamber had originally convicted Naser Orić, a Bosniak commander of the Joint Armed Forces around Srebrenica, for failing to prevent subordinates under his command from mistreating Bosnian Serb prisoners and sentenced him to two years imprisonment.324 The Trial Chamber acknowledged that, although it would have ruled differently if the issue was one of first impression, it was bound by the precedent in Hadžihasanović & Kabura to reject the Prosecution’s arguments that the defendant could be prosecuted and convicted for failing to punish police officer subordinates whose crimes were committed before the creation of a superior-subordinate relationship involving the accused.325 The ICTR has required the Prosecutor to establish three elements in order for the accused to be held responsible under Article 6(3) of the Statute. They are: (1) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over this subordinate (i.e., he had the material ability to prevent or punish commission of the crime by his subordinate); (2) the accused knew or had reason to know that the crime was going to be committed or had been committed; and (3) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate.326

In Ntagerura et al., the ICTR covered the trials of three accused: Andre Ntagerura, the Minister of Transportation and Communication, Emmanuel Bagambiki, the prefect with legal authority to requisition both gendarmes and soldiers, and Samuel Imanishimwe, the commander of the Karambo military camp, for largescale attacks against Tutsi refugees, as well as the imprisonment, mistreatment, and killings of specific individuals.327 The Chamber held that Bagambiki was the direct supervisor of Bourgmestre Kamana and the Kagano commune police, 322 Prosecutor v. Orić (Orić Appeals Judgment), Case No. IT-03-68-A, Judgment. ¶ 167 (July 3, 2008). 323 Id. 324 Prosecutor v. Orić (Orić Trial Judgment), Case No. IT-03-68-T, Judgment, ¶¶ 490, 565–72, 578 (June 30, 2006). He was immediately released for time served. The Appeals Chamber reversed the conviction on the Prosecutor’s appeal. Orić Appeals Judgment, supra note 322, ¶ 180. 325 Orić Trial Judgment, supra note 324, ¶ 335. The Trial Chamber noted “for a superior’s duty to punish, it should be immaterial whether he or she had assumed control over the relevant subordinates prior to their committing the crime.” Id. ¶¶ 574–75. 326 Nahimana et al. Appeals Judgment, supra note 143, ¶ 484; see also Gacumbitsi Appeals Judgment, supra note 151, ¶ 143 (similar language). 327 Prosecutor v. Ntagerura et al. (Ntagerura et al. Trial Judgment), Case No. ICTR-97-36-T, ¶¶ 5, 12, 13 (Feb. 25, 2004). The Trial Chamber found the indictment of Ntagerura too vague, citing the failure of the prosecutor to allege any criminal conduct on the part of the accused in finding him not guilty on all charges.

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both of whom had participated in an attack against refugees at Nyamasheke.328 Despite the absence of evidence of Bagambiki’s knowledge of the attack before it happened, the Chamber found that he should have known of Kamana’s participation.329 However, the Chamber determined that the Prosecutor failed to prove beyond a reasonable doubt that Bagambiki had failed to take “necessary and reasonable measures” to punish Kamana, and therefore, Bagambiki was not held responsible for the Nyamsheke massacre.330 The Chamber decided differently in the case of Imanishimwe, holding that he knew or should have known that soldiers over which he was found to have both de jure and effective control over killed a group of Tutsi refugees at the Gashirabwoba football field.331 This attack was classified as part of a systematic attack against civilians based on political and ethnic grounds.332 Imanishimwe was convicted for the crime against humanity of extermination, which the Chamber determined to be a more comprehensive description of the acts than murder.333 Thus, the history of command responsibility doctrine shows that a commander’s responsibility for his/her troops has long been recognized. It has always been clear that if a superior orders a subordinate to perform unlawful acts, he/she is criminally responsible. Since this precept is so well recognized, much of the literature and opinions of courts, especially after World War II, have concentrated on the second aspect of the doctrine, namely that a commander may be held responsible for the unlawful acts of his/her subordinates if he/she failed to act to prevent the unlawful activity when he/she “knew” or “should have known” of the activity. However, national courts have set different legal tests ranging from “could have known” to “having actual knowledge.”334 The Law of the London Charter and post-Charter legal developments did not resolve two fundamental legal issues. One is the dilemma of conflicting legal duties that may arise in part by law or by a superior’s order running contrary to a commander’s general or specific legal duty. The other is the range of options and legal standards and tests to determine what a military person must do in the face of superior orders that violate or appear to violate his/her legal duties. In The High Command Case of the Subsequent Proceedings, the Tribunal held: While, as stated, a commanding officer can be criminally responsible for implementing an illegal order of his superiors, the question arises as to whether or not he becomes responsible for actions committed within his command pursuant to

328 Id. ¶ 313. 329 Id. ¶ 649. 330 Id. ¶ 650. 331   Id. ¶ 654. 332 Id. ¶ 745. 333 Id. 334 See Parks, supra note 173.



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criminal orders passed down independent of him. The choices which he has for opposition in this case are few: (1) he can issue an order countermanding the order; (2) he can resign; (3) he can sabotage the enforcement of the order within a somewhat limited sphere. As to countermanding the order of his superiors, he has no legal status or power. A countermanding order would not only subject him to the severest punishment, but would undoubtedly have focused the eyes of Hitler on its rigorous enforcement.

His/her second choice—resignation—was not much better. Resignation in war time is not a privilege generally accorded to officers in an army. This is true in the Army of the United States. Disagreement with a state policy as expressed by an order affords slight grounds for resignation. In Germany, under Hitler, to assert such a ground for resignation probably would have entailed the most serious consequences for an officer. Another field of opposition was to sabotage the order. This he/she could do only verbally by personal contacts. Such verbal repudiation could never be of sufficient scope to annul its enforcement. A fourth decision he/she could make is to do nothing. Control Council No. 10, Article II, paragraph 2, provides in pertinent part as follows: Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph I of this article, if he . . .

(b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission . . . .

As heretofore stated, his “connection” is construed as requiring a personal breach of a moral obligation. Viewed from an international standpoint, such has been the interpretation of preceding Tribunals. This connection may however be negative. Under basic principles of command, authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal, violates a moral obligation under international law. By doing nothing he cannot wash his hands of international responsibility. His only defense lies in the fact that the order was from a superior which Control Council Law No. 10 declares constitutes only a mitigating circumstance . . . .335

In this respect, the issue of command responsibility rejoins that of obedience to superior orders, which is discussed in Chapter 8.

335 2 CCL Trials.

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The Rome Statute discusses these issues in Articles 27 and 28. The statute’s formulation does not depart from extant customary international law, and constitutes an adequate restatement of it. 8.2. Civilian Command Responsibility Civilian superiors in a state hierarchal structure who are not part of the military or subject to its control do not fall under the command responsibility norms and standards discussed above. Instead, they are subject to national criminal laws, which vary significantly from state to state. While national military laws, as a result of the Law of the London Charter’s influence and the international regulation of armed conflicts, have achieved a high level of conformity, national criminal laws have not. Thus, a major difference exists between command responsibility norms and standards in national military law (applicable to military and in some states also to paramilitary organization’s personnel) and national criminal laws (applicable to civilians in the governmental hierarchy and in most states to law enforcement agencies). Consequently, there are different legal outcomes depending upon the applicable source of law. In assessing the international norms and standards that have been incorporated into national military laws in comparison to the norms and standards of civilian command responsibility in the world’s major criminal justice systems, it appears that the former are more homogenous than the latter. This dissimilarity of criminal responsibility levels produces asymmetrical treatment of those who have engaged in similar conduct resulting in similar harmful outcomes. The essential reason for this situation is the lack of cohesive legislative policy in almost every country in the world, which allows the compartmentalization of different aspects of the law. But another explanation, which is related to the essential reason stated above, is the fact that in post-Charter legal developments,336 particularly the international regulation of armed conflicts under the impetus of the Geneva Conventions, a separate source of law has imposed upon states a duty of conformity with international norms and standards in military law unparalleled in other aspects of national criminal laws. But since international norms and standards of command responsibility penetrate national laws,337 they should logically extend to all branches of national laws whether they are applicable to military or civilian personnel. That breakthrough, however, has not yet occurred in national criminal justice systems. If any similarities exist between national norms and

336 See generally Bassiouni, Crimes Against Humanity, supra note 1, at 167–294. 337 Id.



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standards of command responsibility in military laws and criminal laws, they are usually coincidental. The differences between these two sources of national laws are a consequence of their respective policies, goals, and methods. But in the last few decades national criminal laws have introduced a concept of decision-makers’ criminal responsibility, particularly applicable to business structures, similar to that of military command responsibility. In the United States, for example, it first arose in the fields of antitrust and food and drug control, whereby senior corporate executives up to and including the chief executive officer could be held criminally accountable for their commissions and particularly for their omissions for failure to take appropriate steps to prevent a known or foreseeable harmful result.338 The increased reliance of national criminal justice systems on concepts of corporate criminal responsibility has also generated new approaches to the individual criminal responsibility of those in the corporate hierarchy.339 But national criminal justice systems that struggle with these new concepts and policy approaches to the control of harmful behavior produced by organizations (which are of course commanded, controlled or influenced by persons), fail to take into account the international norms and standards of military command responsibility. This is particularly significant with respect to crimes against humanity, which are the product of state policy.340 But state policy is not the exclusive province of the military. In fact, the military may only be a part of it, and in some cases it is not involved. Thus, the international and national norms and standards of military command responsibility would not be applicable to some or all of those who were part of the processes leading to the decision and/ or to its implementation of state policy resulting in the commission of crimes against humanity. Such nonmilitary perpetrators would be judged in accordance with national norms and standards of civilian criminal laws, and that, of course, does not provide a uniform international legal basis of accountability. To try to develop international civilian norms and standards on the basis of general principles would almost be impossible because of the diversity in norms of responsibility and imputability in the world’s major criminal justice systems.

338 See United States v. Parks, 421 U.S. 658 (1975); United States v. Dotterwich, 320 U.S. 277 (1943). Both cases are discussed in Bassiouni, supra note 4, at 148–57. For the application of the same principle in the areas of antitrust, securities, and tax, see, e.g., International Criminal Law: A Guide to U.S. Practice and Procedure (Ved P. Nada & M. Cherif Bassiouni eds., 1987). 339 For an early position, see Henry W. Edgerton, Corporate Criminal Responsibility, 36 Yale L.J. 827 (1927). The International Association of Penal Law has devoted several of its Congress subjects and volumes of the RIDP to this topic. See, e.g., Les Sociétés Commerciales et le Droit Pénal 58 RIDP 17–165 (1987); Infractions D’Omission et Responsabilité Pénale pour omission 55 RIDP 453–1040 (1984); Conception et Principes du Droit Pénal Économique et des Affaires y Compris la Protection du Consommateur, 54 RIDP 17–865 (1983); Criminalité d’Affaires, 53 RIDP 21–523 (1982). 340 See generally Bassiouni, Crimes Against Humanity, supra note 1, at 14–19.

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There are signs that civilian responsibility may be gaining ground. In order to sustain a conviction against a civilian superior for command responsibility, both the ICTY and ICTR have required a showing that the civilian superior possessed powers of authority analogous to those of a military commander.341 The ICTR’s successful prosecution of Jean Kambanda,342 the former Prime Minister of Rwanda, showed that international tribunals had jurisdiction over and were capable of hearing cases involving heads of state who formerly would have been entitlted to substantive immunity for their actions, even those actions constituting war crimes and crimes against humanity. Kambanda, who pleaded guilty to the crime of genocide, was sentenced to life imprisonment. The ICTY also tackled the idea of head of state immunity in its prosecution of Slobodan Milošević for crimes against humanity and war crimes, relying on Article 7(2) of its Statute343 to remove Milošević’s temporal immunity.344 At the time of his prosecution, Milošević was still the President of the Federal Republic of Yugoslavia. However, Milošević died during his trial, removing any possibility of a sentence. Following these examples, the Special Court for Sierra Leone revoked the immunity of Charles Taylor, President of Liberia.345 Most recently, the ICC Prosecutor presented a case to the pre-trial chamber regarding Sudanese President Omar Hassan Ahmad Al Bashir. Prosecutor Luis Moreno-Ocampo presented evidence against President Al Bashir for genocide, crimes against humanity, and war crimes in the Darfur region of Sudan.346 Although the prosecution of heads of states has occurred less with respect to national jurisdiction, some recent events show that more states may be willing to prosecute heads of state, immunity notwithstanding, should certain prerequisites be met. In the 2000 decision of Congo v. Belgium, the ICJ described several situations in which immunity may not apply, including prosecution within

341 See Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgment ¶ 75 (June 25, 1999) (noting that doctrine applies to civilian authorities who are “in a similar position of command and exercise a similar degree of control with respect to their subordinates.”); Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment, ¶ 880 (Jan. 27, 2000) (finding defendant exercised sufficient de jure and de facto control over employees of his tea factory to support a finding of command responsibility, but dismissing command responsibility counts involving crimes by non-employees within the general population). 342 Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence (Sept. 4, 1998). 343 See ICTY Statute, supra note 15, at art. 7(2). 344 Prosecutor v. Milošević, Case No. IT-02-54-T, Decision on Preliminary Motions, ¶ 25 (Nov. 8, 2001). 345 Prosecutor v. Taylor, Case No. 2003-01-I, Decision on Immunity from Jurisdiction, ¶ 35 (May 31, 2004). 346 Press Release, International Criminal Court, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al Bashir, for Genocide, Crimes Against Humanity and War Crimes in Darfur, ICC-OTP-20080714-PR341-ENG (July 14, 2008).



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an international tribunal or within a national jurisdiction after leaving office.347 Since this ruling, several states have initiated national prosecutions of former heads of state including Hissène Habré, the former dictator of Chad, who was tried in absentia, found guilty, and sentenced to death in Chad amid fears that he would not face prosecution in Senegal;348 Alberto Fujimori who was finally extradited to Peru to face charges of human rights abuses;349 and Saddam Hussein, who was convicted November 5, 2006 by the Iraqi High Tribunal for crimes against humanity.350 Whether this trend will continue is unknown, as many more former heads of states alleged to have committed human rights abuses continue to enjoy asylum abroad. Civilian government officials, industrialists, business persons, and even law enforcement officials who are either part of the decision-making or implementing processes of crimes against humanity are therefore likely to escape accountability or punishability, or to be judged by lesser standards than their counterparts in the military. The Law of the London Charter does not address this question, nor do post-Charter legal developments, in contrast to the Rome Statute. Articles 27 and 28 of the Rome Statute specifically apply to officials whether military or civilian, and whether they exercise direct “command and control” or not. In fact, these provisions constitute a notable progressive development in international criminal law.351 Section 9. Joint Criminal Enterprise “Joint criminal enterprise” is a form of international criminal liability with roots in Nuremberg conspiracy law that has largely been created by judges and prosecutors of the ICTY.352 According to joint criminal enterprise theory, an individual 347 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. ¶ 61(Feb. 14). 348 Senegal May Finally Try Habre, Reuters, July 24, 2008. Habre was, however, not tried for crimes against humanity, leaving that option open for Senegal to pursue. Habre instead was convicted of threatening the democratic government of Chad. For a discussion of Habre’s August 15, 2008 conviction in Chad, see Chad Confirms Former President Habre’s Conviction, Agence France Presse, Aug. 19, available at http://afp.google.com/article/ALeqM5jRB8NAgF4CYAzlVwngJZzPdkgKFw. 349 Extradited Fujimori Back in Peru, BBC Sept. 22, 2007; Moumine Ngarmbassa, Habre Death Sentence Won’t Alter Senegal Case—Chad, Reuters Africa, Aug. 19, 2008, available at http://africa .reuters.com/wire/news/usnLJ487890.html. 350 John F. Burns and Kirk Semple, Hussein is Sentenced to Death by Hanging, N.Y. Times, Nov. 6, 2006; see also Bassiouni, Crimes Against Humanity, supra note 1, at 695–97. 351 See ICC Statute, supra note 16, at arts. 25–27. 352 Allison Marston Danner, Joint Criminal Enterprise, in 3 Bassiouni, ICL, supra note 5, at 483–92; Bassiouni, Crimes Against Humanity, supra note 1, at 560. The Tadić court referred to this doctrine by an array of names and used the various descriptions interchangeably: “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” “common concerted design,” “criminal enterprise,”

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may be held responsible for all crimes committed pursuant to the existence of a common plan or design that involves the commission of a crime provided for in the Statute if the defendant participates with others in the common design.353 But prosecutorial enthusiasm for the incredible potency of joint criminal enterprise must be weighed against doubts about the doctrine’s broad applicability. Joint criminal enterprise serves to link crimes to several persons (perpetrators and accomplices). On the other hand, it also connects persons with distinct crimes and attempts to represent the interaction and cooperation between members of a group or organization, depicting the dynamics of collective action that, for many, embodies international crimes, particularly crimes against humanity. The doctrine has functioned to address mob violence, the extensive criminal responsibility of political and military leaders, and the responsibility of those involved in a criminal organization similar to a concentration or death camp.354 In such situations, a strict principal-accomplice relationship insufficiently defines relationships in which joint principals each make an essential causal contribution to an element of the actus reus: The doctrine of common purpose or joint criminal enterprise compensates for this “deficiency” in the Anglo-American complicity doctrine by not requiring an exact identification of the causal contributions that led to the offence(s), but rather leaving them under the cover of “joint enterprise” or “common purpose”. Common purpose is based on the principles of accomplice liability where the responsibility of one is (partly) derived from the causal contribution of the other and where joint “principals” are each liable for their joint acts and are punished for the principal crime.355

“common enterprise,” and “joint criminal enterprise.” Prosecutor v. Brđanin, Case No. IT-99-36 Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ¶ 24 (June 26, 2001) (describing the Tadić Judgment). See also Osiel, supra note 171 (referring to “enterprise participation” as shorthand for “participation in a joint criminal enterprise). Moreover, the Office of the Prosecutor of the ICTY has used the phrase “acting in concert” in its indictments to refer to joint criminal enterprise. Prosecutor v. Vasiljević (Vasiljević Trial Judgment), Case No. IT98-32-T, Judgment, ¶ 63 (Nov. 29, 2002). The ICTY Appeals Chamber has said that the phrase “joint criminal enterprise is preferred.” Prosecutor v. Šainović et al. (Šainović et al. Jurisdictional Decision), Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction— Joint Criminal Enterprise, ¶ 36 (May 21, 2003). 353 Vasiljević Appeals Judgment, supra note 157, ¶¶ 94–101 (summarizing joint criminal enterprise jurisprudence). But see Osiel, supra note 171, at 1803 (stating one of the general criticisms of joint criminal enterprise, namely that it has a vagueness problem because it operates as a legal fiction, because “none of its supposed members would have defined themselves in this particular manner.”). 354 Joint criminal enterprise appeals to prosecutors because it can extend beyond the formal military hierarchy to include civilian bosses and paramilitary groups, which often operate outside of formal command. See generally Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law 1 (2002). Joint criminal enterprise could also reach the multitude of new armies increasingly subcontracted for military work, including combat—i.e., the increasing use of privately contracted soldiers. See, e.g., P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry 40–70 (2003). 355 van Sliedregt, supra note 162, at 75.



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Despite similarities, joint criminal enterprise is distinct from conspiracy. Importantly, joint criminal enterprise never constitutes a substantive crime, but conspiracy can serve as a substantive crime and as a theory of liability.356 Both conspiracy and joint criminal enterprise require an agreement. There is no requirement at common law for “overt act” in furtherance of the agreement to support a finding of conspiracy, but joint criminal enterprise requires “that the parties to that agreement took action in furtherance of the agreement.”357 The ICTY Appeals Chamber noted that joint criminal enterprise requires “the commission of criminal acts in furtherance of that enterprise,” thus distinguishing it from conspiracy.358 But many jurisdictions do require an overt act in furtherance of the conspiracy, so it is not clear how much weight to give such a distinction between conspiracy and joint criminal enterprise.359 Joint criminal enterprise is also distinct from aiding and abetting with regards to both the actus reus and mental state elements.360 An aider and abettor must contribute substantially to the crime, but does not have to possess the mens rea required by the crime’s definition—it is enough for the aider and abettor merely to know that he/she is helping commit a crime.361 But if an aider and abettor knows that he/she is helping others commit a crime and he/she possesses the mental state for the crime, he/she is no longer an aider an abettor, but rather should be considered to be a co-perpetrator.362 The members of a joint criminal enterprise are all considered co-perpetrators.363 Although joint criminal enterprise is not explicitly described in the Statutes of the ICTY or ICTR, judges from both Tribunals have found that it is implicitly included in the language of Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute.364 Both Tribunals qualify participation in a joint criminal enterprise as a form of commission; both view the doctrine as grounded in post-World War II jurisprudence, which it believes is a part of customary international law.365 356 Danner & Martinez, supra note 282, at 118. 357 Id. at 119 quoting Prosecutor v. Multinović, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, ICTY Appeals Chamber, at para. 23, Case No. IT-937-AR72 (May 21, 2003). 358 Id. 359 Id. 360 Danner, supra note 352, at 489. 361  Id. 362 Id. 363 Id. 364 See Prosecutor v. Martić, Case No. IT-95-11-A, Judgment, ¶ 82 (June 12, 2007) (noting that the “crimes contemplated in the Statute mostly constitute the manifestations of collective criminality and are often carried out by groups of individuals acting in pursuance of a common criminal design or purpose.”); see also Simba Trial Judgment, supra note 155, ¶ 385 (“Article 6(1) does not make explicit reference to ‘joint criminal enterprise.’ However, the Appeals Chamber has previously held that participation in a joint criminal enterprise is a form of [responsibility] under customary international law.”). 365 Tadic Appeals Judgment, supra note 134 ¶ 197 et seq. The Tadic Appeals Judgment was the first decision by an international tribunal to conclude that the doctrine of joint criminal enterprise

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The preeminence of joint criminal enterprise at the ICTY dates from the Tadić case, wherein the Appeals Chamber treated joint criminal enterprise as a prosecutable form of “commission,” despite its Statute’s silence as to that particular form of liability and its exclusion of conspiracy except with respect to genocide.366 Even though the Tadić indictment did not specifically allege joint criminal enterprise liability, the theory was allowed on appeal.367 Tadić was the former President of the Local Board of the Serb Democratic Party in Kozarac. In 1995, the ICTY prosecutor indicted him on a variety of charges. At his trial, Tadić was convicted of several counts of war crimes and crimes against humanity. However, the Trial Chamber acquitted him of one of the most serious charges—murder as a crime against humanity—for the murder of five Muslims in the Bosnian village of Jaskići.368 The Trial Chamber found that Tadić was a member of a group of armed men who entered Jaskići and beat its inhabitants, and noted that the five victims, who were alive when the armed group entered the town, were found dead by other villagers after the group’s departure. Ultimately, the Trial Chamber exists in customary international law. Id. at ¶ 226. The Appeals Chamber concluded that “the consistency and cogency of the case law and the treaties [it] referred to . . . , as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general [ICL] and in national legislation, warrant the conclusion that case law reflects customary rules of [ICL].” Id.; see Stakić Trial Judgment, supra note 131, ¶¶ 438, 528. The Trial Chamber emphasizes that joint criminal enterprise is only one of several possible interpretations of the term ‘commission’ under Article 7(1) of the Statute and that other definitions of co-perpetration must equally be taken into account. Furthermore, a more direct reference to ‘commission’ in its traditional sense should be given priority before considering responsibility under the judicial term ‘joint criminal enterprise.’ ʻCommission,’ as a mode of liability, is broadly accepted, and joint criminal enterprise provides one definition of ‘commission. Id.; see also Danner, supra note 352, at 484. For the ICTR, see Nahimana et al. Appeals Judgment, supra note 143, ¶ 478 (“Commission covers ‘participation in a joint criminal enterprise.’ ”); Muvunyi Trial Judgment, supra note 155, ¶ 463 (similar language as Nahimana et al. Appeals Judgment); Simba Trial Judgment, supra note 155, ¶ 385. 366 Tadić Appeals Judgment, supra note 134, ¶¶ 187–220. 367 Since the Tadić Appeals Judgment, supra note 134, when the Prosecutor intends to rely on joint criminal enterprise, it must specifically plead joint criminal enterprise in the indictment. See Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgment, ¶ 398 (Dec. 2, 2008), citing Simić Appeals Judgment, supra note 157, ¶ 22. [W]hen the Prosecution charges the ‘commission’ of one of the crimes . . . , it must specify whether the said term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. It is not enough for the generic language of an indictment to ‘encompass’ the possibility that joint criminal enterprise is being charged. The Appeals Chamber reiterates that joint criminal enterprise is being charged. The Appeals Chamber reiterates that joint criminal enterprise must be specifically pleaded in an indictment. . . . [I]t is insufficient for an indictment to merely make broad reference to Article 7(1) . . . ; such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Id. 368 Tadić was convicted of the killing of two Muslim policemen in the town of Kozarac. Prosecutor v. Tadić, Case No. IT-94-1-T, Sentencing Judgment, ¶ 57 (July 14, 1997).



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determined that it could not substantiate “beyond reasonable doubt that the accused had any part in the killing of the five men.”369 The prosecution appealed Tadić’s acquittal on this charge, arguing that the Trial Chamber erred in its application of the test of proof beyond reasonable doubt. The Appeals Chamber agreed, holding that “the only reasonable conclusion the Trial Chamber could have drawn is that the armed group to which [Tadić] belonged killed the five men.”370 The Appeals Chamber then considered whether Tadić could be found guilty of the killings, despite the lack of proof that he had personally shot the men. It began by reviewing the language of Article 7(1). Although it noted that the forms of liability articulated therein described “first and foremost the physical perpetration of a crime by the offender himself,” it also found that the crimes within the jurisdiction of the Tribunal “might also occur through participation in the realization of a common design or purpose.”371 In order to determine the relevant requirements for common purpose liability, the Appeals Chamber turned to customary international law, which it derived primarily from the jurisprudence of military courts set up in the aftermath of World War II. The Appeals Chamber identified several cases from this period in which it found that military courts had convicted individuals on the basis of participating in the common plan. After reviewing this jurisprudence, the Appeals Chamber concluded that, “broadly speaking, the notion of common purpose encompasses three distinct categories of collective criminality,”372 namely: (1) Category One—provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan;373 (2) Category Two—provides for liability for individuals who contribute to “organized systems of repression and ill-treatment,” primarily death or concentration camps;374 and (3) Category Three—relates to criminal acts that fall outside the common design.375

369 Tadić Trial Judgment, supra note 157, ¶ 373. 370 Tadić Appeals Judgment, supra note 134, ¶ 183. 371  Id. at ¶ 188. 372 Id. at ¶ 195. 373 Id. at ¶ 196. In later cases, the Appeals Chamber reformulated the common design element to require that the defendants have entered into an agreement with other members of the joint criminal enterprise to commit crimes. See Šainović et al., Jurisdictional Decision, supra note 352, ¶ 23, Case No. IT-99-37-AR72 (May 21, 2003); see also Osiel, supra note 171, at 1785. See generally Prosecutor v. Haradinaj (Haradinaj Trial Judgment), Case No. IT-04-84-T, Judgment, ¶¶ 135–39 (discussing elements of joint criminal enterprise doctrine). 374 See Tadić Appeals Judgment, supra note 134, ¶ 196. 375 The theory of Category Three is that participants in the joint criminal enterprise willingly took the risk of the commission of additional non-intentional but foreseeable crimes.

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To be found guilty of the crime of murder as a crime against humanity under Category One, the prosecution must prove that (1) a common plan was to kill the victim; (2) the defendant voluntarily participated in at least one aspect of this common design; and (3) the defendant intended to assist in the commission of murder, even if he/she did not himself/herself perpetrate the killing.376 For Category Two, the prosecution must demonstrate the participants’ adherence to a system of repression and ill-treatment. The prosecution is not required to prove a formal or informal agreement among the participants.377 While Category Two largely concerns death and concentration camps, the system in question is arguably susceptible to a broader definition.378 To convict an individual under Category Two, the prosecution must prove (1) the existence of an organized system of repression; (2) the active participation by the accused in the enforcement of this system of repression; (3) the accused’s knowledge of the nature of the system; and (4) the accused’s intent to further the system of repression.379 Thus, in both Category One and Category Two, all members of the joint criminal enterprise may be found criminally responsible for all crimes committed that fall within the common design. The Tadić case exemplifies Category Three, which covers situations wherein a participant commits a criminal act that falls “outside the common purpose.”380 If such an act, though not agreed upon by all participants, still represents a “natural and foreseeable consequence” of the implementation of the common purpose, common liability for the commission of the crime is imputed on all participants.381 In Tadić, the Appeals Chamber largely failed to address the objections to this extended form of complicity. Instead, it referenced World War II-era cases to justify the doctrine’s existence as a matter of customary international law and to explicate its elements. Additionally, the Appeals Chamber rejected arguments that joint criminal enterprise amounts either to conspiracy or to organizational liability, both of which were extensively used at the IMT.

376 Id. ¶ 196. 377 Krnojelac Appeals Judgment, supra note 157, ¶ 96. 378 Osiel, supra note 171, at 1785, n.151. 379 Tadić Appeals Judgment, supra note 134, ¶ 203. 380  Id. ¶¶ 204, 206. 381  Id. ¶ 204; Brđanin Trial Judgment, supra note 131, ¶ 258; Vasiljević Trial Judgment, supra note 352, ¶ 99. An example is a common purpose or plan on the part of a group to forcibly remove at gunpoint members of one ethnicity from their town, village or region (to effect ‘ethnic cleansing’) with the consequence that, in the course of doing so, one or more of the victims is short and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians. Id.



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The cases referenced in Tadić are from prosecutions conducted by national military authorities known as the Subsequent Proceedings. The cases discussed fall into one of two types: (1) a group of cases involving unlawful killings of small groups of Allied POWs, either by German soldiers or by German soldiers and German townspeople; and (2) a group of cases concerning concentration camps.382 The facts and outcome of the Essen Lynching383 case typify the series of POW cases cited in Tadić, some of which explicitly rely on arguments based on “common enterprise”384 and “common design.”385 In all of these cases, POWs are killed by small groups of people, many of whom are ultimately convicted of murder, although neither their mens rea nor their exact contribution to the deaths of the prisoners is clear from the facts. In each of the cases, all of the defendants were present or in the immediate vicinity of the murders, and none were charged with participation in some larger plan beyond the unlawful treatment of the prisoners involved.386 Thus, these POW related cases tangentially support the Tadić Appeals Chamber’s espousal of common plan liability, as well as its application of the doctrine to the particular facts the case. However, for some legal scholars, these cases do not provide any legal basis for the wide-ranging joint criminal enterprises used in cases at the ICTY that followed Tadić.387 The other group of World War II-era cases cited in Tadić involves prosecutions of the staff of German concentration camps embodied by Category Two. In the U.S. prosecution of forty staff members of the concentration camp at Dachau, for example, the indictment alleged that the defendants “acted in pursuance of a

382 See & Martinez, supra note 282, at 110. 383 1 United Nations War Crimes Commission, The Essen Lynching Case, Trial of Erich Heyer and Six Others, British Military Court for the Trial of War Criminals, in Law Reports of Trials of War Criminals 88, 88 (1947). 384 1 United Nations War Crimes Commission, The Almelo Case, Trial of Otto Sandrock and Three Others, in Law Reports of Trials of War Criminals 35, 40 (1947). 385 See Tadić Appeals Judgment, supra note 134, ¶ 209. Professors Danner and Martinez have criticized the Appeals Chamber’s reliance on this case as an example of common plan liability, and particularly its citation of the case to support Category Three of joint criminal enterprise. See Danner & Martinez, supra note 282, at 111. 386 Indeed, in one of the few cases that lays out the legal principles of common plan liability, the British Judge Advocate explains: In our law if several persons combine for an unlawful purpose or for a lawful purpose to be effected by unlawful means, and one of them, in carrying out that purpose, kills a man, it is murder in all who are present, whether they actually aid or abet or not, provided that the death was caused by a member of the party in the course of his endeavours to effect the common object of the assembly. IX UNWCC, Trial of Franz Schonfeld and Nine Others (Schonfeld Case), 11 Law Reports of Trials of War Criminals 64 (U.N. War Crimes Comm’n, 1947–1949), 66–7. The Judge Advocate later recognizes that a person may be charged with this form of liability even if he is not actually present, so long as he “[was] near enough to give assistance.” Id. at 70. 387 See generally Osiel, supra note 171; Danner & Martinez, supra note 282.

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common design to commit the acts hereinafter alleged.”388 The notes concerning this case by the UNWCC reporter also set out the three legal elements that the prosecution had to show to prove this common design: To establish a case against each accused the prosecution had to show (1) that there was in force at Dachau a system to ill-treat the prisoners and commit the crimes listed in the charges, (2) that each accused was aware of the system, (3) that each accused, by his conduct “encouraged, aided and abetted or participated” in enforcing this system.389

The Appeals Chamber in Tadić reproduced these requirements precisely in its decision, and they now constitute the elements of Category Two: This category of cases . . . is really a variant of [Category One] . . . The accused, when they were found guilty, were regarded as co-perpetrators of the crimes of ill-treatment, because of their objective “position of authority” within the concentration camp system and because they had “the power to look after the inmates and make their life satisfactory” but failed to do so. It would seem that in these cases the required actus reus was the active participation in the enforcement of a system of repression, as it could be inferred from the position of authority and the specific functions held by each accused. The mens rea element comprised: (i) knowledge of the nature of the system and (ii) intent to further the common concerted design to ill-treat inmates. It is important to note that, in these cases, the requisite intent could also be inferred from the position of authority held by the camp personnel. Indeed, it was scarcely necessary to prove intent where the individual’s high rank or authority would have, in and of itself, indicated an awareness of the common design and an intent to participate therein. All those convicted were found guilty of the war crime of ill-treatment, although of course the penalty varied according to the degree of participation of each accused in the commission of the war crime.390

The Appeals Chamber ultimately found that Tadić had participated in the common “criminal purpose to rid the Prijedor region of the non-Serb population.”391 Furthermore, it found both that the killing of non-Serbs was foreseeable in light of this purpose and that Tadić was aware of this risk but was nonetheless a willing participant in the common plan.392 After Tadić, joint criminal enterprise has become increasingly important to the ICTY, where indictments frequently use it as the basis for the liability of the accused.393 For instance, in the Brđanin case, the Appeals Chamber also held 388 The Dachau Concentration Camp Trial, Trial of Martin Gottfried Weiss and Thirty-Nine Others, General Military Government Court of the United States Zone, in XI Law Reports of Trials of War Criminals at 5, 12. 389 Id. at 13. 390 Tadić Appeals Judgment, supra note 134, ¶ 203 (internal citations omitted). 391  Id. ¶ 232. 392 Id. 393 Kelly D. Askin, Reflections on Some of the Most Significant Achievements of the ICTY, 37 New Eng. L. Rev. 903, 910–11 (2003) (“In the last two years, it appears that participating in a joint crimi-



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that members of a joint criminal enterprise can be held liable for crimes committed by principal perpetrators who were not members of the joint criminal enterprise but were rather used by the members of the joint criminal enterprise in order to commit the crimes, so long as the crimes formed part of the common purpose and a member of the joint criminal enterprise used the non-members as part of the common plan.394 Even if the crimes committed by the non-member of the joint criminal enterprise are not part of the common plan, such crimes can still be attributed to the joint criminal enterprise members if they are the natural and foreseeable consequence of implementing the common plan and if the defendants willingly took the risk that such crimes were a possible consequence of the joint criminal enterprise.395 To convict a joint criminal enterprise member for crimes committed by non-members of the joint criminal enterprise, the Trial Chamber must be satisfied beyond a reasonable doubt that the commission of the crimes by non-members formed part of one of the three categories of joint criminal enterprise liability discussed above.396 The ICTY’s most recent consideration of the doctrine of joint criminal enterprise came in April 2011 in Gotovina & Markac.397 That case concerned crimes allegedly committed from July to September 1995 against Krajina Serb populations and property owned or inhabited by Serbs in various municipalities in the Krajina region. The Prosecution alleged that the crimes included forcible transfer, plunder of public or private property, wanton destruction, murder, inhumane acts, and cruel treatment. The alleged crimes further included persecution, including through unlawful attacks on civilians and civilian objects, unlawful detentions, and the imposition of restrictive and discriminatory measures on the Serb population of Krajina.398 Ante Gotovina, Ivan Cermak, and Mladen Markac stood trial as alleged participants in a joint criminal enterprise whose object was the permanent removal of the Serb population of the Krajina region. The Prosecution alleged that the enterprise amounted to or involved the commission of the above-mentioned crimes. Alternatively, the Prosecution claimed that these crimes, as well as the crimes of murder, inhumane acts, and cruel treatment, were a natural and foreseeable consequence of the execution of the enterprise.399 The Prosecution alleged that the joint criminal enterprise included the three accused, Croatian President Franjo Tudman, Minister of Defense Gojko Susak, and the successive Chiefs of the Main Staff of the Croatian Army Janko Bobetko nal enterprise has become the principal charging preference in ICTY indictments.”); see also, Danner & Martinez, supra note 282, at 107–08. 394 Brđanin Appeals Judgment, supra note 157, ¶¶ 410, 413, 418, 430. 395 Id. ¶¶ 411, 413. 396 Tadić Appeals Judgment, supra note 134, ¶ 220. 397 Gotovina v. Marcak, Case No. IT-06-90-T, Judgment, ¶ 1948 (Apr. 15, 2011). 398 Id. at ¶¶ 1948–49. 399 Id. at ¶1949.

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and Zvonimir Cervenko. These members of the enterprise allegedly used or cooperated with others to facilitate or carry out the crimes. These other participants included government officials, members of the Croatian army, the military police, the Special Police, and the civilian police. According to the Prosecution, the three accused participated in and acted in furtherance of the joint criminal enterprise in several ways.400 The indictment alleged that the accused were responsible for having planned, instigated, ordered, or aided and abetted the aforementioned crimes. The Prosecution also alleged that they were criminally liable for having knowingly failed to prevent or punish criminal acts or omissions of their subordinates.401 In assessing whether a joint criminal enterprise existed in this case, the Chamber considered the discussions at the Brioni meeting of July 31, 1995, a few days before the launching of Operation Storm in the Krajina region.402 At this meeting, President Tudman met with high-ranking military officials to discuss both the military operation itself and the importance of the Krajina Serbs leaving as a result and part of the imminent attack. In response to a statement by President Tudman to this effect, Gotovina stated, “A large number of civilians are already evacuating Knin and heading towards Banja Luka and Belgrade. That means that if we continue this pressure, probably for some time to come, there won’t be so many civilians just like those who have to stay, who have no possibility of leaving.”403 The Chamber reviewed this statement, as well as statements by highranking Croatian officials at this and other meetings and in public, in the context of its findings on the deportation, unlawful acts of civilians and civilian objects, and the imposition of discriminatory measures against Krajina Serbs.404 The Chamber found that members of the Croatian political and military leadership shared the common objective of the permanent removal of the Serb population from Krajina by force or threat of force.405 The Chamber further found that Franjo Tudman was a key member of the joint criminal enterprise in that he intended to repopulate the Krajina region with Croats and ensured that this idea was transformed into policy and action during his position as President and Supreme Commander of the armed forces.406 This joint criminal enterprise also included the Minister of Defense, the Chief of the Croatian army Main Staff, and others in the Croatian political and military leadership who participated in Presidential meetings and were close associates of Tudman.407 400 Id. at ¶¶ 1966–97. 401  Id. 402 Id. at ¶ 1967. 403 Id. at ¶ 1974. 404 Id. at ¶¶ 1978–80. 405 Id. at ¶ 1981. 406 Id. at ¶ 1982. 407 Id. at ¶¶ 1982–83.



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The Chamber based its decision primarily on the occurrences at the Brioni meeting. Here, Tudman and high-ranking military officials discussed how the military forces should be used to ensure that both the Serb Krajina army and the Serb civilian population would leave Krajina. The Chamber found that highranking Croatian military officials, including Tudman, used the Croatian military Special Police to commit the crimes with the objective of achieving the goals of the joint criminal enterprise.408 As regards Gotovina, the Chamber found that he participated in the Brioni meeting and contiributed to the planning and preparation of Operation Storm. Moreover, he failed to make a serious effort to prevent and follow up on crimes that his subordinates reportedly committed against Krajina Serbs. These failures had an impact on the general attitude towards crimes in the Split Military District.409 Based on these findings, the Chamber held that Gotovina’s conduct amounted to a significant contribution to the joint criminal enterprise, further finding that Gotovina’s order to unlawfully attack civilians and civilian objects in and of itself amounted to a significant contribution to the enterprise.410 Based on Gotovina’s acts and conduct and his participation in, and statements at, the Brioni meeting, the Chamber found that Gotovina possessed the requisite state of mind that the crimes forming part of the objective should be carried out. The Chamber therefore established that Gotovina was a member of the joint criminal enterprise, and thus that he intended that his actions contribute to this enterprise.411 Finally, the Chamber found that other charged crimes, though not originally part of the common purpose of the enterprise, were natural and foreseeable consequences of the execution of the enterprise, and foreseeable also for Gotovina.412 Therefore, the Chamber found Gotovina guilty on nine out of ten counts as a member of the joint criminal enterprise, sentencing him to twenty-four years of imprisonment.413 This verdict has received much criticism among the Croat population, which views Gotovina and the other accused as war heroes and leaders of a military operation to recover territory seized by Serbian forces since the beginning of the war. It was also met with widespread protests, as many Croats believe that Operation Storm was a legitimate military action and that Gotovina and his co-defendants, as national icons, should not be portrayed to the world as “some sort of Hitler.”414 Gotovina’s lawyers claim that 408   Id. at ¶¶ 1986–87. 409   Id. at ¶ 2368. 410 Id. at ¶¶ 2368–69. 411   Id. at ¶¶ 2370–71. 412 Id. at ¶¶ 2373–75. 413 Id. at ¶ 2375. 414 See Natasa Radic, Croatia Stunned by Gotovina Verdict, Southeast European Times, Apr. 18, 2011, available at http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/ features/2011/04/18/feature-01; see also Croatian General Gotovina Sentenced to 24 Years, Balkan Insight, Apr. 15, 2011, available at http://www.balkaninsight.com/en/article/croatia-awaitsgotovina-war-crimes-judgement.

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they will appeal this decision with all available legal means.415 The appeal hearing in the Gotovina case has been scheduled for May 2012, and it remains to be seen if the Appeal Chamber will address and correct the problems arising out of the doctrine of joint criminal enterprise. Because of the expansive interpretations of joint criminal enterprise doctrine, it has mainly replaced command responsibility as the primary theory of responsibility for regime leaders and their subordinates.416 International prosecutors now use joint criminal enterprise as the preferred method for targeting senior military and political leaders.417 For example, Slobodan Milosević stood accused of participating in three large-scale joint criminal enterprises in Kosovo, Croatia, and Bosnia.418 More recently, Radovan Karadžić was also charged under joint criminal enterprise theory for counts of genocide and crimes against humanity.419 In this sense, Professors Danner and Martinez attribute the prosecution’s choice of joint criminal enterprise over command responsibility as a theory of liability to mere symbolism: 415 See Igor Ilic, Croats Protest Against Hague Conviction of Generals, Reuters, Apr. 16, 2011, available at http://www.reuters.com/article/2011/04/16/us-croatia-protests-warcrimes-idUSTRE73 F18A20110416. 416 Danner, supra note 352, at 485 (“Of the 42 indictments filed between [June 25, 2001] and January 1, 2004, 27 (64 percent) rely explicitly on [joint criminal enterprise]. 417 Id.; see also Danner & Martinez, supra note 282, at 95–96. 418 Prosecutor v. Milosević, Case No. IT-01-51-1, Initial Indictment, ¶ 6 (Nov. 22, 2001) (alleging that Milosević participated in a joint criminal enterprise, whose purpose “was the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina”). This indictment also states that “[b]y using the word ‘committed’ in this indictment, the Prosecutor does not intend to suggest that the accused physically committed any of the crimes charged personally. ‘Committed’ in this indictment refers to participation in a joint criminal enterprise as a co-perpetrator.” Id. at ¶ 5; see also Prosecutor v. Milosević, Case No. IT-02-54-T, First Amended Indictment, ¶ 6 (Oct. 23, 2002) (alleging that Milosević participated in a joint criminal enterprise, whose purpose “was the forcible removal of the majority of the Croat and other non-Serb population from the approximately one-third of the territory of the Republic of Croatia that he planned to become part of a new Serb-dominated state”); Prosecutor v. Milosević, Case No. IT-99-37-PT, Second Amended Indictment, ¶ 16 (Oct. 29, 2001) (alleging that Milosević participated in a joint criminal enterprise as a co-perpetrator whose purpose “was, inter alia, the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo in an effort to ensure continued Serb control over the province”). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New Eng. L. Rev. 1015, 1034 (2003) (arguing that joint criminal enterprise weakens the didactic function of international courts as reflected at Nuremberg because its Category Three form lowers the relevant mens rea required to secure convictions: “[i]f it cannot be established that leaders such as Milosević actually intended the atrocities with which they are charged, the door is left ajar for future generations to deny the truth.”). Compare with Danner & Martinez, supra note 282, at 145 (finding merit in Schabas’s argument, but noting that in the case of senior leaders, the tensions with the criminal law paradigm become less acute so that the international forum should be reserved for them). See also generally Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Nw. U. L. Rev. 539 (2005) (describing the “prosecutorial focus” on political and military leaders). 419 See Bassiouni, Crimes Against Humanity, supra note 1, at 190–91, 566.



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There is a clear symbolic dimension to convicting a defendant for having participated in a JCE. In a doctrinally unimportant but psychologically critical move, JCE sounds more serious than simply alleging that someone participated in a “common plan” or has been found liable on a complicity theory. We suspect that the increasing use of the label JCE by international prosecutors in lieu of “common plan” owes much to the rhetorical weightiness of the former term. Certainly, press releases about indictments prominently feature the allegation that an individual participated in a JCE. More substantively, JCE allows the prosecution and judges to capture the seriousness of a leader’s responsibility for the violent course of events.420

Other scholars, however, attribute the overreliance on joint criminal enterprise by international prosecutors as a sign of prosecutorial desperation resulting from the difficulties involved in proving command responsibility: A more parsimonious explanation of the shit [to JCE], however, would be that prosecutors simply discovered a colossal obstacle—proving “effective control”—to convicting almost anyone on the basis of culpable omission in the exercise of command. This failure has left them “desperate.”421

However, joint criminal enterprise appeals to prosecutors in ways not solely based on desperation, as Professor Mark Osiel continues: Enterprise participation appeals to international prosecutors for its reach beyond the formal military hierarchy to civilian bosses and paramilitaries over whom no command is exercised. The doctrine will also be valuable in reaching many new private armies to which states increasingly subcontract military work, including combat itself. The amplitude and elasticity of enterprise participation lets indictments transcend the confines of a bureaucracy to the informal networks connecting it to other individuals and organizations, often exercising greater power than many within. . . . But the danger lies in the breadth with which the common purpose of the criminal enterprise is couched. By defining that enterprise as the expulsion of non-Serbs from a given region of the former Yugoslavia, a very substantial portion of the Serbian population in that region could credibly be considered participants, and prosecuted as such.422

The number of indictments explicitly referencing joint criminal enterprise downplays the doctrine’s significance since, prior to July 2004, Trial Chambers had ruled

420 See Danner & Martinez, supra note 282, at 145 (internal citation omitted). 421  Osiel, supra note 171, at 1784 (internal citations omitted). 422 Id. at 1786, 1802 (internal citations omitted); see also Zegveld, supra note 354 (examining “international accountability for acts committed by armed opposition groups during internal armed conflict” including both highly organized groups resembling “de facto governments” and groups only “loosely organized with no effective control command”); Singer, supra note 354, at 40–70; Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 Wash. U. L.Q. 1001, 1004 (2004).

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that a defendant could be convicted based on joint criminal enterprise doctrine even if his/her indictment did not explicitly refer to joint criminal enterprise,423 and that phrases such as acting “in concert” may be read as implicit references to joint criminal enterprise.424 In fact, the ICTY no longer analyzes command responsibility issues under Article 7(3) once it finds the defendant liable under at least one form of Article 7(1) “commission,” such as joint criminal enterprise.425 The decision by the ICTY Appeals Chamber to read this wide-ranging form of liability into the Statute has been contentious, and the answers to significant doctrinal questions still remain unclear. Most of these unresolved controversies concern joint criminal enterprise at its margins—i.e., whether even a de minimis contribution to a joint criminal enterprise suffices to place an individual within the criminal enterprise, and whether there are any limits on the prosecution’s discretion to define the enterprise’s scope. What some legal scholars consider as the most far-reaching aspect of joint criminal enterprise involves Category Three, or “extended” joint criminal enterprise as labeled by the ICTY,426 whereby if the prosecution successfully demonstrates that the defendant intended to participate in a joint criminal enterprise, that defendant will be liable for any foreseeable crimes committed by others, even those he/she did not intend. Therefore, the extended liability of Category Three lowers the relevant mental state from intention or knowledge to recklessness. Furthermore, this form of joint criminal enterprise is particularly problematic because many national judicial systems do not recognize the liability of participants in a common plan for crimes falling outside the scope of the common objective.427

423 See Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Judgment, ¶ 602 (Aug. 2, 2001); Kvočka et al. Trial Judgment, supra note 281, ¶ 246. In the Blaškić case, the Appeals Chamber clarified that “the alleged form of participation of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in an indictment.” Blaškić Appeals Judgment, supra note 135, ¶ 215. 424 See Prosecutor v. Simić et al., Case No. IT-95-9-T, Judgment, ¶ 149 (Oct. 17, 2003) (“It is commonly accepted that a reference to ‘acting in concert together’ means acting pursuant to a joint criminal enterprise.”); Vasiljević Trial Judgment, supra note 352, ¶ 63. If all indictments that include charges that the defendant acted “in concert” with others are viewed as implicitly employing joint criminal enterprise, then thirty-four of the forty-three indictments confirmed between June 25, 2001 and January 1, 2004 incorporate joint criminal enterprise. Danner & Martinez, supra note 282, at 108. 425 See Osiel, supra note 171, at 1784, n.141 (citing to Interview with ICTY Prosecutor, in The Hague, Neth., July 2005). 426 See, e.g., Danner & Martinez, supra note 282, at 108. 427 Danner, supra note 352, at 486. The basis for joint criminal enterprise, however, the British common purpose doctrine, is used almost exclusively for acts falling outside the main purpose of the agreement between co-conspirators. See K.J.M. Smith, A Modern Treatise on the Law of Criminal Complicity 49 (1991). However, Germany, the Netherlands, and Switzerland do not provide for this form of liability in their respective criminal codes. Marco Sassòli & Laura M. Olson, The Judgment of the ICTY Appeals Chamber on the Merits in the Tadić Case, 82 Int’l Rev. Red Cross 733, 749 (2000).



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While Category Three lacks a clear precedent in World War II-era cases, it does, however, resemble two other contentious doctrinal tactics used at Nuremberg, namely the prosecution of criminal organizations and the inclusion of the crime of conspiracy.428 Notably, neither Tadić nor any subsequent case from the ICTY has relied on criminal organizations concepts or on the use of conspiracy and common plan at Nuremberg to justify joint criminal enterprise’s status as a matter of customary international law.429 The ICTY has denied the charge that joint criminal enterprise is simply a “vehicle for organizational liability.”430 The Appeals Chamber declared that “[c]riminal liability pursuant to a joint criminal enterprise is not liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.”431 Another Trial Chamber asserted that “joint criminal enterprise cannot be viewed as membership in an organization because this would constitute a new crime not foreseen under the Statute and therefore [would] amount to a flagrant infringement of the principle of nullum crimen sine lege.”432

Even in countries that recognize liability for foreseeable crimes in this situation, like Britain and Canada, the doctrine is subject to significant criticism because it effectively lowers the mens rea required for commission of the principal crime without providing any formal reduction in the imposed sentence. See C.M.V. Clarkson & H.M. Keating, Criminal Law: Text and Materials 520 (2d ed. 1990) (questioning “why an accessory [should] be guilty of the same offence as the principal on the basis of a lesser mens rea”). In the U.S., the closest equivalent to common plan liability is Pinkerton conspiracy liability, which includes liability for foreseeable crimes outside of the object of the conspiracy. Pinkerton liability, however, is often denounced as a significant deterioration of the principle of individual culpability. See, e.g., George P. Fletcher, Basic Concepts of Criminal Law 192 (1998) (stating “the doctrine of conspiracy means, in effect, that it is impossible under American law to hold individuals liable simply for what they do, each according to his degree of criminal participation”); Paul Marcus, Criminal Conspiracy Law: Time to Turn Back from an Ever Expanding, Ever More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1, 7 (1992) (stating Pinkerton conspiracy can amount to “guilt by association”). Category Three has also been compared to U.S. rules on felony murder, which makes any participant in a dangerous felony liable for murder caused by another. See Richard J. Bonnie et al., Criminal Law 855–95 (2d. ed. 2004). 428 Danner & Martinez, supra note 282, at 112. 429 The Tribunals have rejected arguments that joint criminal enterprise is not a part of customary international law and have “reiterated their conviction that [joint criminal enterprise]— including the extended form of the doctrine was established in customary international law at the time of the commission of the crimes adjudicated by the Yugoslav and Rwandan tribunals.” Danner, supra note 352, at 487 (internal citations omitted); cf. Prosecutor v. Šainović et al., Case No IT99-37-AR72, Separate Opinion of Judge David Hunt on Challenge by Ojdanić to Jurisdiction—Joint Criminal Enterprise, ¶ 30 (Oct. 7, 1997) (Judge Hunt of Australia recognized the close relationship between Category Two and the criminal organization provisions). 430 Šainović et al. Jurisdictional Decision, supra note 352, ¶ 24. 431  Id. ¶ 26. 432 Stakić Trial Judgment, supra note 144, ¶ 433.

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For crimes in which there is no indication that an accused played a direct part, the command responsibility doctrine captures more accurately the extent of the individual’s guilt: the violation of a duty, based on his/her position of authority, to prevent such crimes.433 International judges have not analyzed the relationship between command responsibility and joint criminal enterprise in this way.434 Some legal scholars believe that judges’ discomfort with prosecutorial decisions that advance theories of direct responsibility (including joint criminal enterprise) rather than command responsibility is at work in some cases from the ICTY, including the Appeals Chamber’s decision in the Krstić case.435 Krstić was the commander of the Drina Corps of the Bosnian Serb army.436 The Drina Corps was formally responsible for the area of Bosnia that included the town of Srebrenica during the massacre of approximately 7,000 Bosnian Muslim men and boys in July 1995.437 Krstić’s role in the Srebrenica killings, however, was complicated by the fact that the killings appear to have been orchestrated by General Ratko Mladić, the Commander of the Bosnian Serb Army, and carried out largely by forces not under Krstić’s command, including members of the military police. Based on the evidence at trial, the Trial Chamber convicted Krstić of genocide for the massacres at Srebrenica under joint criminal enterprise doctrine. The Trial Chamber acknowledged that Krstić appeared to be a serious career officer incapable of instigating a genocidal plot on his own, and who did not personally participate in any of the killings. However, it also found that Krstić had knowingly and intentionally provided support to the criminal enterprise in carrying out the genocide, and therefore that he was guilty as a co-perpetrator in the joint criminal enterprise.

433 See Danner & Martinez, supra note 282, at 152; see also id. at 151 (discussing the use of the command responsibility doctrine to deter violence and to focus on senior leaders during periods of transitional justice from one political regime to another regime with less concerns about individual culpability than are present under joint criminal enterprise). 434 In some cases, high-level perpetrators are involved in facilitating commission of the crime as well as omissions in failing to stop ongoing criminal activity. The ICTY Appeals Chamber has held that when the prosecution proves that a defendant is criminally liable under theories of joint criminal enterprise and command responsibility, the court should convict the defendant of joint criminal enterprise and treat the defendant’s superior position as an aggravating factor at sentencing. Prosecutor v. Kvočka, Case No. IT-98-30/1, Judgment, ¶ 104 (Nov. 2, 2011); see Danner, supra note 352, at 489–90. 435 Prosecutor v. Krstić (Krstić Appeals Judgment), Case No. IT-98-33-A, Judgment (Apr. 19, 2004). 436 At trial, General Krstić argued that he did not assume control of the Drina Corps until July 20, 1995. Id. ¶ 45. The Srebrenica massacre occurred in mid-July 1995. The Trial Chamber found that Krstić assumed de facto command of the Drina Corps as of July 13, 1995. Id. ¶¶ 328–31, 625. The Appeals Chamber did not disturb this finding on appeal. Id. ¶ 47. 437 Id. ¶ 2.



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The Appeals Chambers overturned the Trial Chamber’s factual finding that Krstić intended to participate in a joint criminal enterprise to commit genocide. In the Appeals Chamber’s opinion, the main evidence at trial tying Krstić to the killings was his knowledge of General Ratko Mladić’s intention to execute the Bosnian Muslims of Srebrenica and his knowledge that the Drina Corps personnel were used to carry out that intention.438 The Appeals Chamber found that “the criminal liability of Krstić is therefore more properly expressed as that of an aider and abettor to genocide, and not as that of a perpetrator.”439 But, instead of limiting joint criminal enterprise doctrine, or addressing the difference in Krstić’s culpability by reducing his sentence (as the Trial Chamber had done), the Appeals Chamber chose to overturn the verdict on factual grounds. Given its decision to reduce both the degree of Krstić’s liability and his sentence from forty-five to thirty-five years,440 Professors Danner and Martinez believe a legal analysis of the relationship between joint criminal enterprise and command responsibility—rather than a reversal of the Trial Chamber’s factual findings—would have better responded to the Appeals Chamber’s concerns and would have provided an important signal for prosecutorial strategy in future cases.441 Furthermore, these scholars view the Krstić decision as “reflecting the ICTY Appeals Chamber’s vindication of the culpability principle by calibrating a defendant’s individual actions and intent with his liability.”442 Conversely, joint criminal enterprise doctrine arguably more closely accommodates the available evidence and organizational dynamics of many mass atrocity crimes because it tells a “darker story” about organizational superiors than superior responsibility by “depict[ing] them not as simply asleep at the wheel, but driving purposively toward disaster.”443 The ICTY demonstrated that joint criminal enterprise doctrine is not a foolproof guarantee of liability when it acquitted two of the three defendants in the Haradinaj case, which concerned crimes allegedly committed by the Kosovo Liberation Army (KLA).444 At trial, the Chamber concluded that KLA soldiers

438 Id. ¶ 134. 439 Id. ¶ 137. 440 Id. ¶ 268. 441  Danner & Martinez, supra note 282, at 154. 442 Id. 443 Osiel, supra note 171, at 1788, n.169 (quoting William A. Schabas regarding Rwanda): You would have to look far and wide to find a person in command who did not intend to commit genocide, but who should have known it was being committed and did not take appropriate steps to prevent or punish it. 444 Haradinaj Trial Judgment, supra note 373, ¶¶ 502–04. The Haradinaj case was the first case before the ICTY wherein the accused did not make any submissions or call any witnesses. Id. ¶ 6. In order to defend himself against the ICTY charges, Ramush Haradinaj resigned from his position as Prime Minister of Kosovo.

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committed some of the acts of cruel treatment, torture, rape, and murder alleged. However, it determined that the evidence was insufficient to infer the existence of a common criminal objective among the accused and the other participants in the alleged joint criminal enterprise.445 The Chamber found that the Prosecution had failed to present sufficient direct and circumstantial evidence to demonstrate the existence of a common criminal objective connecting the defendants to the crimes proven.446 The Haradinaj trial was plagued by allegations of witness tampering and intimidation. Prosecution witnesses refused to appear or to testify, resulting in substantial use of witness protection measures, the issuance of subpoenas, and the utilization of contempt proceedings.447 The Prosecutor has appealed the trial verdict based on the ground that because of the prevailing circumstances of witness intimidation and fear in Kosovo, it was deprived of its right to a fair trial when the Trial Chamber disallowed additional time to secure witnesses’ testimony.448 Joint criminal enterprise remains in a state of inconstancy before the ICTR, though it has mostly followed the ICTY’s jurisprudence to uphold the availability and utility of the doctrine. Importantly, because most defendants before the ICTR have been charged with genocide, the Prosecutor has mainly relied upon charges of conspiracy to commit genocide rather than a joint criminal enterprise theory.449 The Zigiranyirazo case, wherein the Prosecutor indicted the defendant, a businessman, for committing genocide through a joint criminal enterprise (Category One) in addition to conspiracy to commit genocide, is an exception.450 In that case, the Trial Chamber acquitted the defendant of the conspiracy to commit genocide charge for lack of evidence that the accused entered into an agreement with others to commit genocide. The Chamber recognized that the Prosecutor can prove the existence of a conspiracy on indirect evidence, but also ruled that the law requires that “the existence of the conspiracy . . . be the only reasonable

445 Id. ¶¶ 470, 475. 446 Id. ¶¶ 471, 475–78. The Chamber held that in order to prove the existence of a joint criminal enterprise based on circumstantial evidence such as the evidence of crimes committed by the KLA soldiers, the joint criminal enterprise must be “the only reasonable conclusion on the evidence.” Id. ¶ 475. 447 Id. ¶¶ 6, 22–29. Some witnesses who were expected to offer probative testimony never testified before the tribunal. Id. ¶ 28. 448 Prosecutor v. Haradinaj, Case No. IT-04-84-A, Prosecutor’s Notice of Appeal, ¶¶ 3–5 (May 1, 2008). The Prosecutor has asked for a retrial to present the testimony of absent witnesses. Id. ¶ 7. 449 Conspiracy to commit genocide is defined as “an agreement between two or more persons to commit genocide.” Zigiranyirazo Trial Judgment, supra note 147, ¶ 389. Conspiracy to commit genocide is an inchoate crime. It is completed once the agreement is reached, regardless of the realization of the common objective. Id. ¶ 389. Genocide remains the only crime for which the conspiracy theory of liability is available before the ad hoc tribunals, according to Article III of the Genocide Convention. See ICTR Statute, supra note 130, art. 2(3)(b). 450 Zigiranyirazo Trial Judgment, supra note 147, ¶ 6. Zigiranyirazo was also convicted of extermination as a crime against humanity.



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inference from the evidence.”451 However, the Trial Chamber did convict Zigiranyirazo for participating in a joint criminal enterprise to commit genocide, noting that the massacre could only have been implemented through prior planning and coordination, which gave rise to an inference that a common criminal purpose existed.452 The Chamber considered that the particular circumstances, including the defendant’s stature, well-received speech, and his presence at the inception of the massacre, were enough to infer that Zigiranyirazo shared the common purpose to commit genocide.453 Other cases demonstrate that the ICTR has mostly followed the joint criminal enterprise case law of the ICTY. For instance, in the Karemera case, the Appeals Chamber held that customary international law permits the imposition of Category Three liability on an accused for crimes committed by fellow participants in a joint criminal enterprise of “vast scope.”454 In Rwamakuba, the Appeals Chamber held that the Tribunal had jurisdiction to try the appellant on a charge of genocide through joint criminal enterprise.455 In Nkatirutimana and Nkatirutimana, the Appeals Chamber relied upon Category One, but found that the Trial Chamber had been correct in not applying the doctrine to that particular case.456 In 2005, in Simba, a Trial Chamber held that the accused was guilty of joint criminal enterprise to commit genocide and extermination.457 In Mpambara, the Prosecution similarly charged a defendant with joint criminal enterprise to commit genocide and extermination. However, a Trial Chamber held instead that no proof beyond a reasonable doubt had been tendered to establish that the accused possessed the intent to be a part of a joint criminal enterprise. Thus, the Trial Chamber acquitted him on all counts of the indictment.458 Generally speaking, both the ICTY and ICTR have set forth the elements of the actus reus for all three categories of joint criminal enterprise as (1) a common plan; (2) involving a plurality of persons; and (3) an individual contribution by the accused to the execution of the common plan.459 Although the accused is not required to have performed any element of the actus reus of the specific

451  Id. ¶ 394. This was so even though the Trial Chamber had established beyond a reasonable doubt that a Hutu power group existed (and Akazu) that included the accused. Id. ¶ 103. 452 Id. ¶ 407. 453 Id. ¶ 408. 454 Karemera et al., Case No ICTR-98-44-AR72.5 and ICTR-98-44-AR72.6, Appeals Decision on Jurisdictional Appeals: Joint Criminal Enterprise, ¶ 12 (Apr. 12, 2006). 455 Prosecutor v. Rwamakuba, Case No ICTR-98-44C, Appeals Decision on Interlocutory Appeals, ¶¶ 9–30 (Oct. 22, 2004). 456 Prosecutor v. Ntakirutimana, Case No ICTR-96-10 and ICTR-96-17-A, Judgment, ¶¶ 462, 466, 468–84 (Dec. 13, 2004). 457 Simba Trial Judgment, supra note 155, ¶¶ 386-396, 411–19, 420–426. 458 Prosecutor v. Mpambara, Case No ICTR-01-65-T, Judgment, ¶¶ 13–14, 38–40, 76, 113, 164 (Sept. 11, 2006). 459 Tadic Appeals Judgment, supra note 134, ¶ 227.

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crime, he/she is required to have “participated in furthering the common purpose at the core of the JCE.”460 Despite reluctance to requiring strict actus reus or causation requirements with regards to joint criminal enterprise, the Tribunals placed some limitations the mens rea element for a joint criminal enterprise conviction, requiring that “the foreseeable crimes must have been forseeable to the individual defendant, not foreseeable in some general sense.”461 Every international criminal court or tribunal established since the founding of the ICTY and ICTR has incorporated a version of joint criminal enterprise into its jurisprudence, either formally as a matter of statutory law or informally as a matter of prosecutorial policy.462 The Statute of the Special Court for Sierra Leone, drafted in 2000 (one year after the Tadić decision), closely resembles the provision on individual criminal responsibility contained in the ICTY and ICTR Statutes: [A] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Article 2 to 4 of the present Statute shall be individually responsible for the crime.463

Thus, the Statute of the Special Court contains no reference to joint criminal enterprise or common plan liability. Nevertheless, the Special Court’s indictments specifically accuse individuals of participating in a joint criminal enterprise. For instance, the indictment of Charles Taylor accused him of participating in a “common plan, purpose or design ( joint criminal enterprise) which was to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas.”464 Other indictments also accuse the defendants of participating in a joint criminal enterprise to exercise control over Sierra Leone.465 The language of these 460 See, e.g., Kvocka Appeals Judgment, supra note 167, ¶ 99 (The “participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met.”); Vasiljevic Appeals Judgment, supra note 157, ¶¶ 100, 119 (similar); Tadic Appeals Judgment, supra note 134, ¶¶ 196, 227 (similar); see also Brdjanin Appeals Judgment, supra note 131, ¶ 427. 461 Danner, supra note 352, at 488. The ICTY has also indicated that the materiality of the defendant’s contribution to the joint criminal enterprise may be relevant when determining whether the defendant intended to further the purpose of the joint criminal enterprise. Id. at 488–89. 462 Danner & Martinez, supra note 282, at 154. 463 Statute of the Special Court for Sierra Leone, at art. 6. 464 Prosecutor v. Taylor, Case No. SCSL-2003-13-1, Indictment, ¶¶ 23–25 (Mar. 7, 2003). 465 Prosecutor v. Kanu, Case No. SCSL 2003-13-1, Indictment, ¶ 23 (Sept. 15, 2003); Prosecutor v. Kondewa, Case No. SCSL-2003-12-1, Indictment, ¶ 14 (June 24, 2003) (referring to the accused’s plan, purpose, or design); Prosecutor v. Fofana, Case No. SCSL-2003-11-1, Indictment, ¶ 14 (June 24, 2003) (same); Prosecutor v. Kamara, Case No. SCSL-2003-09-1-009, Indictment, ¶ 25 (Apr. 16, 2003); Prosecutor v. Brima, Case No. SCSL-2003-06-1, Indictment, ¶ 23 (Mar. 7, 2003); Prosecutor v. Sesay, Case No. SCSL-2003-05-1, Indictment, ¶ 23 (Mar. 7, 2003); Prosecutor v. Bockarie, Case No. SCSL2003-04-1, Indictment, ¶ 25 (Mar. 7, 2003); Prosecutor v. Koroma, Case No. SCSL-2003-03-1, Indictment, ¶ 24 (Mar. 7, 2003).



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indictments includes Category Three, charging the defendant with liability for all crimes reasonably foreseeable from the joint criminal enterprise. For example, the indictment of Sam Hinga Norman charges him with various crimes that he “planned, instigated, ordered, committed, or in whose planning, preparation or execution [he] otherwise aided and abetted, or which crimes were within a common purpose, plan or design in which [he] participated or were within a common purpose, plan or design in which [he] participated or were a reasonably foreseeable consequence of the common purpose, plan or design in which [he] participated.”466 This language thus demonstrates that the prosecutor in the Special Court was aware of and embraced the most wide-ranging application of joint criminal enterprise, as developed by the ICTY: Category Three. In East Timor (now Timor Leste), the Special Panel for Serious Crimes established by the United Nations Transitional Administration in East Timor (UNTAET) replicates the individual criminal responsibility provision of the Rome Statute, including its common purpose language.467 For example, one of the indictments issued by the Prosecutor for Serious Crimes charges a variety of senior individuals, including Abilo Jose Osorio Soares, the former Governor of East Timor, with crimes against humanity.468 The indictment reproduces the language of the individual criminal responsibility provision and therefore does not indicate whether Soares is charged with committing, ordering, aiding and abetting, or acting with a common purpose.469 Other indictments before the Special Panel also include this language.470 More recently, joint criminal enterprise has emerged as a disputed issue before the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC Law does not specifically provide the availability of joint criminal enterprise as a form of commission. Duch, the first individual prosecuted before the ECCC, was the chief of the infamous S-21 torture center (also known as Tuol Sleng). The CoProsecutors’ Initial Submission on July 18, 2007 sought to indict Duch for war crimes, crimes against humanity (murder, torture, rape, extermination, persecution, imprisonment, enslavement, and other inhumane acts), and certain domestic crimes under the 1956 Penal Code (which forms part of the ECC’s subject matter jurisdiction) pursuant to principles of direct, accomplice, and command responsibility.471 The Closing Order limited Duch’s “commission” of the crimes to 466 Prosecutor v. Norman, Case No. SCSL-2003-0801, Indictment, ¶ 13 (Mar. 7, 2003). 467 U.N. Transitional Administration in East Timor, at § 14.3(d). 468 Deputy General Prosecutor for Serious Crimes v. Wiranto, Case No. 5/2003, Indictment, at 36 (Feb. 22, 2003). 469 Id. at 34–35. 470 See, e.g., General Prosecutor of the United Nations Transitional Administration in East Timor v. Sarmento, Case No 18/18A/18B/18C/2001, ¶ 11 (Aug. 7, 2001). 471 Kaing Guek Eav (“Duch”), Case No. 002/14-08-2006/ECCC/OCP, Public Information by the Co-Prosecutors Pursuant to Rule 54 Concerning Their Rule 66 Final Submission Regarding Kaing

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those incidents in which he “personally tortured or mistreated detainees.”472 One of the Co-Prosecutors’ grounds for appeal of the Closing Order was the failure to indict Duch as a co-perpetrator under joint criminal enterprise. The CoProsecutors contended that the modes of liability contained in the indictment, namely, ordering, instigating, and planning, failed to cover all of Duch’s criminal actions, and further argued that aiding and abetting and command responsibility, the two other modes of liability, failed to adequately convey Duch’s central role in the crimes at S-21.473 The Co-Prosecutors further argued that joint criminal enterprise satisfied all four conditions required for use at the ECCC: (1) the doctrine is provided for under the ECCC Law; (2) it was part of customary international law when the crimes were committed; (3) the accused was able to know of the mode of liability at the time the crimes were committed; and (4) the accused was able to foresee that he/she could be held criminally liability for his/ her actions.474 Due to the uncertainty as to whether joint criminal enterprise in its three categories were part of customary international law during the Khmer Rouge regime and whether they are applicable at the ECCC, the Pre-Trial Chamber entreated former ICTY Judge Antonio Cassese, Professor Kai Ambos, and the Centre for Human Rights and Legal Pluralism at McGill University to pen amicus briefs on the evolution of joint criminal enterprise doctrine as a mode of liability, particularly focusing on the period from 1975–1979.475 The Pre-Trial Chamber issued its ruling on the Co-Prosecutors’ appeal on December 8, 2008.476 The second ground for appeal concerned the failure to indict Duch as a coperpetrator in a joint criminal enterprise.477 The Pre-Trial Chamber held only Guek Eav alias “Duch” (July 18, 2008); Kaing Guek Eav (“Duch”) (Duch Closing Order), Case No. 002/14-08-2006, Closing Order Indicting Kaing Guek Eav alias Duch (Aug. 8, 2008). Duch is alleged to have committed, ordered, planned, instigated, aided, and abetted the crimes in question. Id. ¶¶ 153–56, 159–61. The Co-Investigating Judges also utilized the doctrine of superior responsibility in the indictment due to the fact that he exercised effective command and control over the staff of S-21. Id. ¶¶ 157–58. 472 Duch Closing Order, supra note 471, ¶ 153. 473 PTC, Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias “Duch” (Duch Decision on Closing Order Appeal), ¶¶ 108–10 (Dec. 8, 2008). 474 Id. 475 Id. ¶¶ 14–16. Professor Ambos argued that Category One of Joint Criminal Enterprise was the only category that formed part of customary international law during the Khmer Rouge era, and that only a narrow interpretation of Category Two could be considered part of present day customary international law. See Kai Ambos, Amicus Curiae Concerning Criminal Case File No. 001/18-07-2007-ECCC/OCIJ (PTC 02), Oct. 28, 2008. But see Antonio Cassese et al., Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal of International Criminal Justice on Joint Criminal Enterprise Doctrine, Oct. 28, 2008; McGill University Center for Human Rights and Legal Pluralism, Amicus Curiae Brief In the Matter of the Co-Prosecutor’s Appeal of the Closing Order of Kaing Guek Eav “Duch,” Oct. 28, 2008 (arguing that all three categories of joint criminal enterprise were part of customary international criminal law during the Khmer Rouge era). 476 Duch Decision on Closing Order Appeal, supra note 473. 477 Id.



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that the doctrine of joint criminal enterprise could not apply to Duch because he was not adequately informed of the allegation prior to the Co-Prosecutors’ Final Submission pursuant to Internal Rule 21(1)(d).478 In July 2008, a higher-ranking defendant, Ieng Sary, submitted his Request that the Co-Investigating Judges declare joint criminal enterprise to be inapplicable before the ECCC. Sary’s defense argued that joint criminal enterprise would violate the principle nullum crimen sine lege at the ECCC because it was not acknowledged as customary international law in 1975 to 1979.479 They also claimed that joint criminal enterprise is not specified in ECCC law, not part of Cambodian law, and not recognized by any international convention enforceable before the ECCC.480 The Co-Prosecutors countered that joint criminal enterprise has been established and utilized since the IMT481 and therefore does not violate nullum crimen sine lege and is a valid mode of liability before the ECCC.482 The lawyers for each of the other defendants requested to intervene on the issue.483 In the Order on the Application at the ECCC of the Form of Liability known as Joint Criminal Enterprise, the Office of the Co-Investigating Judges acknowledged that joint criminal enterprise was a mode of liability that was not expressly articulated in the ECCC Law or the ECCC Agreement.484 However, the Judges referred to the doctrine as defined by the ICTY in the Tadic Appeals Judgment, which outlined three categories of joint criminal enterprise.485 The Judges then 478 Id. ¶¶ 113–42. 479 Motion Against the Application at the ECCC of the Form of Liability known as Joint Criminal Enterprise by the Defence for Ieng Sary, dated July 28, 2008, ¶ 29; Supplementary Observations from the Defence for Ieng Sary, dated Nov. 24, 2008, §I(A). 480 Motion Against the Application at the ECCC of the Form of Liability known as Joint Criminal Enterprise by the Defence for Ieng Sary, dated July 28, 2008, 1, 15; Request for an Extension of the Page Limit for Filing Supplementary Observations on the Application of Joint Criminal Enterprise Liability at the ECCC by the Defence for Ieng Sary, dated Nov. 24, 2008, 2; Supplementary Observations from the Defence for Ieng Sary, dated Nov. 24, 2008, §1(B–F). 481 Co-Prosecutors’ Response to Ieng Sary’s Motion on Joint Criminal Enterprise, dated Aug. 11, 2008, ¶ 2. 482 Id. ¶¶ 3, 40; Supplementary Observations from the Co-Prosecutors, dated December 31, 2008, ¶ 51. 483 Submissions from the Defence for Ieng Thirith, dated Dec. 30, 2008, ¶ 13. The Defence for Ieng Thirith set forth an alternative argument that the ECCC, if it has jurisdiction to apply joint criminal enterprise at all, only has jurisdiction to its Category One form. Id. ¶ 32. The Defence for Nuon Chea also filed a submission supporting the positions of Ieng Sary and Ieng Thirith. Submissions from the Defence for Nuon Chea, dated Dec. 30, 2008, ¶ 2. Duch’s lawyers, however, did not file any observations. Submissions from the Defence for Kaing Guek Eav alias Duch, dated Dec. 24, 2008, ¶ 2. 484 Order on the Application at the ECCC of the Form of Liability known as Joint Criminal Enterprise (Order on the Application of JCE at the ECCC), dated Dec. 8, 2009, ¶ 10. Article 29 of ECCC law states, “Any suspect who planned, instigated, ordered, aided and abetted or committed any of the crimes referred to in Article 3 new, 4, 5, 6, 7 and 8 of this law shall be individually responsible for this crime.” See ECCC Law art. 29. Thus, Article 29 does not expressly refer to joint criminal enterprise. 485 Tadic Appeals Judgment, supra note 134, ¶¶ 196, 203–04.

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considered whether joint criminal enterprise, as defined by the ICTY, violated the principles of legality set forth in Article 33 of the ECCC Law.486 In so doing, the Judges turned again to the ICTY’s jurisprudence concerning the assessment of the principles of legality: The criminal liability in question was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the head of responsibility selected by the Prosecution.487

The Judges ultimately found that joint criminal enterprise was a mode of liability according to customary international law that pre-existed the events under investigation at the ECCC.488 However, the Order limited the application of joint criminal enterprise to international crimes and not the domestic crimes of Cambodia.489 On appeal,490 the Pre-Trial Chamber rejected the theory of liability known as joint criminal enterprise Category Three. Notably, the judges reviewed the same jurisprudence from post-World War II proceedings as the ICTY but produced a different result.491 The Pre-Trial Chamber upheld the appeal with regard to that Category Three, which it determined was in violation principles of legality.492 On the other hand, the Chamber held that Category One and Category Two both existed under Cambodian law at the time relevant to the when the alleged crimes were committed. The Chamber further provided that core doctrine of both categories required (1) a common criminal purpose; and (2) the 486 Article 33 of the ECCC Law closely tracks Article 15 of the International Convention on Civil and Political Rights. International Convention on Civil and Political Rights art. 15, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). 487 Prosecutor v. Milutinovic et al., Decision on Dragoljob Ojdanic’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, ¶ 37 (May 21, 2003) (emphasis added). 488 The decision applied to all three categories as defined by the Tadic Appeals Court of the ICTY. The mens rea of Category Three is the subjective acceptance of the natural and foreseeable consequences of the implementation of the common plan. Order on the Application of JCE at the ECCC, supra note 484, ¶ 21, citing Tadic Appeals Judgment, supra note 134, ¶ 185 et seq. 489 Id. ¶ 22. 490 See Case File No. 002/19-09-2007-ECCC-OCIJ (CP/39), Khieu Samphan’s Defence to the Co-Prosecutors’ Joint Response, ¶ 16 (Mar. 25, 2010) (stating, “Application of this ambiguous and indirect mode of commission is contrary to both the spirit and letter of the ECCC Law and the ECCC Agreement, and also amounts to making the judicial decisions of the ad hoc Tribunals the benchmark for determining the hierarchy of norms in the Cambodian domestic legal systems; there is no jurisdiction for that.”). 491 The Pre-Trial Chamber recognized that joint criminal enterprise Categories One and Two have basis in Cambodian law as set forth in the Cambodian Penal Code of 1956. Appeal of Order on JCE, supra note 484, ¶¶ 41, 69 (concluding that Categories One and Two were sufficiently accessible and foreseeable to the defendants “in the light of the London Charter, [CCL 10], international cases and authoritative pronouncements,” there is “no doubt that [Category One and Two] were recognized forms of responsibility in customary international law at the time relevant for Case 002.”]. See also Tadic Appeals Judgment, supra note 134, ¶¶ 197 et seq. 492 Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), Case No. 002/19-09-2007-ECCC/OCIJ (PTC38), ¶75 (May 20, 2010).



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shared intent by members of the joint criminal enterprise that the crimes forming part of enterprise be committed.493 The Rome Statute states that an individual is criminally responsible for a crime if he/she commits, orders, or aids and abets the crime, or “[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.”494 The provision continues: Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court, or (ii) Be made in the knowledge of the intention of the group to commit the crime.495

Thus, under one of its alternative names—the “common purpose doctrine”— joint criminal enterprise arguably falls within the scope of the Rome Statute.496 However, some legal scholars argue that the Rome Statute must be seen on its own as an independent set of rules so that a mechanical transfer of ICTY jurisprudence would be inappropriate;497 others observe that the ICTY’s holdings may help in the application of the Rome Statute. In its decision in the Lubanga case,498 the Pre-Trial Chamber provided detailed objective and subjective requirements of “co-perpetration based on joint control over the crime,” the elements of which have been compared to the elements of joint criminal enterprise. According to the doctrine of co-perpetration, the principals involved in a crime are not limited to those who physically commit the objective elements of the offence, but also include those who control or mastermind the commission because they decide whether and how the offence will be committed, regardless of whether they are present at the scene of the crime.499 As delineated in the Katanga & Chui Decision on the Confirmation of 493 Id. at ¶ 87. 494 ICC Statute art. 25, supra note 16. 495 Id. 496 But see Antonio Cassese, The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise, J. Int’l Crim. Just. 109, 132 (2007) (arguing that though the ICC Statute embraces the notion of notion of joint participation in Article 25(3)(d), it always requires intent as the necessary subjective element for a finding of criminal liability). Thus, it follows that the ICC, while generally authorized to rely upon Category One and Two, would be barred from applying Category Three. 497 See M.E. Badar, Just Convict Everyone!: Joint Preparation: from Tadić to Stakic and Back Again, 6 Int’l Crim. L. Rev. 293, 301 (2006); V. Haan, The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia, 5 Int’l Crim. L. Rev. 167, 195, 197 (2005); G. Mettraux, International Crimes and the ad hoc Tribunals, 292 (2005); S. Powles, Joint Criminal Enterprise Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 J. Int’l Crim. Just. 606, 615 (2004). 498 Prosecutor v. Lubanga, Case No ICC-01/04-01/06, Decision on the Confirmation of Charges (Jan. 29, 2007). 499 Prosecutor v. Katanga & Chui, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of Charges, ¶ 485 (Sept. 30, 2008).

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Charges, the ICC’s approach to co-perpetration encompasses three categories of principal: 1. The individual who physically carries out all elements of the offense (individual commission); 2. The individual who has, together with others, control over the offence by way of the essential tasks assigned to him (joint commission); 3. The individual who controls the will of those who carry out the objective elements of the offence (commission through another).500 The Katanga & Chui decision confirming charges treated co-perpetration as an alternative mode of liability to the doctrine of superior responsibility: [T]hrough a combination of individual responsibility for committing crimes through other persons together with the mutual attribution among the co-perpetrators at the senior level, a mode of liability arises which allows the Court to assess the blameworthiness of ‘senior leaders’ adequately.501

Regarding the objective elements of co-perpetration, one scholar provides the following: It seems that one of the main differences between co-perpetration pursuant to Article 25(3)(a) and JCE is that the former requires that acts of every co-perpetrator be “essential,” whereas the latter only demands contributions “that in some way are directed to the furtherance of the common design.” The rationale behind such a distinction is that co-perpetration under the Rome Statute (as opposed to the “intentfocused” JCE concept) is founded on the control over crime approach, where “only those to whom essential tasks have been assigned—and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks— can be said to have joint control over the crime.” The Chamber also noted “although some authors have linked the essential character of a task—and hence the ability to exercise joint control over the crime—to its performance at the execution stage of the crime, the Statute does not contain any such restriction. In other words, those who perform acts contributing to the preparation of a crime in the framework of the common plan can also be considered co-perpetrators.502

As for the subjective elements of co-perpetration, the Chamber listed three requirements: (1) the fulfillment of the mens rea necessary for the particular crime; (2) the co-perpetrators, including the suspect, must all mutually know that carrying out the common plan can lead to “the realization of the objective elements of the crime, and they must all agree on this result;503 and (3) the 500 Id. ¶ 488. 501   Id. ¶ 492. 502 Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, 5/1 Eyes ICC 72–73 (2008) (internal citations omitted). 503 Lubanga Decision on the Confirmation of Charges, supra note 498, ¶¶ 361–65.



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knowledge about the factual circumstances that make it possible to employ joint control over the crime.504 This requirement suggests that the accused knows the importance of his/her role in the realization of the common plan and capability. Thus, the accused knows that, “by refusing to perform the task assigned to him or her,” he/she would “frustrate the implementation of the common plan, and hence the commission of the crime.”505 Legal scholars claim that the ICC can avoid the pitfalls of Category Two and Three through its “control over the crime” concept of co-perpetration, which requires the closer connection of co-perpetrators with a concrete crime. However, to the extent that Category One reaches joint control over the crime, it may be subsumed under co-perpetration (Article 25(3)(a); Category One not rising to such a level may be considered under aiding and abetting (Article 25(3)(c) or complicity in group crimes (Article 25(3)(d). Moreover, Category Two and Three may be designated in the future under accessory modes of liability, much to the consternation of some legal scholars who find these two modes of joint criminal enterprise troublingly over-expansive.506 In sum, since Nuremberg, the prosecution of perpetrators of genocide, war crimes, crimes against humanity, and other acts criminalized under international law clearly constitutes one of the most significant concerns of the international community. But for many, the principles of criminal justice and legality demand that the rights of defendants be guaranteed so that an individual bears criminal responsibility for his/her acts on the basis of their culpability.507 Liability theories that distort the contributions of individual defendants risk producing an inaccurate record of how and why such crimes occurred. In turn, this could hinder the effectiveness of such trials to the process of national reconciliation and postconflict justice. By adopting a more careful and pragmatic use of joint criminal enterprise, judges and prosecutors (in particular) will ensure that the culpability principle of criminal law is not unacceptably deteriorated.508 The theory of command responsibility originated from the military, which is predicated on clear,

504 Id. ¶ 367. 505 Id. 506 Guliyeva, supra note 502, at 84. 507 See, e.g., Danner & Martinez, supra note 282, at 82 (“At a deeper level, international criminal law has adopted key philosophical commitments of national criminal justice systems. The most important of these is the focus on individual wrongdoing as a necessary prerequisite to the imposition of criminal punishment.”). 508 See id. at 135. Depending on how broadly prosecutors describe the criminal goal of the enterprise in a [ joint criminal enterprise], or how loosely the judges construe foreseeability, an individual’s liability can vary dramatically . . . . [P]rosecutorial discretion appears to be the only meaningful limit on the extent of wrongdoing attributable to an individual defendant in [ joint criminal enterprise]. Id.

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hierarchical command structures. Typically, an order is given directly to a subordinate, presupposing (1) control; and (2) that the order will be direct. In turn, the subordinate must execute the order. The nature of the command/control structure lends coherence to the doctrine. Therefore, in cases involving command responsibility, the elements of control and knowledge must be established. But outside of this context, in the civilian/political/organized crime contexts, the doctrine does not translate well. The same assumptions about control, as well as the manner in which control is exercised, do not exist. Command responsibility is not applicable unless the facts of the case show that there is a parallelism in command/control structure. Often, this is not the case in the civilian/political/ organized crime contexts, as these contexts operate in a way that essentially does not show the hierarchical nature because in these examples, the goal is not transparency. Rather, the goal is often avoidance of the law or transparency. The question is what kind of legal accountability can be substituted in the place of command responsibility. One option is found in the civil law system, in particular the Germanic system, which is very rigid and reliant upon doctrine. This option is the theory of liability developed by Claus Roxin, known as Organisationsherrschaft, aspects of which shaped the development of the ICTY theory of joint criminal enterprise.509 In the words of Professor Osiel: The superior’s control over an ‘organizational apparatus of hierarchical power,’ as Roxin calls it, enables him to utilize the subordinate ‘as a mere gear in a giant machine’ to produce the criminal result ‘automatically.’ The inferior’s compliance with illegal orders, however, flows neither from coercion nor deception, whether by mistake of fact or law, and so he remains responsible for his actions. This culpability—characteristic of most foot soldiers to mass atrocity—leaves the inferior susceptible to prosecution.

Loose talk about such inferiors as gears or cogs always seemed to imply that the law must treat them as “blameless instrument of an alien will.” The appeal of Roxin’s approach is that it does not follow from his characterization that the

509 See generally Claus Roxin, Taterschaft und Tatherrschaft 242–52, 653–54 (7th ed., 2000). See also Elies van Sliedregt, Modes of Liability, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 223, 242 (2010); Kai Ambos, The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus, J. Int’l. Crim. J. 1, 9–21 (2010); Hector Olasolo Alonso, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes 116 et seq. (2009); Osiel, supra note 171, at, 1831–37 (2005) (referred to as “domination over an organizational apparatus”); id. at 1836, n. 391: “Roxin’s work might . . . be seen as an effort to translate Arendt’s sociopolitical analysis of Eichmann into a legal idiom potentially acceptable to courts.” But see Ambos, supra, at 10: “[T]he control over the act is the key structural difference between indirect perpetration and joint criminal enterprise, the latter resting in contrast on the shared intent or common purpose of the members of a criminal enterprise.”



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inferior is innocent. Rather, the interchangeability of subordinates implicitly envisions the subordinate’s compliance as knowing and voluntary; those disinclined to obey would have been replaced by more willing peers. Roxin’s key insight, then, is that the more powerful party behind the scenes may, through the organizational resources at his disposal (including the culpable inferior), be said to commit the offense.510 Scholars have also noted that the Rome Statute appears to authorize Roxin’s approach,511 whereas others favor the utilization of co-perpetration or instigation.512 The Pre-Trial Chamber in the Katana and Ngudjolo Chui case agreed.513 But it is important to realize that Roxin’s theory works well in the countries following the Germanic system (i.e., Spain, Chile, and Japan).514 The doctrine will be less accepted in the French and American systems. The command law would call Roxin’s theory an “objective responsibility” doctrine (which brings to mind res ipsa loquitur). This form of liability has been used, for instance, in the U.S. Supreme Court case U.S. v. Dotterweich, wherein the president and general manager of a drug purchaser was convicted under the 1906 Food and Drugs Act for shipping adulterated and misbranded drugs in interstate commerce, even though he did not directly participate in the shipment.515 It also brings to mind the Yamashita case, which butchered command responsibility in other respects. The U.S. has moved in the direction of civil law for corporate criminal responsibility and in organized crime cases, in which basically, as a matter of legislative policy, the burden of proof has shifted as a means of accomplishing the doctrinal purpose, namely making prosecution easier. Section 10. Defenses and Exoneration The legal defenses discussed in this chapter do not involve questions of fact that negate a criminal accusation; rather, they involve questions of law that stand 510 Osiel, supra note 171, at 1832–33 (internal citations omitted). Osiel argues that the control element of command responsibility “should be read to incorporate Roxin’s theory of perpetration by means of an organizational apparatus. The requirement could then be more easily met than at present, and could be satisfied without compromising the personal culpability principle.” Osiel, supra note 171, at 1837. 511 See Osiel, supra note 171, at 1831. The Rome Statute Article 25(3)(a), in contrast to the ICTY and ICTR Statutes, creates liability where the accused “[c]omits . . . a crime . . . through another person, regardless of whether that other person is criminally responsible.” ICC Statute art 25(3)(a), supra note 16. 512 Ambos, supra note 509, at 11, nn. 59–60. 513 Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on the confirmation of charges ¶ 470 et seq. (Sept. 30, 2008). 514 Kai Ambos, for instance, uses cases from these countries to fill in for the vacuum of command responsibility in these contexts. See, e.g., Ambos, supra note 475. 515 U.S. v. Dotterweich, 320 U.S. 277 (1943).

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in the way of imposing criminal responsibility or applying a criminal sanction. These defenses relate to subjective conditions pertaining to the individual actor or to objective conditions relating to the circumstances of the purported criminal act. The subjective and objective conditions may overlap. In the common law system, for example, conditions that negate one of the elements of the offense, namely the act, intent, concurrence of act and intent, and causation, reflect both objective and subjective factors and affect conditions of responsibility and punishability. However, conditions of responsibility and conditions of punishability are conceptually separate and distinct in the French-Civilist and Germanic legal systems. Indeed, the world’s major criminal justice systems differ significantly as to conditions of responsibility and punishability and their applications to theories of exoneration.516 Because conditions of exoneration differ in the world’s major legal systems, their comparative analysis is difficult. Both the earlier work of this writer517 and the ICC518 take a pragmatic approach that seeks to combine, as opposed to reconcile, the world’s major criminal justice systems. Even though national legal systems differ as to the legal nature of these categories of defenses, their doctrinal basis, legal significance, and the scope of their application, they recognize the following defenses: insanity; self-defense; mistake of law or fact; compulsion (coercion and duress); necessity; and, limitedly, obedience to superior orders. Thus, these defenses rise to the level of “general principles.” Since the purpose of this chapter is not to develop a comparative criminal law analysis of these defenses, but to discuss those defenses that are particularly relevant to international crimes, the number of potentially applicable defenses is more limited. They are: obedience to superior orders, compulsion, reprisals, tu quoque, and immunity of heads of state.519 A further difficulty exists because the legal sources of these defenses differ. Thus, some of these defenses, namely obedience to superior orders, reprisals, and tu quoque, arise under international criminal law, national military law, and national criminal law. Coercion and necessity arise essentially under national criminal law, but coercion also arises under international criminal law and national military law when it relates to obedience to superior orders. Lastly,

516 See generally infra Chapter VI, section 2 for a discussion of the process of identifying “general principles” in the world’s major legal systems. 517 See Bassiouni, Draft Code, supra note 17. 518 See ICC Statute, supra note 16, at Part 3. 519 See Bassiouni, Draft Code, supra note 17, at 109–13; See also IMT Charter, supra note 12, at arts. 7–8 (negating the act of state doctrine and obedience to superior orders); Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int’l L. Comm’n pt. III, ¶¶ 95–127, U.N. Doc. No. A/1316 (A/5/12), at 3, 4 [hereinafter Nuremberg Principles] (negating, respectively, the act of state doctrine and obedience to superior orders); see also, e.g., Stefan Glaser, Infraction Internationale, Ses Eléments Constitutifs et Ses Aspects Juridiques (1957).



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head of state immunity arises under public international law and, only since the Treaty of Versailles, under international criminal law.520 Historically, the customary practices of states, including national military law and practice, have shaped international law. But since World War II, conventional international criminal law has acquired a more preponderant position over that of customary law. This is particularly true with respect to the 1949 Geneva Conventions, which, because of their codified nature, are a more specific and reliable source than custom. But since the 1949 Geneva Conventions are also part of customary law, the question loses some of its significance.521 The multiplicity of applicable legal sources to the questions raised in this chapter further evidences the complexity of the multidisciplinary nature of international criminal law. The problems occasioned by this complex situation also argue for the need to codify the general part of international criminal law,522 a task that has partially been undertaken by the Rome Statute.523 10.1. Obedience to Superior Orders 10.1.1. Rationale Unlike national criminal law, which is designed to apply to civilians, military law is based on a hierarchical system requiring the obedience of subordinates to the orders of superiors. In fact, throughout the history of military law, obedience to superior orders has been one of the highest duties for the subordinate. This obedience exonerates the subordinate from responsibility because of the command responsibility of the superior who issued the order.524 This criminal responsibility attaches to the decision-maker and exonerates the executor of the order. As a counterpart, the subordinate is expected to obey the orders of a superior. This approach to responsibility is predicated on the assumption that the superior can be deterred from wrongful conduct by the imposition of criminal responsibility for unlawful commands. But obviously, when this assumption fails, the overall approach must be reconsidered.

520 Treaty of Peace Between the Allied and Associated Powers of Germany arts. 228–30, June 28, 1919, 225 C.T.S. 188, 285, 2 Bevans 43, 136–37, at art. 227 [hereinafter Treaty of Versailles] (provides for the prosecution of Kaiser Wilhelm II). 521   See M. Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities, in International Criminal Law: Sources, Subjects, and Contents 493 (M. Cherif Bassiouni ed., 3d rev. ed. 2008). 522 See, however, Bassiouni, Draft Code, supra note 17. 523 See ICC Statute, supra note 16, at Part 3. 524 For a distinction between the military and civilian criminal approaches to command responsibility, see infra Chapter VII, section 5.

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The essential reasons for the defense of obedience to superior orders are (1) the hierarchical nature of the command military structure; (2) the need to maintain discipline in the military structure; and (3) the fact that a commanding officer is responsible for the acts of his/her subordinate. Take for example crimes against humanity. Though committed by individuals, these crimes are the product of state policy because of their nature and scope.525 Like “crimes against peace” (which, since the United Nations Charter is labeled “Aggression”),526 genocide,527 and apartheid,528 crimes against humanity require group participation by individuals whose control over the organs of state can set in motion a chain of events involving a large number of persons whose actions and interaction can produce the criminal outcome, irrespective of who or how the original decision was made. But surely in these cases a certain number of decision-makers have to be involved and a large number of subordinates have to execute their orders. Thus, exonerating the subordinates, particularly those who are in opposition to executing such orders, reduces the prevention of such crimes. All crimes committed as part of state policy necessarily require the broadening of the basis for criminal responsibility in order to maximize prevention. Therefore, the question is how far down the chain of command the law must reach in order to be effective and fair. In considering the individual responsibility of the different actors carrying out the state policy, one must inevitably realize that some give such orders and others carry them out.529 In situations where one person made the decision exclusively, all those carrying out the policy can claim that they acted pursuant to his/her superior order and thus shield themselves for criminal responsibility. Such an approach was embodied in the Führerprinzip, and is necessarily counterproductive to effective deterrence and prevention of these types of crimes. It was therefore rejected by the Law of the London Charter. The military regulations of almost all states prior to the London Charter had essentially provided for an absolute or qualified defense of obedience to superior orders. For example, the United States Rules of Land Warfare of 1940 provided that: 525 See generally supra Chapters I–II. 526 See M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in International Criminal Law: Sources, Subjects and Contents 207 (M. Cherif Bassiouni ed., 3d rev ed. 2008). 527 See Matthew Lippman, Genocide, in International Criminal Law: Sources, Subjects and Contents 403 (M. Cherif Bassiouni ed., 3d rev ed. 2008). 528 See Roger S. Clark, Apartheid, in International Criminal Law 599 (M. Cherif Bassiouni ed., 3d rev ed. 2008). 529 Professor Anthony D’Amato finds a paradox when a subordinate and a superior can both be prosecuted and convicted though only one crime was committed. He states that: “If [the subordinate] is wholly responsible as the perpetrator of the crime, then how could [the superior] be held responsible for issuing an order that legally was required to be ignored by [the subordinate]?” Anthony D’Amato, Agora: Superior Orders vs. Command Responsibility, 80 Am. J. Int’l L. 604 (1986).



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Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.530

Until 1940, many of the world’s military regulations were influenced by Oppenheim’s formulation of the defense as stated in the first five editions of his treatise: [V]iolations of rules regarding warfare are war crimes only when committed without an order of the belligerent government concerned. If members of the armed forces commit violations by order of their government, they are not war criminals and may not be punished by the enemy; the latter may, however, resort to reprisals.531

However, in the last half of this century most national legal systems, whether in their military laws or their civilian criminal laws, have tended to restrict such defenses as obedience to superior orders532 and coercion (or compulsion), while also enlarging command responsibility.533 Thus, the position of the United States after World War II as embodied in the 1956 Army Field Manual became: a) The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defence in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defence to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.

530 U.S. Dep’t of the Army Rules of Land Warfare 347 (Field Manual 27-10, 1940). However, on Nov. 15, 1944, a revision added § 345 (1) which stated: Individuals and organizations who violate the accepted laws and customs of war may be punished therefor. However, the fact that the acts complained of were done pursuant to the order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense, or in mitigation of punishment. The person giving such orders may also be punished. U.S. Dep’t of Army Rules of Land Warfare § 345.1 (1940). 531 Lassa Oppenheim, 2 International Law 264–65 (1st ed. 1906) (subsequent stylistic alterations in later editions replaced the words “cannot” and “can” with “may not” and “may”). The British Manual (1914), No. 443, closely followed Oppenheim: “Members of armed forces who commit such violations of the recognized rules of warfare as are ordered by their government or by their commander are not war criminals and cannot therefore be punished by the enemy . . . .” 532 For a survey of such laws and regulations as they appear in various national legal systems, see 10 Revue de Droit Pénal Militaire 87 et seq. (1971). This survey contains the position of many states in the world and reveals that there is no absolute defense of obedience to superior orders in the military law of national legal systems. See also D.J. Hancock, A South African Approach to the Defense of Superior Orders in International Criminal Law, 2 Responsa Meridiana 188 (1972). 533 See Bassiouni, Draft Code, supra note 17, at 149–57 (stating: “In furtherance of the policy of the command responsibility model, a person who has a responsible relationship to the violation cannot be shielded from responsibility by claiming a defense of ‘obedience to superior orders’. The rejection of this defense originated in military law and then found its way in a parallel manner into the realm of responsibility of corporate officers and directors”); see also infra Chapter VII.

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chapter four b) In considering the question whether a superior order constitutes a valid defence, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received: that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders.534

The change in U.S. military regulations corresponded to a change in Oppenheim’s treatise in Sir Hersch Lauterpacht’s 1952 edition, which stated: The fact that a rule of warfare has been violated in pursuance of an order of the belligerent government or of an individual belligerent commander does not deprive the act in question of its character as a war crime: neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured state . . . . [M]embers of the armed forces are bound to obey lawful orders only and . . . cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.535

10.1.2. Policy Considerations The goal of the humanitarian law of armed conflicts is to prevent certain forms of harm to protected targets. To accomplish this goal—in light of modern warfare techniques and weapons—requires a broadening of the responsibility base. It became clear after World War II that to hold only superiors responsible would not accomplish the goals of deterrence and prevention. Consequently, a new policy approach developed whereby those carrying out unlawful orders would also be held criminally accountable, in addition to those who issued such orders. The differences between the two branches of national law, military and civilian, are essentially characterized by policy considerations predicated on the goals

534 U.S. Dep’t of the Army, Law of Land Warfare, § 509 (Field Manual 27-10, 1956). Commenting on the provision Telford Taylor, Nuremberg and Vietnam: An American Tragedy 51–52 (1970), states: [T]he language [of Par. 509, FM27-10] is well chosen to convey the quality of the factors, imponderable as they are, that must be assessed in a given case. As with so many good rules, the difficulty lies in its application—in weighing evidence that is likely to be ambiguous or conflicting. Was there a superior order? Especially at the lower levels, many orders are given orally. Was a particular remark or look intended as an order, and if so what was its scope? If the existence and meaning of the order are reasonably clear, there may still be much doubt about the attendant circumstances—how far the obeying soldier was aware of them, and how well equipped to judge them. If the order was plainly illegal, to what degree of duress was the subordinate subjected? Especially in confused ground fighting of the type prevalent in Vietnam, evidentiary questions such as these may be extremely difficult to resolve. 535 Lassa Oppenheim, 2 International Law, 568–69 § 253 (Hersch Lauterpacht ed., 7th ed. 1952).



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sought to be achieved by each branch. In the military, discipline is a goal that is sought to be accomplished by norms requiring obedience to superior orders. But in the civilian context, except for law enforcement agencies, discipline is not a value sought to be legally preserved. With the advent of democracy and the advancement of the rule of law in modern societies, the quest for legality and lawfulness has superseded concerns for discipline irrespective of whether the issue arises under military or nonmilitary law. Consequently, the defense of obedience to superior orders has been subordinated to the legality of the order and the lawfulness of its foreseeable outcome. But distinctions still exist between the military and civilian branches of the law. In the military branch, the order is expected to be obeyed unless it is patently illegal or its foreseeable outcome is unlawful. A military order is presumptively lawful and places the burden of assessing its illegality on the subordinate, including the risk of discipline for disobeying it. But military legal systems differ as to the standards of illegality and the judgmental point at which the subordinate must or can disobey the order, and under what circumstances he/she will be held accountable for carrying out an unlawful order. The question of legality or lawfulness of a military order does not only derive from the pragmatic goal of insuring discipline, but is also a reflection of legal philosophy. Similarly, in civilian criminal law, whether a person is legally justified or excused from criminal responsibility derives from philosophical conceptions.536 Thus, authoritarian philosophies presume absolute legality and lawfulness of the hierarchical orders, while democratic conceptions do not. In short, the philosophical issue is whether legality stems from authority or whether authority is subordinated to legality. This dichotomy of perspectives is represented in the works of the English philosophers Thomas Hobbes and John Locke. Hobbes, who held to an absolute duty of obedience to a superior’s order, wrote: The King has to determine right and wrong, and therefore the argument is erroneous—although one can hear it daily expressed—that only he would be a King who were acting lawfully, and—which is also defended—that the King would have to be obeyed only as far as his orders are lawful. Because before the establishment of public authority no lawful or unlawful existed, as their essence derives from a command, and by itself an act is neither right nor wrong. Lawful and unlawful derives from the law of public power. What is ordered by a legitimate King is made lawful by his command and what he forbids is made unlawful by his prohibition. Contrariwise, when single citizens arrogate to themselves to judge right and wrong, they want to make themselves equal to the King, which counters the State’s prosperity. The oldest of God’s Commandments says: Thou shallst not eat from the tree of knowledge of right and wrong. 536 See Hall, supra note 34, at 377–415 (1947); Paul H. Robinson, 2 Criminal Law Defences, at § 171, 259–74, § 177, 347–72 (1984); Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits, 62 S. Cal. L. Rev. 1331 (1989).

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chapter four When I do, by order, an act which is wrong for the one who commands it, it is not my wrongdoing, as far as the commander is my legitimate master.537

Locke, on the other hand, wrote: Allegiance being nothing but an Obedience according to Law, which when he violates, he has not right to Obedience, nor can claim it otherwise than as the public Person vested with the Power of the Law, and so is to be considered as the Image, Phantom or Representative of the Commonwealth, acted by the will of Society, declared in Laws; and thus he has no Will, no Power, but that of the Law.538

Locke’s position finds support in the writings of Hugo Grotius, who subordinates obedience to the legitimacy of the order because that is the only way to resist injustice. The notion of legitimacy of a superior’s order is also a consequence of the philosophical conceptions of law and authority that are evidenced in the writings of Montesquieu, Voltaire, Rousseau, Pufendorf, Vattel, Burlemaqui, and Bluntschli. To illustrate this point further, in Germany, in particular during the NationalSocialist Regime of the Third Reich, the supremacy of the Führer’s orders was called the Führerprinzip.539 The legal philosophy of German law at the time was partially based on the views of Hegel, which sublimated the authority of the state. That philosophy became the foundation for the supremacy of the Führer’s orders and also for their legitimacy.540 However, unquestioned obedience to superior orders in German legal philosophy was primarily founded on Immanuel Kant’s philosophy of “The Categorical Imperative,”541 in which Kant

537 Thomas Hobbes, Elementa philosophica de cive ch. 12, § 1, 2, quoted in Nico Keijzer, Military Obedience 146–47 (1978). 538 Quoted in Keijzer, supra note 537, at 147. 539 It should be noted that the German Military Code of that time provided in § 47: If the execution of a military order in the course of duty violates the criminal law, then the superior giving the order will bear the sole responsibility therefor. However, the obeying subordinate will share the punishment of the participant: (1) if he has exceeded the order given to him, or (2) if it was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression. Cited in Robert H. Jackson, The Nürnberg Case 89 (1971) (quoting Reichsgesetzblatt, 1926, No. 37, Art. 47, at 278). Thus, the Code established the responsibility of the superior as a consideration for the exoneration of the subordinate. 540 See Georg W.F. Hegel, Introduction to The Philosophy of History 406 (Jacob Loewenberg ed. 1929), which states: The State, its laws, its arrangements, constitute the rights of its members; its natural features, its mountains, air, and waters, are their country, their fatherland, their outward material property; the history of this State, their deeds; what their ancestors have produced, belongs to them and lives in their memory. All is their possession, just as they are possessed by it; for it constitutes their existence, their being. Also cited and discussed in Anthony D’Amato, The Relation of the Individual to the State in the Era of Human Rights, 24 Tex. Int’l L.J. 1, 7 (1989). 541 See Immanuel Kant, The Categorical Imperative (1797); see also Herbert J. Paton, The Metaphysics of Morals (1947).



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propounds that, apart from inner conscience, every action is legal when it is according to law. This proposition is the basis of external legality as opposed to internal morality. The external law inbegriff is what must be obeyed in the social context.542 According to this legal philosophy, the Führer’s authority was the legitimate basis for the orders that others followed. Thus, only the Führer could be held responsible and everyone else who obeyed his superior orders could not. However, this was not the approach taken by German law and doctrine before 1935. Therefore, the question is whether legitimacy flows to the order-giver, as opposed to whether the import or legality of the order controls. At the time of World War II, positive international law still had no specific norms disallowing the defense, and precedents were few and inconclusive.543 The most important modern precedent was established in the Leipzig trials following World War I, which recognized the defense, but not in absolute terms. Thus, prior to the London Charter, neither conventional nor customary international law specifically disallowed the defense. But by resorting to general principles of law,544 it is possible to ascertain that the unarticulated premise of the defense, whether in military or civilian criminal laws, is the legitimacy of the order and the lawfulness of its conduct. Thus, the issue arises as to whether legality or lawfulness derives from the authority of the order given, its contents, its impact, or from other moral-ethical considerations. Strict positivism argues for the legal authority of the order given irrespective of value-content or impact.545 However, other legal philosophies may include substantive and procedural legality considerations.546 Another view of the defense deserves careful consideration, namely that the entire question of obedience to superior orders should be viewed as part of the mental element and not as a separate defense. This position was asserted by Lauterpacht, who held that “it is necessary to approach the problem of superior orders on the basis of general principles of criminal law, namely as an element in ascertaining the existence of mens rea as a condition of accountability.”547 The multiplicity of legal sources defining the defense makes it difficult to ascertain with specificity the scope, contents, and legal standards applicable to obedience to superior orders. The only way to ascertain them is by way of an

542 While Kant’s internal law is based on the natural law maxims of Aristotle, honeste vivere, neminem laedere, and surim cuique tribuere, his external law premises are different, and the twain do not meet. 543 See Claud Mullins, The Leipzig Trials (1921). 544 See infra Chapter VI, section 2. 545 See infra Chapter V, section 1. 546 Id. 547 Hersch Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21 Brit. Y.B. Int’l L. 58, 87 (1944); see also Edward M. Wise, War Crimes and Criminal Law, in Studies in Comparative Criminal Law 35 (Edward M. Wise & Gerhard O.W. Mueller eds., 1976).

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inductive empirical approach from the world’s major criminal justice systems in order to determine whether and to what extent they may be deemed a “general principle of law.”548 The customary practice of states as evidenced by their international relations and national experiences provides an alternative legal basis to that of national criminal law systems. However, in this case the focus is on a much narrower sampling of practices and experiences. Once again, a review of the writings of the most distinguished publicists and the decisions of international tribunals reveals that the same principle exists in national legal systems and in international legal customs and practices. But their application has widely diverged. A number of legal issues arise with respect to the defense, many of which pertain to doctrinal differences between the different legal systems and some pertain to concepts of culpability and responsibility.549 Still other issues that pertain to the specifics of the defense include (1) the type of order; (2) its manifest illegality; (3) what a subordinate can do under the circumstances; (4) how far the subordinate should go in refusing to obey the order; and (5) under what circumstances the subordinate would be subject to a legal condition of coercion. Furthermore, another question exists as to whether these issues are based on the objective standard of the “ordinary reasonable man” in the common law, or on the more subjective one of dolus in the Romanist-Civilist-Germanic systems. There is also a wide array of issues concerning the circumstances that can be deemed “coercion” and involve the question of what are the legal or moral limits of the permissible harm which the subordinate is legally required to face in case of disobedience. Still another important issue is whether one can inflict death or serious bodily harm on others to avoid similar harm.550 All of these and other issues are approached with diversity in the military rules and in the civilian criminal laws of the various national legal systems. 10.1.3. Scholarly Views Academia has contributed to the debate,551 though as one scholar stated: “[t]he problem raised by the plea of superior orders is, by general admission, one of

548 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990); Bin Cheng, General Principles of Law, as Applied by International Courts and Tribunals (1953). 549 See generally infra Chapter VII. 550 See Hall, supra note 536. See also the discussion on the defenses of coercion and necessity supra. 551 See, e.g., Henry W. Halleck, Elements of International Law and Laws of War (1866); James M. Spaight, War Rights on Land (1911); Joseph R. Baker & Henry G. Crocker, The Laws of Land Warfare (1918); William H. Winthrop, Military Law and Precedents (1920); Lauterpacht, supra note 535; Alexander N. Sack, War Criminals and the Defense of Superior Order in International Law, 5 Law. Guild Rev. 11 (1945); Paul Guggenheim, 2 Lehrbuch des Völkerrechts



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great complexity both in international and in municipal law.”552 While each scholar postulates his/her own particular view on the subject,553 since World War II essentially two basic approaches to the issue come to force: (1) a subordinate may assert the defense of obedience to superior orders, but not if the subordinate recognized, or should have recognized, the patent illegality of the order; and (2) a subordinate may not assert the defense, but may rely on it for mitigation of culpability.554 However, in both cases there is a further condition, (1951); Hans Kelsen, Principles of International Law (1952); Hans-Heinrich Jescheck, Die Verantwörtlichkiet Der Staätsorgane Nach Völkerstrafrecht (1952); Jean S. Pictet, The Geneva Conventions of August 12, 1949: A Commentary (4 vols. 1956); Gerald I.A.D. Draper, The Red Cross Conventions (1958); Georg Dahm, Völkerrecht (1961); Friedrich Berber, II Lehrbuch des Völkerrechts (1962); Peter Fuhrmann, Der Höhere Befehl als Rechtfertigungsgrund im Völkerrecht (1963); Yoram Dinstein, The Defence of obedience to Superior Orders in International Law (1965); Hans-Heinrich Jescheck, Befehl und Gehorsam inder Bundeswehr, in Bundeswehr und Recht 63 (1965); Ekkehart Müller-Rappard, L’Ordre Supérieur Militaire et la Responsibilité Pénale du Subordonné (1965); Alan M. Wilner, Superior Orders as a Defense to Violations of International Criminal Law, 26 Md. L. Rev. 127 (1966); Leslie C. Green, Superior Orders and the Reasonable Man, 8 Can. Y.B. Int’l L. 61 (1970); Franklin A. Hart, Yamashita, Nuremberg and Vietnam: Command Responsibility Reappraised, 26 Naval War Col. Rev. 19 (1972); Aubrey M. Daniel III, The Defense of Superior Orders, 7 U. Rich. L. Rev. 477 (1973); Leslie C. Green, Superior Orders in National and International Law (1976); Keijzer, supra note 537, at 140-225; Leslie C. Green, Essays on the Modern Law of War (1985); Daniel H.N. Johnson, The Defence of Superior Orders, 9 Austl. Y.B. Int’l L. 291 (1985); Theo Vogler, The Defense of “Superior Orders” in International Criminal Law, in International Criminal Law 619 (M. Cherif Bassiouni ed., 1st ed. 1986); Mark Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 5 Calif. L. Rev. 939 (1998); Wallach & Marcus, supra note 278, at 459. 552 Lauterpacht, supra note 547, at 70. 553 For example, Professor Röling contended that the problem of superior orders has two aspects: one of knowledge and the other of fear. As he explains: 1. The superior order to commit a war crime is a complete defence if it leads to an excusable error juris. Certain rules of war are controversial. It may be difficult to come to a correct decision in case of reprisals. It is possible that the alleged criminal did not know and could not reasonably have been expected to know that the act ordered was unlawful. In case he thought, in good faith, that the superior did not order a war crime to be committed, and if he was entitled to come to that conclusion—that is; if there did not exist any negligence on his part, the only conclusion should be that he cannot be punished. 2. In case he knew that the order was an illegal one, demanding the commission of a crime, then a second defense is feasible. The accused may argue: I knew that what I was going to do was criminal, but I did not dare disobey: I would have been shot on the spot. I was in a clear position of duress, because I realized that serious personal harm would be the consequence of disobedience. This position of duress can have all shades of intensity. Consequently, this line of defence may lead to mitigation of punishment and even to no punishment at all. Bernard V.A. Röling, Criminal Responsibility for Violations of the Laws of War, 12 Rev. Belge de Droit Int’l 8, 18–19 (1976). 554 It should be noted of course that there exists a third view on the defense of obedience to superior orders, that the defense is an absolute one (Befehl ist Befehl). See Keijzer, supra note 537, at xxix. Although today this approach does not carry much weight, for the greater part of history it was the dominant view. Cicero was of the opinion that if a subordinate was indeed obliged to obey the superior in the matter to which the order referred, then not he, but the superior, was the person who had committed the offense. See id. at 145 (citing De Inventione I, XI, 15). Also, as provided in the Digests of Justinian, in ancient Rome, “he causes loss who orders it to be caused,

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namely that the subordinate had a choice in refusing to obey the order, a choice which, similar to coercion, is that the subordinate would not be subjected to a greater harm than the one he/she is required to inflict. The former approach was aptly stated by Francis Wharton, who wrote: [W]here a person relies on a command of legal authority as a defence, it is essential that the command be a lawful one, which he was required to obey . . . . An order which is illegal in itself, and not justified by the rules and usages of war, or which is, in substance, clearly illegal, so that a man of ordinary sense and understanding would know as soon as he heard the order read or given that it was illegal, will afford no protection . . . . When an act committed by a soldier is a crime, even when done pursuant to military orders, the fact that he was ordered to commit the crime by his military superior is not a defence.555

Also, William H. Winthrop, a leading American expert on military law, asserted “a command not lawful may be disobeyed, no matter from what source it proceeds. But to justify an inferior in disobeying an order as illegal, the case must be an extreme one and the illegality not doubtful.”556 A similar, though less stringent, view was expressed by Sir James Stephen: [Soldiers] are bound to execute any lawful order which they may receive from their military superior . . . . Probably . . . the order of a military superior would justify his inferiors in executing any orders for giving which they might fairly suppose their superior officer to have good reasons . . . . [A] soldier should be protected by orders for which he might reasonably believe his officer to have good grounds.557

but he is without blame who is under the necessity of obeying it.” Quoted in id. at 144. Even in Shakespeare’s day, this view was maintained, for as stated in Henry V, Act IV, 1, “we [soldiers] know enough if we know we are the Kings subjects: if his cause be wrong, our obedience to the King wipes the crime of it out of us.” For a survey of the approaches taken by various nations to the defense, see 10 Rev. de droit penal militaire 87 et seq. (1971). See also Müller-Rappard, supra note 551, for an international and comparative approach. 555 Francis W. Wharton, 1 Criminal Law and Procedure 257–58, § 118 (1957). For a discussion on the issue of knowledge, see Leslie C. Green, The Man in the Field and the Maxim Ignorantia Juris Non Excusat, 19 Archiv des Völkerrechts 169 (Hans-Jürgen Schlochauer ed., 1981). The most comprehensive doctrinal statement of the United States’ position, and one adopted by the courts, is by William Hare: The question is . . . had the accused reasonable cause for believing in the necessity of the act which is impugned, and in determining this point a soldier or member of the posse comitatus may obviously take the orders of the person in command into view as proceeding from one who is better able to judge and well informed; and, if the circumstances are such that the command may be justifiable, he should not be held guilty for declining to decide that it is wrong with the responsibility incident to disobedience, unless the case is so plain as not to admit of a reasonable doubt. A soldier consequently runs little in obeying any order which a man of common sense so placed would regard as warranted by the circumstances. William Hare, Constitutional Law 920 (1889) (emphasis added); see also Green, supra note 551. 556 Winthrop, supra note 551, at 575. 557 James F. Stephen, 1 A History of the Criminal Law of England 204-06 (1883). Stephen’s concern for the subordinate echoes that of St. Augustine, who writes:



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The first approach was also that of Albert V. Dicey, who states: While, however, a soldier runs no substantial risk of punishment for obedience to orders which a man of common sense may honestly believe to involve no breach of law, he . . . cannot avoid liability on the ground of obedience to superior orders for any act which a man of ordinary sense must have known to be a crime.558

More recently, Justice Nico Keijzer concludes: The main criterion for the liability of a subordinate acting in compliance with orders is whether the illegality of the order was manifest, meaning that a man of ordinary sense and understanding would in his place have known the order to be illegal. Also, as has become apparent from some cases, if the subordinate himself actually knew of the illegality of the order he could not successfully invoke that order as a defense.559

Also, Professor Hans-Heinrich Jescheck writes: An illegal command cannot justify the deeds . . . of the subordinate but is to be considered only as excluding his guilt . . . . The illegal command does have the effect of

[A] just man, who happens to serve under an impious king, may justly fight at the latter’s command, either if he is certain that the command given him, preserving the order of the public peace, is not contrary to the law of God, or if he is uncertain whether it is so; so that an unjust order may perhaps render the king responsible, while the duty of obedience preserves the innocence of the soldier. Augustine, Contra Faustum Manichaem, XXII Ch. 76 (Oeuvres Complétes vol. XXVI p. 224), as quoted in Keijzer, supra note 537, at 146. The British Manual (1929), ch. III, § 12, defines a lawful command as follows: “Lawful command” means not only a command which is not contrary to the ordinary civil law, but one which is justified by military law; in other words, a lawful military command to do or not to do, or to desist from doing, a particular act. A superior officer has a right at any time to give a command, for the purpose of the maintenance of good order, or the suppression of a disturbance, or the execution of any military duty or regulation, or for any purpose connected with the amusements and welfare of a regiment or other generally accepted details of military life. But a superior officer has no right to take advantage of his military rank to give a command which does not relate to military duty or usages, or which has for its sole object the attainment of some private end. Such a command, though it may not be unlawful, is not such a lawful command as will make disobedience of it an offence under the Act. In other words, the command must be one relating to military duty, that is to say, the disobedience of it must tend to impede, delay or prevent a military proceeding. 558 Albert V. Dicey, The Law of the Constitution 302 (8th ed. 1915). Dicey also explains the dilemma of a soldier forced to decide whether or not he should follow the order. As he states, a soldier’s “position is in theory and may be in practice a difficult one. He may . . . be liable to be shot by a Court martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it.” Id. at 299. Dinstein recognized the same dilemma, when he stated that: [W]hen a soldier is confronted with an [illegal] order to perform an act constituting a criminal offence, the demands of military discipline, as expressed in the duty of obedience to superior orders, come into conflict with the imperative need to preserve the supremacy of the law as manifested in the proscriptions of criminal law: military discipline requires unflinching compliance with orders; the supremacy of law proscribes the commission of criminal acts. Dinstein, supra note 551, at 6. 559 Keijzer, supra note 537, at 169.

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Similarly, Dahm’s position is that a soldier does not incriminate himself/herself when acting pursuant to a superior’s order unless he/she either recognizes or should have recognized the illegality of the order.561 These views allowed Professor Theo Vogler to conclude that the “decisive criterion for the culpability or blamelessness of the subordinate is whether or not he could rely on the legality of the command.”562 On the other side, Halsbury describes the alternative basic approach to the superior orders defense: The mere fact that a person does a criminal act in obedience to the order of a duly constituted superior does not excuse the person who does the act from criminal liability, but the fact that a person does an act in obedience to a superior whom he is bound to obey, may exclude the inference of malice or wrongful intention which might otherwise follow from the act . . . . Soldiers and airmen are amenable to the criminal law to the same extent as other subjects . . . . Obedience to superior orders is not in itself a defence to a criminal charge.563

For Professor Paul Guggenheim, the assertion of the defense of having acted pursuant to superior orders does not eliminate the personal criminal culpability of the subordinate, but, in subjective terms, whether or not the subordinate had a choice in the execution of the order needs to be determined for the purpose of mitigation of, or exemption from, the sentence.564 This position is also supported by Professor Yoram Dinstein who is the author of one of the most authoritative works on the subject.565 Dinstein argues: [O]bedience to orders constitutes not a defence per se but only a factual element that may be taken into account in conjunction with the other circumstances of the given case within the compass of a defence based on lack of mens rea, that is, mistake of law or fact or compulsion.566 560 Jescheck, Befehl und Gehorsam in der Bundeswehr, supra note 551; also cited in Vogler, supra note 551. 561  Dahm, supra note 551, at 311. 562 Vogler, supra note 551, at 634. But see Herbert L.A. Hart, The Concept of Law 206 (1961) (stating: “What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny”). 563 Hardinge S.G. Halsbury, 10 The Laws of England 541, 1169 (3d Lord Simonds ed. 1955). Another author states: “Superior order is never a justification, unless it itself was lawful. If the order was unlawful, the act done in obedience thereto will also be unlawful, even though, in some cases, the law will excuse the one who did it, or will reduce his punishment.” Sack, supra note 551, at 12. 564 Guggenheim, supra note 551, at 551. 565 Dinstein, supra note 551, also Green, Müller-Rappard, supra note 551. 566 Dinstein, supra note 551, at 88.



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To Dinstein, “the existence of mens rea is the signpost that ought to direct our thoughts and guide us in the attempt to solve the problem of obedience to superior orders.”567 Sir Hersch Lauterpacht had previously expressed the same view: “[I]t is necessary to approach the subject of superior orders on the basis of general principles of criminal law, namely, as an element in ascertaining the existence of mens rea as a condition of accountability.”568 As Dinstein further explains: [O]bedience to orders should be regarded as a factual detail germane to the offence, just like the time when, and the place where, the offence was committed; just like the weapon by which it was carried out; and just like myriads of other circumstantial minutiae. None of these factual details standing alone and out of context is endowed with special traits which radiate special legal significance. When the only thing that we know about a particular offence is that it was performed pursuant to orders, the knowledge does not get us, legally speaking, any farther than if the only thing that we knew were that the offence was committed, for instance, at 6 o’clock p.m. It would have been rash and impetuous on our part, if, on the basis of this knowledge alone, we had jumped to the conclusion that when the offender is brought to trial he must need be relieved of responsibility. No particularly immunizing ingredient is inherent in the mere fact that the offender obeyed an order, just as no specially exculpating component is inherent in the fact that the offence was committed at 6 o’clock p.m. Of course, when the scope of our knowledge in respect of the circumstances of the case broadens and all the facts are assembled and evaluated, the fact that the offence was carried out in submission to orders may contribute to the discharge of the defendant from responsibility, just as the fact that the offence was committed at 6 o’clock p.m. may be material in the achievement of the same result.569

Thus, in the words of Professor Dinstein, “Superior orders are not a magical talisman which wards off the spirit of justice.”570 Indeed, as another authoritative scholar, Professor Leslie C. Green states, “whether in time of peace or armed conflict, it is clear that while they may constitute ground for mitigating punishment, these orders cannot be accepted as justifying an illegal act.”571 German military doctrine before 1945 was premised on the maxim Befehl ist befehl (an order is an order), and many national military doctrines followed that view. But the IMT, as discussed below, rejected that view. Instead, in reliance on the London Charter, it rejected the defense of obedience to superior orders for all unlawful orders irrespective of the actor’s state of mind, knowledge, and ability to refuse the order short of imminent threat of death. However, the Subsequent Proceedings tempered this extreme view with the caveat that the actor had no moral choice but to obey. It is this latter perspective that prevailed in 567 Id. 568 Lauterpacht, supra note 547, at 73. 569 Dinstein, supra note 551, at 88–89. 570 Id. at 89. 571 Green, supra note 551, at 103.

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the post-Charter developments in national military law. The prevailing, if not overwhelmingly followed, test is that of reasonableness in light of existing circumstances. 10.1.4. The Judgments of Tribunals In addition to scholars, military tribunals and other courts have contributed to the development and advancement of the superior orders doctrine. Perhaps the first person to assert the defense of superior orders before a tribunal was Peter von Hagenbach in the year 1474.572 Charles, the Duke of Burgundy, appointed Hagenbach the Governor (Landvogt) of the Upper Rhine, including the fortified town of Breisach. At the behest of Charles, Hagenbach, with the aid of his henchmen, sought to reduce the populace of Breisach to a state of submission by committing such atrocities as murder, rape, and illegal confiscation of property.573 Hagenbach was finally captured and accused of having “trampled under foot the laws of God and man.”574 Hagenbach relied primarily on the defense of obedience to superior orders. His counsel claimed that Hagenbach “had no right to question the order which he was charged to carry out, and it was his duty to obey. Is it not known that soldiers owe absolute obedience to their superiors?”575 The Tribunal refused to accept Hagenbach’s defense, found him guilty, and sentenced him to death. Another failed attempt to assert the defense occurred in England, where in 1660, after the restoration of King Charles II, the commander of the guard who presided at the execution of Charles I, Colonel Axtell, was tried for treason and murder. He pled that he was acting upon superior orders, but the court rejected his plea on the basis that obedience to a treasonable order is itself treasonable.576 In the United States, a striking case occurred during the War of 1812. During that war, the populace of the United States was split in its attitudes toward the war, and in New England the United States Navy was not very popular.577 It happened that while the ship Independence was docked in Boston Harbor, a passerby directed abusive language at a marine named Bevans, who was standing 572 See Georg Schwarzenberger, 2 International Law As Applied by International Courts and Tribunals 462–66 (1968); see also Daniel III, supra note 551, at 481. 573 As Professor Green points out, Hagenbach perpetrated acts which today would be considered crimes against humanity. Green, supra note 551, at 77; see also Schwarzenberger, supra note 572, at 466. 574 See Schwarzenberger, supra note 572, at 465; see also Amable G.P.B. de Barante, 10 Histoire des Ducs de Bourgogne 1364–1477, 15 (1839). 575 See Schwarzenberger, supra note 572, at 465; and de Barante, supra note 574, at 16. 576 See Hilaire McCoubrey, International Humanitarian Law 219 (1990). The court concluded that: “his superior was a traitor, and all that joined him in that act were traitorous and did by that approve the treason; and where the command was traitorous, there the obedience to that command is also traitorous.” 84 Eng. Rep. 1060 (1660). 577 See Taylor, supra note 534, at 43–44.



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guard on the ship. Bevans responded by driving his bayonet through the man. Bevans was charged with murder and asserted as a defense that the marines on Independence had been ordered to bayonet whomever showed them disrespect. The trial was before Justice Joseph Story who instructed the jury that such an order was illegal and void, and if given and carried out, both the superior and subordinate would be guilty of murder. Bevans was convicted.578 In another early American case United States v. Bright,579 the court clearly expressed its view on the issue: In a state of open and public war, where military law prevails, and the peaceful voice of military law is drowned in the din of arms, great indulgences must necessarily be extended to the acts of subordinate officers done in obedience to the orders of their superiors. But even there the order of a superior officer to take the life of a citizen, or to invade the sanctity of his house and to deprive him of his property, would not shield the inferior against a charge of murder or trespass, in the regular judicial tribunals of this country.580

During the Napoleonic Wars, a Scottish court rejected the plea of superior orders of a soldier who shot and killed a French prisoner. In the case of Ensign Maxwell, the court stated: If an officer were to command a soldier to go out to the street and to kill you or me, he would not be bound to obey. It must be a legal order given with reference to the circumstances in which he is placed; and thus every officer has a discretion to disobey orders against the known laws of the land.581

Another important prosecution in the development of the superior orders doctrine occurred after the American Civil War. At the Wirz Trial,582 the defendant, 578 U.S. v. Bevans, 24 F. Cas. 1138 (C.C.D. Mass. 1816) (No. 14589). Bevans’s conviction was later reversed by the Supreme Court on jurisdictional grounds. U.S. v. Bevans, 3 Wheat. 336 (1818). 579 U.S. v. Bright, 24 F. Cas. 1232 (C.C.D. Pa. 1809) (No. 14647). See also Little v. Barrone, 1 U.S. (2 Cranch) 465, 467 (1804) in which Chief Justice Marshall stated: [i]mplicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appears to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. However, as a matter of law, he held: “the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.” Id. 580 U.S. v. Bright, supra note 579, at 1237–38. See also Martin v. Mott, 25 U.S. (12 Wheat) 537 (1827). But see U.S. v. Jones, 26 F. Cas. 653 (C.C.D. Pa, 1813), and Hyde v. Melvin, 11 Johns (N.Y.) 521 (1814), wherein the courts did not discuss special rules for the military. 581 William Buchanan, 2 Reports of Certain Remarkable Trials 3, 58 (1813). 582 H.R. Exec. Doc. No. 23, 40th Cong. 2d Sess., 764. See also Riggs v. State, 3 Coldwell 85, 91 Am. Dec. 272 (1866). This was one of the most frequently cited cases during this period on the question of obedience. The court found no error in a lower court instruction that: Any order given by an officer to a private, which does not expressly and clearly show on its face or in the body thereof its own illegality, the soldier would be bound to obey and such an order would be a protection to him . . . . But an order illegal in itself and not justified by the

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Major Henry Wirz, was charged with committing atrocities against Union prisoners of war at Camp Sumter, the Confederate prisoner of war camp in Andersonville, Georgia.583 Wirz was tried before a military commission of six Union generals and two colonels. The commission heard a prodigious amount of evidence that showed that Union prisoners were given inadequate shelter, inadequate food, and contaminated water. Despite a bountiful harvest, Wirz turned away farmers offering relief. Furthermore, human waste and corpses fouled a stream that was the camp’s only source of water. As a result, some 14,000 prisoners died by the end of the war. Wirz defended himself by providing evidence that his administration of the camp was pursuant to the orders of General John H. Winder, the officer in charge of all Confederate prison camps. The commission found Wirz, inter alia, guilty of murder in violation of the laws and customs of war and sentenced him to hanging.584 Although no formal judgment was delivered because the case was a military trial, we may assume that the judges shared the view expressed by the Judge Advocate, who stated, “A superior officer cannot order a subordinate to do an illegal act, and if a subordinate obeys such an order and disastrous consequences result, both the superior and the subordinate must answer for it.”585 Another notable case is Regina v. Smith,586 which involved a British soldier who, under order, killed a South African native for not performing a menial task. Although the court acquitted the soldier, it introduced the “manifest illegality” test, stating: It is monstrous to suppose that a soldier would be protected where the order is grossly illegal. [That he] is responsible if he obeys an order that is not strictly legal is an extreme proposition which the Court cannot accept . . . . Especially in time of war immediate obedience . . . is required . . . . I think it is a safe rule to lay down that if a soldier honestly believes that he is doing his duty in obeying the command of his superior, and if the orders are not so manifestly illegal that he must or ought to

rules and usages of war, or in its substance being clearly illegal so that a man of ordinary sense and understanding would know as soon as he heard the order read or given that such order was illegal, would afford a private no protection for a crime committed under such order. Id. at 273. 583 An early American case addressed the issue of obedience to superior orders in the context of an action arising from the seizure of property. Chief Justice Roger B. Taney stated: [T]he order given was to do an illegal act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was executed . . . . And upon principle, . . . it can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order or his superior. The order may palliate, but it cannot justify. Mitchell v. Harmony, 13 How. 115, 137 (1851). 584 See Taylor, supra note 534, at 45–46. 585 H.R. Exec. Doc. No. 23, 40th Cong. 2d Sess., 764, 773. 586 Regina v. Smith, 17 S.C. 561 (Cape of Good Hope, 1900).



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have known that they were unlawful, the private soldier would be protected by the orders of his superior.587

The issue of obedience to superior orders first gained contemporary international significance during the war crimes trials that followed World War I.588 By virtue of Article 228 of the Treaty of Versailles, Germany submitted to the Allied Powers’ right to try alleged war criminals.589 Although the Treaty originally provided that the trials would be administered by the state against whose nationals the alleged crimes were committed,590 it was subsequently agreed that the German Reichsgericht (Supreme Court) sitting at Leipzig would be the court to preside over these cases.591 The two most notable cases involving the issue of obedience to superior orders during the Leipzig Trials592 were the Dover Castle593 and Llandovery Castle594 cases. In Dover Castle, the defendant, Lieutenant Captain Karl Neuman, the commander of a German submarine, was charged with torpedoing the Dover Castle, a British hospital ship. The defendant claimed that he was acting pursuant to superior orders, which were issued by his naval superiors who claimed that they believed that Allied hospital ships were being used for military purposes in violation of the laws of war. The Leipzig court acquitted the commander, holding: It is a military principle that the subordinate is bound to obey the orders of his superiors . . . [w]hen the execution of a service order involves an offence against the

587 Id. at 567–68. A half-century later, an American tribunal also emphasized the manifest illegality of an order. In U.S. v. Kinder, 14 C.M.R. 742, 774 (1953), the court notes “of controlling significance in the instant case is the manifest and unmistakable illegality of the order.” 588 See generally Dinstein; Müller-Rappard, supra note 551, at 10-20; Green, supra note 551, at 79–81. See also Mullins, supra note 543. 589 Treaty of Versailles, supra note 520, at art. 228; see also Report Presented to the Preliminary Peace Conference by the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties 83 (Carnegie Endowment for International Peace, Division of International Law Pamphlet No. 32, 1919), reprinted in 14 Am. J. Int’l L. 95 (1920) [hereinafter 1919 Commission Report], at ch. III, which stated: We desire to say that civil and military authorities cannot be relieved from responsibility by the mere fact that a higher authority might have been convicted of the same offense. It will be for the court to decide whether a plea of superior orders is sufficient to acquit the person charged from responsibility. 14 Am. J. Int’l L. 95, 117 (1920). 590 Treaty of Versailles, supra note 520, at art. 229. 591   As Dinstein explains, because only a relatively few secondary offenders were tried and sentenced at Leipzig, these trials have become synonymous “with a judicial farce.” Dinstein, supra note 551, at 11. 592 The superiors orders issue was also addressed in Robert Neumann’s Case. See 16 Am. J. Int’l L. 696 (1922); see also Mullins, supra note 543, at 87–98; The Stenger and Crusius case, Mullins, supra note 543, at 151–67. 593 See Dover Castle, 16 Am. J. Int’l L. 704 (1922); see also Mullins, supra note 543, at 99–107, 198, 221–22. 594 See Llandovery Castle, 16 Am. J. Int’l L. 708 (1922); see also Mullins, supra note 543, at 107–33, 221.

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chapter four criminal law, the superior giving the order is alone responsible. This is in accordance with the terms of the German law, § 47, para. 1 of the Military Penal Code . . . . According to § 47 of the Military Penal Code No. 2, a subordinate who acts in conformity with orders is . . . liable to punishment as an accomplice, when he knows that his superiors have ordered him to do acts which involve a civil or military crime or misdemeanor. There has been no case of this here. The memoranda of the German Government about the misuse of enemy hospital ships were known to the accused . . . . He was therefore of the opinion that the measures taken by the German Admiralty against enemy hospital ships were not contrary to international law, but were legitimate reprisals . . . . The accused . . .  cannot, therefore, be punished for his conduct.595

In the Llandovery Castle case, the same court did not so readily grant the accused a defense of obedience to superior orders. In that case, also involving a German submarine attack upon a British hospital ship, the submarine commander ordered his subordinates to open fire on the survivors of the torpedoed Llandovery Castle who had managed to get into lifeboats. The officers who carried out the order, First Lieutenants Ludwig Dithmar and John Boldt, were charged with the killings and pleaded that they followed the orders of their commander, Helmut Patzik (whom the German authorities failed to apprehend after the war). However, the court rejected this defense and stated: The firing on the boats was an offence against the law of nations . . . . The rule of international law, which is here involved, is simple and is universally known . . . . [The commander’s] order does not free the accused from guilt. It is true that according to para. 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation the superior giving the order is alone responsible. However, the subordinate obeying such an order is liable to punishment if it was known to him that the order of the superior involved the infringement of civil or military law. This applies in the case of the accused. It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law.596

595 16 Am. J. Int’l L. 707–08 (1922). 596 Id. at 721–22. The Court stated further: In examining the question of the existence of this knowledge, the ambiguity of many rules of international law, as well as the actual circumstances of the case, must be borne in mind, because in war time decisions of great importance have frequently to be made on very insufficient material. This consideration, however, cannot be applied to the case at present before the court. The rule of international law, which is here involved, is simple and is universally known. No possible doubt can exist with regard to the question of its applicability. The court must in this instance affirm Patzik’s guilt of killing contrary to international law. Id. at 721 (emphasis added).



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This statement notwithstanding, the court acknowledged that the superior orders defense ought to be considered as a factor taken into account for mitigation of punishment, and thereby the court sentenced the accused to only four years of imprisonment.597 Professor Dinstein’s analysis of the use of the defense of obedience to superior orders at the Leipzig trials concluded that: (1) As a general rule, a subordinate committing a criminal act pursuant to an order should not incur responsibility for it. (2) This rule is inapplicable if the subordinate knew that the order entailed the commission of a crime, and obeyed it nonetheless. (3) To determine whether the subordinate was aware of the fact that he had been ordered to perform a criminal act, the Court may use the auxiliary test of manifest illegality.598

Undoubtedly, the most important decisions that dealt with the superior orders issue were rendered by the IMT at Nuremberg. For the first time a rule was set down in positive international law that addressed the superior orders defense. However, the London Charter specifically articulated a rule applicable to the defense.599 Article 8 of the Charter provides: “The fact that the Defendant acted pursuant to orders of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment, if the Tribunal determines that Justice so desires.”600 597 Id. at 723. 598 See Dinstein, supra note 551, at 19. 599 See IMT Charter, supra note 12, at art. 8. In 1946, by way of a General Assembly Resolution, the United Nations affirmed the principles of international law articulated in the London Charter, Article 8 included. See Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95(I), U.N. GAOR, 1st Sess., U.N. Doc. A/236 (Dec. 11, 1946). Specifically, the resolution states: “The General Assembly . . . affirms the principles of international law recognized by the Charter of the Nürnberg Tribunal and the Judgment of the Tribunal.” Similarly, in 1950 the ILC affirmed the principles of the London Charter. See Nuremberg Principles, supra note 519. As to the obedience defense, the Commissions Reports states that: “The Fact that a person acted pursuant to orders of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” Id. 600 IMT Charter, supra note 12, at art. 8. The London Charter’s formulation on this issue resulted as a compromise between the Allies. The United States’ original position was: “The fact that a defendant acted pursuant to order of a superior or government sanction shall not constitute an absolute defense but may be considered either in defense or in mitigation of punishment if the Tribunal before which the charges are being tried determines that justice so requires.” American Draft of Definitive Proposal, Presented to Foreign Ministers at San Francisco, April 1945, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials 24 (U.S. Gov’t Print. Off. 1945) [hereinafter Jackson Report]. The Soviet proposal, on the other hand stated that: “The fact that the accused acted under orders of his superior or his government will not be considered as justifying the guilt circumstance.” AideMémoire from the Soviet Government, June 14, 1945, in Jackson Report, supra, at 62. The U.S., however, insisted that superior orders be admissible for purposes of mitigation of punishment and offered another proposal: “The fact that a defendant acted to order of a superior or to government sanction shall not constitute a defense per se, but may be considered in mitigation

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As Professor Dinstein notes with respect to Nuremberg, “The prosecution and the defence crossed swords many times in the arena of obedience to orders, and the Tribunal seriously pondered the question.”601 When senior military commander Wilhelm Keitel raised the defense, the IMT refused to grant mitigation of punishment because of the shocking nature of the crimes: There is nothing in mitigation. Superior orders, even to a soldier, cannot be considered in mitigation where crimes so shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification.602

One greatly contested issue of the defense of superior orders at Nuremberg involved the Führerprinzip, or leadership principle.603 The IMT explained the term in this manner: The procedure within the [Nazi] party was governed in the most absolute way by the “leadership principle” (Führerprinzip). According to the principle, each Führer has the right to govern, administer or decree, subject to no control of any kind and at his complete discretion, subject only to the orders he received from above. This principle applied in the first instance to Hitler himself as the Leader of the Party, and in a lesser degree to all other party officials. All members of the Party swore an oath of “eternal allegiance” to the Leader.604

In light of the Führerprinzip, the defense at Nuremberg argued that the IMT should relieve the defendants of responsibility, since they had not obeyed ordinary orders but orders from the Führer. Thus, the accused contended that Article 8 ought not apply because they had obeyed not just a leader, but the Leader— the Führer of the Third Reich.605 As one defense attorney, Dr. Herman Jahrreiss pointed out: “The Führer’s orders [had] a special aura of sanctity . . . . His orders

of punishment if the Tribunal determines that justice so requires.” Revised Draft of Agreement and Memorandum Submitted by American Delegation, June 30, 1945, in Jackson Report, supra, at 124. 601 Dinstein, supra note 551, at 125. For individual cases where the defense was raised, see 18 IMT 362, Nuremberg Trial, Final Plea for Defendant Karl Dönitz (by Otto Kranzbühler); 18 IMT 362, Nuremberg Trial, Final Plea for Defendant Walther Funk (by Fritz Sauter); 18 IMT 248, Nuremberg Trial, Final Plea for Defendant Alfred Jodl (by Franz Exner); 18 IMT 67, Nuremberg Trial, Final Plea for Defendant Ernst Kaltenbrunner (by Kurt Kauffmann); 18 IMT 426, Nuremberg Trial, Final Plea for Defendant Erich Raeder (by Walter Siemers); 17 IMT 597–99, Nuremberg Trial, Final Plea for Defendant Joachim von Ribbentrop (by Martin Horn); 18 IMT 505, Nuremberg Trial, Final Plea for Defendant Fritz Sauckel (by Robert Servatius); 19 IMT 72, Nuremberg Trial, Final Plea for Defendant Arthur Seyss-Inquart (by Gustav Steinbauer); 19 IMT 210, Nuremberg Trial, Final Plea for Defendant Albert Speer (by Hans Flachsner). 602 2 Friedman (1972), at 977. 603 See, e.g., 17 IMT 482, 493, Nuremberg Trial, Closing Speech for the Defense (by Herman Jahrreiss). 604 Command Papers No. 6964, 5, Nuremberg Trial, Judgment, reprinted in Dinstein, supra note 551, at 141. 605 See Dinstein, supra note 551, at 140–41.



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were something quite different from the orders of any official within the hierarchy under him.”606 The arguments of the defense, however, were dealt with “by one thrust of the sword of logic.”607 The chief Soviet prosecutor, General Roman Rudenko, stated with regard to the applicability of Article 8 to orders of the Führer that: [I]t is quite incomprehensible what logical or other methods have led him to assert that the provisions of the Charter, specially drafted for the trial of major war criminals of fascist Germany, did not factually imply the very conditions themselves of the activities of these criminals. What orders then issued by whom and in what country are meant by the Charter of the Tribunal?608

Similarly, Justice Robert Jackson, the chief American prosecutor, repudiated defense counsel’s use of the Führerprinzip principle: I admit that Hitler was the chief villain. But . . . we know that even the head of the state has the same limits to his senses and to the hours of his days as do lesser men. He must rely on others to be his eyes and ears as to most that goes on in a great empire. Other legs must run his errands; other hands must execute his plans. On whom did Hitler rely for such things more than upon these men in the dock? . . . These men had access to Hitler and often could control the information that reached him and on which he must base his policy and his orders. They were the Praetorian Guard, and while they were under Caesar’s orders, Caesar was always in their hands.609

Another Allied prosecutor, Lord Shawcross, commented on the obvious illegality of the orders, regardless of who passes the order: “By every test of international, of common conscience, of elementary humanity, these orders . . . were illegal.”610 In its judgment, the IMT stood firm in its belief as to the validity of Article 8 of the London Charter. The Tribunal stated that: The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations is not the existence of the order, but whether moral choice was in fact possible.611

606 17 IMT 484. 607 See Dinstein, supra note 551, at 144. 608 19 IMT 577 Nuremberg Trial, Closing Speech for the Prosecution (by Roman Rudenko). 609 Id. at 430. 610 19 IMT 466. 611 22 IMT 466, reprinted in 41 Am. J. Int’l L. 221 (1947). Other parts of the Tribunal’s judgments referred to the superior orders issue. The Tribunal stated that: “Participation in . . . crimes . . . have never been required of any soldier and he cannot now shield himself behind a mythical requirement of soldierly obedience at all costs as his excuse for commission of these crimes.” Id. at 316. Ironically, the words used by the Tribunal in its judgment echoed those of Dr. Joseph Goebbels,

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This oft-quoted statement has been the center of much discussion, especially the last sentence, which introduces the “moral choice test.” A point of contention is whether the moral choice test undermines the provision in Article 8 which specifically provides that even though an accused “acted pursuant to orders of his Government or of a superior [it] shall not free him from responsibility.”612 One commentator, Morris Greenspan, contends that the moral choice test does undercut Article 8. He states: “It is clear that the test of moral choice was applied to the question of criminal punishment.”613 However, this contention contradicts what the Tribunal explicitly asserted previously in the statement; i.e., the Tribunal endorsed the provisions of Article 8 when it stated “[t]hat a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts . . . .”614 A more correct view is that of Yoram Dinstein, who states that “the moral choice test was meant to complement the provision of Article 8 and not to undermine its foundations, and that it does not permit the fact of obedience to orders to be considered for defence purposes.”615 In other words, it seems that the Tribunal intended that if, for example, a defendant who was in a position where if he/she did not comply with the illegal order, he/she would be killed (i.e., no ability to make a moral choice), then the defendant may be acquitted once all the relevant circumstances were examined pursuant to general principles of law (e.g., the traditional criminal law defense of coercion), without regard to the defense of superior orders. On the other hand, if the defendant were in a position to make a moral choice and nonetheless complied with the illegal order then, applying Article 8, the defendant may not assert the superior orders defense. One author sums up the obedience defense in relation to Nuremberg in this manner: Article 8 [of the Nuremberg Charter] provided that “[t]he fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment, if the Tribunal determines that justice so requires.” The Nuremberg Tribunal put a gloss on these words with its statement: “The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral

the German Minister of Propaganda, who in May 1944 published an article condemning bombings by the Allies. He exclaimed: No international law of warfare is in existence which provides that a soldier who has committed a mean crime can escape punishment by pleading as his defence that he followed the commands of his superiors. This holds particularly true if those commands are contrary to all human ethics and opposed to the well-established usage of warfare. Deutsche Allgemeine Zeitang, May 28, 1944, quoted in Taylor, supra note 534, at 48. 612 IMT Charter, supra note 12, at art. 8. 613 Morris Greenspan, The Modern Law of Land Warfare 493, n.343 (1959). 614 Command Papers No. 6964, p. 42 (cited by Dinstein, supra note 551, at 147). 615 Dinstein, supra note 551, at 152.



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choice was in fact possible.” Nevertheless, it accepted the basic point—the defendant’s position in the governmental hierarchy and any orders from above were not available as defenses.616

The Tokyo Charter of the IMTFE,617 issued at Tokyo on January 19, 1946, by General MacArthur in his capacity as the Supreme Commander for the Allied Powers in the Far East was similar to the London Charter. Article 6 of the Tokyo Charter provides: Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to the order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.618

While the IMT and, to a lesser extent, the IMTFE serve as important markers in the progression of the superior orders defense, the use of the defense continued.619 Immediately following Nuremberg, the Allies also conducted trials of accused German war criminals, known as the Subsequent Proceedings, which were conducted under CCL 10.620 Article II (4)(b) of CCL 10 states an absolute denial of the defense: “The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”621 Nevertheless, the Tribunals of the Subsequent Proceedings, though not allowing the defense in its cases, recognized that under certain circumstances a plea of obedience to superior orders could exempt the defendant from liability. The Einsatzgruppen Case serves as the best example of how the Subsequent Proceedings dealt with the superior orders issue because it did so in a comprehensive manner. The tribunal stated: [T]he obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece

616 Roger S. Clark, Codification of the Principles of the Nuremberg Trial and the Subsequent Development of International Law, in The Nuremberg Trial and International Law 249, 261 (George Ginsburgs & V.N. Kudriavtsev eds., 1990). 617 See Charter for the International Military Tribunal for the Far East, approved Apr. 26, 1946, T.I.A.S. No. 1589, at 11, 4 Bevans 27, at art. 5(b) [hereinafter Tokyo Charter]. 618 Id. at art. 6. 619 As Dinstein points out, the defense of superior orders has been raised in war crimes trials more frequently than any other. See Dinstein, supra note 551, at 121. 620 Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, art. 2(1)(b), 20 Dec. 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, 31 Jan. 1946, reprinted in Benjamin Ferencz, An International Criminal Court: A Step Towards World Peace 488 (1980) [hereinafter CCL 10]. 621 Id. at art. II(4)(b).

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chapter four of machinery. It is a fallacy of widespread consumption that a soldier is required to do everything his superior officer orders him to do . . . . The subordinate is bound to obey only the lawful orders of his superior and if he accepts a criminal order and executes it with a malice of his own, he may not plead Superior Orders in mitigation of his defence. If the nature of the ordered act is manifestly beyond the scope of the superior’s authority, the subordinate may not plead ignorance of the criminality of the order. If one claims duress in the execution of an illegal order, it must be shown that the harm caused by obeying the illegal order is not disproportionately greater than the harm which would result from not obeying the illegal order. It would not be an adequate excuse . . . if a subordinate, under orders, killed a person known to be innocent, because by not obeying it he himself would risk a few days of confinement. Nor if one acts under duress, may he, without culpability, commit the illegal act once the duress ceases . . . .622

In two other notable cases of the Subsequent Proceedings, the use of the superior orders defense was also denied.623 In the trial of Field Marshall Milch (The Milch Case), the Tribunal stated: The defendant had his opportunity to join those who refused to do the evil bidding of an evil master, but he cast it aside . . . . By accepting such attractive and lucrative posts under a head whose power they knew to be unlimited, they ratify in advance his every act, good or bad. They cannot say at the beginning, “The Führer’s decisions are final; we will have no voice in them; it is not for us to reason why; his will is law,” and then, when the Führer decrees . . . barbarous inhumanities . . . to attempt to exculpate themselves by saying, “Oh, we were never in favor of those things . . . .”624

In The High Command Case, another case involving a senior officer, Wilhelm Ritter von Leeb, the U.S. military court stated: All of the defendants in this case held official positions in the armed forces of the Third Reich. Hitler, from 1938 on, was Commander-in-Chief of the Armed Forces and was the Supreme Civil and Military Authority in the Third Reich, whose personal decrees had the force and effect of law. Under such circumstances, to recognize as a defence . . . that a defendant acted pursuant to the order of his government or of a superior would be in practical effect to say that all the guilt charged . . . was the guilt of Hitler alone because he alone possessed the lawmaking power of the State and the supreme authority to issue civil and military directives. To recognize such a contention would be to recognize an absurdity . . . . The rejection of 622 The Einsatzgruppen Case, 4 CCL Trials 470. With regard to the defense of duress, the Tribunal concluded that: “No court will punish a man, who, with a loaded pistol at his head is compelled to pull a lethal lever.” Id. 411–589. 623 In fact, as Dinstein notes, in only one case among those published in the Law Reports of the United Nations War Crimes Commission was the use of the defense of superior orders successful in gaining an automatic acquittal of the defendant. The one case involved a public prosecutor in a Nazi trial charged with complicity in murder. But as Dinstein states: “This is a unique case, and it seems to be an anomalous phenomenon and an historical anachronism, which does not fall into line with all the other post-Second World War cases.” Dinstein, supra note 551, at 196. 624 In Re Milch (The Milch Case), VII Trials of War Criminals 27, 42 (1947).



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the defence of superior orders . . . would follow of necessity from our holding that the acts . . . are criminal . . . because they then were crimes under International Common Law. International Common Law must be superior to and, where it conflicts with, take precedence over National Law or directives issued by any governmental authority. A directive to violate International Common Law is therefore void and can afford no protection to one who violates such law in reliance on such a directive . . . . The defendants . . . who received obviously criminal orders were placed in a difficult position but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognized as a defence. To establish the defence of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong.625

The court in High Command further allowed for the possibility that a defendant, under certain circumstances, may claim a mistake of law/superior orders defense due to excusable ignorance of the unlawfulness of an order: Within certain limitations, a soldier in a subordinate position has the right to assume that the orders of his superiors and the state which he serves and which are issued to him are in conformity with international law.626

The U.S. military court in The Hostages Case limited above-quoted language of High Command as follows: An officer is duty bound to carry out only the lawful orders that he receives. One who distributes, issues, or carries out a criminal order becomes a criminal if he knew or should have known of its criminal character.627

Thus, in light of High Command and Hostages, the defense of superior orders may give rise to “an excuse (thus not justifying the subordinate’s conduct), and is based on the subordinate’s (reasonable) reliance on his superior.”628 Another view of the treatment of the question by the post-war courts was that of Geoffrey Best: Justice in the event was found to require sympathetic consideration of the “superior orders” plea when made by underlings in all but the most atrocious cases but the plea was indignantly dismissed when offered by officers and officials in the higher echelons.629

Four national prosecutions also merit mention. One of these cases was the prosecution in Israel of Adolf Eichmann (The Eichmann Case), who consistently

625 In Re Von Leeb (The High Command Case), XII Trials of War Criminals 1, 71–72 (1948). 626 2 Friedman (1972) at 1433. 627 2 Friedman (1972), at 1323. 628 van Sliedregt, supra note 162, at 328. 629 Geoffrey Best, War and Law Since 1945 190 (1994).

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claimed that everything he did was pursuant to superior orders.630 The District Court of Jerusalem, however, rejected his plea. The Court declared: We reject absolutely the accused’s version that he was nothing more than a ‘small cog’ in the extermination machine. We find that in the RSHA, which was the central authority dealing with the final solution of the Jewish question, the accused was at the head of those engaged in carrying out the final solution. In fulfilling this task, the accused acted in accordance with general directives from his superiors, but there still remained to him wide powers of discretion which extended also to the planning of operations on his own initiative. He was not a puppet in the hands of others; his place was amongst those who pulled the strings.631

The second case, which also arose from crimes committed during World War II, is the French trial of Klaus Barbie.632 Barbie, charged with crimes against humanity, argued that when an accused is charged with the commission of crimes pursuant to Article 6(c) of the London Charter, the presiding judge must follow the mandate of Article 8.633 Barbie’s contention was that the trial court deprived him of the benefit of the Article 8 provisions with respect to mitigating circumstances. Thus, Barbie argued, the trial court committed a prejudicial error. As one author points out, Barbie’s counsel, Jacques Vèrges, misinterpreted Article 8 of the Charter:634 obedience to a superior’s orders is not an excuse under the London Charter, nor is it a mandatory mitigating circumstance, but rather, it “may be considered in mitigation of punishment, if the Tribunal determines that justice so requires.”635 On appeal, the Cour de Cassation rejected all errors asserted by Barbie, who was sentenced to life imprisonment. Two other cases involved atrocities committed by United States soldiers during the Vietnam War. In United States v. Schultz, the accused was found guilty of the premeditated murder of a Vietnamese and sentenced to 35 years of imprisonment. In its judgment, the tribunal stated: [T]he issuance or execution of an order to kill under the circumstances of this case is unjustifiable under the laws of this nation, the principles of international law,

630 Israel v. Eichmann, 36 I.L.R. 5 (District Court 1961/62). See generally Gideon Hausner, Justice in Jerusalem 353 et. seq. (1966). For further discussion on the national prosecution of Eichmann, see infra Chapter IX. 631 Id. (First Instance) Judgment, § 180. 632 See infra Chapter IX, section 3.2.3 for the relevant cites for The Barbie Case. 633 Since the Charter is part of international law, and expressly incorporated into French domestic law by Law No. 64-1326, Barbie argued that it has force in France. He also argued on the basis that Article 55 of the French Constitution of October 1958 decrees that the national law of France must defer to international law. See Nicholas R. Doman, Aftermath of Nuremberg: The Trial of Klaus Barbie, 60 Colo. L. Rev. 449, 467 (1989). 634 Id. 635 IMT Charter, supra note 12, at art. 8.



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or the laws of land warfare. Such an order would have been beyond the scope of authority for a superior to give and would have been palpably unlawful.636

In the case of Lt. William Calley, arising out of the My Lai (Song My) massacres, the military judge in his instructions to the court members stated that: “[T]he obedience of a soldier is not the obedience of an automaton, a soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.”637 10.1.5. Post-Charter Developments Since the London Charter’s promulgation, a number of international documents have addressed the issue of defense of obedience to superior orders.638 The first such example is the 1946 United Nations Resolution on the Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal.639 The Resolution, by affirming the principles enunciated in the Charter, expressly recognizes the validity of the Charter’s Article 8, which provides that

636 U.S. v. Schultz, 39 M.R. 133, 136 (1966, court martial; 1968 Review Board). 637 U.S. v. Calley (1971), 46 C.M.R. 1131 (1973), aff ’d 22 U.S.C. M.A. 534, 48 C.M.R. 19 (1973), reprinted in 2 Friedman 1703, 1722. At the time of this trial the United States Manual for Court Martial, § 216d (1968) provided that orders requiring the performance of a “military duty may be inferred to be legal,” but: “An act performed manifestly beyond the scope of authority, or pursuant to an order that a man of ordinary sense and understanding would know to be illegal, or in a wanton manner in the discharge of a lawful duty, is not excusable.” For more about the My Lai massacre, see infra Chapter VII. 638 One effort between the world wars was put forth; however, it failed. In the 1922 Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, 25 L.N.T.S. 202, 16 Am. J. Int’l L. 57 (Supp. official docs., 1922), Art. III provided in part that: The Signatory Powers, desiring to insure the enforcement of the humane rules of existing law declared by them with respect to attacks upon and the seizure and destruction of merchant ships, further declare that any person in the service of any Power who shall violate any of those rules, whether or not such person is under orders of a governmental superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military authorities of any Power within the jurisdiction of which he may be found. Of the five necessary contracting parties, Britain, Italy, Japan, and the United States ratified, but France refused and the treaty never entered into force. This led one author to comment: “It appears to be equally admitted that the defenses of act of state and superior orders . . . condition any prosecution for war crimes. The very fact that one writer suggests a reappraisal of these orthodox principles is only further proof of their general acceptance in positive law.” George Manner, The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War, 37 AJIL 406, 433 (1943). It is interesting to note that France, in order to be consistent with her Allies, enacted an ordinance on August 28, 1944, to the effect that superior orders cannot be pleaded as a justification but can be admitted as “extenuating or exculpating circumstances.” See Oppenheim, supra note 535, at 568 n.1. 639 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, GA Res. 95 (I), UN Doc. A/236 (1946), at 1144.

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the fact that an accused acted pursuant to an order of his/her government or of a superior shall not free him/her from responsibility, but may be considered in mitigation of punishment. Shortly after this resolution, the United Nations began to formulate the Genocide Convention.640 In June of 1947, the Secretariat of the United Nations Organization submitted a Draft Convention, which in Article V provided: “Command of the law or superior orders shall not justify genocide.”641 Those who opposed inclusion of the article argued that it would conflict with provisions of national law, which took a different approach to obedience to orders. On the other side, those who advocated for the article asserted that rules of international law are superior to those of national law.642 Nevertheless, a majority of the ad hoc Committee on Genocide rejected the article and it never appeared in the Convention. The drafting process of the four Geneva Conventions643 produced similar results. In late 1948, the International Committee of the Red Cross (ICRC) invited four experts to study the problems surrounding the sanctions imposed for violations of the Conventions. At the behest of the experts, the ICRC recommended to the Diplomatic Conference, convened to formulate and sign the Conventions, to include four articles in each of the four Conventions. The third draft article provided: The fact that the accused acted in obedience to the orders of a superior or in pursuance of a law or regulation shall not constitute a valid defence, if the prosecution can show that in view of the circumstances the accused had reasonable grounds to assume that he was committing a breach of this Convention. In such a case the punishment may nevertheless be mitigated or remitted, if the circumstances justify. Full responsibility shall attach to the person giving the order, even if in giving it he was acting in his official capacity as a servant of the State.644

The Diplomatic Conference, however, decided not to include this proposed article in the four Conventions and also did not make an unequivocal statement as to the obedience defense. The reasons for the rejection included the apprehension that, because of lack of general agreement on the subject, the article might hinder the ratification of the Conventions, and the belief that principles of international law relating to the obedience defense were concurrently being

640 Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, art. II (Dec. 9, 1948) [hereinafter Genocide Convention]. 641 Draft Convention on the Crime of Genocide, 25, U.N. Doc. E/447 (June 26, 1947). 642 See Dinstein, supra note 551, at 220–21. 643 1949 Geneva Conventions. 644 1 Commentary: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 359, n.1 (Jean S. Pictet ed., 1952).



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examined and formulated by various bodies of the United Nations.645 The same position had been taken earlier in the drafting of the Genocide Convention. The ILC assumed the task in 1950 while reformulating the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal.646 Principle IV of the document states: “The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”647 In the commentary to the Principle, the Commission explains the connection between its formulation and that of the Nuremberg Tribunal: 105. This text is based on the principle contained in article 8 of the Charter of the Nürnberg Tribunal as interpreted in the judgment. The idea expressed in Principle IV is that superior orders are not a defence provided a moral choice was possible to the accused. In conformity with this conception, the Tribunal rejected the argument of the defence that there could not be any responsibility since most of the defenda nts acted under the orders of Hitler. The Tribunal declared: “The provisions of this article [article 8] are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.” 106. The last phrase of article 8 of the Charter “but may be considered in mitigation of punishment, if the Tribunal determines that justice so requires,” has not been retained for the reason stated under “principle III, in paragraph 104 above. [i.e., “The Commission considers that the question of mitigating punishment is a matter for the competent Court to decide.”]648

Since 1950, there have been a number of draft instruments and instruments which have embodied a provision on this question. Throughout this historic process, including the Rome Statute in 1998, the formulations adopted were substantially similar. In addition to the Affirmation of the Nuremberg Principles, which referred to this question, the ILC also undertook to draft a Code of Offences Against the Peace and Security of Mankind. In 1951, the ILC submitted its first draft of the

645 See Dinstein, supra note 551, at 224–25. Comparing the efforts of the drafters of the Genocide and Geneva Conventions, he concludes that “[I]n both cases, when the authors of the Conventions encountered the kernel of a problem, they preferred to get rid of it rather than spend time and energy on baring its pith.” Id. at 225. 646 Nuremberg Principles, supra note 519. 647 Id. at Principle IV. 648 Id. as reprinted in 2 Ferencz 237. For further information on the drafting history of Principle IV, see Dinstein, supra note 551, at 228–41.

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Code. Article 4 provides: “The fact that a person charged with an offence defined in this Code acted pursuant to order of his government or of a superior does not relieve him from responsibility, provided a moral choice was in fact possible to him.”649 This text is substantially the same as that of the Affirmation of the Nuremberg Principles quoted above. In its report to the General Assembly, the ILC explained the similarities: The observation on Principle IV, made in the General Assembly during its fifth session, have been carefully studied; no substantial modification, however, has been made in the drafting of this article, which is based on a clear enunciation by the Nürnberg Tribunal. The article lays down the principle that the accused is responsible only if, in the circumstances, it was possible for him to act contrary to superior orders.650

After the ILC submitted the Draft Code of Offenses to the General Assembly, the Secretary-General in 1952 requested the Member-States to comment upon the draft. With regard to Article 4, a number of governments objected to the moral choice test. After taking the comments of the governments into account, the ILC in 1954 submitted a revised Draft Code with a revised Article 4, no longer containing the language of the moral choice test. The new Article 4 provides: The fact that a person charged with an offence defined in this Code acted pursuant to an order of his Government or of a superior does not relieve him of responsibility in international law if, in the circumstances at the time, it was possible for him not to comply with that order.651

The ICTY Statute addressed the obedience to superior orders defense in its Article 7 and mirrored the ILC’s 1954 definition with respect to the coercion exception, making it a mitigating circumstance. Article 7 states: “The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.”652 Then, in 1994 Article 6 of the ICTR Statute was adopted in nearly identical form to Article 5 of the ICTY. It stated: “The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her

649 Report of the ILC, 2 Yearbook of the ILC, 1951, 123–24. 650 Id. at 137. 651   1954 Draft Code of Offences, at art. 4. As the ILC noted in its report to the General Assembly: “Since some Governments had criticized the expression ‘moral choice,’ the Commission decided to replace it by the wording of the new text.” Report of the ILC, 2 Yearbook of the ILC, 1954, 140–73, at 151. The 1991 Draft Code of Crimes states, in Article 11: “The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a government or a superior does not relieve him of criminal responsibility if, in the circumstances at the time, it was possible for him not to comply with that order.” 652 ICTY Statute, supra note 15, at art. 7.



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of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires.”653 In 1996, the ILC amended its 1954 and 1991 position in the Draft Code of Offences and renamed the Draft Code of Crimes, on the basis of the ICTY and ICTR formulations. Article 5 of the 1996 Draft Code of Crimes provides, “The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if justice so requires.”654 As for the ICC, Article 33 of the Rome Statute provides: Superior Orders and Prescription of Law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

The Rome Statute’s text rolls back the formulations of the ICTY/R Articles 7/6 and the ILC Article 5 (1996) by emphasizing in paragraph 1(a) that the person was under a legal obligation to obey orders, and by allowing for a defense of ignorance of the “unlawful” nature of the order in 1(b). This formulation is the first to exclude “orders to commit genocide or crimes against humanity” (paragraph 2) from the required knowledge of the unlawful nature of the order. A number of questions arise with this latest formulation, they are inter alia: (1) Procedurally, and from an evidentiary perspective, are the dual issues of ignorance that the order was unlawful under 1(a), and the objective fact that the order was not manifestly unlawful 1(b), to be treated in the same way or differently? One can assume that under 1(a), the defense would raise the issue of ignorance, or lack of intent, and the prosecution would have to prove it beyond a reasonable doubt as an element of the crime. That places a heavy burden on the prosecution. Or would the defense have to prove the ignorance or lack of intent? That, in effect, would shift the burden of proof if 1(a) is construed as an element of the crime. But if it is deemed a defense like those contained in Article 31, the

653 ICTR Statute, supra note 130, at art. 6. 654 1996 ILC Draft Code of Crimes, supra note 14, at art. 5.

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burden of coming forth with some evidence would be with the defense. The prosecution would then have to rebut it. The question of which party has the burden of proof or the burden of coming forth with the evidence has to be considered in light of Article 67 on the rights of the accused, which states: “Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.” (2) This procedural and evidentiary question also applies to paragraph 2: Does the prosecution first prove that the “orders were to commit genocide or crimes against humanity,” and then the defense rebuts it? Is it an objective legal question or a mixed question of law and fact? If it is the latter, then clearly the defense can argue against what the prosecution presents the law to be, and that would be an objective legal question. But with respect to the factual question, would that have to be first proven by the prosecution, or defended against by the defense without the prosecution having first proven it, having regard to Article 67 (1)(i) quoted above? Lastly, can a question of fact like this one exclude the mental element, i.e., did the accused understand, have knowledge of, have intent, etc.? These and other questions will have to be answered by the future jurisprudence of the ICC. Certainly, the formulation of Article 33 opens up many more questions than those of Articles 7/6 of the ICTY/R and Article 5 of the ILC (1996). Other than these formulations, international conventional law has addressed the issue of obedience to superior orders in the 1984 Torture Convention,655 which provides in Article 2 that “[a]n order from a superior officer or a public authority may not be invoked as a justification of torture.”656 Other international criminal law conventions make no mention of it or, like the Apartheid Convention,657 address it indirectly.658 One explanation for the absence of such a provision in other treaties is that obedience to superior orders is clearly no longer recognized by customary international law as an absolute defense.

655 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. G.A. Res. 39/46 (10 Dec. 1984), opened for signature 4 Feb. 1985, 23 I.L.M. 1027, 24 I.L.M. 535 [hereinafter Torture Convention]; see 24 I.L.M. 535 (1985) which contains the substantive changes from the Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984). 656 Id. at art. 2; see also Inter-American Convention to Prevent and Punish Torture art. 2, Dec. 9, 1985, O.A.S. T.S. No. 67, 25 I.L.M. 519 [hereinafter Inter-American Convention] (excluding the defense of superior orders, as well as the act of state defense). 657 Convention on Apartheid, art. 2, Nov. 30, 1973, 1015 U.N.T.S. 243 [hereinafter Apartheid Convention]. 658 Id. at art. 3 (asserting that international criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organizations and institutions and representatives of the State); see Clark, supra note 616, at 261.



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As discussed above, the ICTY and ICTR Statutes verified the absolute liability approach. Both statutes closely track the language of the London Charter. The ICTY has held that superior orders and duress “are separate, but related, concepts and either may count in mitigation of sentence.”659 In the Erdemović case, the ICTY reflected the views of the IMT and the ILC’s Nuremberg Principles. The defense of superior orders was raised by the accused, Dražen Erdemović, who occupied a very low rank in the Bosnian Serb army.660 The Tribunal distinguished between duress and superior orders, and reasoned that Erdemović was in fact positing the defense of duress. However, it accepted that the absolute liability rule was applied with more flexibility than the approach of the Subsequent Proceedings: In practice, the Trial Chamber therefore accepts that tribunals have considered orders from superiors as valid grounds for a reduction of penalty. This general assertion must be qualified, however, to the extent that tribunals have tended to show more leniency in cases where the accused arguing a defence of superior orders held a low rank in the military or civilian hierarchy.661

The Trial Chamber further provided that it would not accept the defense where the defendant carried out the order with the required mens rea: If the order had no influence on the unlawful behavior because the accused was already prepared to carry it out, no such mitigating circumstances can be said to exist.662

On appeal, the Appeals Chamber also distinguished the defenses of superior orders and duress, concluding that the former was merely a factual circumstance that confirmed the existence of duress.663 Judge Gabrielle Kirk McDonald and Judge Vohrah of the majority clearly state that superior orders is not a per se defense at the ICTY: We subscribe to the view that obedience to superior orders does not amount to a defence per se but is a factual element which may be taken into consideration in conjunction with other circumstances of the case in assessing whether the defences of duress or mistake of fact are made out.664

Judge Antonio Cassese dissented on the merits of the appeal, but shared the majority opinion regarding the distinction between superior orders and duress:

659 Prosecutor v. Bralo, Case No. IT-95-17-T, ¶ 53 (Dec. 7, 2005) [hereinafter Bralo Trial Judgment]. 660 Prosecutor v. Erdemović, Case No. IT-96-22, Sentencing Judgment, ¶¶ 51–52 (Nov. 29. 1996) [hereinafter Erdemović Sentencing Judgment]. 661  Id. ¶ 53. 662 Id. 663 Prosecutor v. Erdemović, Case No. IT-06-22-A, Appeals Judgment, ¶¶ 34–36 (Oct. 7, 1997) [hereinafter Erdemović Appeals Judgment]. 664 Id. ¶ 34.

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chapter four It is also important to mention that, in the case-law, duress is commonly raised in conjunction with superior orders. However there is no necessary connection between the two. Superior orders may be issued without being accompanied by any threats to life or limb. In these circumstances, if the superior order is manifestly illegal under international law, the subordinate is under a duty to refuse to obey the order. If, following such a refusal, the order is reiterated under a threat to life or limb, then the defence of duress may be raised, and superior orders lose any legal relevance. Equally, duress may be raised entirely independently of superior orders, for example, where the threat issues from a fellow serviceman. Thus, where duress is raised in conjunction with manifestly unlawful superior orders, the accused may only have a defence if he first refused to obey the unlawful order and then only carried it out after a threat to life or limb.665

According to the facts in Bralo, the defendant was released from prison on the condition that he participate in the attack on Ahmići as part of the “ethnic cleansing” campaign in the Lašva Valley. The Trial Chamber accepted that Bralo was pressured into becoming a member of the “Jokers,” an “anti-terrorist” platoon of the 4th Military Police Battalion of the Croatian Defense Council (HVO) and to be actively involved in their combat operations. The Chamber concluded that Bralo should have refused to participate in combat activities at an earlier stage if he knew the orders to be unlawful or was required to engage in activities he knew to be illegal. It further found that “any orders given to Bralo to kill civilians and destroy homes would have been manifestly unlawful, such that they have no mitigatory value in the determination of the sentence. . . .”666 Similarly, the ICTR Trial Chamber in Bagosora et al. denied the defendants’ requests to mitigate their sentences based on their claim of obedience to superior orders: The Chamber is aware that Nsengiyumva and Ntabakuze were at times following the superior orders in executing their crimes, which is a mitigating factor under Article 6(4) of the Statute. However, given their own senior status and stature in the Rwandan army, the Chamber is convinced that their repeated execution of these crimes as well as the manifestly unlawful nature of any orders they received to perpetrate them reflects their acquiescence in committing them. No mitigation is therefore warranted on this ground.667

Thus, over time the absolute liability approach has proven subtler in its postCharter applications. However, the ICC, as discussed above, adopted a conditional liability approach of its own.

665 Id. Separate and Dissenting Opinion of Judge Cassese, ¶ 15 (Oct. 7, 1997). 666 Bralo Trial Judgment, supra note 659, ¶¶ 53–56. 667 Prosecutor v. Bagosora et al., ICTR-98-41-1-T, ¶ 2274 (Dec. 18, 2008).



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10.1.6. Conclusion A review of scholarly positions, judgments of tribunals, and international legislative efforts leads to the conclusion that obedience to superior orders is not a defense under customary international law to an international crime when the order is manifestly illegal and when the subordinate has no moral choice with respect to obeying or refusing to obey the order. If the subordinate is coerced or compelled to carry out the order, the norms for the defense of coercion (compulsion) should apply. In such cases, the issue is not justification, but excuse or mitigation of punishment. In regard to this important issue, the words of Dr. Lieber are telling: “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.”668 Since 1989, with the fall of the communist regimes in Eastern and Central Europe and the Republics that succeeded the USSR, the issue of obedience to superior orders has arisen once again with the same legal and moral implications raised in connection with the post-World War II prosecutions. These cases, as well as some contemplated legislation in some of these countries, may have the effect of retroactive application either by declaring certain past laws null and void or by new laws that would not recognize the legal affects of certain prior laws. While this would clearly be a violation of the principles of legality,669 it nonetheless also relates to superior orders in that the legal basis for the legitimacy of the order that was followed would be removed. Should such a situation prevail, it could apply to many different categories of public officials, including but not limited to army, police, and security officials, as well as judges and prosecutors. While command responsibility670 would implicate higher ranking officials, the removal of superior orders would not in this case work as a way of policy prevention, but as retributive vengeance against those who may have been in a position where they could only assume the legality of the order and may not have been in a position to exercise a different moral choice. The case arose with a February 1992 conviction of two former East German border guards who followed the order “shoot to kill!” people trying to cross the borders of East Germany. In so doing, one of the guards, a soldier aged 27, killed a person fleeing towards West Berlin in February 1989. He was convicted of manslaughter and sentenced to three and a half years in prison. His defense of obedience to superior orders was denied, Judge Theodore Sidell holding “Not everything that is legal is right.”671 668 Cited by Taylor, supra note 534, at 41. 669 See generally infra Chapter V. 670 See infra Chapter VII, section 5. 671 Another example demonstrating that obedience to superior orders is not a defense under customary international law is the case of two former East German guards who were convicted

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This category of defenses includes what different legal systems refer to as coercion (or compulsion or duress) and necessity, even though they are different, particularly insofar as the origin of the compulsion they generate upon a person to engage in conduct which is otherwise criminal. Coercion is closely related to the defense of obedience to superior orders but not to necessity. Notwithstanding the differences between German and other Continental legal doctrines and the common law, necessity can be viewed together with coercion and duress for purposes of this analysis. The essential difference between the two defenses is that coercion is the product of compulsion brought about by one person against another, while necessity is the product of natural causes that place a person in a condition of danger. The two sources of compulsion, though different, may lead a person to harm another in order to avoid a greater or equal personal harm. Both are a concession to the instinct of human survival, but both are limited, for policy and moral-ethical reasons, by positive and natural law. The extent to which national legal systems permit such defenses varies significantly, and it is, therefore, very difficult to arrive at a common general principle that transcends the recognition of the defense for certain crimes and that can apply to international criminal law. From a policy perspective, it is difficult to foresee under what circumstances necessity occasioned by natural factors could justify or excuse genocide, war crimes, or crimes against humanity. From a moral-ethical perspective it is also equally difficult to justify or excuse such crimes by reason of coercion. The moral-ethical question is how can one justify or excuse the taking of multiple lives in order to save one’s own?672 Positive international criminal law has given these defenses a limited recognition. Criminal responsibility in the world’s major criminal justice systems embodies basic social values. The proposition is that no matter what thoughts or motives compel an individual to commit a crime, it is possible for that individual to control his/her conduct. However, the law is not so rigid that it ignores basic human of slaying an East German citizen who was trying to escape over the Berlin Wall despite the fact that they had orders to do so. The judge said: “At the end of the 20th century . . . no one has the right to ignore his conscience when it comes to killing people on behalf of the power structure.” Chi. Trib., Jan. 21, 1992, at Sec. 1, p. 3. See also William A Henry III et al., The Price of Obedience, Time, Feb. 3, 1992, at 36, which reports that during the 28 years in which this policy existed there were an estimated 200 people killed and 700 injured and only 38 border guards. So far none of the political decision makers or officers who devised the order or carried it out have been accused, let alone prosecuted. This case, however, highlights the unfairness of denying the defense of obedience to superior orders to the lowest ranking soldier without imposing concomitant responsibility on commanders and decision-makers. 672 See generally Herbert L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958); Professor Lon. L. Fuller’s response, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).



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instincts, such as survival. In certain circumstances, an individual is unable to act of free will to conform his/her conduct to positive or natural law. In these circumstances, where the individual is acting out of necessity or coercion, a defense is recognized. For Aristotle, “necessity is manifested in eternal phenomena . . . . We may say that that which is a necessary thing because the conclusion cannot be otherwise . . . and the causes of this necessity are the first premises . . . . The necessary in nature, then, is plainly what we call by the name of matter, and the changes in it.”673 To Aristotle, necessity was divided in absolute and hypothetical necessity; absolute necessity being “the starting point,” “that which is;” while hypothetical necessity is “that which is to be.” The latter may also be referred to as that which is necessary to attain an end, while the former corresponds to causation, because it is grounded in human and common experience. The law draws an arbitrary line between the two, where common sense of the hypothetically legal standard of the ordinary reasonable person is conditioned by the fact that “human conduct implies decision, initiative, action and not mere reaction, but at the same time, it is always more or less influenced by external conditions. Hence: ‘With regard to the things that are done from fear of greater evils . . . it may be debated whether such actions are voluntary or involuntary.’ ”674 Thus, the inexorability of the end of self-preservation lies at the base of criminal accountability and will provide legal grounds for those defenses of necessity and coercion. The distinction among these categories is not only a question of degrees but also of qualitative substance. Professor Hall, a positivist, aptly distinguishes necessity and coercion in the following terms: There are valid grounds in support of the above noted differences between the doctrines of necessity and coercion. In the former, the pressure which influences the action is physical nature, while in coercion it is the immoral and illegal conduct of a human being that creates the problem. Certain major consequences result. In coercion, the situation may be completely transformed in a split second by the malefactor’s change of mind, and he is morally obliged to do that. There can hardly ever be any such very high probability that he will not change his mind, as that no relief will come to alter imminent destructive physical forces. From the viewpoint of the coerced, there are usually far greater chances of removing the evil human coercion—by positive action or by flight; certainly the cases show that the courts take this view. Even if the execution of the coercer’s threat were just as probable as the continuing impact of destructive, physical phenomena, there would frequently be a duty to resist the evildoer—and that is the meaning of the policy which excludes

673 Aristotle, Metaphysics 1015a; Aquinas, Summa Theologica II-1 § 6 art. 6; Thomas Hobbes, The Elements of Law, Natural and Politic 47-48 (1928); Hall, supra note 34, at 419. 674 Hall, supra note 34, at 420–21, quoting Aristotle, supra note 673, at 1015a–b; Aristotle, Ethics b v. III.

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chapter four murder and other serious crimes. In necessity, man bows to the inevitable; but in coercion there is no such inevitability.675

Essentially, the defense of coercion rests on the assumption that a person who commits a crime under the compulsion of a threat by another person may not choose to protect another over himself/herself.676 The actor is threatened by a greater harm than the one he/she is compelled to carry out against another. In such a case, he/she can be exonerated from criminal responsibility. In determining whether the defense of coercion should apply to decision-makers, such as the defendants at the IMT, or those under their command, the criteria of the defense must necessarily be different for the policy reasons discussed above in the context of obedience to superior orders. In other words, these defenses, like intoxication and insanity, apply to those who execute orders, not to those who originate orders, or those who give them because they are part of a group of decision-makers. In most legal systems, the defense is recognized but varies with respect to certain crimes, the nature and type of threats, the immediacy of the harm likely to occur to the actor, the reasonableness of the belief, and the harm inflicted upon others.677 For policy reasons, most national laws do not recognize the defense for the most serious crimes, particularly murder.678 At common law, such a defense could be raised with respect to a crime involving death or serious bodily harm when the threat induces a reasonable fear of immediate death or serious bodily injury to the threatened person.679 Threats of future injury are not sufficient. The threat must be immediate and present.680 Thus, threats of violence after defendants had voluntarily participated in a criminal act are not sufficient to allow coercion as a defense.681 The person seeking to rely on the defense of coercion must have been unable to avoid the circumstances that led to the crime, and the threat must be such as to directly induce the act with which the defendant is charged.682 The defense must always be grounded on a reasonable belief by the actor that a danger to life and personal

675 Hall, supra note 34, at 447. 676 Bassiouni, Draft Code, supra note 17, at 454. 677  Id. at 455. 678 Id. 679 Id.; see U.S. v. Bailey et al., 444 U.S. 394 (1980); U.S. v. May, 727 F.2d 764 (8th Cir. 1984); U.S. v. Nickels, 502 F.2d 1173 (7th Cir. 1974); Amin v. State, 811 P.2d 255 (Wyo. 1991); Frasier v. State, 410 S.E.2d 572 (So. Car. 1991); State v. Migliorino, 150 Wis.2d 513, 442 N.W.2d 36 (1989); State v. Myers, 233 Kan 611; 664 P.2d 834 (1983). 680 Id.; U.S. v. Stevison, 471 F.2d 143 (7th Cir. 1972); R.I. Recreation Center, Inc. v. Aetna Casualty and Surety Co., 177 F.2d 603 (1st Cir. 1949); Shanon v. United States, 76 F.2d 490 (10th Cir. 1935); Nall v. Commonwealth, 208 Ky 700, 271 S.W. 1058 (1925); State v. Ellis, 232 Ore. 70, 374 P.2d 461 (1962). 681   See Bassiouni, Draft Code, supra note 17, at 455. 682 Id. at 456.



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safety exists.683 But for policy reasons, the common law excludes the defense when the resulting harm to another is death. Many landmark English cases on compulsion deal with treason and the coercion of a wife by her husband.684 But as Hall states: “The law of the former is uncertain, and the latter has become little more than a vestige of the medieval conception of marriage.”685 As to murder cases, over a century ago, Justice Denman remarked to the jury: You probably, gentlemen, never saw two men tried at a criminal bar for an offence which they had jointly committed, where one of them had not been to a certain extent in fear of the other . . . yet that circumstance has never been received by the law as an excuse for his crime . . . . [T]he law is, that no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind.686

In treason cases, it was held that joining or aiding rebels was excusable only on a well-grounded fear of death and if escape were affected as soon as possible.687 German and continental laws provide a different approach for the defense of necessity688 than the common law. Necessity is defined in this instance as: [C]haracterized by a conflict between a legal duty and an impelling personal interest rather than by one between two incompatible legal duties. In the state of necessity, the personal interest is imperiled in such a way that it cannot be protected except by violation of a legal duty. The problem of state of necessity is thus concerned with the question of determining under what circumstances, if any, a person shall be permitted to disregard a legal duty in order to avert a danger threatening his or another person’s interests. The question can be answered easily when the legal duty is insignificant as compared with the magnitude of the harm threatening. Where the interest endangered is one of high value, while that which is sought to be protected by the legal duty in question is of considerably lesser value, it makes good sense to approve of the violation of the legal duty in order to protect the more valuable interests at stake. Hence, a person does not act illegally if he infringes upon an interest of considerably less valuable legal good in order to protect one of higher value. In terms of legal theory, state of necessity, being based upon a comparative evaluation of legal interests, thus constitutes a ground for excluding illegality.689

Therefore, necessity in this context includes both coercion and necessity and does distinguish the two, as does the common law. However, the danger must

683 Id. at 457. 684 Hall, supra note 34, at 437. 685 Id. 686 Id. at 438. 687 Id. 688 August von Knieriem, The Nuremberg Trials 259 (1959). 689 Id. at 258.

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not be created by the actor’s own fault in all cases of necessity in German and continental laws.690 Unlike coercion, necessity is a defense arising whenever a person, by reason of natural circumstances beyond his/her control, is compelled to engage in criminal conduct as the most reasonable means available to avoid an impending harm.691 The threatened or endangered person must weigh the impending material danger against the harm that may result from the criminal violation, and in so doing it must appear that the harm he/she is going to inflict is lesser than (or at least equal) to the harm that he/she may incur if the violation were not to take place.692 The classical problem of necessity is the survival situation in the context of a shipwreck or plane wreck, where the people are on a raft or boat or on an island where the question arises as to who should be sacrificed for the survival of the others.693 In two landmark cases, U.S. v. Holmes694 and Regina v. Dudley and Stevens,695 American and English courts stated the common law rule, holding it unlawful to preserve on life at the expense of another. In Holmes, an American ship was on a trip from Liverpool to Philadelphia when it struck an iceberg and sank. Fortytwo passengers and crew got into a lifeboat that had a leak and was in danger of swamping due to overcrowding. After twenty-four hours, the crew decided to throw some of the passengers overboard. Women and children were excluded, as were married men and crew. A total of fourteen men were thrown overboard. On the following day, the lifeboat was rescued. A crewman in the Holmes case was convicted of manslaughter on the higher seas. The lenient sentence he received, a $20 fine and five months solitary confinement at hard labor, was a result of the great public outcry that had built up surrounding the case, and a tacit recognition of the defense of necessity in order to mitigate the punishment, if not to excuse the crime. The facts of Regina v. Dudley and Stevens were similar to Holmes. In that case, three survivors were in a lifeboat for twenty days, the last eight without food, and without any reasonable prospect of rescue. The two men killed the third, a boy, who was the weakest of the trio and very likely to die anyway. The two men fed off the body of the boy until they were rescued. Though they were convicted of 690 Id. at 259. 691   Bassiouni, Draft Code, supra note 17, at 458. 692 Id. 693 For an interesting discussion of such a situation and the different legal philosophical approaches in determining the guilt of the survivors, see Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949). 694 U.S. v. Holmes, 26 F. Cas. 360 (C.C.E.C.Pa. 1949). These two cases take the same position, as have European courts in similar cases including the notorious case of Le Radeau de Le Méduse. 695 14 Q.B.D. 273 (1884).



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murder, the punishments were light—the sentences of death were commuted to twenty years’ hard labor. In modern statutory formulation, the basic requirements of the defense are as follows: (1) The harm, to be justified, must have been committed under pressure of physical forces; (2) It must have made possible the preservation of at least an equal value; and (3) The commission of the harm must have been the only means of conserving that value.696 However, in addition good faith and a reasonable belief must exist as the motivating factors that acting in derogation of the law is the only possible way to avoid the hardship of the circumstances.697 The defense of necessity could not apply to genocide, war crimes, and crimes against humanity since they are a result of state policy and not of unforeseen natural forces. One case in which it may hypothetically apply to such crimes would be an instance of famine in which the state may have to eliminate some of its citizens, or a minority group, for the benefit of other civilians. This issue has not yet been resolved in positive law, though it is under natural law, where a man cannot decide on the fate of another man only on the basis of the instinct for self-preservation. Commenting on the inconsistent jurisprudence of the IMT in this regard, Von Knieriem provides: The conditions that must prevail in order to justify the plea of state of necessity can . . . be summarized as follows: 1. The actor must have been in imminent danger to life or limb. 2. It must not be possible to blame the actor for the danger. 3. The actor must not be obliged to live up to the danger. 4. The act committed must be the only possible means by which the actor could have saved himself from the danger. 5. The actor must have committed the act in a mental state of compulsion rather than of approval.698

696 Hall, supra note 34, at 426. 697 Bassiouni, Draft Code, supra note 17, at 460; and James F. Stephen, Digest of the Criminal Law 32 (1877) (stating: “An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided.”). 698 Id. at 261.

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These conditions closely correspond with the conditions established by the Nuremberg Judgment, which confused use of the terms compulsion, duress, and necessity in its various judgments. The IMT’s judgment marked the introduction of the “moral choice test.” The IMT declined the defense of superior orders and stated the following regarding Article 8 of the London Charter: The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not existence of the order, but whether moral choice was in fact possible.699

The moral choice test is not found in the text of Article 8, and it has been called “cryptic”700 and “not easy to fathom.”701 To Dinstein, the moral choice test was meant to complement the exclusion of the superior orders defense in Article 8 in that “a defendant ought to be acquitted anyway in accordance with the general principles of law owing to the other circumstances of the case and without any consideration being given to the fact of obedience to orders.”702 Greenspan seems to endorse Dinstein, and further contends that the moral choice test implies that a person who had a moral choice in carrying out an illegal order is criminally responsible—the absence of choice leads to freedom from responsibility.703 Thus, in the words of van Sliedregt: An overall conclusion could be that the restriction of freedom of will or choice was considered a defence in the Nuremberg Judgement and subsequent trials. This— non-legally formulated—defence has operated as both a justification and an excuse, and has been termed as necessity and coercion.704

Defendants often raised this conception of the defense, claiming that they had acted under the threat of political pressure from the leaders and the security organs of the Nazis, rather than a threat from other men or circumstances, as in national concepts of duress and necessity.705 Applying this enlarged concept of necessity to the Nuremberg accused, Von Knierem notes, The danger by which the lives and bodily integrity of the Nuremberg accused and their family members had been threatened originated with the National Socialist 699 Nuremberg Judgment, in 2 Friedman (1972), at 940. 700 Greenspan, supra note 613, at 493. 701   Dinstein, supra note 551, at 148. 702 Id. at 150, 152. 703 Greenspan, supra note 613, at 493. 704 Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law 280 (2003). 705 Id.



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State rather than the forces of nature. It consisted in the threat of cruel punishment to be expected with certainty for the entire duration of the National Socialist regime. As the regime was clearly in a position always to carry out its threats, all the conditions of the state of necessity were in existence.706

The Nuremberg jurisprudence is inconsistent, to say the least. The Einsatzgruppen Case concerned an organization (the Einsatzgruppen) that was established for the sole purpose of “liquidating ruthlessly all opposition to National Socialism for present, past, and future purposes,” which it did.707 In consideration of the plea of necessity by the defendants, the Tribunal held that mass killings of civilians are never permitted.708 The Tribunal in Einsatzgruppen rejected the plea of state of necessity (coercion), and established that only a threat leaving no moral choice amounts to duress: But it is stated that in military law even if the subordinate realizes that the act he is called upon to perform is a crime, he may not refuse its execution without incurring serious consequences, and that this, therefore, constitutes duress. Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment. But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission? The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order. If the second proposition be true, the plea of Superior Orders fails.709

In his evaluation of The Einsatzgruppen Case, Von Knierem compares a single case of execution by a soldier overcome by fear of death, who pulls down the lever only once, with that of a member of a death squad like the Einsatzgruppen, who under the threat of court martial and firing squads, kills an endless number of victims daily: Every day he sees groups of ten, twenty, or even more people; he knows that new groups will arrive perhaps for years to come; also, he has time for contemplation; he can sleep and relax and he is not on “special duty” uninterruptedly.710

Von Knierem then asks: Might it not be possible to deny the plea of state of necessity to such a man without relapsing into an attitude which now fortunately belongs to the past and without 706 Id. at 260. 707 van Sliedregt, supra note 704, at 282. 708 The Einsatzgruppen Case, supra note 622, at 465. 709 Id. at 668 (emphasis added). 710  Von Knieriem, supra note 688, at 264.

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chapter four sacrificing that hard-won principle that “no man must be punished unless he has acted with a guilty mind”? Should the denial of the plea not be possible where a man although in fear for his life but after quiet deliberation and in full knowledge of the significance of his acts has allowed himself to become the participant in atrocities of the most horrendous kind?711

In another case, U.S. v. Flick et al., the judges in an American military court relied on national case law on necessity to conclude as follows: Necessity is a defense when it is shown that the act charged was done to avoid an evil both serious and irreparable; that there was no other adequate means of escape; and that the remedy was not disproportionate to the evil.712

In U.S. v. Krupp et al., another American military court applied a similar test and adopted a test of proportionality.713 The court in Krupp also rejected the defendant’s plea of coercion (as necessity): In such cases, if, in the execution of the illegal act, the will of the accused be no thereby overpowered but instead coincides with the will of those from whom the alleged compulsion emanates, there is no necessity justifying the illegal conduct.714

The court also determined that a subjective standard should apply to determine whether there was a danger that caused the defendants to act under compulsion (as coercion): Wharton himself says “that the danger of the attack is to be tested, . . . from the standpoint of the part attacked, not from that of the jury or of an ideal person.” We have no doubt that the same thing is true of the law of necessity. The effect of the alleged compulsion is to be determined not by objective but by subjective standards. Moreover, as in the case of self-defense, the mere fact that such danger was present is not sufficient. There must be an actual bona fide belief in danger by the particular individual.715

In The I.G. Farben Case, an American military court considered the situations in which a subordinate can rely on the defense of duress, holding: It follows that the defence of necessity is not available where the party seeking to invoke it was, himself, responsible for the existence or execution of such an order or decree [. . .].716

711   Id. 712 U.S. v. Flick et al., VI Trials of War Criminals at 47 (quoting F. Wharton, I Wharton’s Criminal Law, ch. III, subdivision VII, ¶ 126). 713 U.S. v. Krupp et al., IX Trials of War Criminals at 1443–44. 714 Id. at 1436 (establishing that an agreement between the defendants and the political leadership regarding slave labour excluded the defense of necessity); see also Flick et al., supra note 712, at 1202 (establishing that the defendant Weiss, found to have actively participated in the exploitation of Russian POWs, was barred from making a plea of a defense of necessity. 715 Krupp et al., supra note 713, at 1438. 716 U.S. v. Krauch et al. (The I.G. Farben Case), VIII Trials of War Criminals at 1179.



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The Eichmann Case was an important post-Nuremberg case that considered duress in the context of war crimes. In Eichmann, the Israeli Supreme Court indicated that the “moral choice test” of Nuremberg constituted a defense of coercion (duress) or necessity. Although these defenses were not available for war crimes or crimes against humanity, the defendant would have to establish that (1) the danger to his life was imminent; and (2) that he carried out the criminal task out of a desire to save his own life and because he saw no other possible way of doing so. The latter element was inapplicable to Eichmann, who showed great zeal, ambition, and devotion in the execution of his tasks: But we stress in particular the non-fulfillment of the second condition because each of the said two defences goes to the question of motive that urged the accused to carry out the criminal act to save his own life—and also because the District Court relied in the main on its finding that the appellant performed the order of extermination at all times con amore.717

In The Touvier Case, the French Cour d’Appel de Versailles and the Cour de Cassation took a similar approach to deny the defense of duress because the defendant was found to have enthusiastically committed the crimes.718 The Touvier Case involved the question of whether the crimes were committed on Touvier’s initiative or upon order from Germany.719 Paul Touvier, the first French citizen to be convicted of committing crimes against humanity, was a former official of the Vichy France Milice. Touvier invoked the defense of duress, claiming that he was exposed to the pressure of the Nazi German occupying power. However, the Cour d’Appel refused his plea after concluding that he had voluntarily joined the Milice, which was held responsible for killing seven Jews. The judges also concluded that Touvier had actively played a role in the commission of the crimes. The court rejected Touvier’s argument that, but for his intervention, thirty would have died instead of seven, holding that all lives are of equal value so that a balancing of one life against another is impossible. Similarly, in The Fullriede Case before the Dutch Special Court of Cassation, the court was asked to contemplate a balancing of interests akin to that of Touvier.720 The case involved Generalmajor Fritz Fullriede, a member of the German occupation forces in the Netherlands, the governing authority of the village of Putten. Fullriede was ordered, as a reprisal measure for an assault on Nazi German officers, to inflict collective punishment on the village of Putten by burning

717 2 Friedman (1972) at 1684 (emphasis added). 718 Bull. Crim. 770–74 (1993); 100 ILR (1995). 719 The Cour de Cassation, as discussed infra in Chapter 9, adopted its own interpretation of crimes against humanity, ruling that crimes can only be qualified as crimes against humanity when the accused acted upon order of one of the European Axis Powers. J. Merchant, History, Memory and Justice: the Touvier Trial in France, 23 J. of Crim. Jus. 5 (1995), 425–38. 720 Dutch Special Court of Cassation, NJ (1949) 541 (Jan. 10, 1949).

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down the village and deporting its men to Germany. Ninety houses were torched and several hundred men were arrested and deported to Germany. At trial, Fullriede claimed that he had mildly executed the order, and that another would have executed it with great severity. The court rejected his defense because he had not proven that he could not have prevented the execution of the order in its entirety by other means. The court also dismissed Fullriede’s argument that his diminished execution of the order justified his act. As in Touvier, the Dutch court refused to balance the lives of ninety against the lives of 2000. However, his plea was considered in mitigation of punishment. In his commentary to Fullriede, Röling suggests that duress can serve as an excuse rather than a justification in similar cases.721 In The Finta Case,722 the Canadian Supreme Court ruled that duress could operate as a complete defense. Imre Finta, a Hungarian commander who fled to Canada after World War II and had taken Canadian citizenship, was prosecuted for war crimes and crimes against humanity under the Canadian Criminal Code. Finta was charged with having actively participated in the Endlösung of 8,617 Jews. The Supreme Court interpreted the “moral choice test” from Nuremberg as an extension of the superior orders defense by duress, holding that acting in situations of compulsion, i.e., when there is an “imminent, real and inevitable threat” when being forced to comply with a superior order, could lead to the exclusion of criminal liability because he/she lacks the culpable intent. The Court added that this could even be true in relation to a manifestly illegal order. However, as others have suggested, when duress is raised in the context of superior orders, the order’s manifest illegality is irrelevant723 because the consequences for a subordinate’s failure to carry it out is the greater influence on that subordinate’s mental state.724 The plea of duress was also raised in The Priebke Case.725 Erich Priebke, a Hauptsturmführer in the Waffen-SS, was prosecuted and convicted for his participation in the killing of 335 civilians at the Ardeatine Caves (“Fosse Ardeatine”). Priebke claimed that he acted under duress (stato di necessità) because the

721 B.V.A. Röling, Commentary to the Judgement of the Dutch Special Court of Cassation, 10 January 1949, NJ (1949) 541, 989–90. 722 R. v. Finta, 1994, 1 SCR 701: 48, 284. 723 van Sliedregt, supra note 704, at 284 n. 252 (stating that this is different when raised as a defense of superior orders per se). 724 See A.S. Paphiti, Duress as a Defence to War Crimes Charges, 38 Revue de Droit Militaire et de Droit de la Guerre 249–88 (1999). 725  See generally F. Martines, The Defence of Reprisals, Superior Orders and Duress in the Priebke Case before the Italian Military tribunal, in 1 YIHL 354–361 (1998); G. Sacerdoti, A Propositio del Caso Priebke: La Responsibilità per l’Esecuzione di Ordini Illegittimi Costituenti Crimini di Guerra, 80 Revista di Diritto Internazionale 130–151 (1997); P. Gaeta, War Crimes Trials Before Italian Criminal Courts: New Trends, in International and National Prosecution of Crimes under International Law 751–68 (H. Fischer et al., eds., 2001).



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refusal of the order to kill the civilians would have resulted in his own death. The Rome Military Tribunal,726 the Rome Military Court of Appeal,727 and the Court of Cassation728 dismissed Priebke’s duress plea. These courts concluded that there was insufficient evidence that Priebke had acted under an imminent threat, and that it was unlikely, as Priebke claimed, that a refusal of the order would have caused serious danger to life. Rather, the more likely response would have been a proceeding before a special SS tribunal. Furthermore, the duress plea was refused due to a “lack of proportionality.” Concerning the “lack of proportionality” language of Priebke, Cassese asks: Does it concern the possible death (by killing) of the defendants on the one side, and their participation in the execution, on the other? Or does it instead relate to the fear by the defendants to be court-martialled by an SS-court on the one side, and their participation in the execution, on the other?729

However, as van Sliedregt argues, Priebke should not be read as ruling out duress as a defense in murder cases in light of the duress provision in the Italian Penal Code, which encapsulates duress as an excuse, and the ruling of the Military Tribunal in Priebke,730 which provides: [i]n this event (of the imminent threat of death) he could have backed down from refusing to obey the order and participated in the executions only in order to save his own life, claiming the defence of state of necessity, which is provided for in all legal orders, including German law; indeed, in this case, no person could have expected Priebke to act as a hero and to sacrifice his own life in order to avoid participating in the inhumane execution.731

The Erdemović case is the leading case on duress from the ad hoc Tribunals.732 In Erdemović, the defendant Dražen Erdemović, had participated in the killing of approximately 1,200 innocent men in connection with the Srebrenica massacre. Though Erdemović admitted to the charges, stating that he had killed close to seventy persons, he combined that admission with the invocation of the defense of duress, claiming that he had been forced to participate in the killings under the immediate deadly threat to himself and his family.733 Relying on post-

726 Decision of 1 August 1996, Cassazione penale (1997). 727 Decision of 8 March 1998 (in: L’indice penale 959, at 970(1999)). 728 Decision of 16 November 1998. 729 Erdemović Appeals Judgment, supra note 663, Separate and Dissenting Opinion of Judge Cassese, ¶ 34, n. 69. 730 See van Sliedregt, supra note 704, n. 260. 731 Cited in Erdemović Appeals Judgment, supra note 663, Separate and Dissenting Opinion of Judge Cassese, ¶ 34, n. 69. 732 Prosecutor v. Erdemović, Case No. IT-96-22-T, Judgment (Mar. 5, 1998) [hereinafter Erdemović Trial Judgment]. 733 Erdemović Sentencing Judgment, supra note 660, ¶ 10 (wherein Erdemović stated: “Your honour, I had to do this. If I had refused, I would have been killed together with the victims. When

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Nuremberg jurisprudence, the Trial Chamber held that, even though neither the Secretary-General’s report nor the ICTY Statute contains such a defense, duress constitutes a defense even for a violation of international humanitarian law.734 Nevertheless, Erdemović’s plea was dismissed for lack of evidence and he was sentenced to ten years’ imprisonment. On appeal, the Appeals Chamber rejected the Trial Chamber’s findings on duress as a defense by a 3-2 majority.735 The Appeals Chamber Judgment refers to several separate opinions annexed to the decision, in particular the joint separate opinion of Judges McDonald and Vohrah, who concluded that duress is not a complete defense but merely a mitigating circumstance.736 Judge Li agreed with Judges McDonald and Vohrah in their conclusion, but differed in his reasoning.737 Judges Cassese and Stephen each penned separate dissenting opinions.738 A majority held that customary international law does not provide a rule on duress for war crimes and/or crimes against humanity. In their joint and separate opinion, Judges McDonald and Vohrah expressed that in order to “facilitate the development and effectiveness of international humanitarian law and to promote its aims and application by recognising the normative effect which criminal law should have upon those subject to them,” duress should be barred as a complete defense.739 On the other hand, in Judge Cassese’s view, under international criminal law duress may generally serve as a defense if certain requirements are met.740 Cassese concluded that no specific rule of customary law provides for a defense of duress to war crimes or crimes against humanity, so that the general rule of duress would apply. Cassese also agreed with the Einsatzgruppen and Touvier cases, which held that the defense of duress should not be allowed when a person voluntarily puts himself/herself into a situation of duress: Duress or necessity cannot excuse from criminal responsibility the person who intends to avail himself of such defence if he freely and knowingly chose to become a member of a unit, organisation or group institutionally intent upon actions contrary to international humanitarian law.741

I refused, they told me “If you’re sorry for them, stand up, line up with them and we will kill you too.” I am not sorry for myself but for my family, my wife and son who then was nine months, and I could not refuse because they then would have killed me.”). 734 Id. ¶¶ 16–20. 735 Erdemović Appeals Judgment, supra note 663, ¶ 19. 736 Erdemović Appeals Judgment, supra note 663, Joint Separate Opinion of Judge McDonald and Judge Vohrah. 737 Id., Separate and Dissenting Opinion of Judge Li. 738 Id., Separate and Dissenting Opinion of Judge Cassese, and Separate and Dissenting Opinion of Judge Stephen. 739 Id. Joint and Separate Opinion of Judge McDonald & Judge Vohrah, ¶ 75. 740 Id. Separate and Dissenting Opinion of Judge Cassese, ¶ 12. 741   Id. Separate and Dissenting Opinion of Judge Cassese, ¶ 17.



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Cassese further urged the Trial Chamber to account for Erdemović’s low rank, which he argued played a role in determining whether or not Erdemović acted under duress—as the lower rank heightens the propensity to give in to compulsion.742 In the end, the Appeals Chamber in Erdemović ruled that duress is not a complete defense, but a fact to be accounted for in the mitigation of punishment. As Erdemović’s plea of duress was thought to have invalidated his guilty plea (which was “not informed”), the Appeals Chamber referred the case back to another Trial Chamber, where Erdemović pled guilty to a war crime and was sentenced to a five years of imprisonment. The Appeals Chamber’s approach has been criticized for lacking appropriate scholarly analysis by refusing to rely on principles developed in national criminal justice systems: [T]he Court refused to recognize a defence of duress, which surely would have been recognized under both German law and the American Model Penal Code. The majority Judges relied almost exclusively on English precedents and the dissenting Judges, on the precedents of military tribunals. Neither side addressed the implications of classifying the defence as a justification or an excuse, the latter potentially carrying an advantage for the accused. Article 31(1)(d) of the Rome Statute would have assisted the defence because the defendant killed more people than the number threatened if he failed to act.743

In another case before the ICTY, the Trial Chamber refused to mitigate the accused’s sentence because of “the absence of any convincing evidence of any meaningful sign that [the accused] wanted to dissociate himself from the massacre at the time of its commission” prevented the Chamber from accepting duress as a mitigating circumstance.744 In Rutaganira, an ICTR Trial Chamber “fully endorse[d] the finding by the Appeals Chamber of the ICTY . . . that ‘duress does not afford a complete defence to a soldier charged with a crimes against humanity and/or war crime involving the killing of innocent human beings.’ However, it is the Chamber’s opinion that duress may be considered as a mitigating circumstance.”745 On this point, the Rome Statute in Article 31(1)(d) states: (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this

742 Id. ¶ 51. 743 George P. Fletcher, The Influence of the Common Law 104, 106. 744 Prosecutor v. Mrda, Sentencing Judgment, ¶ 66. 745 Prosecutor v. Rutaganira, Case No. ICTR-95-IC-T, ¶ 161 (Mar. 14, 2005) (emphasis in original).

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chapter four threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.746

Thus, the Rome Statute’s formulation is a synthesis of the various legal approaches on coercion discussed above, and clearly limits duress to situations where “the person does not intend to cause a greater harm than the one sought to be avoided.” This then excludes decision-makers, senior executors, and even midlevel ones, leaving it open only to low level executors, as indeed it should be. 10.3. Reprisals 10.3.1. Introduction Reprisals are retributive practices recognized in the context of the international regulation of armed conflicts. In time, these practices, which indiscriminately punish persons on a collective basis, became more limited, but they have not reached the level of complete prohibition. However, their application to crimes against humanity is not permissible, and whatever basis exists for a legal justification or excuse in the context of armed conflicts should not be applicable to genocide, war crimes, and crimes against humanity. After the 1907 Hague Convention, reprisals became the method to compel a belligerent enemy who violated norms and standards of the regulation of armed conflicts to comply with them. Thus, it continued to be somewhat retributive, though its purposes were narrowed and its justification limited to insure future compliance. Consequently, reprisals had to be proportionate to the violation, as, for example, the use of force in self-defense that contains a proportionality limitation. There also had to exist a genuine link between the type of original violation and the type of reprisals engaged in as a response to that original violation. Therefore, reasonableness, proportionality, and counterpart of violations were the three essential elements that the post-World War I developments produced.747

746 ICC Statute, supra note 16, at art. 31(1)(d). 747 Described by one author as: [B]oth the actor and the addressee of the act are States or other entities enjoying a degree of international personality. The act must be a retort to a previous act on the part of the addressee which has adversely affected or continues so to affect the interests of the actor and which the latter can reasonably consider a violation of international law. It must, moreover, itself amount to a violation either of the identical or of another norm of international law. The prima facie unlawful act is not authorized by any previous authoritative community decision. Neither is it an act of self-defence, as its aim is not directly to ward off the blow of the addressee’s preceding act.



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Reprisals, no matter whether or how excusable, nonetheless consist of acts that are otherwise violations of international norms and standards of armed conflict regulations. Therefore, it cannot be claimed that reprisals are justified in and of themselves, but they may constitute an excusable condition that exonerates the performing party from responsibility. The legal basis for reprisal is that it is predicated on the assumption that when a belligerent violates its legal obligations, the mutuality of obligations that would otherwise bind the other state to comply with the infringed norms is removed. The exoneration from state responsibility also extends to those individuals who carried out the acts in question, provided they were in conformity with all other legal requirements. The victims of reprisals, however, are not states, but protected persons and protected targets who unduly suffer from the consequences of a belligerent state’s breach of its international obligations. This is the notion of collective punishment, which is no longer accepted with respect to protected persons and targets, and with respect to prohibited means of warfare. As Frits Kalshoven states: It should be emphasized, however, that “collective responsibility,” as understood in this context, is something widely different from real responsibility for an act committed: usually, it will amount to nothing else but a passive attitude and a lack of cooperation in tracing the perpetrators of the act. In any event, it will be a long way off what would constitute a minimum for criminal or civil responsibility; in actual fact, it more closely resembles joint liability of the members of the community, based on the idea of group solidarity, than on anything like responsibility in the proper sense of the term. Exactly the same idea of group solidarity, however, also underlies the retaliatory measures against innocents. This leads to the conclusion that there is no real difference between “punitive” and “deterrent” retaliatory measures against (members of ) an occupied population.748

Both practices violate the spirit of humanitarian and human rights law applicable to protected persons. As the notion of humanitarian law progressed, it became clear that the infliction of harm on protected persons and protected targets, while it may induce a state that has breached international obligations to desist from such practice, nonetheless unduly harms those protected persons and protected targets who should be immune from it irrespective of any state’s conduct. Thus, the notion of humanitarian law, as it gained further recognition, particularly as of the 1949 Geneva Convention, has removed the justification for certain forms of reprisals against protected persons and certain protected targets. But even so, the prohibition of reprisals is not absolute. As Kalshoven states:

The act, finally, must respect the conditions and limits laid down in international law for justifiable recourse to reprisals; that is, first of all, objectivity, subsidiarity, and proportionality. Frits Kalshoven, Belligerent Reprisals 33 (1971). 748 Id. at 43.

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chapter four [B]elligerent reprisals will obviously tend to be in conflict with elementary humanitarian considerations. A number of rules of the law of war have a marginal character, in that their purpose is not so much the realization of some kind of ideally chivalrous combat as the prevention of what is generally felt to be below the standard of what can be tolerated from the viewpoint of humanity, even in the context of warfare. Consequently, a reprisal transgressing such a marginal norm is bound to constitute an inherently inhuman act. In this light, particular importance attaches to the question of whether a rule might have developed to the effect that such submarginal acts would be prohibited even by way of reprisals.749

10.3.2. Historical Evolution Reprisals arose under the customary and then the conventional regulation of armed conflicts. The evolution of the concept of reprisals began in the Roman Empire as a private way of compensating an individual for damage caused by a foreigner.750 Although a private remedy, reprisals were not arbitrary, as they were kept in check by regulations.751 Public reprisals emerged in the 16th century, due to the decentralization of authority in Europe and a lack of means to ensure enforcement short of war, and although not subject to any limitations, often took the form of seizure in ports or on the high seas of public or private ships of the opposing state.752 The breadth of reprisal widened as it was increasingly viewed as an alternative to war and, therefore, removed from the regulations of armed conflict. Reprisals also began to include nonviolent actions involving economic, diplomatic, or cultural relations.753 It was not until the 19th century that reprisals were used to enforce the regulations of armed conflicts and the concept of belligerent reprisals emerged. As Lassa Oppenheim stated: Whereas reprisals in time of peace are injurious acts committed for the purpose of compelling a State to consent to a satisfactory settlement of a difference created through an international delinquency, reprisals in time of war occur when one belligerent retaliates upon another, by means of otherwise illegitimate acts of warfare, in order to compel him and his subjects and members of his forces to abandon illegitimate acts of warfare and to comply in future with the rules of legitimate warfare. Reprisals between belligerents cannot be dispensed with, for the effect of their use and of the fear of their being used cannot be denied. Every belligerent, and every member of his forces, knows for certain that reprisals are to be expected in case they violate the rules of legitimate warfare.754

749 Id. at 39. 750 Id. at 1. 751   Id. at 2. 752 Id. 753 Id. at 4. 754 Oppenheim, supra note 535, at 560.



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The concept of belligerent reprisals was specifically alluded to in 1863, in Article 27 of the Lieber Code which states: “[t]he law of war can no more wholly dispense with retaliation than could the law of nations, of which it is a branch.”755 However, Article 28 of the Lieber Code states: Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously, and unavoidably—that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages.756

Belligerent reprisals were also referred to in Article 84 of the Oxford Manual,757 which states: [I]f the injured party deems the misdeed so serious in character as to make it necessary to recall the enemy to a respect for the law, no other recourse than a resort to reprisals remains. Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy . . . .758

The Oxford Manual, however, places limitations on the right to resort to reprisals in Articles 85-86. Under the Oxford Manual, reprisals may be used only if: (1) the injury complained of has not been redressed; (2) the reprisals are proportionate to the infraction of the law of war; (3) the reprisals are carried out with the authorization of the commander-in-chief; and (4) the reprisals conform to the laws of humanity and morality.759 Although the 1899 and 1907 Hague Regulations did not deal with belligerent reprisals for fear that their mention could serve to validate their use,760 customary practice prior to the First World War formed the basis of the law of belligerent reprisals, and states widely agreed that reprisals could be used under the appropriate circumstances.761 755 Francis Lieber, The Lieber Code of 1863: Instructions for the Government of Armies of the United States in the Field, General Order No. 100 (Apr. 24, 1863). 756 Id. 757 Reprinted in The Laws of Armed Conflicts 35 (Dietrich Schindler & Jirè Toman eds., 1988). 758 Id. 759 Id. at arts. 85–86, as cited in Edward K. Kwakwa, Belligerent Reprisals in the Law of Armed Conflict, 27 Stan. J. Int’l L. 49, 52–53 (1990). 760 See Kalshoven, supra note 747. 761   Kwakwa, supra note 759, at 54; see also James M. Spaight, War Rights on Land 463 n.1 (1911) (suggesting that the Anglo-American War of 1812 provides an example of a “war in which each side deliberately practiced inhumanities on the greatest scale by way of reprisals”).

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Reprisals were used frequently during World War I seemingly without any limitations.762 But the 1919 Commission Report condemned many practices conducted under the guise of reprisals. However, it was not until the 1929 Geneva Convention that the first express prohibition of reprisals was formulated.763 Even then, the limitations were restricted to the use of reprisals against prisoners of war and they were considered innovative rather than a codification of the customary international law existing at that time.764 In fact, at that time, the International Law Association thought that there should be a mitigated right of reprisals against prisoners of war, not a total prohibition.765 Some argued that even though the use of reprisals against innocent prisoners was detestable, the threat of its use could actually secure better treatment for prisoners.766 The uncertainty surrounding the law of belligerent reprisals provided a fertile ground for the large-scale use of reprisals during World War II. Two possible norms in regard to belligerent reprisals existed at the outset of World War II: belligerent reprisals may not violate humanitarian norms, and the requirement of proportionality must be met.767 As far as not violating humanitarian norms, none The German Manual of Land Warfare (Kriegsbrauch in Landkriege) similarly sanctioned the killing of prisoners in unavoidable cases of urgent necessity. The Manual distinguished between the Kriegsraison (reason, necessity, or convenience of war) and the Kriegsmanier (custom of war). The Kriegsmanier was deemed to be generally binding on belligerents but could be overruled by the Kriegsraison in special circumstances, even for attaining military success. Julius Stone, Legal Controls of International Conflict 352 (1954). 762 Oppenheim describes one shocking incident as follows: In September 1914, during the First World War, the German armies in Belgium burned the University of Louvain, including its world-famed library, and other buildings in other towns, by way of reprisals, alleging that Belgian civilians had fired upon the German troops. The Belgian Government denied these charges, and maintained that German soldiers in Louvain had shot one another; the civilized world was horrified at these reprisals. Oppenheim, supra note 535, at 564 n. 3. 763 See Kalshoven, supra note 747, at 107; Kwakwa, supra note 759, at 55. 764 Kwakwa, supra note 759, at 55. 765 Kalshoven, supra note 747, at 107. 766 Id. 767 Id. at 212–13. The United States’ position on reprisals at the time of World War II can be found in U.S. Dep’t of the Army Rules of Land Warfare § 358 (Field Manual 27-10, 1940) which states: 358. Reprisals.—a. Definition.—Reprisals are acts of retaliation resorted to by one belligerent against the enemy individuals or property for illegal acts of warfare committed by the other belligerent, for the purpose of enforcing future compliance with the recognized rules of civilized warfare. b. When and how employed.—Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from illegitimate practices. They should never be employed by individual soldiers except by direct orders of a commander, and the latter should give such orders only after careful inquiry into the alleged offense. The highest accessible military authority should be consulted unless immediate action is demanded as a matter of military necessity, but in the latter event a subordinate commander may order appropriate reprisals upon his own initiative. Hasty or ill-considered action may subsequently be found to have been wholly unjustified, subject the responsible officer himself to punishment as for a violation of the laws of war, and seriously damage his cause. On the other hand,



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of the belligerents in World War II showed any great respect for civilian life and property of the enemy, as evidenced by the indiscriminate bombing of enemy towns and the use of economic blockades.768 In relative contrast, the prohibition of the use of reprisals against prisoners of war fared better.769 Notably, in August 1944, French partisans shot and killed eighty German prisoners after learning that the Germans had executed eighty French prisoners.770 But proportionality of the reprisals was more often disregarded than followed. Proportionality is hard to assess in the case of an economic blockade,771 but not so in cases of human lives. Hitler’s order to kill ten Italian soldiers for every German soldier who was killed in an attack of a truck in Rome was clearly disproportionate.772 Kalshoven, remarking on the use of reprisals in World War II, observes that they were: [I]n fact virtually useless, for instance, in respect to an enemy who by his whole attitude demonstrates a total disrespect for certain parts of the law of war (as was the case with Germany, particularly where occupation law was concerned). They are equally useless when applied in a situation where the interests at stake are so great as to make it utterly improbable that a belligerent would change his policy merely on account of a certain pressure exerted on him by the enemy: instances of such crucial issues were the strategic air bombardment and the unrestricted submarine warfare, practiced by either side in the course of the Second World War.773

The German and Allied practices of indiscriminately bombing civilian populations during World War II were numerous. After the mistaken bombing of London by the German Luftwaffe in September 1940, England bombed Berlin

commanding officers must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against the repetition of barbarous outrages. c. Who may commit acts justifying reprisals.—Illegal acts of warfare justifying reprisals may be committed by a government, by its military commanders, or by a community or individuals thereof, whom it is impossible to apprehend, try, and punish. d. Subjects of reprisals.—The offending forces or populations generally may lawfully be subjected to appropriate reprisals. Hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed. Reprisals against prisoners of war are expressly forbidden by the Geneva Convention of 1929 (See par. 73.) e. Form of reprisal.—The acts resorted to by way of reprisal need not conform to those complained of by the injured party, but should not be excessive or exceed the degree of violence committed by the enemy. Villages or houses, etc., may be burned for acts of hostility committed from them, where the guilty individuals cannot be identified, tried, and punished. Collective punishments may be inflicted either in the form of fines or otherwise. f. Procedure.—The rule requiring careful inquiry into the real occurrence will always be followed unless the safety of the troops requires immediate drastic action and the persons who actually committed the offense cannot be ascertained. 768 Kalshoven, supra note 747, at 212–13. 769 Id. 770 Kwakwa, supra note 759. 771   Kalshoven, supra note 747, at 213. 772 Kwakwa, supra note 759. 773 Kalshoven, supra note 747, at 214.

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as an act of reprisal. Germany responded by excessive bombing of London and other cities of England and explained it as acts of legitimate reprisals. Then, the Allies firebombed the city of Dresden as reprisal for the bombing of Coventry. The entire city of Dresden lay desolate, leaving by different estimates 30,000 to 100,000 casualties in its wake. The Allies who bombed German civilian centers extensively during the war were never held accountable for their actions. The same tit-for-tat occurred in the treatment of prisoners of war by Germany, Japan, and by the USSR. An untold number of prisoners of war were killed and mistreated in the name of this barbaric practice, yet few of the perpetrators of such crimes were prosecuted. Not one was prosecuted on the Allies’ side. The IMT did not deal with the doctrine of reprisals in its judgment, though the question was dealt with in the Subsequent Proceedings. However, a discussion of reprisals did take place during the proceedings due to a remark by Göring that led Justice Jackson to believe that the defense was going to be raised.774 Jackson set out the conditions of such a defense as follows: First, the defence would have to relate the plea to acts other than against prisoners of war, as reprisals against those persons were specifically prohibited under the P.O.W. Convention of 1929. Then, any act claimed to be justified as a reprisal “must be related to a specific and continuing violation of international law on the other side;” otherwise international law would have no foundation, as any “casual and incidental violation” on one side would “completely absolve the other from any rules of warfare.” Next, the act claimed to constitute a reprisal “must follow within a reasonable time” after the offence, and then only after due notice; and the act “must be related reasonably to the offense which it sought to prevent. That is, you cannot by way of reprisal engage in wholesale slaughter in order to vindicate a single murder.” A final most important point was that “a deliberate course of violation of international law cannot be shielded as a reprisal . . . . You cannot vindicate a reign of terror under the doctrine of reprisals.”775

Thus, Justice Jackson did not view reprisals as a defense to the crimes enunciated in the London Charter. Even if the defense did apply to war crimes and crimes against peace, it could not apply to the Article 6(c) definition of crimes against humanity, as one of the elements of the defense is that the action is against belligerents, not against a state’s own citizens. The definition of belligerent reprisals quoted above states: “reprisals in time of war occur when one belligerent retaliates against another.”776 Furthermore, Oppenheim states, “Only reprisals against belligerents are admissible.”777 In The Hostages Case, the murder of thousands of civilians from Greece, Yugoslavia, and Albania by German troops under the command of the defendants was 774 Id. at 217. 775 9 IMT 323. Id. at 217–18. 776 See supra note 767. 777 Oppenheim, supra note 535, at 562.



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count one of the indictment.778 The victims were in two categories: those who were simply rounded up and put in prison camps and those arbitrarily labeled as partisans.779 Victims in both categories were murdered, without trial, in retaliation for attacks by lawfully constituted enemy military forces and for attacks by unknown persons against German troops.780 The indictment stated, “These acts of collective punishment were part of a deliberate scheme of terror and intimidation, wholly unwarranted and unjustified by military necessity and in flagrant violation of the laws and customs of war.”781 In his opening statement at the Subsequent Proceedings, General Taylor, for the prosecution, stated that: [T]he concepts of “hostage” and “reprisal” both derive from relations between nations, or between their opposing armed forces, and not from relations between a nation or its armed forces on the one hand and the civilian population of an occupied territory on the other: retaliatory measures against the latter category could indeed constitute reprisals, but only if these were inflicted for the purpose of persuading the enemy government to discontinue an unlawful course of action, and not for the purpose of punishing the civilian inhabitants themselves . . . . [T]he execution of hostages, under the circumstances pertinent to this case, [was] quite definitely and clearly a crime under international law.782

Defendant’s counsel, Dr. Laternser, argued in his opening statement that the hostage killings had been reprisals. He denied that reprisals could not apply in relations of a nation or its armed forces to the population of an occupied territory. He stated: The action according to plan of inciting the civilian population to acts of sabotage and attacks upon members of the German occupation forces and the fight of the partisans in violation of international law in the occupied territories had the result that during the Second World War reprisals had to be resorted to above all against illegal actions of the civilian population, in order to force the latter to desist from its illegal conduct. It would be absurd to assume that the commanders of the armed forces of a belligerent party had to endure acts of an enemy civilian population in violation of international law, without being able to protect their troops, when necessary, by retaliatory measures.783

Thus, he concluded: [T]he killing of hostages by way of reprisals was specifically justified by the very operation of the doctrine of reprisals. A contrary opinion might be readily 778 Prosecutor v. List et al., XI Trials of War Criminals 765–66 (1948) [hereinafter The Hostages Case]. 779 Id. 780 Id. 781   Id. 782 Id. at 841. 783 Id. at 867.

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chapter four understandable “from the point of view of humanitarian principles, but it is also quite certain that it is incorrect from the point of view of the laws of war.”784

In its judgment, the Tribunal made a distinction between taking hostages— holding individuals to insure the future good conduct of the other party—and reprisal—holding or punishing individuals for past violations or conduct. The Tribunal determined that, in this instance, the term hostage was misused to describe reprisals.785 The Tribunal, after making the distinction, did not treat the subjects differently.786 It determined that the execution of hostages, i.e. reprisal, could be used only as a last resort, that the act could not exceed in severity the unlawful act it was designed to correct, that there had to be publication of proclamations notifying the fact that hostages or reprisal prisoners had been taken, and that there had to be judicial proceedings in order to determine whether the fundamental requirements for shooting hostages or reprisal prisoners had been met.787 Kalshoven comments on the tribunal’s position as follows: It is submitted that what the Tribunal considered to be a rule of international law, in reality was its own invention: it is not believed that international law has yet considered the details of the procedure which a military commander ought to follow in order to arrive at a balanced decision in respect to a contemplated execution of hostages or reprisal prisoners. What remains, of course, is the rule at the root of the Tribunal’s reasoning, that “the lives of persons may not be arbitrarily taken.”788

The defense of reprisal has been raised in several other post-World War II trials. In both The Einsatzgruppen Case and The Hostages Case, reprisal was allowed in principle, while it was denied in the national prosecutions of Calley789 and Priebke790 by the United States and Italy, respectively. In The Hostages Case, the U.S. military court considered the shooting of prisoners in reprisal is “justified as a last resort in procuring peace and tranquillity in occupied territory and has the effect of strengthening the position of a law-abiding occupant.” The Tribunal further specified that “excessive reprisals are in themselves criminal and guilt attaches to the persons responsible for their commission.”791 In The Einsatzgruppen Case of the Subsequent Proceedings, the defense raised the justification of belligerent reprisals for the extermination program of the Jews and other groups.792 The Tribunal, noting that the victims of belligerent reprisals 784 See id. In particular, the closing statement, pp. 1207–09; quoted words are from 1209. 785 Id. at 1248–49. 786 Kalshoven, supra note 747, at 225. 787 The Hostages Case, supra note 778, at 1250. See also Kalshoven, supra note 747, at 219–30. 788 Kalshoven, supra note 747, at 228–29. 789 U.S. v. Calley, supra note 637, at 1174. 790 See Kai Ambos, Die Allegemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung 215–221 (2002). 791 The Hostages Case, supra note 755, at 1250–51. 792 The Einsatzgruppen Case, supra note 622, at 411.



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are usually innocent of the acts retaliated against, stated: “there must at least be such close connection between these persons and these acts as to constitute a joint responsibility.”793 The Tribunal discussed an incident where “859 out of 2100 Jews shot in alleged reprisal for the killing of twenty-one German soldiers near Topola were taken from concentration camps in Yugoslavia, hundreds of miles away.”794 This fact, along with the fact that 2,100 were killed for twenty-one deaths, led the tribunal to conclude that it was “obvious that a flagrant violation of international law had occurred and outright murder has resulted.”795 The Tribunal went on to define reprisals as follows: Reprisals in war are the commission of acts which, although illegal in themselves may, under the specific circumstances of the given case, become justified because the guilty adversary has himself behaved illegally, and the action is taken in the last resort, in order to prevent the adversary from behaving illegally in the future.796

In The High Command Case, the Tribunal again considered the policy of terror murders in occupied territories. The defendants were charged, inter alia, with having taken part in the policy making and implementation. The Tribunal reduced the views of The Hostages Case to the following statement: [T]hat under certain very restrictive conditions and subject to certain rather extensive safeguards, hostages may be taken, and after a judicial finding of strict compliance with all pre-conditions and as a last desperate remedy hostages may even be sentenced to death. It was held further that similar drastic safeguards, restrictions, and judicial pre-conditions apply to so-called “reprisal prisoners.”797

Subsequent to World War II, the law of belligerent reprisals emerged as conventional law in the four Geneva Conventions of 1949. These conventions prohibit: (1) Reprisals against the wounded, sick, personnel, buildings or equipment protected by the Convention.798 (2) Reprisals against the wounded, sick and shipwrecked persons, the personnel, the vessels or the equipment protected by the Convention.799 (3) Measures of reprisals against prisoners of war.800

793 Id. at 493–94. 794 Id. 795 Id. 796 Id. at 493. 797 Kalshoven, supra note 747, at 233. 798 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I), 75 U.N.T.S. 31, 6 U.S.T. 3114, at art. 46. 799 Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II), 75 U.N.T.S. 85, 6 U.S.T. 3217, at art. 47. 800 Convention Relative to the Treatment of Prisoners of War (Geneva Convention III), 75 U.N.T.S. 135, 6 U.S.T. 3316, at arts. 3, 13.

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(4) Reprisals against civilians and their property.801 The use of belligerent reprisals was further restricted in conventional international law by Protocol I to the Geneva Conventions. Because of the strong opposition to a broad article that outlawed the use of all reprisals, many articles were adopted outlawing individual types of reprisals. This virtually had the same effect as a broad prohibition. The relevant articles of Protocol I provide that: (1) Reprisals against the wounded, sick and shipwrecked and against medical transportation are prohibited.802 (2) Civilian objects shall not be the object of reprisals.803 (3) Objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, shall not be made the object of reprisals.804 (4) Attacks against the civilian population or civilians by way of reprisals are prohibited.805 (5) Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby prejudice the health or survival of the population.806 Despite these specific prohibitions seemingly making any act of reprisal illegal, some authors argue that the use of belligerent reprisals is still justified in the absence of any other international enforcement mechanism such as an international criminal court.807 But in this writer’s opinion, reprisals against protected persons are never justified, and the same applies to certain protected targets. The concept of impermissibility of reprisals extends to various aspects of the ways and means of conducting war. It also applies implicitly to certain prohibitions, such as the prevention of humanitarian aid to civilian populations, which is a war crime. In recent conflicts, belligerents have taken to using food as a

801 Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, at art. 33. 802 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1124 U.N.T.S. 609, 16 I.L.M. 1442 (1977) at art. 20. 803 Id. at art. 52(1). 804 Id. at art. 54(4). 805 Id. at art. 51(6). See also art. 51(5)(6) for prohibition of indiscriminate attack. 806 Id. at art. 35 and 55(1). 807 See Kwakwa, supra note 759.



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weapon of war by preventing civilian population from receiving it. This constitutes a war crime, but when it is resorted to as reprisals, it is prohibited under the two aspects of the law of armed conflicts.808 The Rome Statute’s Article 8, which defines war crimes, uses the exact terms of the “Grave Breaches” provision of the 1949 Geneva Conventions and combines provisions of Protocol I and customary law with respect to conflicts of an international character, and provisions of Protocol II and customary law with respect to conflicts of a non-international character. The United States has “persistently objected” to the development of a customary rule barring reprisals against civilians, so America is not constrained by this apparent rule.809 In the words of Professor Osiel: As a moral principle with deep roots throughout international law and in the U.S. law of foreign relations, reciprocity has a strong gravitational force. It could be understood to justify forcible countermeasures through targeted killing of Al Qaeda leaders, for instance, and perhaps also their sustained, preventive detention and coercive interrogation.810

Thus, the prohibition of reprisals is covered in the specific norms that proscribe certain acts and which make no allowance for an excuse or justification as reprisal. But the Rome Statute does not specifically address the issue of reprisal. Similarly the ICTY and ICTR Statutes, which do not have detailed provisions defining war crimes but incorporate by reference the “laws and customs of war” and the “Grave Breaches” of the Geneva Conventions, do not cover reprisals. The ICTY rejected the defense of reprisal upon its first instance dealing with the concept in the Kupreškić et al. case.811 The Trial Chamber ruled (obiter) that, [w]hile reprisals could have had a modicum of justification in the past, when they constituted practically the only effective means of compelling the enemy to abandon unlawful acts of warfare and to comply in the future within international law, at present they can no longer be justified in this manner.812 808 See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674 (May 27, 1994). There are several sections in that report on humanitarian relief as a war crime. 809 See Mark Osiel, The End of Reciprocity: Terror, Torture, and the Law of War 2 (2009). 810 Id. In his important work on the principle of reciprocity, Professor Osiel argues that in some circumstances—i.e., the retaliation directed only against those in positions of responsibility within Al Qaeda, thereby avoiding the “perennial criticism that reprisals punish the innocent”—such reprisals would be, due to their highly discriminate nature, respectful of humanitarian law: On this understanding of reprisal, leaders—whether combatant or civilian—of a fighting force dedicated to mass attacks on civilians may be subjected to degrading measures insofar as these practices are directed toward protecting civilian populations, through incapacitation and intelligence gathering. Id. 811 Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Judgment (Jan. 14, 2001) [hereinafter Kupreškić et al. Trial Judgment]. 812 Id. ¶ 530.

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The Tribunal engaged in an inquiry into the status of reprisals under customary international law, concluding that reprisals are also precluded in internal armed conflicts, wherein the “demands of humanity and the dictates of public conscience, as manifested in opinio necessitatis, have by now brought about the formation of a customary rule.”813 However, Kupreškić et al. has been criticized on this point.814 In Martić,815 the defendant Milan Martić was accused of having ordered Operation Flash—the bombardment of the Croatian city of Zagreb with cluster bombs after the Croats recaptured the Krajina region from Serb forces. Civilians were killed in the bombardment, and the Trial Chamber stated that customary international law contained an absolute prohibition on reprisals against civilians in both internal and international conflicts.816 The Trial Chamber observed that a belligerent reprisal is an exceptional measure defined as an otherwise unlawful act rendered lawful by the fact that it is made in response to another belligerent’s violation of international humanitarian law.817 The reprisal must also be a measure of last resort, and must be preceded by a formal warning.818 The Trial Chamber’s findings were confirmed on appeal, and Martić’s defense of reprisal was rejected.819 Thus, the jurisprudence of the ICTY, ICTR, and eventually that of the ICC will have to address reprisals on the basis of existing conventional and customary law. It is doubtful that the ICC will allow the defense of reprisal under Article 31(3) and Article 21 of the Rome Statute. However, when the requirements of proportionality, express warning in advance, and termination as soon as the adversary has discontinued unlawful attacks are followed, the question issue 813 Id. ¶ 533. 814 See, e.g., C. Greenwood, Belligerent Reprisals in the Jurisprudence, in International and National Prosecutions of Crimes under International Law 549-556 (H. Fischer et al., eds., 2001); van Sliedregt, supra note 704, at 293-94 (observing a seeming gap between international law an criminal law thinking on the matter of reprisals). 815 Prosecutor v. Martić, Rule 61 Decision, Case No. IT-95-11-R61 (Mar. 8, 1996) [hereinafter Martić Rule 61 Decision]. 816 Id. ¶¶ 15–18. 817 See Prosecutor v. Martić, Case No. IT-95-11-T, Judgment, ¶¶ 465–67 [hereinafter Martić Trial Judgment], aff ’d Prosecutor v. Martić, Case No. IT-95-11-A, Judgment, ¶ 263 [hereinafter Martić Appeals Judgment], referring to Claude Pillot, Yves Sandoz, Christophe Swinarski and Bruno Zimmerman, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ¶ 3457 [hereinafter ICRC Commentary on Additional Protocols]; Kupreškić et al. Trial Judgment, supra note 811, ¶ 535. 818 See Martić Trial Judgment, supra note 817, ¶¶ 302, 468 n.943 referring to Witness MM-117, Oct 13, 2006, T. 9402–03 (holding that even if Croatian units had committed serious violations of humanitarian law as Martić alleged, the shelling of Zagreb still illegal because (1) it was not a last resort as peace negotiations were conducted during Operation Flash until 3 May 1995, and (2) because the RSK authorities had not formally warned Croatian authorities before the shelling). The Appeals Court affirmed the Trial Judgment on these findings. See Martić Appeals Judgment, supra note 817, ¶¶ 265–67. 819 Id. ¶ 269.



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is unclear. Professor Osiel provides insights on this current state of the law on reprisals against civilians, which are of great significance to specific crimes and the protected population of crimes against humanity: [T]his analyis makes the following contentions about the current state of legal doctrine, contentions that are straightforward enough in themselves, though rendered more complex by being sometimes cast in the alternative. First, when interpreted in light of enduring state practice, the pertinent treaties do not fully outlaw civilian reprisal, as they purport to do on their face. Second, even insofar as these treaties ban civilian reprisal, they are at odds with customary law, which does not do so. Third, to the extent that customary law has moved in the direction of prohibiting civilian reprisals, the United States has been a persistent objector to that trend and therefore is not bound by it. The same goes for jus cogens norms, a concept that the United States has never officially endorsed in any dispute. If there is an armed conflict with Al Qaeda, then America does not need a right of reprisal to kill that organization’s leaders and detain its members for the duration of the conflict. Both leaders and followers could then be considered combatants and as such may lawfully be treated in these ways. But if there is no armed conflict, then even a right of belligerent reprisal would not permit torture, other inhumane treatment, and arbitrary detention, insofar as the United States may have accepted the jus cogens status of these prohibitions. Any legal argument in favor of such practices would then have to be consistent with the international law of peacetime countermeasures, which is even more restrictive of force than the rules on belligerent reprisals. Applying this view of the law to pertinent facts, reprisals and countermeasures—the chief expression of the reciprocity principle within relevant law—were therefore either unnecessary or insufficient to authorize the Bush administration’s most controversial counterterrorism practices. Yet, this is only because current humanitarian law, as the United States and key allies endorse it, relies on distinctions that are logically incoherent or morally indefensible, we will see. These countries insist that international law respect the reciprocity principle to such an extent that remaining doctrinal obstacles to justifying all Bush administration policies as lawful reprisal become entirely arbitrary. Moreover, most legal specialists hold the view that members of terrorist groups are not “directly participating in hostilities” except when immediately or imminently perpetrating violence against others. If so, then they generally remain protected as civilians at other times, and the reprisal right then becomes necessary to justify America’s attacking them.820

10.4. Tu Quoque The argument of tu quoque (“you also” or “my accusers did the same thing”) resembles that of reprisal, as both presuppose a violation of international law. The former purports to justify the conduct of a state that violates norms and standards of international regulation of armed conflicts on the grounds that

820 Osiel, supra note 809, at 50–51, 153.

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the state upon whom or upon whose subjects the harm has been inflicted has engaged in similar conduct. However, tu quoque differs from reprisal in that it is not meant to compel the adversary to act within international norms.821 Von Knierem states: [T]he principle of tu quoque is invoked not for the purpose of inducing the enemy to desist from its unlawful conduct but as an estoppel against the enemy’s subsequent attempt to call into question the lawfulness of the same kind of conduct of the other side. Conduct violating a rule of international law cannot indeed be claimed to have been taken in reprisal by one who at the time was ignorant that the enemy had engaged in the same kind of conduct. But it would still be a mockery of justice if either state could blame the other for the violation of international law or even punish the latter’s citizens for it. If it were to try, it would properly be met with the plea of estoppel, unless it were willing to have applied against itself the same sanction which it tries to inflict on the other side.822

Tu quoque is essentially a retributive argument based on the Old Testament’s “an eye for an eye, and a tooth for a tooth.” But the biblical retribution is to be against the offender who inflicted the original harm; in tu quoque, the harm is inflicted against persons other than those who committed the original violation. Thus, it shares a common denominator with reprisals, that of collective punishment. Under tu quoque, a state would be allowed to reciprocate against another’s violation of international law—i.e., commit a war crime—even where such reactions are not justifiable as reprisal.823 The net result is a situation in which neither state views itself as bound by a rule of international law. This suspension of a rule of international law will last for the duration of the situation, such as a war.824 Thus, once one state violates a norm, this norm no longer applies to the relations between the violating state and the state against which the violation occurred.825 The question of tu quoque was raised before both the IMT and IMTFE. In the trials of Admirals Karl Dönitz and Erich Raeder the IMT refused to punish Dönitz and Raeder for violations of the international law concerning submarine warfare: In view of all the facts proved, and in particular of an order of the British Admiralty announced on 8 May 1940, according to which all vessels should be sunk at sight in the Skagerrak, and the answer to interrogatories by Admiral Nimitz that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that nation entered the war, the sentence of Doenitz is not assessed on the ground of his breaches of the international law of submarine warfare.826 821 van Sliedregt, supra note 704, at 294. 822 von Knieriem, supra note 688, at 312. 823 Id. at 313. 824 Id. 825 Id. 826 22 IMT 559. The Tribunal arrived at the same conclusion for Raeder at 563.



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The British in the Skagerrak and the Americans in the Pacific also employed unrestricted submarine warfare against neutral merchant ships, according to the testimony of a defense witness, Admiral Chester Nimitz.827 Similarly, the prosecutors did not charge any Nazi defendants for planning or ordering the mass bombing of the British cities of London and Coventry because of similar Allied bombings of German cities of Hamburg and Dresden and Japanese cities of Hiroshima and Nagasaki, among others. In the words of Francis Biddle, an American judge at Nuremberg, “We would have looked like fools.”828 The IMTFE rejected an argument similar to tu quoque in the case of a defense counsel who sought to absolve his client, who stood accused of authorizing the rape and murder of Chinese women, reasoning that the Chinese military forces had committed similar crimes.829 The IMT, IMTFE, and the Subsequent Proceedings rejected the plea of tu quoque in all other respects, holding that it did not sit to pass judgment on the violations of international law of other nations.830 This is understandable in light of the vulnerability of the Allies arising from such a plea.831 In the Von Weizsäcker and High Command cases, tu quoque was explicitly rejected, with the courts holding, essentially, that one’s wrongs cannot serve to make right another’s wrongs.832 And, in Einsatzgruppen, it was established that Allied violations of international humanitarian law were incomparable to those committed by the Nazis: There is still no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory.833

As Robert Woetzel states: As far as the tu quoque argument is concerned, it need only be mentioned that it is no defence for an individual to claim that a crime for which he is being tried has also been committed by others. Only if there is sufficient evidence to conclude that the act is practiced with impunity by a large number of other persons, would it be justified to assume that it was not a crime, since international custom and general practice condoned it . . . . But under no circumstances can the tu quoque argument be considered an absolute defence for a crime against international law.834

827 See René Provost, International Human Rights and Humanitarian Law (2002). 828 Francis Biddle, In Brief Authority 452, 455 (1962). 829 See Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II 124–25 (2008). 830 von Knieriem, supra note 688, at 314. 831 Best, supra note 629, at 78. 832 See U.S. v. Von Weizsäcker et al. (The Ministries Case), XIV Trials of War Criminals, at 322; The High Command Case, XI Trials of War Criminals, at 482. 833 The Einsatzgruppen Case, supra note 622, at 457. 834 Robert K. Woetzel, The Nuremberg Trials in International Law 120–21 (1962).

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The author further states: It would be conceivable if such cases where the practice of nations is generally in contravention of certain provisions of international law, that a person responsible for the carrying on of such practices did not act with any mala intention or did not intend to violate the law of nations. His action would, therefore, lack sufficient mens rea for holding him guilty of committing a crime against international law. This does not, however, represent a recognition of the tu quoque argument as justifying a violation of international law.835

As discussed above, the argument of tu quoque was rejected in the Subsequent Proceedings. In The Ministries Case, for example, the defense argued that the London Charter and CCL 10 were invalid because Russia, who was a signatory to both, was guilty of the crime against peace in the case of Poland.836 The tribunal held that such a defense was inapplicable because these instruments were not new legislations but declarations of existing law, and even if they were new legislation, it had never been recognized that a law was invalid because one of the legislators subscribing to it committed or intended to commit the crime denounced in the law.837 Germany’s Constitutional Court expressly allowed the tu quoque defense in the 1995 espionage trial of former German Intelligence Administration head Markus Wolf. The Court held that East Germans who had spied domestically for their state could not be prosecuted after reunification because Western German officials had done likewise.838 Tu quoque was raised before the ICJ in the case of Bosnia Herzegovina v. Federal Republic of Yugoslavia, wherein the former objected to claims by the latter contending that one could not rebut a charge of genocide by pointing at an opponent’s offences. While the ICJ did not expressly make a ruling, Vice-President Weeramantry dissented from the majority, endorsing Bosnia’s argument.839 In three cases before the ICTY, the Tribunal concluded that reprisals are prohibited by customary international law.840 The ICTY rejected tu quoque in the Kupreškić et al. case, ruling that the defense was “fallacious and

835 Id. at 188–89. 836 The Ministries Case, supra note 832, at 322–23. 837 Id. See also Woetzel, supra note 834, at 226. 838 See Alan Cowell, German Ruling Absolves Spies of Former East, N.Y. Times, May 24, 1995, A1. 839 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-Claims, Order of 17 December 1997, 1997 I.C.J. 243 (Dec. 17). 840 But see Greenwood, supra note 814, at 341–47, and Fritz Kalshoven, Reprisals and the Protection of Civilians: Two Recent Decisions of the ICTY, in Kalshoven, Reflections on the Law of War 809, 819, 830, 833 (2007), both of whom rebut this conclusion. Cf. Sienho Yee, The Tu Quoque Argument as a Defense to International Crimes, Prosecution, or Punishment, 3 Chinese J. Int’l L. 87, 131 (2004).



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inapplicable.”841 When the defense counsel presented a list of crimes allegedly committed by the adversaries, the Trial Chamber referred to post-World War II jurisprudence and customary international law in barring the defense. Moreover, the Trial Chamber considered the nature of the norms of international humanitarian law to be absolute, especially those forbidding war crimes, crimes against humanity, and genocide, which were found, in principle, to be immune to the tu quoque argument.842 In Limaj et al., the Trial Chamber also rejected the tu quoque principle, emphasizing “the existence of an attack from one side involved in an armed conflict against the other side’s civilian population does not justify an attack by that other side against the civilian population of its opponent.”843 Similarly, in Martić,844 the Appeals Chamber held that “[i]t is well established in the jurisprudence of the Tribunal that arguments based on reciprocity, including the tu quoque argument, are no defense to serious violations of international humanitarian law.”845 The Trial Chamber in Kupreškić et al., however, expressly admitted that state practice did not support its view that belligerent reprisals are illegal, choosing instead to rely on opinio juris to discern custom.846 In other words, “The actual practice of states [. . .] reflects a much deeper commitment to the reciprocity principle than does learned judicial opinion.”847 Professor Osiel speculates about the applicability of the tu quoque defense in the new context of the ICC as follows: It was more sensible to allow such a tu quoque defense at Nuremberg than it would be today, before the International Criminal Court. The postwar International Military Tribunal was not a truly international court. Its judges were drawn exclusively from victor Allied nations, who were also the accusers. These nations, one could credibly say, were the judge, jury, prosecutor, and executioner. Because such states were unquestionably responsible for certain major offenses legally similar to those of the accused, a hypocritical redolence hung heavily in the courtroom air. In contrast, as the International Criminal Court is truly international in composition and structure, the accuser becomes the international community at large, not the parties proximately victimized by the perpetrators’ wrong. Because the relation between accuser and accused is no longer bilateral, the principle of reciprocity— as common rules for both sides—no longer stands in the way of prosecution. The charge of “victor’s justice” entirely disappears once the law replaces bilateral with a genuinely systematic, multilateral reciprocity.

841 Kupreškić et al. Trial Judgment, supra note 811, ¶¶ 515–20 (stating that “individual criminal responsibility for serious violations of that law may not be thwarted by recourse to arguments such as reciprocity”). 842 Id. 843 Prosecutor v. Limaj et al., Case No. IT-03-66-T, ¶ 193 (Nov. 30, 2005). 844 Martić Appeals Judgment, supra note 817, ¶ 111. 845 Id. 846 Id. ¶ 527. 847 Osiel, supra note 809, at n. 294.

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chapter four In sum, humanitarian law follows an inconsistent path in its on-again, off-again relationship to reciprocity. One might be tempted to say that such law is internally consistent in that Geneva law, because of its increasing resemblance to human rights law, rights rejects reciprocity, whereas Hague-type weapons treaties understandably accept it. Though such weapons treaties aim to minimize unnecessary suffering, they still are chiefly concerned, in the remedy of withdrawal for their breach, with preventing unfair advantage through one side’s use of the prohibited weapon against the other. They again resemble arms control treaties, limiting deployable numbers of a particular weapon, though the latter are concerned more with avoiding a fight—by preserving a balance of power—than with ensuring its fairness.848

10.5. Self-Defense In Martic, the ICTY Appeals Chamber dealt with the defendant’s claim that the shelling of Zagreb was a lawful military action conducted in self-defense. The Appeals Chamber noted that Martic had argued in his concluding statement that “the Serbs were not the aggressors but rather defended themselves in a situation when the United Nations made no attempt to protect them [. . .].”849 However, the Appeals Chamber concluded that Martic’s actions in the shelling of Zagreb were not justified by self-defense, emphasizing the prohibition against attacking civilians is absolute.850 10.6. Insanity (Mental Incapacity) The defense of insanity or mental incapacity is rooted in national criminal law, where the defense has been accepted for many centuries. It played only a limited role at the IMT and in the Subsequent Proceedings. The IMT seemed to recognize insanity could affect criminal responsibility in its reasoning in the trial of Deputy Führer Rudolf Hess, who resorted to the plea. The Tribunal provided, “[T]here is no suggestion that Hess was not completely sane when the acts charged against him were committed.”851 In the trial of Wilhelm Gerbsch in the Subsequent Proceedings, the court accepted a defect in the defendant’s mental state as a mitigating circumstance.852 Both the ICTY and ICTR provide for diminished responsibility due to insanity. According to its Rules of Procedure and Evidence, the ICTY permits the defendant to rely on “any special defence, including that of diminished or lack of

848 Osiel, supra note 809, at 105. 849 Martic Appeals Judgment, supra note 817, ¶ 268. 850 Id. 851   Nuremberg Judgment in 2 Friedman (1972), at 971–72. 852 Trial of Wilhelm Gerbsch, XIII UNWCC, 131–37.



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mental responsibility.”853 In Celebici, the ICTY Appeals Chamber established that diminished mental capacity in Rule 67(A)(ii)(b) can be raised by the defendant in the context of mitigation of sentence, not as a complete defense: The Appeals Chamber accepts that the relevant general principle of law upon which, in effect, both the common law and the civil law systems have acted is that the defendant’s diminished mental responsibility is relevant to the sentence to be imposed and is not a defence leading to an acquittal in the true sense. This is the appropriate general legal principle representing the international law to be applied in the Tribunal. Rule 67(A)(ii)(b) must therefore be interpreted as referring to diminished mental responsibility where it is to be raised by the defendant as a matter in mitigation of sentence, where he relies upon diminished mental responsibility in mitigation, he must establish that condition on the balance of probabilities—that more probably than not such a condition existed at the relevant time.854

This position raises questions when viewed from the common law tradition, wherein diminished mental responsibility alters the mens rea and actus reus to lead to a lesser offense and lesser sanction—i.e., manslaughter instead of murder. The Appeals Chamber continued: The Appeals Chamber accepts that the relevant general principle of law upon which, in effect, both the common law and the civil law systems have acted is that the defendant’s diminished mental responsibility is relevant to the sentence to be imposed and is not a defence leading to an acquittal in the true sense. This is the appropriate general legal principle representing the international law to be applied in the Tribunal.855

Article 31 of the ICC Statute includes insanity as a ground for acquittal. It provides as follows: In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.856 853 Rule 67(a)(ii) of the ICTY Rules of Procedure and Evidence provides, “As early as reasonably practicable and in any event prior to the commencement of the trial: the defence shall notify the Prosecutor of its intent to offer: (b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.” International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (ICTY), 2d Sess., Rules of Procedure and Evidence Adopted on 11 February 1994, U.N. Doc. IT/32 (1994); updated version, IT/32/Rev.46 (2011), available at http://www.un.org/icty/legaldoc/index.htm (last visited on Nov. 14, 2011). 854 Celebici Appeals Judgment, infra note 897, ¶ 590. 855 Id. 856 ICC Statute, supra note 16, at art. 31(1)(a).

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The ICTY distinguished its defense of diminished mental responsibility from the mental incapacity defense located in Article 31(1)(a) of the ICC Statute: [Article 31(1)(a)] is not the same as any partial defence of diminished mental responsibility, as it requires the destruction of (and not merely the impairment to) the defendant’s capacity and it leads to an acquittal. It is akin to the defence of insanity. There is no express provision in the ICC Statute that is concerned with the consequences of impairment to such a capacity.857

Thus, the ICC requires the destruction of the defendant’s capacity to know or control his or her conduct for a defense of mental incapacity. Like the ICTY and ICTR, however, the ICC also provides for diminished responsibility in its Rules of Procedures and Evidence.858 Like the American Model Penal Code,859 Article 31(1)(a) combines the cognitive (“right/wrong”) and volitional (“irresistible impulse”) tests: the defense has an excuse for not appreciating the unlawfulness or nature of his or her conduct as a result of a mental disease or defect, as well as an excuse for being unable to exert will-power to control acts as a result of a mental disease or defect. It remains unclear whether the ICC will follow the Model Penal Code on the question of on whom the burden of proof rests. Under the Model Penal Code approach, the defendant must raise the defense, which then shifts the burden to the prosecution to prove beyond reasonable doubt that the accused was responsible at the time when he/she committed the act. 10.7. Intoxication Most national criminal justice systems provide a defense for involuntary intoxication. However, voluntary intoxication is more divisive, and national regulation varies. Until the ICC Statute, the defense of intoxication had a limited role in international criminal law.860 Article 31(1)(b) of the ICC Statute added intoxica857 Celebici Appeals Judgment, infra note 897, ¶ 587. 858 See Article 78(1) of the ICC Statute and Rule 145(2) of the ICC Rules of Procedure and Evidence: In addition to the factors mentioned above, the Court shall take into account, as appropriate: (a) Mitigating circumstances such as: (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress; [. . .]. 859 The Model Penal Code provides: “A person is not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform to the requirements of the law.” MPC, ¶ 4.01(1). 860 Not everyone sees the practical value of an intoxication defense in international criminal law. For instance, Professor Schabas concludes that its inclusion “borders on the absurd.” Schabas, 423 (1998). He continues: While soldiers and thugs under the influence of drugs and alcohol may commit many individual war crimes, the court was established for a relatively small number of leaders, organisers and planners, in cases of genocide, crimes against humanity and large-scale war crimes. The nature of such crimes, involving planning and preparation, is virtually inconsistent with a



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tion to the list of other defenses established in international criminal law, such as duress and obedience to superior orders. Article 3(1)(b) provides: In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court.861

Article 31 of the ICC Statute approaches intoxication similarly to the American pattern by eliminating the excuse in cases of voluntary intoxication. This approach differs from the German approach to intoxication, which recognizes voluntary intoxication as an excuse to serious crimes but imposes liability for the negligent act of getting drunk and risking the commission of an irresponsible act. The provision on intoxication closely tracks the three basic elements of the ICC Statute’s provision on mental incapacity. It requires (1) a state of intoxication; (2) that the person’s capacity to appreciate and control is destroyed; and (3) that the accused was not voluntarily intoxicated. The ICC Statute considers intoxication a complete defense; therefore, it leads to acquittal and not the mitigation of the sentence. 10.8. Mistake of Fact and Mistake of Law Article 32 of the ICC Statute provides: 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

The Pre-Trial Chamber explained that Article 32(2) “specifies that mistake of law shall only be a ground for excluding criminal responsibility if (i) it negates the mental element required by the crime or (ii) it falls within the scope of the

Id.

plea of voluntary intoxication . . . . In practice, examples in case law, even for mere war crimes, are as infrequent as in the case of insanity. 861 ICC Statute, supra note 16, at art. 31(1)(b).

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“superior orders” or “prescription of law” defence under article 33 of the Statute.”862 Thus, absent a plea of superior orders (Article 33), mistake of law can only succeed as a defense if the defendant “was unaware of a normative element of the crime as a result of not realizing its social significance (its everyday meaning).”863 Commentators note that Article 32 epitomizes the ICC Statute’s failure to recognize both culpability as an independent aspect of every crime as well as that excuses negate culpability.864 While most continental criminal law systems recognize that reasonable mistakes of law negate culpability (thus excluding criminal liability), the ICC Statute holds that mistakes of law are only relevant if they negate the intention or knowledge required for liability.865 10.9. Conclusion Whether the ICC will also fail to establish a clear and consistent methodology in its approach to the general part is yet to be seen, though it likely will follow in the footsteps and bad habits of the ad hoc Tribunals.866 The problem with regard to the ICC is less significant because it is based on normative provisions provided in the Rome Statute. Nevertheless, there is ample reason to question the general part provisions of the Rome Statute if it is assumed that they are derived from “general principles” of criminal law as evidence by the world’s major criminal justice systems. There is hardly a comparatist specializing in criminal law who has not criticized the contents of the Rome Statute’s general part contained in Articles 22 to 33. Section 11. ICL Penalties and Sentencing 11.1. Introduction Penalties are not contained in the 281 ICL conventions applicable to the 27 categories of crime. The reason, as indicated in section 1 of this Chapter, is that these international conventions were elaborated with a view to being applied through the “indirect enforcement system” discussed in Chapter V. The assumption being that states will incorporate the provisions of these conventions into their domestic legislation and enforce international crimes as if they were national ones. 862 Prosecutor v. Lubanga Dyilo, Confirmation of Charges, ¶ 315 (Jan. 17, 2007). 863 Id. at ¶ 316. 864 George P. Fletcher, The Influence of the Common Law 104, 106. 865 Id. 866 The judges of the ICC, at least in the years since it has been operating, have not come from a criminal law background, whether practical or academic. Reliance on young legal assistants seems to be even heavier at the ICC than at the ICTY.



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Consequently, states will select the penalties they deem appropriate to these crimes in accordance with their domestic law. The absence of normative provisions on penalties in ICL conventions is therefore similar to the absence in these conventions of a general part. Consequently, if international crimes are applicable directly by means of the “direct enforcement system,” as discussed in Chapters VI and VII, or if they are directly applicable in national legal proceedings without the intermediation of domestic criminal law, the problem arises as to what penalties apply. What complicates that problem is that the principles of legality867 include the requirements of the enactments on penalties prior to their application. This is the principle nulla poena sine lege. Some international criminal tribunals have included in their charter or statute a provision of penalties, though never in terms specific enough to satisfy a positivist legal interpretation of the requirement nulla poena sine lege. The respective charter and statutes of the IMT, IMTFE, ICTY, ICTR, and the ICC delegate to the judge the determination of penalties, as well as the standards for sentencing, thus raising questions about that practice’s compliance with the principles of legality.868 The same international conventions also do not refer to any limitations on penalties which are found in a number of international human rights law instruments,869 with the exception of the Convention on the Prohibition of Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment.870 International human rights laws applicable to penalties and to the treatment of persons either in the course of the administration of justice or as the outcome of a criminal conviction is applicable to international crimes.871 Among these are norms prohibiting the death penalty and corporal punishment, though neither is universally recognized. Ninety-seven countries have formally abolished the death penalty and forty-four countries have either limited it to one or two crimes or de facto suspended its application.872 The ICTY, ICTR and ICC Statutes

867 See supra Chapter III, section 9; see also Edward Wise, General Rules of Criminal Law, 25 Denv. J. Int’l L. & Pol’y. 313, 315–16 (1997). 868 See William Schabas, International Sentencing: From Leipzig (1923) to Arusha (1996), in 3 Bassiouni, ICL, supra note 5, at 613; see also Jennifer J. Clark, Zero to Life: Sentencing Appeals at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 96 Geo. L.J. 1685 (2008). 869 M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994). 870 Torture Convention, supra note 655. 871   See supra Chapter III, section 9. 872 See Death Penalty Statistics 2011, Amnesty International (2010) available at http://www .amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries (last visited April 14, 2012) (noting that 97 countries and territories have abolished the death penalty for all crimes, 8 countries have abolished the death penalty for all but exceptional crimes such as wartime crimes and 36 countries can be considered abolitionist in practice: they retain the death penalty in law but have not carried out any executions for the past 10 years or more); see also, M. Cherif Bassiouni, Death as a Penalty in the Shari’a, in The Death Penalty: Condemned 65–84 (International Commission of Jurists, 2000).

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do not include the death penalty, even though these tribunals’ jurisdiction extends to the most heinous international crimes, namely genocide, war crimes, and crimes against humanity. Laudable as the purposes of non-applicability of the death penalty may be, it raises the serious question with respect to the retributive nature of international criminal justice and the “just dessert” that should be reflected in the penalties as described for such crimes and their perpetrators.873 It also raises questions with respect to the disparity that would exist in cases of the application of the death penalty for similar or lesser crimes in national criminal proceedings. In particular, it highlights the incongruity of providing imprisonment for the major crimes mentioned above, while in the national context, a death penalty sentence is applied for lesser crimes arising out of the same conflict and maybe even as a result of the same set of facts. It should also be noted, as discussed below, that the IMT and IMTFE imposed the death penalty in a number of cases. Corporal punishment is practiced in an estimated thirty countries. Additionally, it should be noted that the Standard Minimum Rules for the Treatment of Offenders874 is not generally applied by states and that prison conditions in many countries rise to the level of cruel, inhuman and degrading treatment.875 11.2. IMT, IMTFE, and Subsequent Proceedings The London Charter and the Tokyo Statute have similar provisions authorizing each Tribunal to impose “death or such other punishment as shall be determined to be just.”876 Neither, however, provides any guidance as to when the death penalty should be applied, and no criteria are provided for the range of punishment by imprisonment. Furthermore, the judges of these Tribunals did not even convene prior to the commencement of the proceedings to agree on criteria if for no other reason than to provide standards of fairness that the accused can rely upon if they sought to challenge the penalty. It was also quite uncertain as

873 See infra Chapter X, section 5.1.2. 874 United Nations Standard Minimum Rules for the Treatment of Prisoners at 67, U.N. Doc. A/ CONF/6/1, Annex I, A, U.N. Sales No. 1956.IV.4 (1956) [hereinafter SMRTP]. 875 See, e.g., Peers v. Greece, ECHR, App. No. 00028524/95 (Judgment, Apr. 19, 2001); Labita v. Italy, ECHR, App. No. 00026772/95 (Judgment, Apr. 6, 2000); Mamatkulov & Abdurasolovic v. Turkey, ECHR, App. Nos. 00046827/99; 00046951/99 (Judgment, Feb. 6, 2003). The European Court on Human Rights, in interpreting the ECHR, decided that the Death Row Syndrome in the United States violated its provision on cruel treatment. In an unprecedented decision, the Soering Case, the Court held that a person sought for extradition from the United Kingdom to the United States could not be so extradited as it would violate that person’s human rights. 161 Eur. Ct. H.R. (ser. A), at 3945 (1989). See also Stephan Breitenmoser, et al., Human Rights v. Extradition: The Soering Case, 11 Mich. J. Int’l L. 845, 845 (1990). 876 See IMT Charter, supra note 12; IMTFE Charter, supra note 12. The IMT could also “deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany.” IMT Charter, supra note 12, at art. 28.



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to what the individual judges relied upon in making their recommendations for sentencing before they reached a collective judgment. Lastly, it should be noted that in these proceedings there were no separate hearings on sentencing during which the accused could present evidence of mitigation and the prosecution evidence of aggravation. Since no such criteria were established, there was obviously no basis on which to assess what the judges considered to be aggravating or mitigating facts. After the conclusion of the trial, the situation varied significantly in Germany and in Japan. In the latter context, the 1951 San Francisco Peace Treaty between Japan and the United States877 resulted in bringing all those persons detained by the various Allies in the Far East to a central prison in Tokyo, even though they had been convicted by national courts martial or similar proceedings, in addition to those who were prosecuted before the IMTFE. Within a year, all convicted persons, irrespective of the sentence, were released as Japan did not feel that these sentences were justified. They viewed the IMTFE and other Subsequent Proceedings before national bodies as a form of victors’ vengeance and humiliation of the defeated.878 In Germany, however, the situation was different. Those who were prosecuted by the IMT carried out their sentences in full.879 Those convicted in the Subsequent Proceedings pursuant to CCL 10 in the Four Major Allies’ respective zones of occupation remained subject to each of the respective Allies’ control. The United States was the only one of the Four Major Allies to have developed, through its High Commissioner for Germany, a formal Advisory Board on Clemency for War Criminals.880 The Board’s authority applied only to the Subsequent Proceedings conducted by the United States and not by other Allies. It included such factors to be taken into account for sentence reduction as “the subordinate authority and responsibility of the defendants,” “the courage to resist criminal orders at personal risk” and the health conditions or other special circumstances of the convicted prisoners.881 The range of sentences at Nuremberg included death penalties and terms of imprisonment ranging from ten years to life.882

877 Multilateral Treaty of Peace With Japan (“San Francisco Peace Treaty”), signed Sept. 8, 1951, TIAS 2491, 3 UST 3329–40 (entered into force Apr. 28, 1952). 878 See Richard H. Minear, Victors’ justice: The Tokyo War Crimes Trials (1971). 879 Defendants Raeder and Hess were condemned to life imprisonment and served nearly 30 years before committing suicide in prison. See Schabas, supra note 868, at 615. Those who were sentenced to death were subsequently executed, with the exception of Goering, who committed suicide hours before the time fixed for sentence. Id. Doenitz, Von Neurath and Speer were sentenced to prison terms varying from ten to twenty years. Id. 880 See Schabas, supra note 868, at 622 (noting that clemency review was provided as somewhat of a substitute for the lack of an appellate remedy at the IMT). 881 See Statement of the High Commissioner for Germany, 31 Jan. 1951, Upon Announcing His Final Decision Concerning Requests for Clemency for War Criminals Convicted at Nuernberg, in 15 Trials of the War Criminals 1176–79 (1948). 882 See Schabas, supra note 868, at 615.

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The range of sentences at the IMTFE is seven death penalties and terms of imprisonment ranging from seven years to life.883 11.3. ICTY and ICTR The Statutes of the ICTY and ICTR provide a more elaborate mechanism for determining penalties. Article 24(1) of the ICTY Statute stipulates that the penalty imposed by the Tribunal is to be limited to imprisonment and that “in determining the terms of imprisonment, [the Tribunal] shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.”884 The ICTR Statute contains the same provision, making reference to the general practice in the courts of Rwanda.885 The Rules of Procedure and Evidence adopted by the Judges further provide that the Trial Chambers shall take into account the gravity of the offense and the individual circumstances of the offender, as well as such factors as any aggravating and mitigating circumstances, including cooperation with the Prosecutor by the convicted person before or after conviction.886 Finally, the Statutes also provide that pardon or commutation may subsequently be accorded based on the interests of justice and the general principles of law.”887 Thus, while the ICTY and ICTR Statutes do not stipulate specific penalties for each crime, they provide a limited mechanism whereby the Tribunals may uniformly select a particular punishment for each crime. In practice, the ICTY has handed down a wide range of sentences. As of June 2011, sixty-three of those found guilty have received their final sentences.888 In addition, nine of the accused have been acquitted (or found not guilty).889 The sixty-three individuals that have been found guilty received final sentences ranging from two years890 to life imprisonment.891 The average prison sentence at the ICTY has, therefore, amounts to 14.9 years (excluding the life sentence).892 883 Id. at 615. Shigemisu, in whose case the Tribunal found mitigating factors, received a sevenyear sentence, while defendant Togo was sentenced to 20 years. Id. 884 ICTY Statute, supra note 15, at art. 24(1). 885 ICTR Statute, supra note 130 at art. 23(1). 886 See ICTY Statute, supra note 15, at R. 101. 887 ICTY Statute, supra note 15, at art 28; ICTR Statute, supra note 130, at art 27. 888 See Fact Sheet on ICTY Proceedings, available at http://www.un.org/icty/glance/ (last visited June 5, 2008). 889 Zoran, Mirjan and Vlatko Kurpreskic, Zejnil Delacic, and Dragan Prpic. See Fact Sheet on ICTY Proceedings, available at http://www.un.org/icty/glance/ (last visited June 5, 2008). 890 Naser Oric was also sentenced to two years by the trial chamber June 30, 2006, but his sentence is still under appeal. 891  The longest confirmed sentence to date (life imprisonment) was received by Stanislav Galic (Case No. IT-98-29). The appeals chamber confirmed his sentence on July 5, 2001. The Trial Chamber sentenced Milomir Stakic (Case No. IT-97-24) to life imprisonment on July 31, 2003. The Appeals Chamber reduced his sentence to forty years March 23, 2006. See ICTY, Key Figures of ICTY Cases, available at http://www.icty.org/x/file/Cases/keyfigures/key_figures_111111_en.pdf (last updated Nov. 11, 201). 892 As of June 2011.



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At the ICTR, the cases of thirty-two detainees have been completed. Twelve of the convicts, including Jean Kambanda, former Prime Minister of Rwanda, have been sentenced to imprisonment for life. Businessmen Obed Ruzindana and Omar Serushago were sentenced to twenty-five years and fifteen years of imprisonment respectively. Journalist Georges Ruggiù was sentenced to twelve years.893 Five defendants have been acquitted. The average prison sentence at the ICTR, excluding the life sentences, amounts to 20.3 years.894 A case illustrative of the sentencing practice is the Todorovic sentencing judgment.895 At the outset of the case, the Trial Chamber noted that, while the ICTY Appeals Chamber has held that retribution and deterrence are the main principles in sentencing for international crimes, these considerations merely form the backdrop against which an individual accused’s sentence must be determined.896 In examining the sentencing practice of the ICTY and ICTR, the Todorovic Trial Chamber noted that the Chambers of the International Tribunal have consistently held that the gravity of the criminal conduct is the most important factor to consider in determining sentence” and that the Appeals Chamber, in the Celebici case, confirmed its “acceptance of the principle that the gravity of the offence is the primary consideration in imposing sentence.”897 The Trial Chamber further relied on the decision in Kupreskic which noted that: The sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.898

This involves a consideration of both the criminal conduct forming the basis for the conviction and any aggravating circumstances.899 The overriding obligation of the Trial Chamber is to “individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime.”900

893 See Detention of Suspects and Imprisonment of Convicted Persons, available at http://69.94.11.53/default.htm (last visited June 5, 2008). 894 The shortest sentences were given to Vincent Rutaganira and Joseph Serugendo, both of whom received six-year sentences. Serugendo died August 22, 2006 two months after he was sentenced. Rutaganira was released March 2, 2008 after serving his sentence (he had been in custody since March 4, 2002). 895 Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, Sentencing Judgment, 31 July 2001 (Todorovic Sentencing Judgment). 896 Todorovic Sentencing Judgment, supra note 895, at para. 28. 897 Id. at ¶ 31 citing to Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgment (Nov. 16, 1998) (Celebici Trial Judgment), ¶ 1225; Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Judgment, (Jan. 14, 2000) (Kupreskic Trial Judgment), ¶ 852. 898 Kupreskic Trial Judgment, supra note 897, ¶ 852. 899 Todorovic Sentencing Judgment, supra note 895, ¶ 31. 900 Celebici Appeals Judgment, supra note 280, ¶ 717.

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With regard to sentences, the Trial Chamber in the Erdemovic case901 noted that whether at Nuremberg, where the most severe sentences (going as far as the death penalty) were pronounced and executed, or within the domestic legislation of States that have introduced crimes against humanity therein, or within the relevant legislation of the former Yugoslavia, the harshest penalties have been laid down for crimes against humanity. As such, the Trial Chamber noted that the imposition of harshest penalties for crimes against humanity is the expression of a general principle of law recognized by all nations.902 The Trial Chamber in Erdemovic further noted that, regarding the national laws, the relevant provisions of the law in the former Yugoslavia in effect at the time of the events offer little guidance in the determination of the sentence.903 As a consequence, the Trial Chamber held that “whenever possible, the International Tribunal will review the legal practices of the former Yugoslavia but will not be bound in any way by those practices in the penalties it establishes and the sentences it imposes for the crimes falling within its jurisdiction.”904 In other words, the Trial Chamber held that it can satisfy the principles of legality with regards to sentences without having to strictly follow the sentencing practice in the former Yugoslavia (or Rwanda).905 Finally, with regard to aggravating and mitigating factors to be considered, both the ICTY and ICTR have considered a wide range of both in reaching sentences. While some of the aggravating circumstances include the leadership (superior) position of the accused,906 terrorizing the victims, sadism, cruelty and humiliation, espousal of ethnic and religious discrimination, and the number of victims,907 mitigating factors often include those rejected by a court as defenses to a particular charge such as superior orders, necessity, duress, voluntary intoxication, automatism, insanity, and self-defense.908 Thus, although the latter factors are, as a general rule, rejected as defenses in ICL, they may still be

901 Prosecutor v. Erdemovic, Case No. IT-96-22-T, Sentencing Judgment (Nov. 29, 1996). 902 Id. ¶¶ 27–31. 903 Id. 904 Id. ¶ 40. 905 See Schabas, supra note 868, at 621. As noted by the Appeals Chamber in Tadic, “The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken into account by the Trial Chambers for the purposes of sentencing, the wording of Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system.” See Prosecutor v. Tadic, Case No. IT-94-1-AS, Judgment in Sentencing Appeals (Jan. 26, 2000). See also the discussion related to the sentencing practice in former Yugoslavia in the Todorovic Sentencing Judgment, supra note 895, ¶¶ 97–107. 906 Prosecutor v. Plavsic, Case No. IT-00-39&40/1, Sentencing Judgment (Feb. 27, 2003). 907 See Tadic, supra note 905, ¶¶ 16, 20, 32, 44, 47, 55, 56, and 59. 908 See Schabas, supra note 868, at 623–24.



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relevant to mitigation.909 Additional mitigating factors include the entry of a guilty plea and acceptance of responsibility, remorse, voluntary surrender to the tribunal(s), “substantial” cooperation with the Prosecutor, post-conflict conduct, previous good character, benevolent attitude towards the victims,910 and age.911 Significantly, unlike aggravating circumstances, which must be proved beyond a reasonable doubt, mitigating circumstances need only be established on the balance of probabilities.912 11.4. International Criminal Court Issues related to sentencing were examined in the preparatory work that led to the establishment of the ICC in 1998. During the August 1996 session of the General Assembly’s Preparatory Committee on the ICC, the question of sentencing was examined.913 Some of the delegations argued for more precise sentencing provisions, including minimum and maximum sentencing ranges for each crime, while others preferred a more flexible approach proposed by the International Law Commission.914 While some delegates advocated for the inclusion of the death penalty in the Rome Statute,915 others opposed it.916 In addition, such penalties as life imprisonment, disenfranchisement, denial or suspension of political rights or public office for the convicted person, and forfeiture of property were also considered.917 Considerable attention was also devoted to the issue

909 See id.; see, e.g., Erdemovic, supra note 901 (recognizing the admissibility of duress as a mitigating factor to a charge of war crimes or crimes against humanity, but not as a defense). In the Celebici case, the Appeals Chamber established that Rule 67 (A)(ii)(b) of the Rules, pursuant to which the Defense shall notify the Prosecution of its intent to offer any special defense, including that of diminished mental responsibility, must be interpreted as referring to diminished mental responsibility where it is raised by the accused as a matter in mitigation of sentence. The Appeals Chamber further stated that, where the accused relies on this in mitigation, he must establish the condition on the balance of probabilities, in other words, he must show that, more probably than not, such a condition existed at the relevant time. See Celebici Appeal Judgment, supra note 280, ¶ 590. 910 See, e.g., Prosecutor v. Sikirica et al., Case No. IT-95-8-S, Sentencing Judgment ¶ 104 et seq. (Nov. 13, 2001). 911 See Plavsic Sentencing Judgment, supra note 906. 912 See Prosecutor v. Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T, Judgment ¶ 847 (22 Feb. 2001) (Kunarac Judgment). 913 See Schabas, supra note 868, at 619. 914 Id. (citing Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR 51st Sess., Supp. No. 10 (A/51/22), Vol. I, para. 304). For a discussion of the International Law Commission’s work on this issue see Schabas, supra note 868, at 617–19. 915 The delegates from predominantly Muslim countries argued that, if the statute is to be considered representative of all legal systems, it should include the death penalty. See Schabas, supra note 868, at 619. 916 See id. 917 Id.

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of compensation of victims.918 Finally, the delegates also discussed the relationship between national legislation and international norms, with some proposals requiring the ICC to take national sentencing provisions into account on either mandatory or supplementary basis.919 These discussions were continued during the December 1997 session of the Preparatory Committee,920 where a compromise was reached to include a short, illustrative list of sentencing factors in the Rome Statute, together with the understanding that these issues will be revisited in depth when work continues on the Rules of Procedure and Evidence.921 This approach was confirmed without further debate at the Rome Diplomatic Conference, which adopted the text submitted by the Preparatory Commission without changes.922 Article 76 of the Rome Statute provides that, in the event of a conviction, a Trial Chamber “shall consider the appropriate sentence” and “take into account the evidence presented and submission made during the trial that are relevant to the sentence.”923 The Statute further provides that a Trial Chamber may hold a further hearing to hear any additional evidence or submissions relevant to evidence.924 Article 77 of the Rome Statute provides for applicable penalties. It states: Article 77 Applicable Penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime under article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.925

Similarly to the ICTY and ICTR Statutes, Article 78 (1) of the Rome Statute contains a provision requiring the court to “take into account such factors as the 918 Id. 919 Id. (citing to Report of the Preparatory Committee, supra note 914, at Vol. I, para. 308). 920   Id. at 620. 921 Rolf E. Fife, Penalties, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 558 (Roy S. Lee ed., 2001). 922 Id. 923 ICC Statute, supra note 16, at art. 76(1). 924 Id. art. 76(2); R. 143 (“Additional hearings on matters related to sentence or reparations”). 925 Id., art. 77; see also International Criminal Court, Rules of Evidence and Procedure, ICCASP/1/3, R. 146 (2002) [hereinafter ICC Rules] (“Imposition of fines under Article 77”).



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gravity of the crime and the individual circumstances of the convicted person.”926 Rule 145 of the ICC’s Rules of Procedure and Evidence provides further guidance on this matter, noting that the totality of the sentence of imprisonment and fine imposed under Article 77 “must reflect the culpability of the convicted person” and that the Court “must balance all relevant factors, including any mitigating and aggravating factors” in reaching a sentence.927 Furthermore, the Court is to consider, in addition to factors described in Article 78(1) the following factors in reaching a sentence: extent of the damage caused (in particular the harm caused to the victims and their families), the nature of the unlawful behavior, the means employed to execute the crime, the degree of participation of the convicted person, the degree of intent, the circumstances, time and location, and the age, education, and social and economic condition of the convicted person.928 This Rule also provides for mitigating and aggravating circumstances to be considered by the Court.929 The sentence of imprisonment is to be served in a state designated by the Court from a list of States Parties that have expressed their willingness to accept sentenced persons.930 The death penalty is excluded from the Rome Statute as a penalty for proscribed crimes. However, Article 80 the Statute assures states that the penalties provided for under the Statute will not affect the availability of such penalties under their national laws.931 Thus, states may apply their own penalties when sentencing individuals convicted under the exercise of national jurisdiction, which may or may not include the death penalty. Finally, the Court may also authorize a reduction in sentence. However, such a reduction is possible only after the individual has served two-thirds of a sentence or twenty-five years in the case of a life sentence.932 The criteria for review concerning reduction of sentence include: the conduct of the sentenced person while in detention; the prospect for resocialization and successful resettlement; whether the release would give rise to significant social instability; any significant action taken by the sentenced person for the benefit of victims; and the individual circumstances of the sentenced person (including a worsening state of physical or mental health and advanced age).933

926 ICC Statute, supra note 16, at art. 78. 927 ICC Rules, supra note 925, at R. 145. 928 Id. at R. 145(c). 929 Id. at R. 145(2). 930 ICC Statute, supra note 16, at art.103; ICC Rules, supra note 925, at Rs. 198–210. 931  ICC Statute, supra note 16, at art. 80. 932 Id. at art. 110. 933 ICC Rules, supra note 925, at R. 224 (“Procedure for review concerning reduction in sentence”).

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ICL conventions, as stated above, do not include penalties, nor do they refer to limitations on penalties. Consequently, there is a question as to whether these conventions satisfy the principles of legality with respect to the requirement null poena sine lege. Failure to refer to limitations on penalties also raises questions, if not uncertainties as to the applicability of certain international human rights law norms, both as to the penalties themselves and as to the methods of carrying out such penalties with the exception of what is contained in the 1984 Torture Convention. The Charter and Statutes of the IMT, IMTFE, ICTY, ICTR, and the ICC are unsatisfactory as to the provisions concerning penalties.934 First, because they fail to refer to specific penalties and how they are to be determined; second, because they do not identify criteria for aggravating and mitigating factors; and third, because they do not provide steps for holding a specific hearing on penalties.935 In all these tribunals, very broad discretion is given to the judges, which constitutes a violation of the principles of legality in rigid positivist legal systems. Moreover, all of these tribunals have relied on analogy either to the national laws of the territory where the conflict occurred as in the case of the ICTY,936 or by allowing the judges to make analogies to their own legal systems or to what 934 See Rolf E. Fife, Commentary on Article 77: Applicable Penalties, in Commentary on the Rome Statute, supra note 9, at 990; Mark Jennings, Article 78: Determination of the Sentence, in Commentary on the Rome Statute, supra note 9, at 985–98; see also, Rolf E. Fife, Penalties, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 555–73 (Roy S. Lee ed., 2001). 935 The ad hoc Tribunals initially held separate sentencing hearings and issued sentencing Judgments, although this was not mandated by either the Statutes or the Rules of Procedure and Evidence. See Prosecutor v. Tadic, Case No. IT-94-4-T, Sentencing Judgment (Jul. 14, 1997); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Sentencing Judgment (Oct. 2, 1998). The Tribunals have also refused to hear evidence that was germane only to sentencing prior to the verdict being issued. William A. Schabas, Article 76: Sentencing, in Commentary on the Rome Statute, supra note 9, at 981. In July 1998, however, the rules of the two Tribunals were amended in order to eliminate any suggestion of a separate sentencing phase. Id. In the subsequent Celebici Judgment, the accused were found guilty and sentenced immediately, without any suggestion that they were ever invited to submit evidence in mitigation of punishment. Id. (citing to Prosecutor v. Delacic et al., Case No. IT-96-21-T, Judgment, ¶ 1285 (Nov. 16., 1998)). On the other hand, separate sentencing hearings were conducted in cases where the accused pleaded guilty. In such cases the Trial Chamber receives written submissions on sentencing and hears oral arguments pursuant to Rule 100, which provides, “If the Trial Chamber convicts the accused on a guilty plea, the Prosecutor and the defence may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence.” See Todorovic Sentencing Judgment, supra note 895; See Plavsic Sentencing Judgment, supra note 906. 936 See Prosecutor v. Erdemovic, Case No. IT-96-22-T, Sentencing Judgment, ¶ 40 (Nov. 29, 1996); Prosecutor v. Tadic, Case No. IT-94-1-AS, Judgment in Sentencing Appeals (Jan. 26, 2000). See also the discussion related to the sentencing practice in former Yugoslavia in the Todorovic Sentencing Judgment, supra note 895, ¶¶ 97-107.



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they perceive to be the practice of other similar legal systems. For national legal systems that permit reliance on analogy for the application of penalties or which recognize a broad right for judicial determination of penalties, the problem does not exist. But it exists for many positivist legal systems, which represent over one-half of the existing legal systems of the world. Lastly, it should be considered that a number of international instruments require the application of the principles of legality under which the resort to analogy and broad judicial discretion in determining penalties may be deemed a violation thereof.937 Until the general part is codified in ICL, tribunals and their judgments will continue to rely on their own precedent to build a body of law on which to base future decisions. This body of work will be flawed because of the reliance of international conventions on domestic legal systems to provide a framework and guidelines for general part issues such as vicarious criminal responsibility, responsibility for the conduct of another, group criminal responsibility, command responsibility, state responsibility, joint criminal enterprise, statute of limitations, and certain defenses and immunities. It will also be flawed because the sources relied upon in making those decisions will not truly be a consensus of international legal systems. Legal systems that operate without the mainstream linguistic structures of English, French, or other majority languages, or systems that rely on alternative sources such as the Shari’ah systems in the Middle East, will continue to be marginalized as the international tribunals go forward.

937 See supra Chapter III, section 9.

Chapter five

The “Indirect Enforcement System:” Modalities of International Cooperation in Penal Matters Section 1. Introduction The “indirect enforcement system” is the term applicable to the enforcement of ICL through national legal systems. It is founded on two aspects. The first aspect is the assumption that states will incorporate in their national laws the obligations arising under ICL. This process of domestication of ICL is intended in part to adopt treaty-obligations to the requirements of national law. Thus, as domesticated ICL becomes applicable through national legal systems in accordance with their legal requirements. The second aspect derives from the first, and that is for states to use their internal legal processes not only to enforce their treaty obligations domestically, but also enforce their treaty obligations to cooperate internationally. The term “inter-state cooperation in penal matters” applies to the modalities relied upon by states in their bilateral relations to enforce their respective criminal norms. As discussed in Chapter I, section 2, these two legal regimes, respectively applicable to the enforcement of international and domestic crimes, differ as to the sources of their legal obligations, but not as to their modalities. In fact, these two legal regimes share the same eight modalities, which are: extradition, legal assistance, execution of foreign penal sentences, recognition of foreign penal judgments, transfer of criminal proceedings, freezing and seizing of assets deriving from criminal conduct, intelligence and law enforcement information-sharing, and regional and sub-regional “judicial spaces.” Since the “indirect enforcement system” operates through the intermediation of national legal systems, the effectiveness of the modalities of international cooperation necessarily reflects the strength and weaknesses of the respective national legal systems. Section 2. The Maxim Aut Dedere Aut Judicare 2.1. Origin and Rationale The maxim aut dedere aut judicare is the cornerstone of ICL’s “indirect enforcement system.”1 The maxim originated in a longer formula developed by Hugo 1 See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995).

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Grotius in 1624 as “aut dedere . . . aut punire.”2 In 1973, this writer changed aut punire to aut judicare,3 since the purpose of contemporary criminal law is to judicare those who are believed to have committed a crime, and not to punire, until after guilt has been established.4 The position attributed to Grotius-that all states have a common interest in suppressing international crimes is the foundation of why states should engage in international cooperation in penal matters. At the time of Grotius and until the twentieth century, international cooperation was essentially limited to extradition. Thus, the legal literature of almost five hundred years remained focused on extradition, whose rationale, however, extends to all other forms of international cooperation in penal matters. The cornerstone of the “indirect enforcement system” and of the “inter-state cooperation in penal matters” regimes remains the concept aut dedere aut judicare. All other modalities of international cooperation are secondary to the goals of prosecution or extradition. Consequently, it is necessary to start with the question of why prosecution or extradition is mandatory. The first answer is self-evident: states have a duty to prosecute a national crime when the crime is within their jurisdiction. However, the duty to prosecute is not always so evident, for example, when the crime has been committed elsewhere, or when neither the perpetrator or the victim are nationals of the state. The second answer, concerning extradition, appears less compelling in the absence of a duty to do so. Therefore, the threshold question is: What are the controlling 2 See Hugo Grotius, De Jure Belli ac Pacis, bk II, ch. XXI secs. III and IV, in Classics of International Law 526–29 (James B. Scott ed., F. Kelsey trans., 1925). See infra note 12 and corresponding text, which reveals that Grotius’ concept was based on Baldus, who posited a similar proposition in the fourteenth century.

3 The verb judicare primarily means “to judge” or “to try.” It suggests a full trial. The noun form judicatio refers to “an inquiry into an accusation.” Thus, the Latin may be sufficiently ambiguous to cover an inquiry for the purpose of determining whether or not to initiate a trial (as well as different national procedures for reaching such a determination). The expression aut dedere aut judicare does not seem to have been widely used much before 1974. It figures in the Final Document: Conclusions and Recommendations of the Conference on Terrorism and Political Crimes, held in Siracusa, Italy in June 1973, which is printed in International Terrorism and Political Crimes at xi, xix (M. Cherif Bassiouni ed. 1975). M. Cherif Bassiouni, International Extradition and World Public Order 7 (1974). This was a recurrent question at the International Seminar on Extradition, held in Siracusa in December 1989, the proceedings of which are contained in 62 Rev. Intl’e de Droit Pénal 13–699 (1991). See Roger S. Clark, Offenses of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg, 57 Nordic J. Int’l L. 49 (1988); E.M. Wise, The Obligation to Extradite or Prosecute, 27 Israel L. Rev. 268 (1993). 4 For contemporary perspectives, see Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 1; M. Cherif Bassiouni, International Extradition 3 (5th rev. ed. 2007); Declan Costello, International Terrorism and the Development of the Principle Aut Dedere Aut Judicare, 10 J. Int’l L. & Econ. 483 (1975); Edward M. Wise, Prolegomenon to the Principles of International Criminal Law, 16 N.Y.L.F. 562, 575 (1970); Edward M. Wise, Some Problems of Extradition, 15 Wayne L. Rev. 709, 720–23 (1969); Christine Van den Wyngaert, The Political Offense Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International World Public Order 8, 158–62 (1980).



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goals that compel the practice of surrendering fugitives? Extradition, after all, is not an end in itself. No one supposes that it is somehow an intrinsic good to maintain a certain balance of trade in fugitives from justice. Thus, if the practice is not to be regarded as an aimless exercise, it ought to be found to serve some ulterior purpose related to legitimate state policy interests, or the interests of the international community, assuming that such a concept exists.5 From the point of view of a state requesting extradition, the ends to be served by the return of fugitives are precisely the same as those that are supposed to be served by its criminal law itself, namely: retribution, deterrence, and re-socialization. Extradition is a means by which states enable their criminal justice systems to make sure that the purposes to be served are not frustrated by the ability of putative wrongdoers to flee the jurisdiction and obtain asylum in another state. Thus, extradition is a system designed to ensure that criminals do not escape the punishment that they deserve so that the preventive, educative or expressive uses of the criminal law are not diluted by the recurrent experiences of offenders managing to avoid trial or punishment by fleeing to a foreign sanctuary. In short, it serves to close a loophole in the effectiveness of national criminal justice systems by extending the reach of criminal sanction beyond the borders of the jurisdiction. In that respect, the rationale for extradition from the requesting state’s perspective is compelling. But what about the state from which extradition is requested? From its point of view, why should it be thought desirable or justifiable to engage in extradition? It is so only if sovereignty and national boundaries are irrelevant to an interest which all states share in ensuring that common crimes committed anywhere, or at least international crimes, do not go unpunished.6 This leads to a bifurcated distinction as to domestic crimes and international crimes. The latter justify the recognition of common interests by the states comprising the international community, as discussed in Chapter I, in part because these common interests reflect commonly shared values which are reflected in some or all international crimes.7 But with respect to domestic crimes, can it be said that all states in the international community have a common interest in upholding each other’s criminal laws? One answer is that crime is presumptively a social and moral wrong, and wherever crime is committed, so the argument runs, all those who share the values protected by criminal laws should be concerned with its application. This means that all states have a mutual (and not common) interest in upholding each other’s criminal laws whenever these laws’ protected social interests are the same–namely, the proposition that the underlying facts constitute a crime in the

5 See supra Chapter I, section 3.4. 6 See, e.g., J.B. Moore, The Difficulties of Extradition [1911], in 3 Collected Papers 314 (1944); cf. 1 J.B. Moore, A Treatise on Extradition & Interstate Rendition 57 (1891). 7 See supra Chapter III.

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respective states’ criminal law.8 The debate on the merits of this rationale goes back to Beccaria in the 1500s, and is expressed in his words as follows (although he did not endorse this position): There are also those who think, that an act of cruelty committed, for example, at Constantinople may be punished at Paris, for this abstracted reason, that he who offends humanity should have enemies in all mankind, and be the object of universal execration, as if judges were to be the knights errant of human nature in general, rather than guardians of particular conventions between men.9

Though theoretically laudable, the hypothesis of such universal jurisdiction is neither desirable nor practical for a variety of reasons.10 At the other end of the spectrum from this universal jurisdiction ideal is the view that states are not obligated to extradite unless they feel so inclined. An intermediate position is that states, at the least, should refrain from impeding extradition by making it more difficult than it need be, or place obstacles in the way of bringing criminals to justice. This position had the support of Baldus in the fourteenth century (as reported in the fifteenth century by Jean Bodin), who noted that:11 All lawyers with almost one consent say: sovereign princes not be bound to restore strangers flying unto them, unto their own princes demanding them . . . . Only Baldus addeth this condition thereunto, not to restore him to be right, so that the prince unto whom the condemned or guilty person is so fled, do upon him justice.12

8 A basic principle in extradition law and practice is the principle of double criminality, or dual criminality. See Bassiouni, International Extradition, supra note 3, at ch. VII. 9 Cesare Beccaria-Bonesana, An Essay on Crimes and Punishments 135 (2d Amer. ed. 1819; Academic Reprints ed. 1953). The phrase “knights errant of human nature” is an inspired invention of the translator. The Italian original says literally “avengers of the sensibilities of mankind.” In Italian, the full passage reads: “Alcuni credano parimente che un’azione crode1e fatta, per esempio, a Costantinopoli, possa esser punita a Parigi, per l’astratta ragione che chi offende l’umanità merita di avere tutta l’umanità inimica e l’esecrazione universale; quasiche i guidici vindici fossero della sensibilità degli uomini e non piutosto dei patti che gli 1egano tra di loro.” Cesare Beccaria, Dei delitti e delle pene 71–72 (Franco Venturi ed., 1965). The first Italian edition dates from 1764. The translation quoted is based on an early Italian edition in which this passage appeared in chapter 35, on “sanctuaries” or asylum (asili); in the definitive Italian text of 1766, the passage appears in chapter 29, on “imprisonment” or arrest (cattura). 10 See M. Cherif Bassiouni, Universal Jurisdiction; Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001).   11 A concurring statement by four judges in the Lockerbie (Provisional Measures) case, cited in full infra at note 44, says that the idea has been around “since the days of Covarrovias and Grotius.” See [1992] I.C.J. Reports, at 24 (Evensen, Tarassov, Guillaume & Aquilar Mawds1ey JJ, joint declaration). Covarrovias (1512–1577), in fact, lived somewhat earlier than Grotius (1583–1645), but considerably later than Baldus (1327–1400). 12 Jean Bodin, The Six Books of a Commonwealth 359 (K. McRae ed., 1962). Bodin’s Les six Livres de la Republique was first published in French in 1576; in a Latin version in 1586. The French and Latin texts differ substantially. The only complete English translation, published by Richard Knolles in 1606, is a composite drawn from both the French and Latin versions. McRae’s edition is a corrected facsimile reprint of Knolles’ translation.



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The logical conclusion is that since states cannot and do not exercise universal jurisdiction over all crimes,13 they should at least be willing to extradite perpetrators to a place where they can be prosecuted or punished as the case may be. The level of obligation to do so is enhanced when it comes to international crimes because of the hypothesis of a civitas maxima,14 whereby at first a moral and then a legal obligation arose because a common, or at least mutual, interest of the international community or community of states existed to combat such crimes.15 This common or mutual interest both justifies and requires the extradition of offenders, or else their trial by the state that refuses extradition, and constitutes the foundation of the contemporary maxim aut dedere aut judicare. This proposition, however, depends on an unarticulated premise, which needs to be explored. If we start from the hypothesis that the international system is actually a “society of states” rather than a genuine global “community” (as discussed in chapter I), what legal obligations follow when we come to consider the purposes of extradition? One line of argument is that since there is no worldwide “community,” but only a set of particular national communities, crime can only be of concern to the nation in which it takes place. Criminal law makes sense as a practice for blaming members of a community who violate that community’s norms, and not members of another community for what they do elsewhere. There is, accordingly, no international “common good.” Thus, as Beccaria maintained: “The place of punishment can certainly be no other than that where the crime was committed; for the necessity of punishing an individual for the general good subsists there, and there only.”16 Since crime ordinarily concerns only the country in which it occurs, there is no general obligation to extradite or to punish fugitives from justice in other countries,17 which is why states have historically engaged in extradition through treaties. Modern state practice, likewise, generally reflects the view that, in the absence of some treaty obligations, there is no right under international law to insist that fugitives be surrendered. The rationale for extradition thus turns on reciprocal self-interest, each state having an interest in getting back fugitives from its own law who flee to a foreign country. But to secure their return on a regular basis, a state is likely to have to agree to extradite in its own turn. Thus, the mutuality of interests is not the reciprocal enforcement of other states’ criminal laws, but the reciprocal exchange of fugitives for purely selfish interests. These selfish interests are, therefore, one reason for concluding extradition treaties and other treaties on the various modalities 13 See Bassiouni, Universal Jurisdiction, supra note 10. 14 See supra Chapter I, section 3.4. 15 See P.E. Corbett, Law and Society in the Relations of States 173 (1951) (arguing for a moral order binding the international community). 16 See Beccaria-Bonesana, supra note 9, at 135–36. 17 This, also, was Christian Wolff ’s position, despite his hypothesis of a civitas maxima. See Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum 82 (J. Drake trans., 1934).

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of international cooperation in penal matters. Such treaties are predicated on considerations of mutual advantage on the part of the essentially self-regarding members of a “society of states.”18 But over time, as more states engaged in the practice and accepted the hypothesis that they share a mutual interest, if not a common interest in the practice, that which was the occasional practice of states became the rule. Practice then reinforced the rule, which in turn, became an inchoate obligation after the adoption of a large number of treaties containing provisions on extradition. This rationale of accretion also applies to international crimes. But in this respect, the common interests of the international community are definitely more pronounced than in respect to domestic crimes, though the distinction has been lessened in the era of globalization.19 The obligation to prosecute or extradite is nevertheless more justified in the era of globalization with respect to international crimes because of worldwide consensus flowing from commonly-shared values and interests of the global society which impel worldwide interests in preventing and suppressing such crimes. A second line of argument about the duty to extradite, also starting from the premise that the international system comprises a “society of states,” reaches a different justification. This is the line of argument adopted, in essence, by Grotius, and also by Bodin and Vattel. Bodin’s argument is stated as follows: [E]very prince by the laws both of God and nature . . . [is] bound to do justice. . . . Magistrates in the same Commonweale are by mutual obligation bound to help one another . . . why then should princes be exempted from the like bond, so well agreeing with the laws both of God and nature? . . . Wherefore I hold it to be an injury unto the estate of another man, to detain a guilty fugitive after he is demanded to be again unto his own prince restored.20

This argument does not base the obligation to surrender the fugitive on a common interest in preventing and repressing crime. It is rather a matter of avoiding injury to another sovereign by impeding the exercise of a prerogative conferred, according to these and other scholars, by the laws of God, nature, and the state. Grotius suggests, in response to Bodin’s argument on the question of returning an alien fugitive to “his own prince,” that it makes no difference whether the fugitive is an alien or a subject: the same rules apply.21 Those rules give the right to prosecute or punish the offender to the state where a crime has occurred. The

18 This was treated as the only possible alternative to the hypothesis of a civitas maxima in Wise, supra note 4, at 710–11; M. Cherif Bassiouni, World Public Order and Extradition: A Conceptual Evaluation, in Aktuelle Probleme des Internationalen Strafrechts 10, 15 (D. Oehler & P.G. Potz eds., 1970). 19 See infra Chapter X. 20 See Bodin, supra note 12, at 359–60. 21 See Grotius, supra note 2, § IV(8), at 529.



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state where the accused or guilty person resides ought not to interfere with this right.22 But since it is not usual or expedient for a state to permit the forces of another to enter its territory for the purpose of inflicting punishment, the state where one who has been found guilty lives should do one of two things: either punish him/her itself or deliver him/her to the requesting party.23 The state is not rigidly bound to surrender the culprit; it has an alternative: either surrender or prosecute/punish him/her.24 Such surrender neither confers nor takes away any right; it only removes an impediment to the exercise of a right.25 Grotius, therefore, does not base the obligation to extradite or punish on a common interest in the prevention and repression of crime. Like Bodin, he treats it a matter of bilateral obligation, of respect for the prerogatives of another sovereign and only where that sovereign has been in some special sense injured by a particular offense. Grotius discusses extradition in the course of talking about what we would now call state responsibility for the acts of private individuals. He distinguishes two ways in which a state may become liable for such acts: patientia and receptus.26 The former involves a failure to take steps to prevent acts injurious to other states; the latter involves harboring those who have committed such acts. A state will be liable for harboring those who, by committing crimes, have especially injured another state or its rule. Such liability can be avoided by seeing to it that the guilty individuals are properly punished, either by surrendering them to the state they have injured or by punishing them as they deserve. Grotius’s entire discussion of extradition presupposes some kind of special injury to another state. There is another feature of Grotius’ argument that is often overlooked. The obligation to extradite or punish arises only with respect to “one who has been found guilty” [qui culpae est compertus]. Grotius emphasizes this language by adding in a note: “for surrender should be preceded by judicial investigation [deditionem enim praecedere debet causae cognitio]; it is not fitting ‘to give up those who have not been tried.’ ”27 The quotation regarding not giving up those who have not been tried is taken from Plutarch’s life of Romulus, where Remus says to Numitor: “You seem to be more like a king than Amulius; you hear and weigh evidence before punishing, while he surrenders men without a trial.”28 Thus, presumably the Grotian maxim aut dedere aut punire applies only in a case in which the offender already has been determined to be guilty. Nowadays it is said that Grotius’ principle really should have read aut dedere aut judicare (either 22 Id. § III, at 526. 23 Id. § IV (1), at 527. 24 Id. § IV (3), at 528. 25 Id. § IV (7), at 529. 26 Id. § II (2), at 523. 27 Id. § IV (1), at 527, n. 1. 28 Plutarch, Romulus vii. 5, at 106 (Loeb Classical Library 1914).

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extradite or prosecute), since it is not right to require a state to punish everyone whose extradition is refused; it is sufficient to require prosecution. Punishment should only be imposed on those found guilty. Yet, Grotius knew that. He was talking about alternative ways of dealing with fugitives who have been found guilty after a full inquiry (cognitio). He cannot be taken to imply that there is an obligation to punish those who may not be guilty. He does not propose an obligation to punish without a finding of guilt. He rather insists, contrary to modern practice, that there is no obligation to extradite without such a finding.29 Vattel follows Grotius in treating extradition as a way of avoiding state responsibility for the acts of private individuals. Where Bodin contemplated only the extradition of aliens, Vattel contemplates only the extradition of nationals. Vattel’s argument is as follows: [S]ince the sovereign should not permit his subjects to trouble or injure the subjects of another State, much less be so bold as to offend a foreign Power, he should force the offender to repair the evil, if that can be done, or punish him as an example to others, or finally, according to the nature and circumstances of the case, deliver him up to the injured State, so that it may inflict due punishment upon him . . . . A sovereign who refuses to repair the evil done by one of his subjects, or to punish the criminal, or, finally to deliver him up, makes himself in a way an accessory to the deed, and becomes responsible for it.30

As with Bodin, and as with Grotius, the Vattelian obligation to extradite derives from a particular view of the duties which a state owes to other sovereigns, not on the “criminal justice policy” of an “international community.” Bodin rejected the whole idea of an “international community.”31 While Grotius has been represented as predicating the obligation to extradite or punish on the existence of a civitas maxima, in fact this is an expression he never seems to use.32 And Vattel is quite explicit about disassociating himself from Wolff ’s concept of a civitas maxima: From the outset it will be seen that I differ entirely from Mr. Wolff in the foundation I lay for that division of the Law of Nations which we term voluntary. Mr. Wolff deduces it from the idea of a sort of great republic (Civitas Maxima) set 29 Cf. Gilbert Guillaume, Terrorism et Droit International, 215 Hague Rec. 287, 371 (1989) (“In fact, Grotius only contemplated surrender or punishment of a guilty person once ‘tried and convicted.’ But one cannot subordinate extradition to prior proof of guilt without rendering this procedure difficult and aleatory.”). 30 E. de Vattel, 2 The Law of Nations 136–137 (Charles G. Fenwick trans., 1916). 31 See F.H. Hinsley, Sovereignty 179–82 (1966). 32 Martin Wight, Western Values in International Relations, in Martin Wight, Diplomatic Investigations 89, 102 (1968) (listing a wide range of expressions used by Grotius to describe international society: communis societas generis humani, communis ilia ex humano genere constans societas, humana societas magna ilia communitas, magna ilia universitas, magna ilia gentium societas mutua gentium inter se societas, ilia mundi civitas, societas orbis. The list does not include civitas maxima).



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up by nature herself, of which all the Nations of the world are members . . . . This does not satisfy me, and I find the fiction of such a republic neither reasonable nor well enough founded to deduce therefrom the rules of a Law of Nations at once universal in character, and necessarily accepted by sovereign States . . . .33

Following the lead of Grotius and Vattel, the customary international law of state responsibility hesitatingly developed along lines that required states to cooperate in order to ensure that those who commit such crimes were brought to justice. In practice, however, many exceptions, some substantive and others procedural, frustrated the attainment of this goal. States also hesitated to accept any obligation that would require what they might consider to be “political offenders” to be returned to their oppressors.34 Thus, a state will not incur international responsibility for giving asylum to fugitives from another country. As it developed, the customary law of state responsibility generally requires repression of injuries to foreigners by private individuals only if those injuries occur within a state’s own territory.35 Treaties may impose further duties, but state practice is limited as to the general obligation to extradite or alternatively to punish offenders who have committed crimes abroad. Current international law, however, increasingly requires states to deny a safe haven to those who have committed certain international crimes such as genocide, crimes against humanity, war crimes, and torture. Since September 11, “terrorism” has been deemed part of that category. For extradition purposes, these crimes are the “exception to the political offense exception.”36 Arguments in favor of an obligation to extradite (or prosecute) have had to turn instead to the postulate of a communal interest in the repression at least of international offenses. For those who are skeptical about existence of an “international community” possessing real authority, this line of argument seems to beg the question. For those who believe in the reality of the “international community,” it is practically self-evident. The historical discussion of the duty to extradite, which would have applied to other modalities of inter-state cooperation in penal matters, had these existed

33 E. de Vattel, supra note 30, preface, at 9a. 34 A view supported by the late Professor Wise. See Edward M. Wise, Extradition: The Hypothesis of a Civitas Maxima and the Maxim Aut Dedere Aut Judicare, 62 Revue Internationale de Droit Pénal 109, 127–34 (1991). Concerning the “political offense exception,” see Bassiouni, International Extradition, supra note 3, and with respect to terrorism, see, e.g., International Terrorism: Multilateral Conventions (M. Cherif Bassiouni ed., 2001), at 1 [hereinafter Bassiouni, Terrorism Conventions]. See also Christopher H. Pyle, Extradition, Politics, and Human Rights (2001). 35 See Report of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10 2001, ch. 4, U.N. Doc. GAOR A/56/10; see also Richard B. Lillich & John M. Paxman, State Responsibility for Injuries to Alien Occasioned by Terrorist Activities, 26 Am. U.L. Rev. 217, 276–307 (1977); John R. Crook, The U.N. Compensation Commission—A New Structure to Enforce State Responsibility, 87 Am. J. Int’l L. 205 (1993). 36 See Bassiouni, International Extradition, supra note 3.

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before the twentieth century, reveals however, that if an international mutual interest exists, let alone a common interest, and if these interests were in some way based on commonly shared values which protect certain social interests, then the obligation to surrender, cooperate, prosecute, and punish would be self-evident. 2.2. Nature and Content of the Obligation However, and notwithstanding the writing of some scholars supporting the proposition of a civitas maxima, the practice of states has not yet clearly evidenced the recognition of the duty aut dedere aut judicare as being part of general international law, except for certain international crimes.37 Assuming the current existence of such a duty, there remain two sets of questions about the obligations arising out of this duty and its unarticulated premises: (1) The duty to prosecute or extradite can be viewed as alternative or cumulative.38 So far, only the writings of some scholars have held that a cumulative duty exists for jus cogens international crimes.39 It should be noted, however, that no treaty applicable to any of the 27 categories of crimes discussed in chapter III provides for a cumulative obligation, while less than 100 treaties out of the existing 281 ICL treaties provide for an alternative duty (i.e. prosecute or extradite).40 States have the duty to enforce, under their respective national laws, an obligation arising out of conventional and customary ICL. Thus, if the obligation arises out of a treaty, whether multilateral or bilateral, it is legally binding, but only on its signatories. If it arises out of general international law it is binding on

37 Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 1, at 28–30. 38 The issue was discussed at the Eleventh International Congress on Comparative Law. See generally M. Cherif Bassiouni, General Report on the Judicial Status of the Requested State Denying Extradition, in Proceedings of the Eleventh International Congress of Comparative Law, reprinted in 30 Am. J. Comp. L. (1982). See, however, Mario Pisani, Aut Dedere Aut Punire, 30 L’ Indice Penale 241 (No. 2, 1966). Professor Pisani translates Grotius’ treatment of the subject in full and quotes him as saying “Est enim disjunctive obligato.” 39 See supra Chapter III, section 3 and authorities cited. These international crimes are: aggression, genocide, crimes against humanity, apartheid, war crimes, piracy, slavery and slave-related practices, and torture. Beyond these international crimes, the obligations raised by the maxim aut dedere aut judicare presumably do not apply to other international crimes. Some authors even question whether the obligation to prosecute or extradite, irrespective of the jus cogens nature of the crime, is sufficiently carried out in the practice of states to be deemed part of customary international law. Such a view undermines the foundation of international criminal law enforcement, except insofar as it arises from specific treaty obligations. 40 See International Criminal Law Conventions and Their Penal Provisions 45–78 (M. Cherif Bassiouni ed., 1997) [hereinafter icl conventions].



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all states. But, at this stage of ICL’s development only jus cogens international crimes rise to the level of an obligatio erga omnes, and are, therefore, obligations under general international law. (2) Neither the maxim of aut dedere aut judicare nor any treaty establishing the duty to prosecute or extradite specifically include qualitative criteria. Presumably, the two-pronged duty is predicated on certain unarticulated premises which include such qualitative criteria, namely: that the prosecution (in the prosecuting state) is to be effective and fair, that the extradition process is to be effective and fair, and that prosecution (in the requesting state) is also to be effective and fair. ICL does not address these underlying premises, their scope, contents and how they are to be determined. Moreover there are no guidelines in ICL for the resolution of conflicts between states in cases of dispute as to the execution of these obligations and those legal consequences that attach to a failure to comply.41 The general treaty obligation of “good faith,” however, applies to states that are bound by treaty provisions with respect to the duties to prosecute or extradite.42 But, on the whole, the implementation of these obligations remains imperfect for lack of specific normative clarity as to the unarticulated premises in question. The seminal case in point is the Lockerbie case.43 It arises out of specific treaty obligations and not out of the general international law obligation to prosecute or extradite which derives from the maxim aut dedere aut judicare. Nevertheless, the legal issues raised in that case apply equally to treaty obligations and to general international law obligations. Shortly after the tragic incident of Pan Am 103’s explosion over Lockerbie, Scotland on December 21, 1988,44 the United 41 The principles of state responsibility for wrongful conduct apply. See Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction 29 (2001) (prescribing principles to govern the application of universal jurisdiction in light of its potential for abuse). 42 See Vienna Convention on the Law of Treaties, May 23, 1969, art. 31(1), U.N.T.S. 331, U.N. Doc. A/CONF.39/27 1155. Article 31(1) states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Taslim Olawale Elias, The Modern Law of Treaties, 71–84 (1974). 43 For application, pleadings, orders, oral arguments and judgments arising out of this incident, see generally, Case Concerning Questions of Interpretation and Application of 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), General List 88, International Court of Justice, available at http://www.icj-cij.org/docket/index.ph p?p1=3&p2=3&k=9c&case=88&code=luk&p3=2 (last visited Nov. 8, 2011). See also Case Concerning Questions of Interpretation and Application of 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), General List No. 89, International Court of Justice, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=luk&case =88&k=9c (last visited Nov. 8, 2011). 44 Scotland has autonomy within the United Kingdom, and has its own distinct legal system in which the death penalty has been abolished. Nevertheless, it is the government of the United

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States and Scotland issued indictments against two Libyan intelligence operatives, Abdelbasset Ali Al-Megrahi and Lamine Khalifa Fhimah. They were charged with planting explosives on the plane which resulted in the death of 259 passengers and eleven persons in and around the town of Lockerbie, Scotland. Thus, the United Kingdom and the United States sought the extradition from Libya of these two Libyan nationals charged with crimes arising out of that explosion. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation provides for the duty to prosecute in its Article 7, and for the duty to extradite in its article 8.45 Libya argued that it had the priority right to prosecute. The United States and the United Kingdom argued that no prosecution in Libya would be effective because Libyan authorities were involved in the plot; instead, they claimed a priority right for their extradition request over Libya’s claim of the right to prosecute. Libya responded by arguing that these two governments would not provide its nationals with a fair trial. Consequently, the unarticulated premises of effectiveness and fairness in the execution of the alternative duties to prosecute or extradite became the legal basis for a stalemate. In 1992, Libya filed suit against the United States and the United Kingdom in the ICJ.46 To forestall the ICJ’s decision on the merits of the case filed by Libya, the United States and United Kingdom obtained from the Security Council Resolution 731 (1992) requiring Libya to surrender the two accused to the United States and to the United Kingdom.47 Because the United Nations Charter does not give the ICJ the express power of judicial review over Security Council decisions, the ICJ felt estopped from passing judgment on whether such a resolution was a valid exercise of the Council’s prerogatives under Chapter VII, which deals with issues involving peace and security. Thus, how the Council found that the non-extradition of two accused bombers constituted a threat to world peace and security was not judicially reviewable by the ICJ.48 But the ICJ was nonetheless faced with the merits of the case filed by Libya pursuant to the 1971 Montreal Convention,49 namely, whether the duty to prosecute had precedence over the duty to extradite, and by implication, if there were any unarticulated conditions relating to effectiveness and fairness.

Kingdom which acts on behalf of Scotland in matters of foreign affairs, as does the United States government with respect to the States within its federal system. 45 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation [Montreal Hijacking Convention], 23 September 1971, 24 U.S.T. 564, 974 U.N.T.S. 177, 10 I.L.M. 1151; reprinted in Bassiouni, Terrorism Conventions, supra note 34, at 135. 46 See supra note 44. 47 S.C. Res. 731, U.N. Doc. S/Res/731 (1992); reprinted in 1 Bassiouni, Terrorism Conventions, supra note 34, at 20. 48 See, e.g., International Law: Achievements and Prospects (Mohammed Bedjaoui ed., 1992). 49 Supra note 46.



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The stalemate lasted for ten years but was never resolved by the ICJ. Instead, the interested states did so. Libya and the United States and the United Kingdom agreed to have what is equivalent to a change of venue, by having Scottish judges applying Scottish criminal law and procedure sit in an unused Dutch military facility outside The Hague. There, after a two-year trial, one defendant, Abdelbasset Ali Al-Megrahi, was found guilty and sentenced to life imprisonment, and the other, Lamine Khalifa Fhimah, was found “not guilty by reason of insufficient evidence” (which is a form of verdict available under Scottish law when the evidence does not rise to the standard of “beyond reasonable doubt”).50 While the legal stalemate over prosecuting the two Lockerbie accused has been brought to an end by means of a practical arrangement that satisfied the concerns of the interested governments, it did not provide an answer to the basic question of whether prosecution has priority over extradition, nor to the corollary questions pertaining to effectiveness and fairness. The ICJ had the opportunity to clarify these issues, but failed to do so. Thus, the questions raised about the duties to prosecute or extradite and the premises of effectiveness and fairness remain substantially unanswered, except for what is expressed in the writings of scholars. Section 3. The Modalities of “International Cooperation in Penal Matters” 3.1. Introduction The modalities discussed below are essentially the same which are resorted to in the “indirect enforcement system” of ICL, and in the regime of inter-state cooperation in penal matters with respect to domestic crimes. The difference, however, is at the sources of legal obligations triggering the resort by a state or by an international judicial organ to use any of these modalities. With respect to the regime of “inter-state cooperation in penal matters,” the sources of legal obligations are treaties and national laws, but, the subject-matter is domestic crimes. Whereas, with respect to the “indirect enforcement system” of ICL, the source of obligation arises from treaties specific to international crimes and from general international law, namely customary international law and the higher law of jus cogens, but the subject-matter is international crimes. However, within international law sources applicable to international crimes, there is a hierarchy. Since not all international crimes rise to the level of jus cogens, the source of legal obligation differs with respect to different categories of international crimes. 50 Megrahi v. Her Majesty’s Advocate, [2002] S.C.C.R. 509.

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Also in the era of globalization, more international crimes which have not so far been deemed part of jus cogens, like “terrorism,” have risen to a higher level of international concern, which may lead to their inclusion in the category of jus cogens international crimes and will thus require the imposition of more specific legal obligations upon states to prevent and suppress such crimes. Furthermore, parallel to that development is the increased mutual interest of states, largely as a result of globalization, to cooperate more effectively in the prevention and suppression of domestic crimes. Thus, the demarcation lines between jus cogens crimes and other international crimes is becoming more fluid with respect to the duty to prosecute or extradite and to lend other forms of international cooperation, just as the demarcation lines between international crimes and domestic crimes are becoming more fungible. ICL, therefore, blends these obligations in a way that they are soon likely to apply across the board to all forms of international, transnational, and domestic crimes. In the historically short span of fifty years, the millenary practice of extradition as the par excellence modality of international cooperation has become only one of several modalities, and the rationale for such cooperation has been recognized, on the basis of pragmatism, as being necessary and desirous. In current international law, the discourse about the philosophical and intellectual foundations of legal institutions has regrettably degenerated to the expedient, the pragmatic, and the temporary. With the knowledge that more traditional intellectual rigor is viewed by some as pedantic and unnecessary, this writer nonetheless concludes that the rationale for international cooperation in penal matters is founded on a civitas maxima, on which the maxim aut dedere aut judicare is based. Consequently, the processes by which the modalities of international cooperation in penal matters function must be guided by the aims of their rationale. These modalities, of which there are at present eight, are: extradition; legal assistance; execution of foreign penal sentences; recognition of foreign penal judgments; transfer of criminal proceedings; freezing and seizing of assets deriving from criminal conduct; intelligence and law enforcement information-sharing; and regional and sub-regional “judicial spaces.” 3.2. Extradition Extradition is the world’s oldest modality of international cooperation in penal matters. The first recorded treaty dealing with extradition dates back to 1268 B.C.E. In a peace treaty between Ramses II, Pharaoh of Egypt, and Hatussilli, Prince of the Hittites, the parties solemnly promised to surrender to one another their nationals who were wanted fugitives.51 Since then, extradition has been 51 See Bassiouni, International Extradition, supra note 3, at 32–33.



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the subject of numerous bilateral treaties, specialized regional multilateral treaties, and has been included in multilateral treaties dealing with different aspects of ICL.52 The national legislation of many states contains provisions on extradition,53 but it is estimated that half of the world’s countries do not have such legislation. National legislation varies as to its content and specificity. Most states require the existence of a treaty in addition to national legislation. Diversity in national judicial and administrative practices is also quite significant. Nevertheless, treaties and national legislation contain similar substantive requirements, as well as similar grounds for the denial of extradition. Some requirements have reached the level of customary international law, such as the requirement of double criminality (also referred to as dual criminality), whereby the crime charged in the requesting state must also be found in the criminal laws of the requested state.54 Another such requirement is the principle of speciality (also referred to as specialty),55 whereby, the requesting state can only prosecute the surrendered person for the crime for which extradition was granted. Even though both of these requirements are found in the extradition laws of almost all states and in almost every extradition treaty, their application in national judicial practice varies. With respect to double criminality, some states require that the crime be identical in the two legal systems, while others require only that the underlying facts give rise to a criminal charge in the requested state’s legal system.56 Concerning speciality, some states allow the surrendered person to raise the issue sua sponte if the requesting state deviates in its prosecution from the charges for which the person was surrendered.57 Others require that the requested state file a protest with the requesting state.58 These divergences reflect the two views of extradition.59 One view is that it is a contract between states and individuals are merely the objects of the proceedings. The other view is that individuals are subjects of the proceedings and the contractual undertakings of the states include stipulations in favor of the

52 See, e.g., Bassiouni, ICL Conventions, supra note 40, at 607 (Art. II of Convention on the Physical Protection of Nuclear Material), 837 (Art. III of Regional Convention on Suppression of Terrorism (Inter-Asian); Bassiouni, Terrorism Conventions, supra note 34, at 389 (Art. III of the South Asian Association for the Regional Cooperation: Convention on Suppression of Terrorism), 503 (Arts. 7 and 8 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). 53 For the U.S., see Title 18 U.S.C. §§ 3181–3196 (2002). 54 See Bassiouni, International Extradition, supra note 3, at 461–510. 55 Id. at 551–568. 56 See supra note 1. 57 See Bassiouni, International Extradition, supra note 3, at 548 et. seq. 58 Id. at 557 et. seq. 59 Id. at 29–45, 51–66.

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individual who is therefore a third party beneficiary of certain rights which he/ she may claim.60 The most significant, and most likely, hurdles to extradition are grounds on which denial of extradition may be based. These are sometimes referred to as exclusions, exceptions, and defenses.61 They include: exclusion of nationals from extradition; non-extradition of persons charged with political offenses or sought for political purposes; non-extradition when certain penalties are likely to be inflicted on the individual in the requesting states, such as the death penalty and physical punishment or treatment amounting to torture; and denial of extradition when double jeopardy exists or when statutes, of limitations apply. Nonextradition of nationals is probably the most significant of these exclusions, and it is contained in many state constitutions.62 While some states have provided for a jurisdictional basis to domestically prosecute their own nationals whom they will not extradite, the actual exercise of such national jurisdiction is rare. One historic justification for that exclusion is that nationals of one state are not likely to receive fair treatment in the courts of another state. But that rationale is no longer valid for most legal systems. Moreover, the requested state can always require assurances from the requesting state to insure a fair trial. Such assurances can also be requested and obtained with respect to the nonapplication of certain penalties that are contrary to the requested state’s public policy, such as the death penalty, corporal punishment, and excessively long periods of detention. Even though it is possible to find ways around these exclusions, they nonetheless constitute obstacles to extradition. The same applies to certain exceptions such as the “political offense exception,”63 though state practice in the last two decades has significantly reduced its application due to specific treaty obligations on the prevention and suppression of terrorism,64 and to the jurisprudential narrowing of the exception in most legal systems. The practice of extradition in most states has been slowed and weakened by lengthy formalities and procedures. The civilist legal systems tend to be more expeditious because they do not inquire into “probable cause,” nor do they provide for bail as do common law systems.65 60 Id. at 548 et. seq. 61 Id. at 587–750. 62 Id. at 682 et. seq. 63 Id. at 549 et. seq. 64 Bassiouni, Terrorism Conventions, supra note 34, at 254; Claude Nicati & Juliette Noto, A European Perspective on International Cooperation in Matters of Terrorism, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 495 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL]; Steven W. Becker, Cave Janus: Increased Cooperation Between Law Enforcement and Intelligence Agnecies After September 11, 2001, in 2 Bassiouni, ICL, at 71. 65 Bassiouni, International Extradition, supra note 3, at 826 et. seq.; see also Paul GullyHart, The European Approach to Extradition, in 2 Bassiouni, ICL, supra note 64, at 343; Bert Swart, The European Union and the Schengen Agreement, in 2 Bassiouni, ICL, supra note 64, at 243;



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Regional intergovernmental organizations have promoted multilateral treaties to enhance extradition and harmonize state practices. They are: the Council of Europe (CE);66 the Organization of American States (OAS);67 and the League of Arab States.68 The EU has developed a “European judicial space,” an idea proposed in the CE three decades ago, and discussed below in section 3.8.69 According to the EU’s approach, an arrest warrant issued by any duly authorized prosecutorial or judicial authority in any EU country is to be executed in any other EU country without the need for going through extradition procedures.70 This approach eliminates extradition altogether and whatever judicial safeguards are available in that process. There is no United Nations multilateral convention on extradition. However, there is a model bilateral treaty.71

Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in 2 Bassiouni, ICL, supra note 64, at 457. 66 European Extradition Convention, 12 Dec. 1957, E.T.S. No. 24; First Additional Protocol, 15 Oct. 1975, E.T.S. No. 86; Second Additional Protocol, 17 Mar. 1978, E.T.S. No. 98; Council of Europe: European Convention on the Suppression of Terrorism, 27 Jan. 1977, E.T.S. No. 90; 15 I.L.M. 1272. 67 Montevideo Convention of 1899, amended as Organization of American States T.S. No. 36 (1957). Inter-American Convention on Extradition, 25 Feb. 1981, O.A.S.T.S. No. 60; International American Convention on Mutual Assistance in Criminal Matters, 23 May 1992, O.A.S.T.S. No. 75. 68 Arab League Extradition Agreement, Sept. 14, 1951, in League of Arab States Collection of Treaties and Agreements 95 (1978). See also the Arab League Agreement on Extradition and Judicial Cooperation of 1983 (commonly referred to as the Riyadh Agreement), which has been ratified by 16 Arab states. It includes the 1951 Arab League Agreement on Extradition and 1951 Arab League Agreement on Judicial Cooperation; The League of Arab States, The Council of Arab Interior and Justice Ministers: The Arab Convention on the Suppression of Terrorism (Apr. 22, 1998); Bassiouni, Terrorism Conventions, supra note 34, at 393. 69 This idea was floated within the Council of Europe by France in the late 1970s but was not followed through. See Maria Riccarda-Marchetti, Instituzioni Europee e Lotta al Terrorismo (1986); Franco Mosconi, L’Accordo Di Dublino Del 4/12/1979, Le Communita Europee e la Repressione Del Terrorismo, La Legislazione Penale, 543 No. 3 (1986) (referring to the European Judicial Space); Council of Europe, International Cooperation in the Prosecution and Punishment of Acts of Terrorism: Recommendation No. R(82)1, adopted by the Committee of Ministers of the Council of Europe on January 15, 1982 and Explanatory Memorandum (Strasbourg 1983); Christine Van den Wyngaert, L’Espace Judiciare Europeen: Vers une Fissure au Sein du Conseil de L’Europe?, 61 Rev. Droit Pénal et de Criminologie 511 (1981); Christine Van den Wyngaert, L’Espace Judiciare Européen Face a L’Euro-Terrorisme et la Sauvegarde des Droits Fondamentaux, 3 Revue Internationale de Criminologie et la Police Technique 289 (1980); Consiglio Superior Della Magistratura. Estradizione E Spazio Giuridico Europeo (1979). They resurfaced in 2000 in the EU after the Maastricht and Schengen treaties entered into effect. See Regis de Gouttes, Vers un Espace Judiciare Pénal Pan Européen?, 22 Receuil Dalloz Sirey 154 (1991); Schengen: Internationalization of Central Chapters of the Law on Aliens, Refugees, Security and the Police (H. Meijers et al. eds., 1991); Regis de Gouttes, Variations sur L’Espace Judiciare Pénal Européen, 33 Receuil Dalloz Sirey 245 (1990). 70 Council Framework Decision of 13 June 2002 on the European Arrest Warrant & the Surrender Procedures Between Member States; (2002/584/JHA), Official Journal of European Communities 1–20, L190 of 18, July 2002; see also Giuliano Vassalli, Mandato d’arresto e pricipio d’equalianza, Il Giusto Processo 129, No. 3, Sept.–Oct. 2002. 71 See U.N. Model Treaty on Extradition, G.A. Res. 116, U.N. GAOR, 45th Sess., Annex at 211–14; U.N. Doc. A/Res/45/116 (1990); U.N. Model Treaty on Mutual Legal Assistance in Criminal Matters,

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States continue to engage in bilateral treaty practice72 that is lengthy, cumbersome, and costly, yet they resist the more efficient approach of multilateral treaties. This is essentially due to political reasons, as the bilateral practice permits them to tailor each treaty to the political relations and interests of the contracting states.73 All the factors mentioned above contribute to the lengthy, cumbersome, and costly practice of extradition without necessarily enhancing the fairness of the process. Thus, states tend to use immigration techniques, and even kidnapping, as a way of obtaining custody of the person when extradition fails or is likely to fail.74 These practices detract from the legitimacy of the process. 3.3. Legal Assistance (Also Referred to As Mutual Legal Assistance) This is a relatively new practice among states, developed primarily since the 1960s,75 but which has its origins in an almost century-old practice known as “Letters Rogatory.”76 This earlier practice, which is still used, though mostly in civil matters, is based on the principle of comity. This is when the courts of one state address a request to those of another state for judicial assistance in the form of taking the testimony of a witness or securing tangible evidence. The courts then transmit the oral or tangible evidence to the requesting court, certifying that the evidence has been secured in accordance with the legal requirements of the requested state. Historically, the “Letters Rogatory” procedure was based on comity, and not on treaties. Thus, the requested state was under no obligation to accept the request or act pursuant thereto. In addition to this discretionary aspect, the formal process of transmitting “Letters Rogatory” has historically been inordinately

G.A. Res 117, 45th Sess., Annex, at 215–19, U.N. Doc. A/Res/117 (1990). This earlier model treaty is in the process of being updated by the UNCPC. 72 The number of estimated bilateral extradition treaties is over 1,000. The U.S. alone has treaties with over 110 states. See Bassiouni, International Extradition, supra note 3, at 925 et. seq. See also Igor I. Kavass & Adolf Sprudzs, 1 &2 Extradition Laws and Treaties (2001). 73 See, e.g., Supplementary Extradition Treaty, June 25, 1985, United States-United Kingdoms, S. Treaty Doc. 8, 99th Cong., 1st Sess. (1985). Hearing Before the Committee on Foreign Relations, 99th Cong., 1st Sess. at 135–137 (1986), (statement of M. Cherif Bassiouni); M. Cherif Bassiouni, The “Political Offense Exception” Revisited: Extradition Between the U.S. and the U.K.—A Choice Between Friendly Cooperation Among Allies and Sound Law and Policy, 15 Denv. J. Int’l L. & Pol’y 255 (1987). There is also the bureaucratic interest of officials in ministries of foreign affairs and justice to engage in treaty negotiations which afford them the opportunity of travel abroad and to undertake work that is more satisfying than that of everyday routine. 74 See Bassiouni, International Extradition, supra note 3, chs. V, IV respectively. 75 The European Convention on Mutual Legal Assistance, 20 Apr. 1959 E.T.S. No. 30; First Additional Protocol, 15 Oct. 1975, E.T.S. No. 86; Second Additional Protocol, 17 Mar. 1978, E.T.S. No. 98. 76 For the U.S., see 28 U.S.C. §1696, 1782 (2002).



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long.77 Moreover, it is also uncertain as to how the request will be executed by the requested court and, therefore, whether the evidence obtained will be usable (factually or legally) in the courts of the requesting state. As an extension to “Letters Rogatory,” a few states have relied on the practice of sending a “Commission Rogatory” to another country to conduct its own investigation. This practice has been based on agreements between the states in question. Customarily, the commissions consist of a judge or a prosecutor conducting an investigation, inquiry, or interrogation of a witness in the territory of another state. In most cases, the “Commission Rogatory” is conducted on the grounds of the embassy of the sending state insofar as an embassy is deemed part of the flag state’s territory, even though it is on the territory of the host state.78 The host state may also invite the “Commission” to sit in on one of its courts. As of the 1960s, the practice of many states (within Europe, Latin America, the United States, and Canada) shifted to bilateral mutual legal assistance treaties (MLAT).79 Moreover, the CE,80 the OAS,81 and the League of Arab States82 promoted regional multilateral treaties. Still, the number of bilateral MLATs is far less than bilateral extradition treaties,83 as is the number of states having national legislation on the subject.84 MLATs, like extradition treaties, have requirements, exclusions, exceptions and defenses, and they are substantively similar to their counterpart in extradition treaties and national legislation.85 For example, the requirements of double 77 The requesting court issuing the “Letter” transmits it in accordance with the judicial protocol of that legal system to the higher judicial authority, from where it goes to the minister of justice (in the U.S. to the Attorney General), who then transmits it to the minister of foreign affairs (in the U.S., the Secretary of State), who then sends it to the Ambassador accredited to the requested state, who submits it to the ministry of foreign affairs of the requested state, and then the same course of transmission is followed in that state until the request reaches the appropriate court. Some states have, however, shortened the chain of transmission, but it nonetheless requires several passages. As a result, this practice is still too lengthy. 78 There is a debate as to whether embassies are extra-territorial or only jurisdictionally immune. See Marjorie M. Whiteman, 6 Digest of International Law 428 et. seq. (Dept. of State 1968); see also Leonard B. Sutton, Jurisdiction Over Diplomatic Personnel and International Organizations Personnel for Common Crimes and for Internationally Defined Crimes, in 2 Treatise on International Criminal Law 189 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) at 97. 79 See supra note 76. 80 European Convention on Mutual Assistance in Criminal Matters 6 Dec. 1962, E.T.S. No. 030; First Additional Protocol, 15 Oct. 1975, E.T.S. No. 86; Second Additional Protocol, 17 Mar. 1978, E.T.S. No. 98. 81 See supra note 68. 82 See, e.g. supra note 69. 83 The estimated number of bilateral MLATs, worldwide, is less than 200. See also Bruce Zagaris, United States Treaties on Mutual Assistance in Criminal Matters, in 2 Bassiouni, ICL, supra note 64, at 385. 84 The estimated number of states having relevant national legislation is less than 50 out of 193 states. 85 See supra note 4.

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criminality, specialty, and the “political offense exception” are the same in extradition and in legal assistance. Some states deny legal assistance requests if the crime investigated by the requesting state incurs the death penalty when that penalty is abolished in the requested state. MLAT procedures also vary in civilist and common law states, though their differences are less significant than in extradition procedures. The reason for that is MLAT procedures are largely influenced by treaties, which tend to be similar. A unique characteristic of MLATs is that they are for the benefit of governments. Individuals cannot make use of them, nor, for that matter, can they benefit from them. Governments can make exclusive use of the evidence they exchange between themselves and can, subject to their respective laws, deny access by the interested individuals to evidence that they have received from foreign governments, including exculpatory evidence when such individuals are accused of the commission of a crime. The forms of legal assistance vary widely. They include: taking of witness testimony, securing tangible evidence such as business and bank records, and conducting investigations. These forms of legal assistance can be conducted by the judicial, prosecutorial or law enforcement personnel of the requested state. Sometimes, the requested state allows a judge or prosecutor from a requesting state to conduct the investigation on its territory, but under the supervision of the requested state’s judicial authorities. Technological advances which could enhance the taking of testimony in foreign countries have not been used. Thus, video-conferencing techniques to take witness testimony and to conduct cross-examination have not be resorted to, except in a few rare cases. The use of such methods would greatly reduce travel costs and make the process faster. 3.4. Execution of Foreign Sentences Like MLATs, execution of foreign sentences is a modality of international cooperation that originated in the 1960s.86 The goal of this modality is to enhance the 86 For the different modalities of international state cooperation in penal matters, see M. Cherif Bassiouni, Extradition, Law and Practice of the United States, in 2 Bassiouni, ICL, supra note 64, at 269; Paul Gully-Hart, The European Approach to Extradition, in 2 Bassiouni, ICL, supra note 64, at 343; Kimberly Prost, Cooperation in Penal Matters in the Commonwealth, in 2 Bassiouni, ICL, supra note 64, at 415; Demostenes Chryssikos, Commentary on the United Nations Draft Model Law on Mutual Assistance in Criminal Matters, in 2 Bassiouni, ICL, supra note 64, at 405. See also Model Agreement on the Transfer of Foreign Prisoners and Recommendations for the Treatment of Foreign Prisoners, Note by the Secretariat, U.N. Doc. A/CONF.121/10. For articles considering international cooperation in criminal matters, see Heinrich Grutzner, International Judicial Assistance and cooperation in Criminal Matters, in 2 Treatise on International Criminal Law, supra note 78, at 189; M.S. Harari et al., Reciprocal Enforcement of Criminal Judgments, 45 Revue Internationale



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re-socialization of foreign-sentenced persons by returning them to their countries of origin. The modality also has a humanitarian goal in that it brings sentenced persons physically closer to family in their countries of origin. The practice began in Europe as a result of a CE initiative87 which had a large population of foreign “guest-workers” as they were called between the 1950s and 1970s. If for no other reason than statistics, the large number of foreign workers who came from different cultures committed crimes for which they were convicted and sentenced. Thus, the foreign prison population in these European countries increased, and it was felt that the return of such sentenced persons to their countries of origin was beneficial to all concerned. During that same period of time, a large number of Americans, mostly between the ages of 18–25, traveled to foreign countries. In particular, they traveled to countries where they had easy access to drugs. The result was a significant American prison population in such countries as Mexico, Canada, Turkey, and the Netherlands. The U.S. followed Europe’s example and entered bilateral treaties with Mexico, Canada, Turkey, and other states,88 and it acceded to the European Convention on this subject.89 Transfer of the execution of foreign penal sentences presents a peculiar legal problem in that it presupposes that a state can execute the penal judgments of another state. As discussed below, the recognition of foreign penal judgments has not gained more than scant recognition in most legal systems of the world. This is due to the fact that penal judgments are deemed a manifestation of state sovereignty. Consequently, states are reluctant to recognize other states’ penal judgments. To avoid this legal hurdle, experts, including this writer, developed the theory that the execution of foreign penal sentences is not the enforcement of foreign penal judgments, but the administrative execution of their consequences.90 Thus, executing a foreign sentence does not imply the recognition of the penal judgment that gives rise to it. This reasoning, which is based on a valid legal fiction, separates the execution of the sentence from the recognition of the penal judgment which gave rise to the sentence. In Europe the proposition was deemed acceptable, but in the U.S. it had to be subordinated to the transferred person’s explicit waving of constitutional rights

De Droit Pénal 585 (1974); Ivan Shearer, Recognition and Enforcement of Foreign Criminal Judgments, 47 Aust. L.J. 585 (1973). 87 European Convention on Transfer of Sentenced Persons, Strasbourg, 21 Mar. 1983, E.T.S. 112; see also Mohamed Abdul-Aziz, International Perspective on Transfer of Prisoners and Execution of Foreign Penal Judgments, in 2 Bassiouni, ICL, supra note 64, at 533. 88 See M. Cherif Bassiouni, United States Policies and Practices on the Execution of Foreign Penal Sentences, in 2 Bassiouni, ICL, supra note 64, at 555. 89 Id. 90 Id. at 537–38.

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before the transfer and execution of the foreign sentence could take place.91 This, too, was somewhat of a legal fiction, since the transferred person was in most cases under hardship conditions and willing to waive any rights in the hope of being returned to the U.S.92 Nonetheless, it was felt that the benefits of the transfer outweighed those preserving the logic of the unity of a penal judgment and its consequences.93 The laudable humanitarian and rehabilitative purposes of the transfer of the execution of foreign penal judgments have given way, particularly in the United States, to the practice by governments to bargain for the cooperation of the sentenced person in exchange for transfer from a foreign country.94 The practice is particularly useful with respect to states whose relations are politically sensitive. In these cases, the state where the crime occurred can prosecute and then transfer the execution of the sentence to the state of nationality. Thus, the concerns of both states are met. Transfer of execution of sentences can also strengthen accountability when a state is reluctant to extradite because of the possible treatment of the offender. Extradition can therefore be granted on the condition that if the person is found guilty, that person will be returned to the originally requested state for the execution of the sentence.95 This is part of the gear-shifting mechanism referred to above.96 The most significant problem with this practice is the concern that transferring states have regarding whether the enforcing state will execute the sentence as ordered in the state of conviction. This is due to the fact that the state of execution applies its correctional laws and regulations to the transferred person. Consequently, conditions of detention are determined by the executing state. Moreover, enforcing states may claim that their laws apply with respect to amnesties and commutation of sentences. As a result, the original sentence in the state of conviction may not be carried out as it was ordered. States are therefore cautious in granting transfers of sentenced persons and may require additional assurances from the enforcing state before agreeing to the transfer.

91 See Mitchell v. United States, 483 F. Supp. 291 (E.D. Wis. 1980); Pfeifer v. United States Bureau of Prisons 615 F.2d 873 (9th Cir. 1980). 92 See 5 Michael Abell & Bruno A. Ristau, International Judicial Assistance: Criminal Extradition (1995); Perspectives on the Transfer of Prisoners Between the United States and Mexico and the United States and Canada, 11 Vand. J. Trans. L. 249–68 (1978); The Unconstitutional Detention of Mexican and Canadian Prisoners by the United States Government, 12 Vand. J. Trans. L. 67 (1979). 93 See Rosado v. Civiletti, 621 F.2d. 1179 (2d Cir. 1980). 94 This was the case in Scalise v. Meese, 687 F. Supp. 1239 (N.D. Ind. 1988) and Scalise v. Thornburg, 891 F.2d 640 (7th Cir. 1989), though the legal issues presented were different. 95 See supra section 1. 96 See supra section 1, notes 38–45 and accompanying text.



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What started in the 1960s as a laudable humanitarian and rehabilitative program did not work out as expected for the reasons stated above, and in the last decade the practice has become limited to a few cases.97 3.5. Recognition of Foreign Penal Judgments States have historically regarded penal judgments as an exercise of national sovereignty and have therefore refused to recognize foreign penal judgments.98 But this rigid position is not without contradiction. For example, states concede extradition on the basis of a foreign judgment99 and execute foreign penal sentences.100 Admittedly, this is based on the fictional distinction between recognizing the consequences of a penal judgment and recognizing the penal judgment itself. Nevertheless, it is a legal fiction which shows that the nonrecognition of foreign penal judgments is fundamentally dogmatic. A more discerning position should be for states to recognize the penal judgments of other states where due process of law exists and where the crime charged satisfies the requirement of double criminality (namely that the underlying facts constitute the same category of crime).101 Other requirements could be added, as in the case of extradition,102 while another exclusion could be added if the foreign penal judgment is contrary to the recognizing state’s public policy.103 At present, only a European Convention exists on the subject.104 As stated above, while states do not specifically recognize foreign penal judgments, they give recognition to some of the consequences of foreign penal judgments through extradition,105 execution of foreign penal sentences106 and

97 No statistics are published, but researchers can obtain figures from certain ministries of justice. 98 See M. Cherif Bassiouni, Introduction to Recognition of Foreign Penal Judgments, in 2 Bassiouni, ICL, supra note 64, at 511; M. Cherif Bassiouni, Universal Jurisdiction, supra note 10. 99 See supra section 2.1. 100 See supra section 2.3.   101 See Bassiouni, International Extradition, supra note 4, at 461–510. 102 See supra section 3.2. 103 This is the basis for non-recognition of sister-states’ penal judgments in the United States, notwithstanding the constitutional requirement that sister-states give each other’s judgments “full faith and credit” for the position of the U.S. See Albert A. Ehrenzweig & Erik Jayme, 2 Private International Law 81–83 (1973): Herbert F. Goodrich & Eugene F. Scoles, Conflict of Laws, 14–15 (4th ed. 1964); Edward S. Stimson, Conflict of Criminal Laws, 20–26 (1936); Monrad G. Paulsen & Michael I. Sovern “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969 (1956); cf. Huntington v. Attrill, 146 U.S. 657 (1892) (enforcement between domestic states); Intercontinental Hotel Corp. (Puerto Rico) v. Golden, 203 N.E.2d 210 (N.Y. 1964) (enforcement of gambling debt incurred in Puerto Rico). 104 The European Convention on the International Validity of Criminal Judgments, 28 May 1970, E.T.S. 70, has been ratified by only fourteen states. 105 See supra section 2.1. 106 See supra section 2.3.

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freezing and seizing of assets deriving from criminal conduct.107 Therefore, it is valid to ask whether the dogmatic rejection of recognition of foreign penal judgments is being gradually emptied of meaning. Should that position change, and foreign penal judgments become more widely recognized, it would open the door to increasing international cooperation in penal matters by making the consequences of foreign penal judgments more widely applicable in other states’ domestic legal proceedings.108 3.6. Transfer of Criminal Proceedings This is a procedure whereby one state transfers criminal proceedings to another state on the basis that the transferee state has more significant contacts with the parties, and is therefore a forum conveniens. This is in contrast to the transferring state being a forum non conveniens, or where some public policy interest exists that justifies the transfer of the proceedings in order to achieve the best interests of justice. This is one of the gear-shifting mechanisms mentioned above,109 wherein similar to those circumstances when extradition fails, there should be a concomitant duty for the requested state to prosecute, and, therefore, a transfer of criminal proceedings mechanism is needed. It should be noted that the rationale for transfer of criminal proceedings is different from that of aut dedere aut judicare, which requires a state refusing to extradite to assume the obligation to prosecute.110 A distinction exists between transfer of criminal proceedings and the assumption of criminal jurisdiction by a state as a result of specific legislation based on the nationality, passive personality, or universality principles of jurisdiction. The first model derives from the historic proposition of one state relinquishing jurisdiction in favor of another on the basis that the first of the states is a forum non conveniens. Thus, the relinquishing of jurisdiction is based on facts which render that forum not only less convenient, but less conducive to the best interests of justice in that particular case, whereas the state assuming jurisdiction does so on the basis of a nexus to the case and/or to the parties. 107 See supra section 2.6. 108 See Cooley v. Weinberger, 518 F.2d 1151 (10th Cir. 1975). In that case, the Tenth Circuit took note of the effects of a criminal conviction in Turkey of a U.S. Citizen who killed her husband and then claimed her widow’s award under Social Security. She was denied the benefit based on a statutory exclusion for killing one’s spouse. However, it presupposed the recognition of the Turkish penal judgment’s legal consequences. 109 See supra Chapter I, section 2. 110 See Article 8, Italian Criminal Code, which provides that, where an Italian citizen is sought for extradition, and where the individual cannot be extradited because of his nationality, Italy must prosecute. See also Venezia v. Ministero Di Grazia E Guistizia, Corte cost., No. 223, 79 Rivista di Diritto Internazionale 815 (Italy 1996).



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The transfer of criminal proceedings should be similar to a change of venue procedure in order to enhance prosecution and, thus, accountability. There are, however, no bilateral treaties on this subject known to this writer. 3.7. Freezing and Seizing of Assets (Deriving from Criminal Activities)111 The request by one state of another to assist it in the tracing, freezing, and seizing of assets is no different than other forms of obtaining evidence of criminal activities.112 Consequently, it is essentially part of legal assistance.113 Nevertheless, it differs from being limited to purely legal assistance because the confiscation of assets is in the nature of a criminal sanction, even if it is not always legislatively identified as such. Confiscation of assets in the requested state is predicated on a foreign penal judgment entered in the requesting state for a criminal activity that occurred in the requesting state or over which it had jurisdiction. Thus, it partakes of another modality of international cooperation in penal matters, namely, the enforcement of foreign penal judgments.114 Since this procedure partakes of legal assistance, as well as enforcement of sanctions it can be considered a separate modality of interstate cooperation in penal matters. It was not until the 1980s that international efforts were developed to trace, freeze, and seize assets, deriving from or used in connection with criminal activity, as a way of combating, primarily, the laundering of funds derived from drug proceeds.115 As a result, the United Nations adopted in 1988 the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,116 which deals exclusively with this subject. Then, in 1991, the Council of Europe adopted the Convention on Laundering, Search, Seizure, and Confiscation of the Proceeds from Crime.117

111 Jordan J. Paust & M. Cherif Bassiouni et al., International Criminal Law Cases and Materials 1087–1199 (2001). See also, e.g., Responding to Money Laundering: An International Perspective (Ernesto U. Savona, ed., 1997); Paolo Bernasconi, New Judicial Instruments Against International Business Crimes (1995); William C. Gilmore, Dirty Money: The Evolution of Money Laundering Counter-Measures (1993). 112 See supra section 3.3; see also Bruce Zagaris, Developments in International Judicial Assistance and Related Matters, 18 Denv. J. Int’l L. & Pol’y 339 (1990). 113 See supra section 3.3. 114 See supra section 3.4. 115 Bruce Zagaris & Constantine Papavizass, Using the Organization of American States to Control International Narcotics Trafficking and Money-Laundering, 57 Rev. Int’l de Droit Pénal 119 (1986); M. Cherif Bassiouni, Critical Reflections on International and National Control of Drugs, 18 Denv. J. Int’l L. & Pol’y 11 (1990). 116 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, U.N. Doc. E/Conf. 82/14, 28 I.L.M. 493 (1989). 117 The Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, E.T.S. No. 141, 30 I.L.M. 148 (1991); see also Hans G. Nilsson, The Council of Europe Laundering Convention: A Recent Example of a Developing International Criminal Law,

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Unlike the 1988 United Nations Convention which focuses on drug trafficking as the predicate offense, the Council of Europe’s Convention considers any crime as the predicate offense. Both of these Conventions are characterized by the style of mutual legal assistance conventions118 and their provisions are directed to the international cooperation aspects of national criminal justice systems. The international community’s focus on administrative control techniques in banking and financial institutions developed, however, along different lines, as discussed below. Rather than developing through specific binding legal obligations, the approach was through voluntary guidelines, an approach that can be described as “soft law.” This was because of resistance by many governments and banking and financial institutions claiming negative implications of these controls on their economic interests.119 The reason why a comprehensive international legal regime for the freezing and seizing of assets has not developed so far is in part because of the bifurcated nature of the control mechanisms which are needed in respect to this type of activity, and in part because of the different interests which oppose more effective controls. As to the first of these considerations, the problems derive from the different nature of criminal and administrative (financial) control mechanisms. The latter applies to financial and banking institutions, requiring from these institutions self-regulation and also the external control of the national central bank and/or other organ of national financial control. The former norms are applicable in the context of the criminal justice system, and they are based on the practices of states in international cooperation in penal matters. Because these two sets of control mechanisms differ as to their source of law and methodology, as well as to their contextual applications, they are not easily susceptible of merger into a single comprehensive regime either at the international or national levels. This, in part, explains why there are very few bilateral treaties dealing with tracing, freezing, and seizing of assets, and why there are also only three multilateral Conventions on the subject, two of these are mentioned above, and the third is the United Nations Convention For the Suppression of the Financing of Terrorism, which is discussed below.120 The 1988 United Nations Drug Convention121 reflects the states’ goal of controlling international drug trafficking by depriving those in that chain of illegal activities from drug manufacturing to distribution of their profits. The Convention 2 Crim. L.F. 419 (1991). Jeffery Lowell Quillen, Note, The International Attack on Money Laundering: European Initiatives, 1991 Duke J. Comp. & Int’l L. 213 (1991). 118 See supra section 3.3. 119 See Berta Esperanza Hernandez, Money Laundering and Drug Trafficking Controls Score a Knockout Victory Over Bank Secrecy, 18 N.C.J. Int’l L. & Comm. Reg. 235, 289 (1993). 120 U.N. Doc. A/54/109 (9 Dec. 1999), reprinted in Bassiouni, Terrorism Conventions, supra note 34, at 231. 121 See supra note 116.



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defines both drug trafficking and money laundering, though not in comprehensive legal terms.122 Instead, it emphasizes the obligation of states to criminalize all aspects of production, cultivation, distribution, sale, or possession of illicit drugs. It also requires states, inter alia, to pass necessary national legislation, forfeit assets, and include provisions in their bilateral treaties on freezing and seizing of assets deriving from drug-related criminal activities. More significantly, judicial and other legal authorities are to be empowered to uncover bank, financial, or commercial records irrespective of national bank secrecy laws. States are also required to assist each other in their investigatory, prosecutorial, and adjudicatory processes regarding the tracing, freezing, and seizing of assets deriving from illicit drug activities. The Convention’s Article 7123 requires parties to provide each other the “widest measure of mutual legal assistance,”124 which includes a non-exhaustive list of the type of mutual legal assistance to be provided, such as: taking evidence or statements of persons, effecting service of judicial documents, executing searches and seizures, examining objects and sites, providing information and evidentiary items, providing records and documents irrespective of whether their sources are bank, financial, corporate, or business records, identifying and/or tracing proceeds through financial institutions and records, and anything else that may be deemed relevant to a criminal investigation related to drug crimes. The nature, purpose, and function of these provisions demonstrate their connection with mutual legal assistance, and therefore reveal that the tracing, seizure, and confiscation of assets deriving from illegal drug proceeds are a form of legal assistance. The Council of Europe Convention125 is structurally similar to the United Nations’ 1988 Convention, and has the same legal characteristics.126 The latter, however, is open to states which are not members of the Council of Europe as a way of inducing broader participation in the worldwide net designed to combat crime by depriving it of its profits. As stated above, the Council of Europe Convention, however, deals with all proceeds of crime, and is not, as in the case of the United Nations’ 1988 Convention, limited to the proceeds and instrumentality of drug-related crimes. The scheme of both of these multilateral conventions is based on the existence of a predicate criminal offence, thereby making the confiscation an additional sanction to other criminal sanctions for the crime from which the proceeds are

122 M. Cherif Bassiouni & David S., Gualtieri, “International and National Responses to the Globalization of Money Laundering,” in Responding to Money Laundering 107, supra note 111. 123 See supra note 116. 124 The relevant provisions on inter-state cooperation in penal matters are in Articles 5–7. See supra note 116. 125 See supra note 117. 126 See supra note 116.

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derived, whereby the seizure can be deemed only an investigatory or precautionary measure since it is of a temporary nature.127 In 1991, the European Community Council adopted a Council Directive128 applicable to banking and financial institutions. This Directive follows the initiative of July 19, 1989 by the G-7 nations, consisting at the time of twenty-eight members, to establish the Financial Action Task Force (FATF). The FATF prepared a report on money laundering in 1990, which was then followed by a set of recommendations known as the FATF Forty Recommendations.129 They are directed to all banking and similar financial institutions, including private and public banks, and provide for measures concerning: customer identification, record keeping requirements, due diligence in knowing their customers and their transactions, measures to cope with states that have insufficient or no anti-money laundering measures, commercial bank supervision by central banks, administrative cooperation, mutual legal assistance, and freezing and confiscation of assets. The goals of the FATF Forty Recommendations include improving banking and financial institutions’ control effectiveness, strengthening domestic legislation, facilitating mutual legal assistance and other forms of interstate cooperation, and the elimination of the barrier of bank secrecy in the tracing of assets. As a result of the efforts of the FATF, the Caribbean Financial Action Task Force (CFATF) was established in 1991, and in 1992 the Caribbean countries agreed to follow the FATF original Forty Recommendations as well as their subsequent twenty-one additional recommendations.130 Thereafter, the OAS took steps to suppress the flow of illicit proceeds of drugs through the Model Regulations Concerning Offenses in Connection with Illicit Drug Trafficking and

127 See, for the United States, President’s Commission on Organized Crime, Interim Report to the President and the Attorney General, The Cash Connection: Organized Crime, Financial Institutions and Money Laundering 7 (1984); James D. Harmon, United States Money Laundering Laws: International Implications, 9 N.Y.L. Sch. J. Int’l & Comp. L. 1, 25 (1988); James I.K. Knapp, Mutual Legal Assistance Treaties as a Way to Pierce Bank Secrecy, 20 Case W. Res. J. Int’l L. 405, 410 (1988); Bruce Zagaris, Dollar Diplomacy: International Enforcement of Money Movement and Related Matters—A United States Perspective, 22 Geo. Wash. J. Int’l L. & Econ. 465, 498 (1989); Greg Brabec, The Fight For Transparency: International Pressure to Make Swiss Banking Procedures Less Restrictive, 21 Temp. Int’l & Comp. L.J. 231 (2007). 128 Council Directive #91/308, 1991 O.J. (L.166) 77 (June 10, 1991); see also Scott E. Mortman, Note, Putting Starch in European Efforts to Combat Money Laundering, 60 Fordham L. Rev. S429, S441–57 (1992); Ernesto Savona, Mafia Money Laundering Versus Italian Legislation, Eur. J. Crim. Pol’y & Res. (June 1993). 129 Financial Action Task Force on Money Laundering, The Forty Recommendations (1990). For more information on the FATF, see Financial Action Task Force, http://www.fatf-gafi.org/ (last visited Nov. 8, 2011). 130 See The Kingston Declaration on Money Laundering, Kingston, Jamaica, (Nov. 5–6, 1992). For more information on the CFATF, see http://www.cfatf.org/eng/. See also Berta Esperanza Hernandez, Money Laundering and Drug Trafficking Controls Score a Knockout Victory Over Bank Secrecy, 18 N.C.J. Int’l & Com. Reg. 235, 289 (1993).



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Related Offenses.131 These regulations contain nineteen articles defining money laundering offenses and the methods for the freezing and confiscation of their proceeds and the proceeds of drug trafficking. Most of these regulations pertain to requirements applicable only to financial institutions. Another important source of controlling money laundering is the 1988 set of “principles” adopted by the Basle Committee on Banking Regulation and Supervisory Practices.132 This “committee,” comprised of representatives of the Group of Ten industrialized nations (G-10), adopted non-binding “principles” requiring banks to inter alia, obtain the identity of customers, take steps to ascertain the true ownership of accounts and assets, refuse to conduct business with customers that do not provide adequate identification information, refuse to carry out suspicious transactions, take appropriate legal action in response to suspicious transactions, and adopt specific institutional policies to implement these recommendations. Like the FATF and CFATF, the Basle Principles are in the category of “soft law,” but they are an important part of the overall structure of international financial controls to prevent money laundering.133 In 1999, the United Nations adopted the Convention for the Suppression of the Financing of Terrorism.134 This Convention follows in the footsteps of the 1988 United Nations Drug Convention135 which targets assets related to a specific criminal activity. The control scheme in both Conventions is therefore similar in nature. After September 11, 2001, the Security Council adopted Resolution 1373 on September 28, 2001,136 requiring all states to adopt effective national legislation to trace illegal proceeds of crime with a particular view to track funding for terrorism activities. As a result, a “special committee” was established within the Security Council to follow up on the implementation of this resolution, which generated the necessary stimulus for most states to adopt anti-money laundering legislation, which they had failed to do in years past.137

131 OAS/Ser. L/14 enrollments, 2/CICAD/INF. 58/92 (July 9, 1992). 132 Reprinted in International Efforts to Combat Money Laundering 273–77 (W.C. Gilmore ed., 1992). 133 See Bruce Zagaris & Sheila M. Castilla, Constructing an International Financial Enforcement Subregime: The Implementation of Anti-Money Laundering Policy, 19 Brook. J. Int’l L. 872 (1993). 134 U.N. Doc. A/54/109 (9 Dec. 1999) reprinted in Bassiouni, Terrorism Conventions, supra note 34, at 231. 135 See supra note 106. 136 S.C. Res. 1373, UN SCOR 4385th mtg., U.N. Doc S/Res/1373 (Sept. 28, 2001). By the end of 2002, 164 countries had reported to the Committee on Terrorism about their national legislation. 137 These legislative enactments, which are reported to the special committee, are found on the web site of the International Money Laundering Information Network, sponsored by the United Nations Office on Drugs and Crime, http://www.imolin.org/index.html.

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As a result of Resolution 1373,138 the focus of the control regime has shifted in emphasis to the supervision of banks and financial institutions, even though most countries, notwithstanding the adoption of new legislation,139 do not yet have the capability through their respective banking system, and in particular through their central bank, to exercise effective administrative control over the multitude of domestic and international financial transactions.140 The effectiveness of this modality of international cooperation is essentially hampered by the duality of its nature which is in part administrative and in part penal. The administrative part has to do with the exercise of controls over banks and financial institutions, first by these very institutions, and second by the supervisory role of the national central bank. Such a system, however, being essentially administrative, and also necessarily unobtrusive into legitimate financial and commercial transactions, is not easily blended in the penal system. Penal provisions, which are the second aspect of the control system, are dependent upon the existence of a criminal violation and therefore on the existence of evidence to prove it. Because this depends largely on the effectiveness of the administrative control system over banks and financial institutions, the penal aspects of the control regime is therefore only as good as the administrative aspect of the control regime. These and other institutional problems relating to the fusion into a single control regime of the administrative and penal aspects mentioned above, create opportunities for evasion and for abuse. The gaps in the international control regime on tracing, freezing, and seizing of assets are numerous. In part, they are due to the fact that governments are not really that desirous of having a transparent world financial system. In the era of globalization, the goal is to eliminate barriers to the free flow of capital and ease of worldwide financial transactions, and not to place controls that inhibit that goal. Thus, governments have difficulty reconciling this goal of an open free flowing worldwide financial system and the establishment of controls over financial transactions that may impede such a system. Moreover, governments

138 See supra note 136. 139 To support Res. 1373, the International Monetary Fund established a unit of legal and banking experts to advise governments and provide them with technical legal assistance. 140 See Bruce Zagaris & Elizabeth Virginia, Asset Forfeiture, International and Foreign Law: An Emerging Regime, 5 Emory Int’l L. Rev. 446 (1991). John K. Villa, A Critical View of Bank Secrecy Act Enforcement and Money Laundering Statutes, 37 Cath. U.L. Rev. 489, 492 (1988); James D. Harmon, United States Money Laundering Laws: International Implications 9 N.Y.C. Sch. J. Int’l L. & Comp. L. 1, 25 (1988); Note, Recordkeeping and Reporting in an Attempt to Stop the Money Laundering Cycle: Why Blanket Recording and Reporting of Wire and Electronic Funds Transfers is Not the Answer, 66 Notre Dame L. Rev. 863 (1990); Christine Van den Wyngaert, Rethinking the Law of International Cooperation: The Restrictive Function of International Human Rights Through Individual-Oriented Bars, in Principles and Procedures for a New Transnational Criminal Law 489 (Albin Eser & Otto Lagodny eds., 1992); Comment, The Right to Financial Privacy Versus Computerized Law Enforcement: A New Fight in an Old Battle, 86 Nw.U.L. Rev. 1169 (1992).



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are concerned with excessive transparency which would uncover some of their own transactions that they would prefer to remain undiscovered.141 Some governments also deem the economic benefits of attracting foreign capital, no questions asked, as advantageous to their economies irrespective of the dangers posed by becoming a safe-haven for money-laundering. In addition, there are influential professions such as the legal, banking, commercialist (as business consultants are called in civilest countries), and accounting which are selfregulated in almost every country in the world, and who essentially oppose legal restrictions that would ultimately prevent money-laundering. In almost every country in the world these professions enjoy the confidentiality of their client relations, and that is an important privilege to preserve. But some members of these professions abuse their rights and violate the ethics of their profession by assisting clients in concealing the criminal proceeds of their assets, and in helping them recycle or launder these funds to give them the appearance of legitimacy.142 In most countries, the professions’ self-regulations have proven ineffective to combat these problems. These and other factors create substantial gaps in the international control regime. More significant, however, is the inherent difficulty in developing an international control regime with respect to worldwide inter-connected financial systems in which the free movement and fluidity of funds are intended to remain beyond external judicial control once funds enter into that system. The only effective points of control remain those of entry and exit. However, there is nothing inherent to these transactions which indicate their purpose or legality. Nevertheless, these two points offer a better opportunity to identify the nature of these transactions or to lead to their nature and purposes. Thus, controls placed at these two points are key to the control regime. Of these two points of control, the point of entry is likely to be more effective than the point of exit since the latter is too difficult to monitor, if for no other reason than the volume of daily electronic transactions. Yet, detection of suspicious transactions at the point of exit can lead investigators to the recipients or to the source of the funding. In both cases, however, other difficulties exist. Among them are tax-haven countries that simplify cash transactions, and electronic transactions which make it difficult to identify the sources of such transactions and to their ultimate purpose. This is 141 For example, every government has intelligence operations abroad and is always desirous of concealing these operations and their financing. Some governments with national industries producing arms also find it convenient to provide financial incentives for arms purchasers in other governments that they find necessary to conceal. There are also a host of financial transactions that governments engage in, most legitimate, but some not so legitimate which they would prefer to keep undisclosed. See also Bruce Zagaris & Scott B. MacDonald, Money Laundering, Financial Fraud, and Technology: The Perils of an Instantaneous Economy, 26 Geo. Wash. J. Int’l L. & Econ. 62, 72 (1992). 142 Bassiouni & Gualtieri, supra note 122, at 722–30.

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due to the fact that the banking regulations of such countries do no provide for means to identify bank account holders and transactions.143 Furthermore, there is no internationally agreed upon system of coding electronic transactions to narrow the focus of inquiry by investigators to potentially suspect transactions.144 The coding of electronic transactions would greatly facilitate the identification, if nothing else, of the geographic locations of these transactions and their worldwide flow. But many governments have resisted such an approach for a variety of self-serving interests. While the international control regime suffers from many gaps it also, paradoxically, offers an opportunity for abuse by law enforcement and prosecutorial officials. For example, the freezing of assets can be used as a pressure tactic on individuals whose cooperation may be sought by law enforcement or prosecuting officials, irrespective of whether that person has or has not committed a criminal violation. This is achieved by freezing a person’s assets which prevents him/her from carrying on his/her business, or even having enough resources to meet his/her livelihood needs. Furthermore, if a person is accused of a crime, the freezing of his/her assets prevents that person from paying for his/her defense. While some countries provide some exceptions because such a technique results in the denial of the right to counsel and thereby of the right to a fair trial, others, such as the United States, make no such exception and, on the contrary, make it known that asset freezing is an avowed prosecutorial pressure tactic. Another potential for abuse is the freezing, and at times seizing, of assets that belong to third parties, particularly spouses and business associates whose assets may be tainted by being commingled with those of the person against whom an order or judgment to freeze or seize assets has been issued. Many legal systems do not allow for distinguishing assets or tracing assets by non-involved parties and therefore apply a presumption that assets deriving from criminal activities taint those assets that are commingled with them. To a large extent, this reverses the fundamental presumption of innocence and places the burden on the innocent party to prove that the assets claimed are free from the taint of illegality. In many countries, particularly in the United States, government agencies have been given incentives to pursue proceeds of illegal activities by having a percentage of the confiscated assets turned over to their agencies. While on its face this policy appears positive, it has nonetheless altered the policies and practices of law enforcement and prosecutorial agencies in connection with interstate cooperation concerning the tracing, freezing, and seizing of assets. As a 143 Referring to tax-haven countries, see International Efforts to Combat Money Laundering, supra note 132. 144 It is estimated that there are millions of daily electronic transfers amounting to billions of dollars. The larger transactions are governmental. A coding system could help identify individual transactions making it relatively easier to monitor these transactions and their source of origin.



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result of this incentive, greater priority is given to the pursuit of financial crimes than to violent crimes. It also provides opportunities to suspects or accused who cooperate early on with these agencies and facilitate the process of forfeiting their assets to obtain reductions of their sentences. These practices have turned the incentives into a profit-sharing formula with criminal elements. This perversion of the incentives weakens the criminal justice system and maybe more significantly detracts from its integrity.145 3.8. Intelligence and Law Enforcement Information-Sharing In the last few decades, law enforcement and intelligence cooperation has significantly increased. They are an important form of international cooperation, which, however, has not yet been recognized as equivalent to the other forms of legal cooperation in penal matters. Thus, there are no treaties applicable to law enforcement and intelligence cooperation as there are for mutual legal assistance, nor are there such forms of information-gathering and informationsharing by and between different agencies within separate countries. Regrettably, this important form of international cooperation has not yet been included in mutual legal assistance treaties.146 Consequently, there are no legal or judicial safeguards to insure effective and regulated modalities of informationgathering and information-sharing between intelligence, law enforcement and prosecutorial agencies. Consequently, effectiveness is reduced due to the nonformalization of procedures and the potential for abuses is increased. This affects the accuracy of the information, and can lead to undue invasion of privacy. Because these practices are internationally unregulated, and nationally unmonitored by the judiciary when committed other than on the national territory, they pose a challenge to due process of law and to the right of privacy.

145 It is estimated that the U.S. and Switzerland share annually some $300 million of confiscated proceeds. In the U.S., enforcement and prosecuting agencies partake in the distribution of confiscated assets, including state agencies. It is also estimated that, in view of the significantly high number of requests for tracing of assets under mutual legal assistance treaties between Switzerland and other countries, and based on multilateral treaties that Switzerland has ratified, as well as on its law on international mutual legal assistance, that country receives thousands of foreign requests for tracing assets in its financial institutions. As a result, those working in the fields of interstate cooperation in penal matters find themselves more absorbed in cases involving tracing, freezing, and seizing of assets than in cases involving other types of crimes. Because of the incentives of confiscating assets by the Canton in the which the assets are found, or alternatively by working out a negotiated sharing formula with the requesting state, violent crimes and other crimes which do not have such financial characteristics are relegated to the bottom of investigatory and prosecutorial priorities. Concerning Swiss procedures and jurisprudence on seizure of assets, see Dominique Poncet & Alain Maculoso, Confiscation, Restitution et Allocation de Valeurs Patrimoniales: Quelques Considerations de Procedure Pénale, 221 La Semaine Judicaire 123–9 (2001). 146 See supra section 3.3.

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Intelligence and law enforcement agencies have historically shared information outside legal and judicial supervision. This de facto modality of international cooperation has historically been secretive, and the laws of almost all countries seldom deal with the regulation of this type of activity, except when national legislation limits or regulates the scope and context of these agencies’ domestic work. With respect to law enforcement agencies, the assumption has been that the national criminal laws applicable to the conduct of law enforcement officials at the domestic level are sufficient to regulate that activity. However, with the expansion of national intelligence and law enforcement activities in different countries, and with the increased sharing of information by these agencies, it is apparent that existing national legislation almost everywhere in the world is sufficient to regulate this type of activity and to bring it within the scope of judicial supervision.147 The nature of the activity and the reluctance of those working in the intelligence field has prevented the adoption of national legislation providing legal controls and judicial supervision, even when they are designed only to prevent certain questionable, if not illegal, practices committed abroad. Since the 1960s, the rise of “terrorism” in Europe and Latin America,148 combined with the worldwide increase in drug trafficking and money laundering,149 gave new impetus to intelligence and law enforcement information-sharing. Nevertheless, it is practiced selectively between states with close political ties, and also between agencies from these states that have confidence in their respective reliability for confidentiality. What all of that amounts to are countries, and agencies within them, with a high level of comfort as to the preservation of their respective secret information, working together to the exclusion of others. After September 11, 2001, the United States has become the recipient of a substantial flow of information from countries it demands information from.150 The U.S. has also become the arbiter of these countries’ level and degree of 147 For example, in the United States, the President can issue classified findings and policy directives to the Central Intelligence Agency (CIA) for extra-judicial killings of persons believed to be terrorists. See Esther Schrader & Henry Weinstein, U.S. Enters a Legal Gray Zone: Strike in Yemen Raises Thorny Questions of Assassination and the Definition of War, L.A. Times, Nov. 5, 2002; M. Cherif Bassiouni, The Problems with the Team Around Bush, Chi. Trib., Jan. 5, 2003, at Sec. 2, p. 1. 148 M. Cherif Bassiouni, Perspectives on International Terrorism, in Bassiouni, Terrorism Conventions, supra note 34, at 1. 149 Bernard Leroy, M. Cherif Bassiouni & Jean-François Thony, The International Drug Control System, in 1 International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. 150 See Agreement Between the United States of America and the European Police Office, Europol file no. 3710-60r2 (Dec. 6, 2001), Supplemental Agreement Between the United States of America and the European Police Office on the Exchange of Personal Data and Related Information, Europol file no. 3710/60r3 (Dec. 20, 2002). Nothing in these agreements provides for the right of privacy of individuals, or the right of any person or entity affected to have access to non-confidential information or to correct erroneous data. See also, Steven W. Becker, Cave Janus: Increased Cooperation Between Law Enforcement and Intelligence Agencies After September 11, 2001, in 2 Bassiouni, ICL, supra note 64, at 71.



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cooperation. As a result, this practice of information-sharing, though for the United States is essentially information-getting, has become significantly more diffuse among more countries of the world. The facts of 9/11 demanded, rightfully so, more information-sharing than was practiced before. However, this was done in a substantial legal vacuum, as there is no multilateral convention regulating the flow of such information. This reduces the rights of individuals to know and to correct erroneous information, and in general, to protect the right of privacy. Irrespective of the events of September 11, 2001, the era of globalization has brought with it the spatial expansion of domestic, transnational and international crimes, and has also increased the opportunities for such crimes. Consequently, it is necessary for states to enhance their information-gathering and information-sharing about all forms of criminal activities. Surely, this is obvious in regard to “terrorism,”151 drug trafficking, organized crime,152 trafficking in women and children,153 illegal arms’ sales, money laundering,154 smuggling in cultural artifacts,155 and even car-smuggling. This requires an expansion of the charters of Interpol156 and Europol157 to include a much more pro-active role for these organizations. But all that which is evident is not necessarily practiced. As stated above, no international, regional, bilateral, or national norms exist that regulate this interstate activity. As a result, it remains selective, sporadic, and unregulated, with a potential for inefficiency, error, and infringement of the general right of privacy as well as for the specific rights of individuals. The potential for misuse at the institutional level was evident in the “Echelon” operation158 where the U.S., the U.K., Canada, Australia, and New Zealand jointly

151 M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L. J. 83 (2002). 152 Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL, supra note 149, at 939; Leroy, Bassiouni & Thony, supra note 149. 153 See In Modern Bondage: Sex Trafficking in the Americas (IHRLI, DePaul University 2002). 154 See Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, supra note 152. 155 James A.R. Nafziger, Protection of Cultural Property, in 1 Bassiouni, ICL, supra note 149, at 977. 156 See, e.g., Mary Jo Grotenroth, Interpol Role in International Law Enforcement, in Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988). 157 Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), 38 Official Journal of the European Communities 1, C 316 (Nov. 27, 1995). 158 See Gerhard Schmid, Report on the Existence of a Global System for the Interception of Private and Commercial Communications (ECHELON Interception System) (2001/2098(INI)), European Parliament, PE 305.391, A5-0264/2001 (July 11, 2001). The European Parliament resolution on the existence of a global system for the interception of private and commercial communications (ECHELON Interception System) (20010/2098(INI)) states:

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chapter five The European Parliament, – having regard to the Charter of Fundamental Rights of the EU, Article 7 of which lays down the right to respect for private and family life and explicitly enshrines the right to respect for communications, and Article 8 of which protects personal data, – having regard to the European Convention on Human Rights (ECHR), in particular Article 8 thereof, which governs the protection of private life and the confidentiality of correspondence, and the many other international conventions which provide for the protection of privacy, *** A. whereas the existence of a global system for intercepting communications, operating by means of cooperation proportionate to their capabilities among the US, the UK, Canada, Australia and New Zealand under the UKUSA Agreement, is no longer in doubt; whereas it seems likely, in view of the evidence and the consistent pattern of statements from a very wide range of individuals and organisations, including American sources, that its name is in fact ECHELON, although this is a relatively minor detail, B. whereas there can now be no doubt that the purpose of the system is to intercept, at the very least, private and commercial communications, and not military communications, although the analysis carried out in the report has revealed that the technical capabilities of the system are probably not nearly as extensive as some sections of the media had assumed,] *** Compatibility with EU law G. having regard to the statements made by the Council at the plenary sitting of 30 March 2000 to the effect that “the Council cannot accept the creation or existence of a telecommunications interception system which does not respect the laws of the Member States and which violates the fundamental principles aimed at protecting human dignity,” Compatibility with the fundamental right to respect for private life (Article 8 of the ECHR) H. whereas any interception of communications represents serious interference with an individual’s exercise of the right to privacy; whereas Article 8 of the ECHR, which guarantees respect for private life, permits interference with the exercise of that right only in the interests of national security, in so far as this is in accordance with domestic law and the provisions in question are generally accessible and lay down under what circumstances, and subject to what conditions, the state may undertake such interference; whereas interference must be proportionate, so that competing interests need to be weighed up and, under the terms of the case law of the European Court of Human Rights, it is not enough that the interference should merely be useful or desirable, *** J. whereas the Member States cannot circumvent the requirements imposed on them by the ECHR by allowing other countries’ intelligence services, which are subject to less stringent legal provisions, to work on their territory, since otherwise the principle of legality, with its twin components of accessibility and foreseeability, would become a dead letter and the case law of the European Court of Human Rights would be deprived of its substance, K. whereas, in addition, the lawful operations of intelligence services are consistent with fundamental rights only if adequate arrangements exist for monitoring them, in order to counterbalance the risks inherent in secret activities performed by a part of the administrative apparatus; whereas the European Court of Human Rights has expressly stressed the importance of an efficient system for monitoring intelligence operations, so that there are grounds for concern in the fact that some Member States do not have parliamentary monitoring bodies of their own responsible for scrutinising the secret services, ***



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carried out surveillance of some major European industries in order to inform their own. Suffice it to say, it was a major scandal of governmental industrial espionage against friendly states.159 With the post-9/11 increase in such information-sharing, and considering that the structure of names of the 1.6 billion Muslims of the world is different from that of their Western brethren, computerized databases are susceptible to many mistakes, with no way for the persons who have been wrongly included in certain categories in these databases to correct these mistakes.160 Some countries like the U.S. have legislation such as the Freedom of Information Act (FOIA)161 and the Privacy Act162 to protect against errors, and presumably against abuses, but only when committed by U.S. governmental agencies. Since this does not apply to foreign agencies, the information received by U.S. agencies from foreign ones cannot be corrected. The administrative and judicial National legislative measures to protect citizens and firms 11. Urges the Member States to review and if necessary to adapt their own legislation on the operations of the intelligence services to ensure that it is consistent with fundamental rights as laid down in the ECHR and with the case law of the European Court of Human Rights; *** 13. Calls on the Member States to aspire to a common level of protection against intelligence operations and, to that end, to draw up a Code of Conduct (as referred to in paragraph 4) based on the highest level of protection which exists in any Member State, since as a rule it is citizens of other states, and hence also of other Member States, that are affected by the operations of foreign intelligence services; *** 15. Calls on those Member States which have not yet done so to guarantee appropriate parliamentary and legal supervision of their secret services; *** 17. Calls on the Member States to pool their communications interception resources with a view to enhancing the effectiveness of the ESDP in the areas of intelligence-gathering and the fight against terrorism, nuclear proliferation or international drug trafficking, in accordance with the provisions governing the protection of citizens” privacy and the confidentiality of business communications, and subject to monitoring by the European Parliament, the Council and the Commission. *** 159 Another example is the close CIA-Mossad (Israel) cooperation, which also targets legitimate Palestinian political activity. See Dennis Eisenberg, Uri Dan & Eli Landau, The Mossad, Israel’s Secret Intelligence Service—Inside Stories (1978). For a fascinating insight into the U.S. intelligence community’s work and how it works, but particularly the National Security Agency (NSA), see James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency From the Cold War Through the Dawn of a New Century (2001). 160 See Ellen A. Yearwood, Data Bank Control, in Legal Responses to International Terrorism, supra note 156. 161 Freedom of Information Act, 5 U.S.C. §552 (2002) (amended 1996). 162 Privacy Act of 1974, 5 U.S.C. 552a (2002) (amended 1990).

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applications of the FOIA and the Privacy Act which were at one time liberal,163 have became unresponsive since September 11, 2001 to the extent of contravening the letter, and surely the spirit, of that legislation.164 Another set of problems arises in connection with the extra-territorial activities of intelligence and law enforcement officials. These extra-territorial activities are necessary for the reasons stated above and it would be absurd to respond to transnational and international crimes with boundary limitations on those entrusted to prevent and suppress such criminality. The problem however, as stated above, is the absence of legal regulation. The courts in many countries take the position that, in the absence of specific legislation, such extra-territorial activities are beyond the reach of domestic law. This argument goes even beyond that proposition and allows conduct deemed unconstitutional or illegal domestically to ripen into lawful conduct only because it took place in another country. Thus, when national agents kidnap a person abroad, national courts allow such a person to be tried on the supposition that mala captus is nonetheless bene detentus.165 Similarly, evidence seized abroad, either in the nature of coerced confessions or illegally obtained tangible evidence, which would not have been allowed into evidence had it been seized domestically, is allowed into evidence.166 The assumption being that national laws, including the Constitution, do not extend nor apply extra-territorially.167 In some cases, courts have recognized the applicability of the national constitutional and national laws extra-territorially if both the agent and the persons in question (suspect or accused) are nationals of the same state before whose courts the evidence is sought to be introduced.168

163 Janet Reno, Attorney General, Freedom of Information Act Memorandum, Oct. 4, 1993. 164 John Ashcroft, Attorney General, Freedom of Information Act Memorandum, Oct. 12, 2001, available at http://www.usdoj.gov/04foia/011012.htm. 165 Bassiouni, International Extradition, supra note 3, chapter 5. 166 Stephen A. Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 VA. J. Int’l L. 741 (1980); Steven M. Caplan, The Applicability of the Exclusionary Rule in Federal Court to Evidence Seized and Confessions Obtained in Foreign Countries, 16 Col. J. Transnat’l L. 495 (1977); Charles C. M. Kolb, The Fourth Amendment Abroad: Civilian and Military Perspectives, 17 Va. J. Int’l L. 515 (1977); see also, M. Cherif Bassiouni, Extradition, Law and Practice of the United States, in 2 Bassiouni, ICL, supra note 64, at 269. 167 The United States Supreme Court upheld the position that the Fourth Amendment does not apply to United States agents who are searching and/or seizing properties owned by a non-U.S. Citizen which is located outside the United States. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 168 The Supreme Court in Reid v. Covert, 354 U.S. 1 (1957) held that a warrant for an overseas wiretap is subject to Federal Court jurisdiction. In United States v. Toscanino, 5 F.2d 267 (2d Cir. 1974), the Second Circuit took the position that the Fourth Amendment applies to U.S. agents abroad and that Federal courts can exercise their powers of supervision to suppress evidence illegally obtained abroad. That case, however, set up a high standard of egregious conduct and has been distinguished by a number of cases, including U.S. v. Lira, 515 F.2d. 68 (2d Cir. 1975), cert. denied, 493, U.S. 847 (1975), and United States ex rel. Lujan Gengler, 510 F2d 63 (2d Cir. 1975), cert. denied, 421 U.S. 1001 (1975). The doctrine of inherent power of the court to supervise governmental action overseas which is directed against U.S. citizens was affirmed in Berlin Democratic Club v.



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These questionable and illegal practices would be significantly reduced if this type of extra-territorial activity, as well as inter-state information-gathering and information-sharing would be regulated like other intelligence and law enforcement activities are regulated by domestic regulation.169 The European Court of Human Rights has ruled in several cases against extraterritorial actions by national law enforcement agents as constituting violations170 of the European Convention on Human Rights and Fundamental Freedoms.171 But, since the European Court can only provide monetary awards and not restore the status quo ante, these decisions have had a more limited deterring effect. Nevertheless, within the European context, there is a much higher level of voluntary compliance by states with judicial decisions that in other regions of the world. In 2000, the U.N. adopted a Convention Against Transnational Organized crime172 and it deals in part with, but does not regulate, the question of interstate law enforcement cooperation. Certain provisions, namely Articles 26–28 encourage bilateral and multilateral agreements on the subject of joint investigations, invites states parties in accordance with their national legal systems to develop national legislation permitting special investigative techniques, including electronic and other forms of surveillance and undercover operations, which presumably could be extended to law enforcement and intelligence agencies of other countries. It also addresses, though it does not regulate matters concerning criminal records, the protection of witnesses, assistance to victims, and criminalization of obstruction of justice.173 Article 27, Law Enforcement Cooperation, states: 1. States Parties shall cooperation closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by this Convention. Each State Party shall, in particular, adopt effective measures: a. To enhance and, where necessary, to establish channels of communication between their competent authorities, agencies and services in order to facilitate the secure and rapid exchange of information concerning all aspects of Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976); United States v. Williams, 617 F.2d 1063 (5th Cir. 1980); and United States v. Egan, 501 F. Supp. 1252 (S.D.N.Y. 1980). 169 Concerning the rights of individuals in inter-state cooperation, see The Individual as a Subject of International Cooperation in Criminal Matters (Albin Eser, Otto Logodny & Christopher L. Blakesley eds., 2002). 170 See Dominique Poncet, La Protection de L’Accusé Par La Convention Europeène des Droits de L’Homme (1977); Arthur H. Robertson, Human Rights in Europe (1978); see also Bozano v. France Eur. Ct. H.R. 5/1985/91/138 (18 December 1986); Amekrane v. United Kingdom 16 Y.B. Eur. Conv. on H.R. 356 (1973). 171 E.T.S. 5 (1950), 213 U.N.T.S. 262. 172 United Nations Convention Against Transnational Organized Crime, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, arts. 19–29, U.N. Doc. Res. A/55/383 (Nov. 2, 2000). 173 Id.

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chapter five the offences covered by this Convention, including, if the States Parties concerned deem it appropriate, links with other criminal activities. b. To cooperate with other States Parties in conducting inquiries with respect to offences covered by this Convention concerning: i. The identity, whereabouts and activities of persons suspected of involvement in such offences or the location of other persons concerned; ii. The movement of proceeds of crime or property derived from the commission of such offences; iii. The movement of property, equipment or other instrumentalities used or intended for use in the commission of such offences; c. To provide, when appropriate, necessary items or quantities of substances for analytical or investigative purposes; d. To facilitate effective coordination between their competent authorities, agencies and services and to promote the exchange of personnel and other experts, including, subject to bilateral agreements or arrangements between the States Parties concerned, the posting of liaison officers; e. To exchange information with other States Parties on specific means and methods used by organized criminal groups, including, where applicable, routes and conveyances and the use of false identities, altered or false documents or other means of concealing their activities; f. To exchange information and coordinate administrative and other measures taken as appropriate for the purpose of early identification of the offences covered by this Convention. 2. With a view to giving effect to this Convention, States Parties shall consider entering into bilateral or multilateral agreements or arrangements on direct cooperation between their law enforcement agencies and, where such agreements or arrangements already exist, amending them. In the absence of such agreements or arrangements between the States Parties concerned, the Parties may consider this convention as the basis of mutual law enforcement cooperation in respect of the offences covered by this Convention. Whenever appropriate, States Parties shall make full use of agreements or arrangements, including international or regional organizations, to enhance the cooperation between their law enforcement agencies. 3. States Parties shall endeavor to cooperation within their means to respond to international organized crime committed through the use of modern technology.

The conclusion is inescapable that intelligence and law enforcement informationgathering and information-sharing is necessary, but that needs to be better regulated at the international and national levels. 3.9. Regional and Sub-Regional “Judicial Spaces” Some regions and sub-regions of the world have cultural, legal and political, and economic affinities. On that basis, they have established regional organization and sub-regional cooperative arrangements. Among them are: The Council of Europe, The European Union, The Organization of American States, The League of Arab States, The Organization of African Unity, and The Commonwealth



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Secretariat. Sub-regional organizations include: countries from Scandinavia, the Baltic States, the Benelux Countries, the Andean Countries and others. In addition, there are many regional, inter-regional and sub-regional organizations and agreements regulating different aspects of international cooperation for these countries. Most of these deal with economic and social matters, including those like NATO which started as a military alliance and has now expanded into some social areas. The Organization for Security and Cooperation in Europe (OSCE) is another type of organization which originated for the purposes of pressuring communist states to become more liberal, reinforcing democracy and strengthening human rights, and has developed into an organization which engages in support of democracy human rights and peace-keeping operations in Europe. The relatively recent post-conflict justice initiatives in various contexts brought some of these and other inter-governmental organizations in the field of criminal justice, including international criminal justice.174 The convergence of these and other factors brought about a greater interest by inter-governmental organizations and particularly by regional and sub-regional organizations in the field of criminal justice. Because there are so many organizations whose histories have evolved in almost entirely different ways from one another (primarily because their mandates are so different), it is impossible to categorize this evolution. What is certain is that, in some way or another, many inter-governmental organizations at the regional and sub-regional levels, and many countries with a history of sub-regional cooperation have moved into the field of criminal justice with ramifications in international criminal justice or, at least, in international cooperation in penal matters. For example, the CE has sponsored over twenty-four conventions in inter-state cooperation in penal matters.175 The OAS, the League of Arab States and the Commonwealth Secretariat have done the same. At the sub-regional levels, the Benelux and Nordic countries have also developed a regional system for cooperation in penal matters.176 The European Union has entered the field with the so-called “third pillar” referring to justice issues. The Schengen Agreement has also established an open-boundary between the member states of the EU.177 Recently, the EU has adopted an idea which had originally been proposed in the Council of Europe in

174 See Post-Conflict Justice (M. Cherif Bassiouni ed., 2002). 175 See Müller-Rappard & Bassiouni, European Inter-State Cooperation; see also, Bert Swart, The European Union and the Schengen Agreement, in 2 Bassiouni, ICL, supra note 64, at 243. 176 See Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in 2 Bassiouni, ICL, supra note 64, at 457. 177 See Bert Swart, The European Union and the Schengen Agreement, in 2 Bassiouni, ICL, supra note 64, at 243.

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the 1970s, namely that of “judicial spaces.”178 This concept essentially means that within the area determined as part of the “judicial space” judicial orders shall be enforced automatically by the respective states without the need for the intermediation of a judicial order issued by the enforcing state. This would also mean that law enforcement officials from one member state can pursue their investigations or pursue fugitives outside their national boundaries (obviously, with some coordination with local law enforcement). The first step in implementing this concept was developed through an EU directive authorizing the execution in any member state of an arrest warrant issued by the proper prosecutorial or judicial authorities of another member state on the condition that such a warrant was duly issued in accordance with the legal requirements of the laws of the state in which it was issued.179 Section 4. Assessing the “Indirect Enforcement System” Since the end of World War II, international, transnational, and national incidence of crime have consistently increased while national criminal justice systems have become less able to deal with that increased volume. Since the 1990s, the apprehension and prosecution of offenders has also become more difficult, making international cooperation more important, even though the modalities of international cooperation discussed above have not proven to be as effective as needed. The growth of globalization will only increase these difficulties. Some government officials argue that the problems of international cooperation stem from procedural requirements that increase the rights of the individual to the detriment of the process.180 The argument is not without merit, but it ignores the more significant causes which are systemic. This is the cause of international cooperation’s ineffectiveness as a system. For sure it is a workable system and it produces many positive results. But it can be much more effective without detrimentally affecting “due process” and the rights of individuals. The systemic problems of international cooperation derive in part from the insistence by many governments on bilateralism over multilateralism. The reason such states favor this approach is because they view international cooperation in penal matters as an extension of their political relations. Thus, governments reduce procedural barriers to international cooperation with friendly nations and

178 See supra note 70. 179 See supra note 71. 180 See M. Cherif Bassiouni, Introduction to Proceedings of the International Conference on Extradition held at International Institute of Higher Studies in Criminal Sciences (Siracusa), 62 Revue Internationale de Droit Pénal (1991).



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increase them with less friendly ones.181 As a result, international cooperation in penal matters has become a part of states’ political accommodation processes, instead of being a legal system, based on an international civitas maxima.182 A new approach is needed in which all the modalities of international cooperation, which are now applied piecemeal, are integrated into a unified system. In other words, the eight modalities discussed above should be part of the same gear-box in order to allow the appropriate authorities to shift from one gear to another. For example, if extradition fails, the alternative is not to kidnap the person, but to obtain conditional extradition subject to the return of the accused if proven guilty to serve the sentence in the originally requested state,183 or to transfer the criminal proceedings.184 In an integrated comprehensive system of international cooperation, more options are available to enhance the success of the process. That can easily be accomplished by national legislation,185 and through multilateral and bilateral treaties. Such an integrated system’s goals should include: political neutrality, the preservation of international standards of legality, human rights protections and the enhancement of effective cooperation. Multilateralism should serve to buttress bilateralism and vice versa. Moreover, harmonization of national legislation should be sought to produce new synergies that enhance complementarity. Thus, extradition, legal assistance, transfer of execution of penal sentences, recognition of foreign penal judgments, transfer of criminal proceedings, freezing and seizing of assets derived from criminal proceeds, intelligence and law enforcement information-sharing, and regional and sub-regional “judicial spaces” can reinforce each other without sacrificing proper legal procedures and without violating individual human rights.186 181 See M. Cherif Bassiouni, The “Political Offense Exception” Revisited: Extradition Between the U.S. and the U.K.—A Choice Between Friendly Cooperation Among Allies and Sound Law and Policy, 15 Denv. J. Int’l L. & Pol’y 255 (1987). Another set of problems arises out of the bureaucratic divisions that burden the administration of criminal justice in almost every country, which weakens international cooperation, the limited number of experts among judges, prosecutors, and administrative officials working in this field, and the fact that such personnel must face a large volume of cases with limited resources and support. 182 See supra Chapter I and section 2. 183 I.e., execution of foreign sentences, as discussed in section 3.4. 184 See supra section 3.5. 185 Only three countries have developed integrated national legislation on international cooperation. They are Austria, Switzerland, and Germany. Austrian Law on Mutual Assistance in Criminal Matters, Bundesgesets vom 4 December 1979 Uber alle Auslieferung und die Rechtshilfe in Strafsachen (Auslieferungs—und Rechtshilfegesetz—ARGH), BGBI, Nr. 529/1979; see also Robert Linke, et al., Internationales Strafrecht (1981); Klaus Schwaighofer, Auslieferung und Internationales Strafrecht (1988). Swiss Federal Law on International Mutual Assistance in Criminal Matters, Entraide Internationale en Matière Pénale of March 20, 1981, amended 1996. Germany has, in connection with its ratification of the ICC, adopted a new comprehensive legislation on international cooperation in penal matters. See German ICC Co-operation Act of 21 June 2002, 1BGBI 2144. (Federal Gazette)(2002). 186 See, e.g., Stefan Trechsel, The Protection of Human Rights in Criminal Procedure, 49 Revue Internationale de Droit Pénal 541 (1968); Resolution of Twelfth International Penal Law Congress,

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The present weaknesses of the “indirect enforcement system” include: (1) failing to provide an overall framework that integrates all the applicable modalities; (2) depending almost entirely on the effectiveness of national legal systems; (3) lacking a policy that provides continuity and progressive development; (4) placing the sole duty on states to act in conformity with treaty obligations without international constraints; (5) over-reliance on bilateralism; (6) failing to provide a mechanism for the resolution of conflicts that arise between states; and (7) lacking adequate safeguards to insure “due process.” In short, the present system has all the weaknesses inherent in an incoherent system. A priority solution is to clarify and reinforce the obligations of states under aut dedere aut judicare. The duties to prosecute or extradite must include the unarticulated conditions of being executed effectively and fairly187 and to develop a multinational integrated approach for all the modalities of international cooperation.188 The cumbersome, costly, and lengthy bilateral approach must give way to a more effective multilateral process or at least to an integrated bilateral approach which can strive for greater national similarities.189 The practices described in section 3 with all their weaknesses persist even though the resort to these modalities on a singular and unintegrated basis has proven to be ineffective and inadequate in coping with increased international, transnational, and national criminality, particularly with respect to organized

in International Congress on Penal Law, Actes du XIIe Congrés International de Droit Pénal 553–64 (Hamburg, Sept. 22, 1979) (Hans-Heinrich Jescheck ed., 1980); see also Anne F. Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); Bassiouni, Human Rights Compendium; Theodor Meron, Human Rights in International Law (1991). 187 See supra Chapter I. 188 Resolution of the Council of Ministers of Justice in 1987. See Rec. No. R/87/1 of the Member States (adopted by Committee of Ministers of Justice, Council of Europe 19/1/87); Müller-Rappard & Bassiouni, European Inter-State Cooperation, supra note 175, at 1695–1791. A special Committee of Experts has since been established with the Council of Europe to work on this project. In addition, the Council of Arab Ministers of Justice developed such a modal code of inter-state penal cooperation in 1988. Regrettably, it has not received attention from the Arab governments, as those states have not yet made international penal cooperation a priority. See 2 Council of Arab Ministers of Justice: A Collection of the Council’s Documents, 96–148 (Jan. 1988); Claude Nicati & Juliette Noto, A European Perspective on International Cooperation in Matters of Terrorism, in 2 Bassiouni, ICL, supra note 64, at 495. 189 There are an estimated 2,000 treaties among over 150 countries in the world regulating one or another aspect of international cooperation. The U.S. has over one hundred bilateral extradition treaties. See Bassiouni, International Extradition, supra note 4, at 113–21. The U.S. also has forty-six bilateral treaties on mutual legal assistance and nine treaties on execution of foreign penal sentences. A large number of bilateral treaties deal with inter-state cooperation in tax matters. The Council of Europe has twenty-eight multilateral treaties on inter-state cooperation in penal matters. Other regional organizations like the OAS and The League of Arab States have a number of such multilateral treaties.



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crime,190 drug traffic,191 and terrorism.192 Consequently, international, transnational, and national criminal phenomena are not as effectively controlled as they could be, and governments find themselves attracted to either reduce the procedural safeguards of due process or to engage in questionable and even in illegal practices under their domestic laws and under international law. This state of affairs is in part due to the political short-sightedness of politicians and senior government officials. But it is also due in part to the fact that there are insufficiently knowledgeable experts of ICL in ministries of foreign affairs and justice in most countries, particularly in developing countries. Yet developed countries offer little technical legal assistance and support to developing countries. Inter-governmental organizations too, are not offering sufficient technical legal assistance and support to developing countries. Moreover, administrative and bureaucratic divisions among the national organs of law enforcement and prosecution impair the effectiveness of international cooperation in penal matters.193 The following are some recommendations designed to enhance the effectiveness of international cooperation in penal matters. They are not listed on the basis of any priority or ranking: (1) Recognition of the maxim aut dedere aut judicare as a civitas maxima194 and the development of international standards for states’ compliance, including standards for effective and good faith prosecution and extradition; (2) Establishing by a multilateral treaty the criteria for criminal jurisdiction based not only on territoriality, nationality, passive personality, protected interest, and universality,195 but also other policy-oriented criteria that take 190 See Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL, supra note 149, at 939. 191 See Bernard Leroy, M. Cherif Bassiouni & Jean François Thony, The International Drug Control System, in 1 Bassiouni, ICL, supra note 149, at 855. 192 See M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Assessment, 43 Harv. Int’l L. J. 83 (2002); M. Cherif Bassiouni, Perspectives on International Terrorism, in Bassiouni, Terrorism Conventions, supra note 34, at 1. 193 The most common divisions in national systems are among law enforcement, prosecution, judiciary, and corrections. In addition, within each subsystem, there are still more separate bureaucratic and administrative units. All too frequently these subsystems are self-contained and have their own separate international activities. Moreover, each subsystem defends its respective turf and supports its own methods, goals, and purposes leading to the fragmentation of the system of international cooperation. A thorough discussion of the effects of bureaucratic subsystems on the administration of criminal justice is contained in a report, prepared by this writer and presented to the Seventh United Nations Congress on Crime Prevention and the Treatment of Offenders (Milan, Italy, Aug. 26–Sept. 6, 1983), at 40–43, U.N. Doc. A/Conf. 121/NGO 1 (1986). 194 See supra section 2. 195 See Bassiouni, International Extradition, supra note 4, at ch. VI; see also Christopher Blakesley, Extraterritorial Jurisdiction, in 2 Bassiouni, ICL, supra note 64, at 85; Bassiouni, Universal Jurisdiction, supra note 10.

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into account national and international interests in achieving effectiveness and fairness, including criteria for conflict resolution and compulsory adjudication before the International Court of Justice, or before regional judicial organs; (3) Granting individual victims the right to initiate, or have a role in, prosecution as partie civile, including states other than that of their nationality;196 (4) Developing a model international criminal code to serve as a model for codifying national legislation;197 (5) Developing specialized parts in national legislation on international cooperation in penal matters which integrate all the modalities of international cooperation; (6) Adopting a multilateral convention on cooperation between law enforcement and intelligence agencies setting forth the means, methods, and limitations of such cooperation, including the protection of fundamental human rights and the right to privacy; (7) Consistently including the integrated modalities of international cooperation in all substantive international criminal law conventions.

196 This idea was accepted by the United Nations Committee on Crime Prevention and Control on the basis of a proposal made by a Committee of Experts meeting at International Institute of Higher Studies in Criminal Sciences (Siracusa) for the implementation of the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. GAOR, 40th Sess., Supp. No. 53, at 213, U.N. Doc. A/40/53; see also Bassiouni, Universal Jurisdiction, supra note 10. See Symposium, International Protections of Victims, 7 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed., 1988); see also The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report of the Special Rapporteur, M. Cherif Bassiouni, U.N. Commission on Human Rights, 56th Sess., Provisional Agenda Item 11(d), U.N. Doc. E/CN.4/2000/62 ( Jan. 18, 2000). 197 This author prepared the only comprehensive draft international code in 1987. See Bassiouni, ICL Conventions, supra note 40. The Association Internationale de Droit Pénal (International Association of Penal Law) has been a leader in this effort since 1926. See 6 Revue Internationale de Droit Pénale 275 (1928). The Association’s former president made contributions to this effort prior to 1926 in his work, Vespasian V. Pella, La Codification du Droit Pénal International (1922). Subsequently, the International Association of Penal Law sponsored a project directed by the author, then its Secretary-General, which was presented to the Sixth United Nations congress on Crime Prevention and the Treatment of Offenders (Caracas, Venezuela, Aug.–Sept. 1980) and published as M. Cherif Bassiouni, International Criminal Law: A Draft International Criminal Court (1980), translated into French by Christine Van den Wyngaert as Projet de Code Pénal International, 51 Revue Internationale de Droit Pénal (vols. 1–2, 1980), which was followed by a symposium issue of commentaries, 51 Revue Internationale de Droit Pénal (vols. 3–4, 1980); the Draft Code was translated into Spanish by Professor José de la Cuesta and was published as Derecho Penal Internacional Projecto de Codigo Penal International (1983), and it was translated into Hungarian by the Hungarian Ministry of Justice in 1984. A revised edition was published in 1987 as Bassiouni, Draft Code. See also 60 Revue Internationale de Droit Pénal No. 1–2, 1989), and in particular, the General Reports of Professors Otto Triffterer at 29, and Lech Gardocki at 89. The Fifteenth International Penal Law Congress, held in Vienna, October 1989, adopted a resolution to that effect. See Proceedings of the Fifteenth International Penal Law Congress (1991).



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(8) Developing a worldwide program of technical legal assistance,198 and continuing legal education programs for public officials, judges and prosecutors in international criminal law;199 (9) Developing in each country a specialized cadre of legal experts on ICL as well as within Intergovernmental organizations; and (10) Developing networks of information and criminal justice data-sharing within states and between states.200 All of the above recommendations must apply in conformity with international, regional, and national human rights norms and standards.201 It should be understood that the observance of human rights norms and standards does not reduce the efficiency or effectiveness of criminal justice systems. Section 5. Conclusion There is in progress a rapid and significant process of harmonization, and to some extent uniformization of the substantive and procedural norms and rules of international cooperation in penal matters. This process has been driven by multilateral treaties such as those developed by the Council of Europe, the Organization of American States, and the League of Arab States. When, cumulatively, over 100 states adhere to such multilateral conventions whose substantive and procedural norms and rules are similar, the consequences on national substantive norms and procedures are self-evident. Furthermore, the UN has been spurring model bilateral treaties in extradition, mutual legal assistance, transfer of prisoners, and transfer of proceedings which has also contributed to the process of harmonization. The events of September 11, 2001 also spurred a significant leap in all forms of international cooperation, particularly in the areas of tracing, freezing and seizing of assets, and in information-gathering and informationsharing by law enforcement, intelligence agencies, and prosecutorial agencies. In a different vein, European integration has spurred the more advanced concept of

198 See United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Guiding Principles for Crime Prevention and Criminal Justice in the Context of Development and a New International Economic Order, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Milano, Italy, Aug. 26–Sept. 6, 1983), U.N. Doc. A/Conf.121/22/Rev./1. For a Commentary on the Guiding Principles, see 6 Nouvelles Études Pénales 121 (1985). 199 Id. 200 Id. 201 See Bayefsky; Bassiouni; Meron, supra note 186.

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a “judicial space.” Lastly, the ICC, whose states-parties number more than 100,202 requires national implementing legislation in the area of cooperation.203 The modalities of cooperation between states-parties and the ICC (which can be described as vertical, even though the ICC is not a supra-national institution204) in contrast to relations between states-parties (which can be described as horizontal), are sure to have an impact upon all forms of international cooperation in penal matters. For if some 100 states develop national legislation with respect to modalities of cooperation with the ICC, it is sure to have an impact upon their bilateral practices. As stated in Chapter I, section 3, there is in course a process of harmonization, if not unification, within each component of ICL. But the “indirect enforcement system” of ICL and the “inter-state cooperation” regimes are moving at a faster pace than any other component of ICL. Both regimes are likely to become one, and their modalities are likely to evidence a greater degree of substantive and procedural similarity than any other component of ICL. The eight modalities discussed in this chapter are also likely to expand to include others. The merging of these two regimes will reflect the erosion, if not elimination, of the distinction between national, transnational and international crimes, and the increased need to cooperate with respect to all forms of criminality. But that outcome will not be the result of a deliberate choice based on the acceptance of a civitas maxima,205 nor on the more specific recognition of the obligations of the maxim aut dedere aut judicare.206 Instead, it will be the product of a pragmatic evolution whose impetus is globalization and not doctrinal concepts.

202 On June, 1, 2008, Madagascar became the 106th state to ratify the treaty establishing the ICC. For an updated list of ICC States-Parties, see http://www.icc-cpi.int/asp/statesparties.html. See also ICC Progress Report No. 10 (International Human Rights Law Institute, DePaul University College of Law 2003). 203 See Part 9 of the ICC Statute in The Statute of the International Criminal Court (M. Cherif Bassiouni ed., 1999); see also infra Chapter VII, section 10. 204 See infra Chapter VII, section 2. 205 See supra Chapter I, section 3. 206 See supra section 2.

Chapter six

The “Direct Enforcement System:” History of International Criminal Investigations and Prosecutions Section 1. Introduction An ideal “direct enforcement system” would include not only an adjudicating body, but would be a vertically integrated and comprehensive international criminal justice system consisting of all the components found in national criminal justice systems, namely: investigation, prosecution, adjudication, sanctions, and enforcement. The IMT1 and IMTFE2 represented such a comprehensive and vertically integrated enforcement system. But these two precedents stand alone in the annals of legal history, and no such international criminal justice system has been created since that time, perhaps due to states’ refusal to yield their sovereignty in this area.3

1 For analysis and commentary on the Nuremberg Trials see, inter alia, Joseph E. Persico, Nuremberg; Infamy on Trial (1994); Telford Taylor, the Nuremberg Trials: a Personal Memoir (1992); Ann Tusa & John Tusa, the Nuremberg Trial (1984); Robert E. Connot, Justice at Nuremberg (1983); Bradley Smith, Reaching Judgment at Nuremberg (1977); The Trial of The Germans: An Account of the Twenty Two Defendants Before the International Military Tribunal at Nuremberg (Eugene Davidson ed., 1966); Whitney R. Harris, Tyranny on Trial (1954); Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (U.S. Gov’t Prtg. Office 1949). 2 For analysis of the Tokyo Trials, see Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter]. On the same day General MacArthur issued his proclamation, the Charter for the IMTFE was adopted. Pursuant to a policy decision by the FEC, the charter was later amended by General’s Order No. 20, issued by MacArthur. See also The Tokyo War Crimes Trials: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East (R. John Pritchard & Sonya U. Zaide eds., 1981); The Tokyo War Crimes Trials: The Comprehensive Index and Guide to the Proceedings of the International Military Tribunal for the Far East (R. John Pritchard ed., 1981–1987); The Tokyo Judgment (B.V.A. Roling & C.F. Ruter eds., 1977). 3 For a history of all international investigatory and adjudicatory bodies, see infra section 2. On the developments related to the ICC, see 1996 ICC Preparatory Committee Report, reprinted in The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) [hereinafter1996 ICC Preparatory Committee Report], and 13 Nouvelles Études Pénales (1997). It is interesting to note that of all 281 ICL Conventions discussed in Chapter III, only two conventions specifically provide for the eventual jurisdiction of an International Criminal Court if one is established: Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, 28 I.L.M. 763 and International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30 1973, U.N. G.A. Res. 3068

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In 1993 and 1994, the Security Council established two ad hoc tribunals to address crimes committed in Yugoslavia and Rwanda: the ICTY4 and the ICTR, respectively.5 The establishment of these Tribunals did not represent a voluntary concession by states of their sovereignty, since they were both established by the Security Council pursuant to its powers under Chapter VII of the United Nations Charter.6 Additionally, the competence of both Tribunals is limited geographically, temporally, and as to the subject matter. The ICTY and ICTR, unlike the IMT and IMTFE, are not, therefore, comprehensive systems with the full and effective capabilities of direct enforcement because they rely on states to apprehend and surrender to them indicted persons, to provide them legal assistance, and to enforce their penal judgments. While the obligations arising out of the ICTY and ICTR are legally binding on all U.N. member states, the effective enforcement of the Tribunals’ orders is nevertheless contingent upon the Security Council’s adoption of appropriate sanctions resolutions.7 The ICC8 could have been modeled on the IMT and IMTFE; instead it resembles the ICTY and ICTR. The ICC is not a supra-national body, but an (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030 (1973), 13 I.L.M. 50. In 1937, however, the Protocol to the Convention for the Prevention and Punishment of Terrorism [League of Nations O.J. No. 19, at 23 (1938)] provided for a specialized International Criminal Court, but the Convention never entered into effect, nor did the Protocol, which was only ratified by India. See also Benjamin Ferencz, An International Criminal Court: A Step Towards World Peace (1980). 4 Virginia Morris & Michael Scharf, An Insider’s Guide to the International Criminal Tribunal of the Former Yugoslavia (1995). 5 Larry D. Johnson, The International Criminal Tribunal for Rwanda, 67 Revue Internationale de Droit Pénal 211 (1996). 6 Because the two Tribunals were created by the Security Council acting under Chapter VII of the U.N. Charter. See infra, section 2. 7 Id. To date, the Security Council has not taken measures to enforce the ICTY’s arrest warrants and other orders. 8 See The Rome Statute of the International Criminal Court (ICC), 17 July 1998, U.N. Doc. A/ CONF.183/9, reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute]. For a history of, and commentaries on, establishing an ICC, see William A. Schabas, An Introduction to the International Criminal Court (4th ed. 2011); William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010) [hereinafter Schabas, Commentary]; The Emerging Practice of the International Criminal Court (Carsten Stahn & Göran Sluiter eds., 2009); Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 2d ed. 2008); The International Criminal Court: Global Politics and the Quest for Justice (William Driscoll et al. eds., 2004); The International Criminal Court: Recommendations on Policy and Practice (Thordis Ingadottir ed., 2003); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002); La Corte Penal Internacional (M. Cherif Bassiouni et. al. eds., 2001); Isabel Lirola Delgado & Magdalena M. Martín Martínez, La Corte Penal Internacional: Justicia versus Impunidad (2001); The Rome Statute of the International Criminal Court: A Challenge to Impunity (Mauro Politi et Giuseppe Nesi eds., 2001); The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed., 2001); International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999); Human Rts Watch, Justice on the Balance: Recommendations for an Independent and Effective International Criminal



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Court (1998); The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998); Verso un Tribunale Permanente Internazionale sui Crimini L’Umanita Precedenti Storici e Prospettive di Istituzione (P. Ungari & M.P. Pietrosanti Malintoppi eds. 1998); Giuliano Vassalli, La Giustizia Internazionale Penale (1995); International Courts For The Twenty-First Century (Mark W. Janis ed. 1992); M. Cherif Bassiouni, An International Criminal Code And Draft Statute For An International Criminal Tribunal (1987); Benjamin Ferencz, An International Criminal Court (2 vols. 1980); Julius Stone & Robert Woetzel, Toward A Feasible International Criminal Court (1970); Pierre Carjeu, Projet d’une Juridiction Pénale internationale (1953); A. Sottile, The Problem of The Creation of a Permanent International Criminal Court (1951). See also L’union Interparlementaire, Compte rendu de la XXVII Conférence tenue à Rome en 1948 (1949); United Nations War Crimes Commission, History of The United Nations War Crimes Commission and The Development of The Laws of War 443–50 (1949); U.N. Secretary-General, Historical Survey of The Question of International Criminal Jurisdiction, U.N. Doc. A/AC.4/7/Rev.1, NU Sales No. V.8 (1949); International Law Commission, Rapport de la trentequatrième conférence, Vienna, Aug. 5–11, 1926 (1927) (adoption of a draft International Criminal Court); Compte rendu de la XXIII Conférence tenue à Washington et à Ottawa en 1925 (1926); Model Draft Statute for the International Criminal Court Based on the Preparatory Committees Text to the Diplomatic Conference, Rome, June 15–July 17, 1998, 13ter Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998); Report of the Preparatory Commission on the Establishment of an International Criminal Court, U.N. G.A., 51st Sess., Suppt. No. 22, 36, U.N. Doc. A/51/22 (1996); 1995 Preparatory Committee Report, Mar. 25–Apr. 12 1996, U.N. Doc. A/AC.249/1 (1996); Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. G.A. 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995) [hereinafter 1995 Ad Hoc Committee Report]; Report of the International Law Commission, 46th Sess., U.N. G.A., 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994); Commentaries Received by Governments Concerning the Report of the Committee on International Criminal Jurisdiction, U.N. G.A., 7th Sess., Annex 2, p. 1, U.N. Doc. A/2186 and Add.1 (1952); Draft Statute for an International Commission of Criminal Inquiry and a Draft Statute for an International Criminal Court, in Report of the 60th Conference of the International Law Association (1983); Projet pour une cour pénale internationale de l’association internationale de droit pénal, in Actes du Premier Congrès international de droit pénal de l’association internationale de droit pénal, Bruxelles, 26–29 juin 1926 (1927). Ratification and National Implementing Legislation, 71 Revue Internationale de Droit Pénal (M. Cherif Bassiouni ed., 2000); Giorgio Bosco, Verso l’istituzione di una Corte Penale Internazionale, 250 Rivista di Studi Politici Internazionali 223 (1998); Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler ed., 1998); The International Criminal Court: Observations and Issues before the 1997–98 Preparatory Committee and Administrative and Financial Implications, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1997); Bruce Broomhall, Looking Forward to the Establishment of an International Criminal Court: Between State Consent and the Rule of Law, 8 Crim. L. Forum 317 (1997); Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int’l L. Rev. 201 (1997); Hans-Peter Kaul, Towards a Permanent International Criminal Court: Some Observations of a Negotiator, 18 Hum. Rts. L.J. 169 (1997); Daniel B. Pickard, Proposed Sentencing Guidelines for the International Criminal Court, 20 Loy. L. Int’l & Comp. L.J. 123 (1997); M. Cherif Bassiouni, Recent United Nations Activities in Connection with the Establishment of a Permanent International Criminal Court and the Role of the Association Internationale de Droit Pénal (AIDP) and the Istituto Superiore Internazionale di Scienze Criminali (ISISC), 67 Revue Internationale de Droit Pénal (1996); Christopher L. Blakesley, Comparing the Ad-Hoc Tribunal for Crimes Against Humanitarian Law in the Former Yugoslavia and the Project for an International Criminal Court: An Appraisal, 67 Revue Internationale de Droit Pénal 139 (1996); Leila Sadat Wexler, The Proposed International Criminal Court—An Appraisal, 29 Cornell Int’l L.J. 665 (1996); Brigitte Stern, La Cour Penale Internationale dans le projet de la Commission du Droit International, in International Legal Issues Arising Under the United Nations Decade of International Law (1995); Henri D. Bosly, Actualite du Tribunal International Penal, 1–2 Annales de Droit de Louvain 3 (1995); Jean Y. Dautricourt, The Concept of International Criminal Court Jurisdiction‑Definition and Limitations of the Subject, in 2 A Treatise on International Criminal Law 636 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973); Daniel H. Derby, An International Criminal Court for the Future, 5 Transnat’l

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L. & Cont. Prob. 307 (1995); James Crawford, Prospectsfor an International Criminal Court, 48 Current Legal Probs. 300 (1995); M. Cherif Bassiouni, Establishing an International Criminal Court: Historical Survey, 149 Mil. L. Rev. 49 (1995); William C. Gilmore, The Proposed International Criminal Court: Recent Developments, 5 Transnat’l L. & Cont. Prob. 263 (1995); Sandra L. Jamison, A Permanent International Criminal Court: A Proposal that Overcomes Past Objections, 2 Denv. J. Int’l L. & Pol’y 419 (1995); Matthew Lippman, Towards an International Criminal Court, 3 San Diego Just. 1 (1995); Manuel Rama‑Montaldo, Acerca de Algunos Conceptos Basicos Relativas al Derecho Penal Internacional y a una Jurisdiction Penal Internacional, in El Derecho Internacional en un Mundo en Transformacion (Manuel Rama‑Montaldo ed., 1995); Timothy L.H. McCormack & Gerry J. Simpson, A New International Criminal Law Regime, 42 Neth. Int’l L. Rev. 177 (1995); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Transnat’l L. 73 (1995); M. Cherif Bassiouni, Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 25 Sec. Dialogue 409 (1994); Timothy C. Evered, An International Criminal Court—Recent Proposals and American Concerns, 6 Pace Int’l L. Rev. 121 (1994); Alfred P. Rubin, An International Criminal Tribunal for the Former Yugoslavia, 6 Pace Int’l L. Rev. 7 (1994); Michael P. Scharf, Getting Serious About an International Criminal Court, 6 Pace Int’l L. Rev. 103 (1994); Peter Bums, An International Criminal Tribunal: The Difficult Union of principles and Politics, 5 Crim L.F. 341 (1994); American Bar Association Task Force on an International Criminal Court, New York Bar Association Joint Report with Recommendations to the House of Delegates: Establishment of an International Criminal Court, 27 Int’l L. 270 (1993); M. 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L.J. 925 (1973); Draft Statute for an International Criminal Court, Foundation for the Establishment of an International Criminal Court (Wingspread Conference, Sept. 1971); Fannie Klein & Daniel Wilkes, United Nations Draft Statute for an International Criminal Court—An American Evaluation, in International Criminal Law 526 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965); Bienvenido C. Ambion, Establishment of the Proposed International Criminal Court, 30 Philippine L. J. 370 (1955); George A. Finch, Draft Statute for an International Criminal Court, 46 Am. J. Int’l L. 89 (1952); John J. Parker, An International Criminal Court—The Case for its Adoption, 38 A.B.A. J. 641



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international one, established by treaty. As such, the ICC has an enforcement mechanism similar to that of the ICTY and ICTR. This does not make the ICC a vertically integrated and comprehensive enforcement system of international criminal justice since it has to rely on the cooperation of states for the apprehension and surrender of accused persons, legal assistance, and the enforcement of its judgments.9 Furthermore, obligations to cooperate with and assist the ICC apply only to those states that would become parties to the convention establishing it or are ordered by the S.C. to do so under Chapter VII of the U.N. Charter. This makes the ICC an international prosecutorial and judicial forum, but not a comprehensive system of international criminal justice.10 The ICC relies on the same modalities and techniques of inter‑state cooperation in penal matters, which are relied upon to enforce proscriptions of international, transnational, and domestic crimes.11 Thus, even in such a quasi “direct” enforcement system the ICC will necessarily rely on these same modalities. These modalities, though independent of one another, constitute a complementary whole. They are: extradition (states “surrender” persons to the ICC, ICTY, and ICTR); mutual legal assistance in penal matters; transfer of prisoners; seizure and forfeiture of illicit proceeds of crime; recognition of foreign penal judgments; and transfer of penal proceedings. The ICC provides for: “[A] [g]eneral obligation to cooperate,” (Article 86); “Availability of procedures under national law,” (Article 88); “Surrender of persons to the Court,” (Article 89); “Competing requests,” (Article 90); “Provisional arrest,” (Article 92); “Postponement of

(1952); George A. Finch, An International Criminal Court: The Case Against Its Adoption, 38 A.B.A. J. 644 (1952); Yeun‑Li Liang, The Establishment of an International Criminal Jurisdiction: The First Phase, 46 Am. J. Int’l L. 73 (1952); Quincy Wright, Proposal for an International Criminal Court, 46 Am. J. Int’l L. 60 (1952); Vespasian V. Pella, Towards an International Criminal Court, 44 Am. J. Int’l L. 37 (1950); Bienvenido C. Ambion, Organization of a Court of International Criminal Jurisdiction, 29 Phillipine L. J. 345 (1950); James Crawford, The ILCs Draft Statute for an International Criminal Tribunal, 88 Am J. Int’l L. 140 (1940); Constitution et Procédure d’un Tribunal Appropripour Juger de la Responsabilité des Auteurs des Crimes de Guerre, Present a la Conference Preliminaire de Paix par la Commission de Responsabilites des Auteurs de la Guerre et Sanctions, 111 La Paix de Versailles (1930); Vespasian V. Pella, Plan d’un Code Repressif Mondial, 6 Revue Internationale de Droit Pénal (1928) (presented by the International Association of Penal Law to the League of Nations in 1927); Vespasian V. Pella, An International Criminal Court, in L’Union Interparlementaire Compte Rendu de la XXII Conférence tenue à Berne et à Genève en 1924 (1924); Projet de Statut pour la Création d’une Chambre Criminelle au Sein de la Cour Permanente de Justice Internationale, 5 Revue Internationale de Droit Pénal (1928) (presented by the International Association of Penal Law to the League of Nations in 1927). 9 See 1996 ICC Preparatory Committee Report; Summary of the Proceedings of the Preparatory Committee on the Establishment of an International Criminal Court During the Period 25 March– 12 April 1996, sections III E&F, U.N. Doc. A/AC.249/1 (1996). 10 See generally, The International Criminal Court: Observations and Issues Before the 1997–1998 Preparatory Committee, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1997). 11 See M. Cherif Bassiouni, Policy Consideration in Inter-State Cooperation in Criminal Matters, in Procedures for a New Transnational Criminal Law (Albin Eser & Otto Logodny eds., 1992); reprinted in 4 Pace Yearbook of Int’l L. 123 (1992). This section is based in part on this article.

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execution of a request in respect of ongoing investigation or prosecution,” (Article 94); “Consultations,” (Article 97); “Rule of speciality,” (Article 101); and “Enforcement of the sentence,” (Article 105). Section 2. History of International Criminal Investigations and Prosecutions: From Versailles to Rome, 1919–1998 Between 1919 and 1994 there were five ad hoc international investigation commissions, four ad hoc international criminal tribunals, and three internationally mandated or authorized national prosecutions arising out of World War I and World War II. These processes were established by different legal means with varying mandates, many of them producing results contrary to those originally contemplated. The investigations and prosecutions were established to appease public demand for a response to tragic events and shocking conduct during armed conflicts. Despite public pressure demanding justice, investigative and adjudicating bodies were established for only a few international conflicts. Domestic conflicts, no matter how brutal, drew even less attention from the world’s major powers, whose political will has been imperative to the establishment of such bodies. Even when tribunals and investigative commissions were established, their professed goal—the pursuit of justice by independent, effective, and fair methods and procedures—was seldom upheld. Instead, the establishment and administration of these bodies were subordinated to realpolitik goals. They were, in varying degrees, controlled or influenced by political considerations, at times exercised overtly, and at other times through more subtle techniques. Political decisions often led to the logistical, personnel, and legal difficulties that contributed to the malfunctioning of the tribunals. Bureaucratic and financial methods were used to direct, curtail, check, and ultimately terminate these bodies for political reasons. Politicians often intentionally allowed time to pass so that public interest in justice waned, public pressure eroded, and they were no longer compelled to ensure the success of the bodies. A telling example of the interplay between law and politics that characterizes these bodies is the allocation of responsibility during the different trial stages. Frequently, there was total separation between the establishment of the bodies and their administration. Similarly, the investigation stage was separated from the adjudication, and in each case, without exception, the judicial bodies that pronounced sentences were terminated immediately after the adjudication. The sentence execution stage, involving pardons and releases before the full execution of sentences, was typically the responsibility of a political administrator whose decisions were not necessarily motivated by justice concerns. This compartmentalization contributed to the overall difficulty of assessing the nature,



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intent, and impact of the political decisions that created, administered, and ended these bodies. Those who were present at one stage were rarely present at subsequent ones. Furthermore, institutional records documenting the various stages seldom reflect the activity occurring behind the political curtain. Persons inside the political process are reluctant to betray those who appointed them to their positions by divulging the political considerations that influence the operation of the bodies. The true history of these institutions is therefore often incomplete. If the lessons of the past are to instruct the course of the future, then the creation of a permanent system of international criminal justice with a continuous institutional memory is imperative. But such a system must be independent, fair, and effective in order to avoid the pitfalls experienced in the past. Above all, it must be safeguarded from the vagaries of realpolitik. Compromise is the art of politics, not of justice. These points will be illustrated through an examination of the previous ad hoc investigative commissions and international criminal tribunals. This section then reviews the U.N. efforts to establish an international criminal court and to codify certain international crimes. 2.1. Ad Hoc International Investigative Commissions and International Criminal Tribunals since 1919 Since 1919, there have been five international investigative commissions,12 four ad hoc international tribunals,13 and three internationally mandated prosecutions.14 Because all these processes were either institutionally linked or related by reason

12 (1) The 1919 Commission on the Responsibilities of the Authors of War and on the Enforcement of Penalties (1919 Commission Report); (2) The 1943 United Nations War Crimes Commission (1943 UNWCC); (3) The 1946 Far Eastern Commission (FEC); (4) The 1992 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate War Crimes and other Violations of International Humanitarian Law in the Former Yugoslavia (1992 Yugoslavia Commission of Experts); and (5) The 1994 Independent Commission of Experts Established Pursuant to Security Council Resolution 935 (1994) to Investigate Grave Violations of International Humanitarian Law in the Territory of Rwanda (1994 Rwanda Commission of Experts). A commission called The Commission on the Truth was established under the peace agreements between the government of El Salvador and the Frente Farabundo Marti para la Liberacion Nacional (FMLN). This Commission was, therefore, established pursuant to an agreement between a government and an internal insurgency movement. Nevertheless, the three Commission members were designated by the Secretary-­General of the United Nations. It is unclear whether this Commission can be deemed an international commission as in the case of the others mentioned herein. For the report of the Commission, see Letter Dated 29 March 1993 from the Secretary-General Addressed to the President of the Security Council, U.N. SCOR, 48th Sess., U.N. Doc. S/25500 (1993). 13 The IMT, IMTFE, ICTY, and ICTR. 14 (1) 1921–1923 Prosecutions by the German Supreme Court Pursuant to Allied Requests Based on the Treaty of Versailles (Leipzig Trials); (2) 1946–1955 Prosecutions by the Four Major Allies in the European Theater Pursuant to Control Council Law No. 10 (CCL 10); and (3) 1946–1951 Military Prosecutions by Allied Powers in the Far East Pursuant to Directives of the FEC.

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to the conflict that gave rise to their establishment, they are best understood through a historical analysis. 2.2. The 1919 Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties The first international investigative commission was established at the end of World War I by the victorious Allies, when the Allied and Associated Powers convened the 1919 Preliminary Peace Conference in Paris.15 At the Conference the representatives of the Allies negotiated Germany’s surrender, along with a peace treaty whose terms they dictated. Much of the debate among the Allies addressed issues concerning the prosecution of Germany’s Kaiser Wilhelm II, German war criminals, and Turkish officials for “crimes against the laws of humanity.”16 Ultimately, after much compromise, the Allied representatives agreed on the terms of the Treaty of Peace Between the Allied and Associated Powers and Germany, which concluded at Versailles on June 28, 1919.17 Article 227 of the Treaty provided for the creation of an ad hoc international criminal tribunal to prosecute Kaiser Wilhelm II for initiating the war.18 The Treaty also provided in

15 Prior to the 1919 Commission, the Carnegie Endowment for International Peace established a nongovernmental commission of international personalities to investigate alleged atrocities committed against civilians and prisoners of war during the First Balkan War of 1912 and the Second Balkan War of 1913. Carnegie Endowment for International Peace, The Other Balkan Wars: A 1913 Carnegie Endowment Inquiry in Retrospect with a New Introduction and Reflections on the Present Conflict by George F. Kennan (1993). The seven members appointed to the Commission by the Carnegie Endowment were from the following countries: Austria-Hungary (1), Britain (1), France (2), Germany (1), Russia (1), and the United States (1). At the onset of the Second Balkan War, in order to give the western world a “clear and reliable picture of what was going on in the affected region,” the Commission investigated the conflict and the conduct of individuals. Id. at 6. The Balkan Commission conducted several fact-finding missions, and subsequently a substantial report based on the Commission’s findings was published. The Balkan Commission released its report in July 1914. In August, World War I began and the report became relevant to history. The atrocities reported by the Balkan Commission bear an uncanny resemblance to those that were reported by the 1992 Yugoslavia Commission of Experts. Compare, for an assessment of the similarities, the Carnegie Endowment for International Peace, Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars (1914), reprinted in Balkan Wars, supra, with the Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, Annexes, available at http://www.law.depaul.edu/centers_institutes/ ihrli/publications/yugoslavia.asp (last visited Nov. 15, 2011). 16 For information on the Armenian genocide, see generally Vahakn N. Dadrian, The History of the Armenian Genocide (1995); Arnold J. Toynbee, Armenian Atrocities: The Murder of a Nation (1915); Vahakn N. Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and its Contemporary Legal Ramifications, 14 Yale J. Int’l L. 221 (1989). 17 Treaty of Versailles (1919). 18 Id. at art. 227.



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Articles 228 and 229 for the prosecution of German military personnel accused of violating the laws and customs of war before Allied Military Tribunals or before the Military Courts of any of the Allies.19 The official intergovernmental Commission established by the Preliminary Peace Conference was called the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties.20 Its mandate was to investigate and report on the responsibility of those who had initiated the war and those who had violated the laws and customs of war in order to prosecute them.21 The Commission held closed meetings for two months and conducted intensive investigations.22 This work was supposed to culminate in the charging of named individuals for specific war crimes. Based on subsequent developments in the administration of the Commission’s mandate, however, it is reasonable to question whether the Allies’ intentions were to pursue justice or whether they only intended to use symbols of justice to achieve political ends.

19 Article 228 states: The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies. The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office, or employment which they held under the German authorities. Article 229 states: Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power.  Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel. Id., at arts. 228–29. 20 The Commission was comprised of two members from each of the five Great Powers: the United States of America, the British Empire, France, Italy, and Japan. The additional states composing the Allied and Associated Powers were Belgium, Bolivia, Brazil, China, Cuba, CzechoSlovakia, Ecuador, Greece, Guatemala, Haiti, the Hedjaz, Honduras, Liberia, Nicaragua, Panama, Peru, Poland, Portugal, Romania, the Serb-Croat-Slovene State, Siam, and Uruguay. Carnegie Endowment for International Peace, The Treaties of Peace 1919–1923 3 (1924). The additional states, having a special interest in the matter, met and decided that Belgium, Greece, Poland, Romania, and Serbia should each name a representative to the Commission as well. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference by the Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties (Conference of Paris 1919 Carnegie Endowment of International Peace, Division of International Law), Pamphlet No. 32 (1919), reprinted in 14 Am. J. Int’l. L. 95, 96 (1920)(Supp.); 1 Friedman 842 [hereinafter 1919 Commission Report]. 21 1919 Commission Report, supra note 20, at 95. 22 James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War 68 (1982).

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The Commission completed its report in 1920 and submitted a list of 895 alleged war criminals to be tried by the Allied tribunal.23 The Commission also sought to charge Turkish officials and other individuals for “crimes against the laws of humanity”24 based on the so-called “Martens Clause” contained in the Preamble of the 1907 Hague Convention.25 That clause states: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the Protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.26

In reliance upon the Martens Clause, the Convention contained only a portion of the laws of humanity and other general principles of law that should have been applicable to armed conflicts. That partial codification did not reject the rest of the potentially applicable positive international law, but merely deferred codification until another time when greater political consensus could be obtained. The Commission felt justified in relying upon the Martens Clause to develop the charge of “crimes against the laws of humanity.” The United States and Japan, however, specifically opposed it on the grounds that the Commission’s mandate

23 Sources conflict as to the number of alleged war criminals listed for prosecution. See Telford Taylor, The Anatomy of the Nuremberg Trials 17 (1992) (stating that the Allies presented a list of 854 individuals, including political and military figures); M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 656 (2011) (stating that the Allies submitted a list of 895 named war criminals); M. Cherif Bassiouni, Introduction to International Humanitarian Law, in 1 International Criminal Law: Sources, Subjects, and Contents (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. 24 Bassiouni, Crimes Against Humanity, supra note 23, at 92–93. See generally, Eugene Aroneanu, Le Crime Contre l’Humanite (1961); Pieter Drost, The Crime of State (2 vols. 1959); Egon Schwelb, Crimes Against Humanity, 1946 Brit. Y.B. Int’L L. 178. 25 Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, preamble, 36 Stat. 2277, T.S. No. 539, 3 Martens Nouveau Recueil (ser.3) 461, reprinted in 2 Am. J. Int’l L. 90 (1908)(Supp), 1 Friedman 308, 1 Bevans 631, 632 [hereinafter 1907 Hague Convention]; see also Carnegie Endowment for International Peace, The Proceedings of the Hague Peace Conferences: Translation of Official Texts—The Conference of 1899 548 (1920). For a commentary on the Martens clause, see Paolo Benvenuti, La Clausola Martens e la Tradizione Classica del Diritto Naturale nella Codificazione del Diritto dei Conflitti Armati, Scritti degli allievi in memoria di Giuseppe Barile 173 (1993). Similar renditions of the Martens Clause, named after Fyodor Martens, the Russian diplomat and jurist who drafted the clause, appear in each of the 1949 Geneva Conventions and the 1977 Protocols. See 1949 Geneva Conventions; Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature, Dec. 12, 1977, U.N. Doc. A/32/144 Annex I, reprinted in 16 I.L.M. 1391, Schindler/Toman 551. 26 1907 Hague Convention, supra note 25, preamble (emphasis added).



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was to investigate violations of the laws and customs of war and not the uncodified, so-called “laws of humanity.”27 Although charges were to be brought against Turkish officials for the largescale killing of Armenians in Turkey in 1915, no action was ever taken.28 These charges were based on the authority of Treaty of Sèvres of 1920 between the Allies and Turkey,29 which provided for Turkey’s surrender of accused persons to be tried, presumably for “crimes against the laws of humanity.” But the Treaty of Sèvres was not ratified and its provisions were never implemented. Instead, it was replaced in 1923 by the Treaty of Lausanne,30 which did not contain any provisions on prosecutions, but rather had an unpublicized annex granting amnesty to Turkish officials.31 Because the Allies were concerned about the stability of Turkey and eager not to alienate the new Turkish ruling elite, which was partial to the western powers, Turkish officials were given impunity for war crimes. At that time, the Bolshevik Revolution of 1917 that toppled the Tsarist regime was causing concern in England and France. Turkey, on the border of the new communist regime and the controlling power over the Bospherous and Dardanelles Straights (through which the Russian Navy would have to transit to reach the Mediterranean from the Black Sea), was needed in the “western camp.” Political concerns thus prevailed over the pursuit of justice. 2.3. The Allies’ Failure to Establish Prosecutions Pursuant to the Treaty of Versailles The Treaty of Versailles did not link the 1919 Commission to eventual prosecutions recognized under its Articles 228 and 229, resulting in an institutional vacuum between the investigation and prosecution stage. Therefore, if the outcome

27 See Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities, Annex II, Apr. 4, 1919, reprinted in 14 Am. J. Int’l L. 127, 144–51 (1920) [hereinafter Annex II to 1919 Commission Report]; Reservations by the Japanese Delegation, Annex III, Apr. 4, 1919, reprinted in 14 Am. J. Int’l L. 151 (1920). 28 See Vahakn N. Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and its Contemporary Legal Ramifications, supra note 16, at 223. The Turkish Government and Turkish writers have consistently denied that such a massacre ever took place. Instead, they argue that there were ethnic confrontations between Armenians and other Turks, which resulted in casualties on both sides. See Vahakn N. Dadrian, Documentation of the Armenian Genocide in Turkish Sources, in 2 Genocide: A Critical Bibliographic Review 86 (Israel W. Charney ed., 1991). 29 Treaty of Peace between the Allied Powers and Turkey (Treaty of Sevres), Aug. 10, 1920, reprinted in 15 Am. J. Int’l L. 179 (Supp. 1921). 30 Treaty with Turkey and Other Instruments (Treaty of Lausanne), July 24, 1923, reprinted in 18 Am. J. Int’l L. 1 (Supp. 1924). 31 Id.; see also M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1, 2–4 (1991).

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of investigating was no longer politically useful, it could be reduced to a report that was easy to ignore and ultimately forgotten. If, however, the investigation outcome became politically useful, it could be used for eventual prosecutions. The two major provisions of the Treaty of Versailles, Articles 227 and 228, were not implemented. Regarding prosecution of the Kaiser under Article 227, the Kaiser sought refuge in the Netherlands, and through diplomatic channels the Allies discussed the possibility of an eventual request for the Kaiser’s surrender. The response from the Netherlands, whose sitting monarch was the Kaiser’s cousin, was not positive. As a result, the Allies did not formally request his extradition, and there was no formal judicial or administrative process in which the Kaiser’s extradition was denied.32 The Allies blamed the Netherlands, and some saw this as a way to avoid establishing a tribunal pursuant to Article 227. The Allies were not ready to create the precedent of prosecuting a Head of State for a new international crime. Indeed, this was evident in the choice of words used by the Allies in drafting Article 227, authored primarily by representatives of Great Britain: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defense . . . In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality . . . The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.33

The text does not refer to a known international crime, but characterizes the purported crime of aggression as a “political” crime. Thus, the Dutch Government

32 Through diplomatic channels, the Allies requested that the Netherlands “make the Kaiser available for trial,” but the Netherlands reportedly denied that request, allegedly speculating that it was made as a political formality and that the Allies would not exert effort to secure his surrender. See Taylor, supra note 23, at 16. The legal grounds for denying the request were that the “offense charged against the Kaiser was unknown to Dutch law, was not mentioned in any treaties to which Holland was a party, and appeared to be of a political rather than a criminal character.” Id. See also Quincy Wright, The Legality of the Kaiser, 13 Am. Pol. Sci. Rev. 121 (1919). The Netherlands discouraged formal extradition requests because extradition treaties applied only to cases in which a criminal act occurred. The Netherlands viewed the charge against the Kaiser as a “political offence” because a Head of State’s decision to go to war is within the prerogative of national sovereignty and, therefore, not a crime under Dutch Law. See James W. Garner, Punishment of Offenders Against the Laws and Customs of War, 14 Am. J. Int’l L. 70, 91 (1920); Willis, supra note 22, at 66. For a discussion of the political offense exception to extradition, see M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th rev. ed. 2007); Christine van den Wyngaert, The Political Offense Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order (1980). 33 Treaty of Versailles, supra note 17, at art. 227 (emphasis added).



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had a valid legal basis to reject the Allies’ attempt to secure the surrender of the Kaiser for trial if such a request was to be formally presented. It was not. Article 227, quite possibly, was intended to fail. It offered a concession to the European masses, who saw the Kaiser as an ogre of war, and to the French and Belgian Governments, which wanted to humiliate Germany for initiating the war. As for the prosecutions intended by Article 228, by 1921 the zest of the Allies to set up joint or even separate military tribunals had waned, and new developments in Europe required that Germany not be further humiliated. In order to avoid jeopardizing the stability of the already vulnerable Weimar Republic,34 the Allies asked Germany to prosecute a limited number of war criminals before the Reichsaericht (the Supreme Court of Germany) in Leipzig instead of establishing an Allied Tribunal pursuant to Article 228.35 2.4. The Leipzig Trials36 In response to the Allied request to undertake prosecutions, Germany, which had previously passed a national law to implement provisions of Articles 228 and 229, passed new legislation to assume jurisdiction under its national laws in order to prosecute accused offenders before its Supreme Court sitting at Leipzig. Under German law, the Procurator General of the Supreme Court had the right to decide which cases would be brought to trial. The Allies, therefore, had to submit their cases, including evidence, to the Procurator General. From the original list of 895 prepared by the 1919 Commission, the Allies submitted only forty-five names for prosecution.37 Despite the 1919 Commission’s extensive report and the Allies’ supplemental information conveyed to the German Procurator General, only twelve military officers were ultimately prosecuted before the Reichsgericht.38 34 According to the leader of the British Mission at the Leipzig Trials, the post-war German Government convinced the Supreme Council that an attempt to arrest many of those named on the Allies’ list of war criminals would bring down the government. Claud Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality 9 (1921). 35 The Allies, however, maintained that even though they allowed the Germans to conduct the trials before a German court, they reserved the right to set aside the German judgments and carry out the provisions of article 228 of the Treaty of Versailles. That, however, did not occur. Id. at 26. See also Willis, supra note 22, at 142. 36 See M. Cherif Bassiouni, World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002). 37 See Michael Wahid Hanna, An Historical Overview of National Prosecutions for International Crimes, in 3 International Criminal Law: International Enforcement 297 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL]. 38 Those convicted received sentences ranging from six months to four years, but not all were required to serve these lenient terms. Id. During these proceedings, the accused were cheered by crowds that attended the trials and gathered outside the courtrooms. In the eyes of the public, the accused were considered national heroes and became martyrs of foreign oppression. Thus, what was intended to be a deterrent to future violations of international humanitarian law, gave rise to nationalistic fervor and a sense of indignation which became a unifying force in Germany against

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There were no other national or Allied proceedings against any of those accused of war crimes by the 1919 Commission or against any of the cases rejected for prosecution by the German Procurator General. Although the armistice between Germany and the Allies was signed on November 11, 1919, the trials at Leipzig did not begin until May 23, 1921.39 By 1923, the Allies’ political will to pursue justice by prosecuting and punishing those who had violated international humanitarian law had all but dissolved. International public interest dissipated, and domestic political concerns in the Allied countries overshadowed any remaining concerns that some academics, intellectuals, and public-spirited citizens still had in Belgium, France, and Great Britain. By then, the United States was in the throes of isolationism, with its rejection of President Woodrow Wilson’s internationalist views; this was clearly evident in Congress’ refusal to have the United States become part of the League of Nations. The Leipzig trials exemplified the sacrifice of justice on the altars of international and domestic politics.40 The Treaty commitment to try and punish offenders if Germany failed to do so was never carried out. The political leaders of the major powers of that time were more concerned with ensuring the future peace of Europe than pursuing justice.41 Indeed, it was a common belief that World War I was “the war to end all wars,” and that the League of Nations would usher in a new world order that would prevent future wars. The Allies, however, missed the opportunity to establish an international system of justice that would have functioned independently of political considerations to ensure uncompromised justice. The weak processes of international criminal justice following World War I not only failed to deter the military leaders who initiated World War II, but enhanced their cynicism. During a 1939 speech, Hitler reportedly stated in connection with his plans to “cleanse” (his early euphemism for exterminate) Jews, Gypsies, and others from the Third Reich: “Who after all is today speaking about

the Allies. See id. at 36–37. The National-Socialist Party (the Nazi Party) seized power in 1932, only nine years after the Leipzig trials. The German Procurator General, however, did bring his own cases against German soldiers for crimes committed during the war. For example, three German soldiers were convicted of robbing a Belgian innkeeper and were sentenced to terms of imprisonment ranging from two to five years. Willis, supra note 22, at 130. The result showed that the German court was willing to impose harsher sentences on those accused by the German authorities than on those accused by the Allies. Id. 39 See Bassiouni, Crimes Against Humanity, supra note 23, at 657. 40 Id. 41 Taylor, supra note 23, at 15.



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the destruction of the Armenians?”42 Hitler’s words reflect a view still common today, that the rule of might overshadows the rule of law.43 2.5. The 1943 United Nations War Crimes Commission The atrocities of World War II compelled the need for international prosecutions after the Allied victory. In 1942, the Allied Powers signed an agreement at the Palace of St. James,44 establishing the United Nations War Crimes Commission (UNWCC).45 The Declaration of St. James was the first step leading to the establishment of the International Military Tribunal (IMT) at Nuremberg. Despite high expectations for the UNWCC, for all practical purposes this intergovernmental, treaty-created, investigative body was subordinated to political considerations and ultimately relegated to a role far inferior than was expected by the Allies. The UNWCC was comprised of representatives from seventeen nations, most of which were governments in exile possessing only limited powers.46 Given the uncertain future of these exiled governments, the UNWCC had little political influence and support.47 Under the aegis of the Allied Powers, the UNWCC was to investigate and obtain evidence of war crimes.48

42 Willis, supra note 22, at 173 (quoting Adolf Hitler, Speech to the Chief Commanders and Commanding Generals on the Obersalzburg (Aug. 22, 1939) in 7 British Documents on Foreign Policy, 1919–1939, Third Series, at 258 (E.L. Woodward et al. eds., (1949–55)); Winfried Baumgart, Ehr Ansprache Hitlers vor den Führen der Wehrmacht am 22 August 1939: Eine Ouellenkritische Untersuchung, Vierteljahrshefte fur Zeitgeschichte, Apr. 1968, 120. But see Thrkkaya Ataov, Hitler and the “Armenian Question” (Monograph, Ankara University, 1992). 43 Who now remembers Biafra, Bangladesh, Cambodia, Uganda, Burundi, Liberia, and other genocides and mass murder? See. e.g., Guy Richard et al., L’Histoire Inhumaine: Massacres et Génocides des origines à nos jours (1992); Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B.U. Int’l L.J. 1 (1985). More recently, one author put the toll of mass killings at over 160 million victims. See Rudolph J. Rummel, Death by Government (1994); see also, e.g., Kampuchea: Decade of the Genocide (Kimmo Kiljunen ed., 1984); Report of the Cambodian Genocide Project (1984); Leo Kuper, Genocide (1981); John Strenlaw, The International Politics of the Nigerian Civil War 1967­–1970 (1977). 44 The Inter-Allied Declaration, Jan. 13, 1942, reprinted in Punishment for War Crimes: The Inter­ Allied Declaration Signed at St. James’ Palace, London, on 13 January 1942, and Relative Documents (Inter-Allied Information Committee, London, undated); see also United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War 89–92 (1948) [hereinafter UNWCC]. 45 Even though this Commission’s name was preceded by “United Nations,” it was unrelated to the world body founded in San Francisco in 1945. 46 See Tusa & Tusa, supra note 1. 47 Taylor, supra note 23, at 26–27. 48 The UNWCC was limited to investigating war crimes only. Thus, even though some of its members desired to investigate the allegations of atrocities committed against the Jews, they could not because such acts constituted “crimes against humanity” and not war crimes. Tusa & Tusa, supra note 1, at 22.

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Despite this mandate, the Allied Powers did not provide the UNWCC with an investigatory staff, adequate support staff, or sufficient funds to conduct its work. In fact, within a few months of its creation, the first Chairman of the UNWCC, Sir Cecil Hurst, announced that the Commission would be unable to fulfill its mandate.49 The UNWCC relied on governments to submit reports, but by the end of 1942 it had only received seventy cases that contained incomplete or insubstantial information. Even after the chairman’s exhortations to Allied Governments, there were very few new government submissions.50 Only after the Allies liberated German-occupied territories did they realize the extent of the atrocities committed. Thereafter, British and U.S. forces began to develop a list of suspected war criminals in order to separate them from other liberated prisoners.51 At that point, the British Government began to press the UNWCC to complete its work.52 Despite the initial lack of cooperation from and among the various governments, the UNWCC was able to achieve remarkable results in amassing 8,178 “dossiers” on alleged war criminals and serving as a clearinghouse of information among governments.53 Although the UNWCC collected information pertaining to allegations of war crimes, it was not institutionally linked to the IMT or to the Subsequent Proceedings by the Allied occupation forces in Germany pursuant to Allied Control Council Law No. 10, where each ally had its own investigations and teams.54 Nor was the UNWCC linked to the IMTFE, the Allied Military Tribunals, or Commissions of the Far East. The information collected by the prosecutorial UNWCC was, however, relied upon by various governments in subsequent national prosecutions.55 Between 1942 and 1945, political support for the body waned. As the U.S. began to dominate the IMT proceedings and conduct its Subsequent Proceedings pursuant to CCL No. 1056 in the very same courthouse at Nuremberg, U.S. support for the UNWCC evaporated. The UNWCC’s moral influence over governments to compel cooperation in the pursuit of accused war criminals and to 49 UNWCC, supra note 44; Tusa & Tusa, supra note 1, at 22. 50 Tusa & Tusa, supra note 1, at 23. 51 Id. at 29. 52 Id. 53 The UNWCC examined the 8,178 “dossiers” submitted by governments, and if satisfied with the contents, recommended prosecution of the individual. The “dossiers” amounted to 24,453 accused, 9,520 suspects, and 2,556 material witnesses. UNWCC, supra note 44, at 508–09. 54 CCL 10 and proceedings under it are discussed below. 55 By 1948, European countries and the U.S. had brought a total of 969 cases in their respective courts, involving 3,470 accused, of whom 952 were sentenced to death, 1,905 were imprisoned and 613 were acquitted. UNWCC, supra note 44, at 518. 56 See Frank N. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (1989); Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10 (1949); John A. Appleman, Military Tribunals and International Crimes (1954).



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either prosecute or extradite such persons was substantially eroded. This was particularly evident with respect to those accused Italian war criminals that were never prosecuted.57 2.6. The International Military Tribunal at Nuremberg While the UNWCC was collecting evidence, the Four Major Allied Powers had to reach a decision with respect to the prosecution and punishment of war criminals, particularly the leaders of the Nazi regime, as called for by the Moscow Declaration signed in 1943 by Churchill, Roosevelt, and Stalin.58 Britain initially favored summary execution of “major” war criminals, such as Hitler or Himmler on the basis that “their ’guilt was so black’ that it was ’beyond the scope of any judicial process.’ ”59 In comparison, as early as the discussions at the Palace of St. James in 1942, Stalin advocated a special international tribunal for prosecuting Hitler, his close advisers, and senior military leaders.60 Similarly, the U.S. and France both preferred the establishment of an international tribunal to prosecute war criminals.61 The Americans and the French wanted the tribunal to record history, educate the world, and serve as a future deterrent. Great Britain was fearful that fair procedures would allow the accused to use the tribunal as a forum for propaganda and self-justification. It was ultimately because of U.S. insistence through President Truman and Supreme Court Justice Robert Jackson that the idea of an international criminal tribunal came into fruition.

57 See supra Chapter II. The U.S. and Britain prosecuted a small number of Italian war criminals, mostly those accused of committing crimes against their respective military personnel. Eighty-one defendants were tried in forty proceedings by the British in Italy. See R. John Pritchard & Jane L. Garwood-Cutler, The Allied War Crimes Trials of Suspected Italian War Criminals, 1945–1949: A Forgotten Legacy with Vital Lessons for the Present Day (forthcoming). Those accused by UNWCC of war crimes outside Italy, however, were, to the best of the author’s knowledge, never prosecuted. 58 The Moscow Conference, Oct. 19–30, 1945 (Declaration of German Atrocities, Nov. 1, 1943), 1943 For. Rel. (I) 749, reprinted in 38 Am. J. Int’l L. 3 (Supp.), 3 Bevans 816. One of the most influential steps toward the establishment of the Military Tribunal at Nuremberg was the convening of an ostensibly private group of statesmen, scholars and public officials under the name of the London International Assembly. That group developed many of the concepts and some of the norms that went into the Statute of the IMT. See The Punishment of War Criminals: Recommendations of the London International Assembly (Report of Commission I) (1944). 59 Taylor, supra note 23, at 29. 60 Id. at 26; see also Aron N. Trainin, Hitlerite Responsibility Under Criminal Law (1942) (Rothstein trans., 1945). In 1946, Professor Trainin recalled his contribution to the prosecutions of German War criminals in Aron N. Trainin, Le Tribunal Militaire International et le Proces de Nuremberg, in 17 Revue Internationale de Droit Pénal 263 (1946). The USSR was, however, dealing with alleged war criminals within their territory by summary execution. Taylor, supra note 23, at 52. 61 Taylor, supra note 23, at 32.

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Because the Four Major Allied Powers had different national criminal procedures, drafting the IMT Charter was particularly difficult.62 While British and American procedures were both adversarial in nature and based on the common law, France had a civil law system, and the Soviet Union had its own new brand of “socialist justice.”63 The representatives of the Allies reconciled their different legal systems in a mixed process.64 The London Agreement of August 8, 1945 established the IMT and had an annex containing the charter of the new tribunal.65 The legal amalgamation, according to Justice Jackson, worked to the advantage of the defendants in that they could, for example, take the stand and testify under oath in their own defense or simply present an unsworn statement to the court at the end of a trial without submitting to cross-examination.66 By

62 This difficulty was also faced by the judges of the Tribunal for the former Yugoslavia in elaborating Rules of Procedure and Evidence. The Rules were adopted by the Tribunal on February 11, 1994. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (ICTY), 2d Sess., Rules of Procedure and Evidence Adopted on 11 February 1994, U.N. Doc. IT/32 (1994). Changes to the Rules of Procedure and Evidence continued on an ad hoc basis until September 1996. So far, the Tribunal has amended its rules eleven times. These many changes also evidenced the fact that international prosecutions require sui generis rules and that domestic legal experiences may not be relevant to such processes. Some of these considerations were raised at the Second Session of the Preparatory Committee on the Establishment of an International Criminal Court in connection with discussions and proposals on rules of procedure and evidence. See 1996 ICC Preparatory Committee Report, at paras. 212–93; see also The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) [hereinafter Bassiouni, Statute of the ICC]. For a discussion of the Tribunal’s rules, see M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996 [hereinafter Bassiouni, Yugoslavia Tribunal]); Virginia Morris & Michael Scharf, An Insiders Guide to the International Criminal Tribunal for the Former Yugoslavia (1995) [hereinafter Morris & Scharf, An Insider’s Guide]. 63 See, e.g., The Criminal Justice System of the USSR (M. Cherif Bassiouni & Valeri M. Savitsky eds., 1979); Soviet Criminal Law and Procedure (Harold Berman trans., 2d ed. 1972); Harold Berman, Justice in the USSR (1963). 64 See John F. Murphy, Norms of Criminal Procedure at the International Military Tribunal, in The Nuremberg Trial and International Law 61 (George Ginsburgs & Vladimir N. Kudriavtsev eds., 1990). The same mixed approach favoring the Common Law’s adversary­accusatorial model is evident in the Rules of Procedure and Evidence of the ICTY, see supra note 62, and the proposals presented to the 1996 Preparatory Committee on the Establishment of an International Criminal Court, supra note 3. 65 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, E.A.S. No. 472, reprinted in 39 Am. J. Int’l L. 257 (1945) (Supp.) [hereinafter London Agreement]; Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]. 66 Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials x–xi (U.S. Gov’t Prtg. Off. 1949) [hereinafter Jackson Report]. It should be noted, however, that from a procedural and evidentiary legal perspective, the IMT was not without fault. At the trial, defendants were frequently denied the right to confrontation and cross-examination of witnesses that were available to the prosecution. Instead, they had to use affidavits. There was no appeal, a right now guaranteed in the 1966 International Covenant on



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contemporary standards, however, the procedural rights afforded the defendants were quite limited. The drafters were also faced with the arduous task of defining the crimes for which the defendants would be prosecuted. The Charter ultimately provided in Article 6 for the prosecution of the following substantive crimes: (a) crimes against peace; (b) war crimes; and (c) crimes against humanity.67 From the perspective of the principles of legality, the easiest to define of the three crimes was “war crimes.” War crimes in Article 6(b) included customary law as identified, inter alia, by reference to the 1907 Hague Conventions,68 and conventional law as evidenced in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War.69 A more difficult legal issue was whether “crimes against humanity” under Article 6(c) existed under a combination of sources of international law, namely conventions, custom, and general principles of law.70 Because “crimes against humanity” had not been a part of treaty law, the Allies needed to avoid a rigid interpretation of the principles of legality in order to avoid enacting ex post facto legislation that could be successfully challenged in court. Thus, the rationale for “crimes against humanity” was predicated on a theory of jurisdictional extension of war crimes. The reasoning was that because war crimes applied to certain protected persons, namely civilians, in time of war between belligerent states, “crimes against humanity” would merely extend the same proscriptions to the same category of protected persons within a particular state, provided they are linked to the initiation and conduct of aggressive war or to war crimes.71 As a result of this interpretation, crimes committed before 1939 were excluded from prosecution. It is evident from the adoption of Article 6(c) that the U.S. radically changed its position from that taken before the 1919 Commission, when they had denied the existence of “crimes against the laws of humanity” in positive international

Civil and Political Rights. Even Justice Jackson noted these mistakes in his report to the President, wherein he admits to mistakes in the “proceedings of this novelty.” Id. at 440. Since World War II, however, the impact of international and regional human rights norms and standards have significantly affected criminal procedures in most countries of the world. See, e.g. Bassiouni, Human Rights Compendium; M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235 (1993). 67 IMT Charter, supra note 65, at art. 6. 68 1907 Hague Convention, supra note 25. 69 The 1929 Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 118 L.N.T.S. 343, 47 Stat. 2021, 2 Bevans 932. 70 See Bassiouni, Crimes Against Humanity, supra note 23, at 117–127; Schwelb, supra note 24. 71 See Bassiouni, Crimes Against Humanity, supra note 23, at 117–127; M. Cherif Bassiouni, International Law and the Holocaust, 9 Cal. W. Int’l L. J. 201 (1979); see also Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation, 32 Colum. J. Transnat’l L. 289 (1994); Schwelb, supra note 24.

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law.72 Yet no legal development took place between 1919 and 1945 that could have explained such vacillation. In the case of Nazi atrocities, the facts drove the law, and politics also became a consideration. Prosecution for “crimes against peace” was without legal precedent, save for the failed attempt after World War I to prosecute the Kaiser under Article 227 of the Treaty of Versailles.73 Article 6(a) of the Charter provided for the prosecution of those who directed or participated in a war of aggression against other nations in violation of treaties and the principles of international law. This was the best legal basis the Allies could come up with.74 The Soviet Union wanted to include the phrase “by the European Axis”75 in order to make the initiation of a war of aggression a crime limited to the leaders of the European Axis and avoid the application of that same norm to any of its own conduct.76 Justice Jackson, then representative of the U.S. at the London Conference, prevailed in his view that the limiting phrase should not be included. Jackson stated that the American representatives would not draft a law that would be akin to a “bill of attainder,” which is prohibited by the United States Constitution,77 and that the prohibition against aggression is universal and could also be applied against the U.S.78 The U.S. had thus also changed its position from that of post-World War I by deciding to make wars of aggression a crime under international law,79 a

72 Annex II to 1919 Commission Report, supra note 27, at 144. Curiously, however, to date, there is no international convention on “crimes against humanity.” See M. Cherif Bassiouni, “Crimes Against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l. L. 457 (1994). 73 See supra notes 32–33 and accompanying text. 74 The Allies particularly relied on the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact or Pact of Paris) of August 27, 1928 as a legal justification for “crimes against peace.” 94 L.N.T.S. 57, 46 Stat. 2343, reprinted in 22 Am. J. Int’l L. 171 (Supp. 1928). 75 Annex II to 1919 Commission Report, supra note 27, at 65. 76 See Jackson Report, supra note 66, at vii–viii. It is likely that the Soviet Union desired to avoid codifying a broad definition of crimes against peace that could be used again in the future. Without such a definition, the Soviet Union would be free to act as it wished without repercussions. The lack of definition would also allow the USSR to avoid being held criminally accountable for its invasion and seizure of a part of Poland in the fall of 1940, pursuant to the secret Pact of Non-Aggression between Germany and the USSR, as well as its subsequent invasion of Finland. 77 U.S. Const., art. I, § 10, cl. 3; art. I, § 10, cl. 1. 78 Jackson Report, supra note 66, at vii–viii. 79 See, e.g., M. Cherif Bassiouni & Benjamin Ferencz, The Crime Against Peace and Aggression: From its Origins to the ICC, in 1 Bassiouni, ICL, supra note 23, at 207; Benjamin Ferencz, Defining International Aggression, the search for World Peace: A Documentary History and Analysis (1975). The U.N. Charter prohibits aggression, and the Security Council has the power under Chapter VII to take measures, including sanctions, to preserve and maintain peace. U.N. Charter, arts. 2(3), 2(4), 39–51. See generally The United Nations Charter: A Commentary (Bruno Simma ed., 1994). It is noteworthy that there has never been an international convention explicitly making aggression an international crime. Other than the General Assembly’s 1974 Resolution, G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, at 143, U.N. Doc. A/9631 (1974), defining aggression and adopted by consensus, there is no definition of that crime. Consequently, its definition posed problems to the 1996 Preparatory Committee on the Establishment of an Inter-



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position that subsequently changed once again during the Cold War era when it was no longer politically convenient.80 The IMT Charter developed the law of armed conflict in a progressive manner. Article 8 of the IMT Charter removed the defense of “obedience to superior orders,” making it only a mitigating factor that would not exonerate a defendant from being held responsible for his actions. This was contrary to what most military laws provided for at the start of World War II.81 The judgments of the IMT did not entirely follow the prescription of Article 8, however, and allowed the defense when the subordinate had no alternative moral choice in refusing to carry out the order.82 Once the procedural and legal issues were resolved, the IMT Charter was appended to the London Agreement of August 8, 1945, which established the IMT.83 The London Agreement was signed by the Four Major Allies and later acceded to by nineteen states.84 The Four Major Allies assembled individual prosecution teams, which also had their own investigators. The American team provided most of the documents that were used as evidence as well as practical and logistical support for the other teams.85 At the time, over one million Allied troops occupied Germany, with complete access to prisoners of war, civilian witnesses, and government documents. The

national Criminal Court. See 1996 ICC Preparatory Committee Report. See also Bassiouni, Statute of the ICC, supra note 62. The definition of aggression was not reached at Rome, and remanded to the Preparatory Commission which worked on it from 1998–2002, but without completing it. See U.N. Preparatory Committee Reports on Aggression, U.N. Doc. PCNICC/2002/2/Add.2; U.N. Doc. PCNICC/2002/WGCA/L.1; U.N. Doc. PCNICC/2002/WGCA/Add.1. 80 See Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 ( June 27) (explaining the position of the United States in connection with the case). For comments on that position, see The International Court of Justice at a Crossroads (Lori Fisler Damrosch ed., 1987). In support of the U.S.’s particular position, see Jeanne Kirkpatrick & Alan Gerson, Right v. Might: International Law and the Use of Force (1989). For different perspectives, see Law and Force in the New International Order (Lori Fisler Damrosch & David J. Scheffer eds., 1991). 81 Lhassa Oppenheim, International Law 264–65 (1st ed. 1906). The British Manual of Military Law, No. 443 (1914) relied upon Oppenheim in its formulation. Oppenheim’s recognition of the defense remained in the first five editions up to 1940, when it changed to become the basis for the IMT’s Article 8, which denied the defense. U.S. Dep’t of the Army, Field Manual 27–10 (1940) reflected the same position in § 345(1). On November 15, 1944, a revision of § 345(1) limited, but retained, a qualified defense. But see U.S. Dep’t of the Army, Field Manual 27–10: The Law of Land Warfare (1956). For a historical evolution of the question, see Leslie C. Green, Superior Orders and Command Responsibility, 1989 Can. Y.B. Int’l L. 167; Major William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973). 82 See generally Nico Keijzer, Military Obedience (1978); Leslie C. Green, Superior Orders in National and International Law (1976); Yoram Dinstein, The Defence of ’Obedience to superior Orders in International Law (1965); Ekkehart Müller-Rappard, L’Ordre Supérieur Militaire et la Responsibilité Pénale du Subordonné (1965). 83 See London Agreement, supra note 65; IMT Charter, supra note 65. 84 See London Agreement, supra note 65. 85 There was no reliance on the work of the UNWCC, supra note 44.

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collection of evidence was made easy by what Telford Taylor has called a “Teutonic penchant for meticulous record keeping.”86 The proceedings were not without flaws, however. The U.S.S.R. used the tribunal to rewrite history: they covered up their infamous nonaggression pact with the Nazi regime, which paved the way for the invasion of Poland, and then sat in judgment over Germans accused of crimes for which the Soviet Union was responsible, like the murder of approximately 15,000 Polish prisoners, including between 8,300 and 8,400 Polish officers.87 Moreover, Britain’s fears that the IMT proceedings would provide the accused with a platform for self-justification were validated when Goering outdid Robert Jackson during his cross-examination and his lawyer harangued the Tribunal for two days.88 Nevertheless, the evidence of the horrible acts committed overshadowed anything that the defendants or their lawyers had to say. Ultimately, the higher values and goals sought to be achieved by Robert Jackson and supported by President Truman prevailed. The IMT indicted twenty-four persons, of whom twenty-two were prosecuted. Three defendants were acquitted, twelve were sentenced to death by hanging, three were sentenced to life imprisonment, and the others were sentenced to terms of imprisonment ranging from ten to twenty years.89 Hermann Goering committed suicide at the end of the trial. All of the defendants were German and no other defendants from the European Axis Powers were indicted or tried before the IMT. No Allied Military personnel were prosecuted for any war crimes against Germans. These proceedings, even though just with respect to the accused, were one-sided.90 86 Taylor, supra note 23, at 57. 87 J. K. Zawodny, Death in the Forest: The Story of the Katyn Forest Massacre 5 (1962). 88 See, e.g., Taylor, supra note 23, at 319. 89 See Bassiouni, Crimes Against Humanity, supra note 23, at 154. 90 For a critical perspective of the IMT, see August von Knierem, The Nuremberg Trials (1959); Hans Ehard, The Nuremberg Trial against the Major War Criminals and International Law, 43 Am. J. Int’l L. 223 (1949); A. Frederick Mignone, After Nuremberg, Tokyo, 25 Tex. L. Rev. 475 (1947); Gordon Ireland, Ex Post Facto from Rome to Tokyo, 21 Temp. L.Q. 27 (1947). Many of the concerns raised by the authors cited above are also present in the following: Georg Schwarzenberger, The Judgment of Nuremberg, 21 Tul. L. Rev. 329 (1947); Hans Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law, 1 Int’l L.Q. 153 (1947); Gordon W. Forbes, Some Legal Aspects of the Nuremberg Trial, 24 Can. B. Rev. 584 (1946); A.L. Goodhart, The Legality of the Nuremberg Trials, 58 Jurid. Rev. 1 (1946). For the views of four defense counsels at the IMT, see Herbert Kraus, The Nuremberg Trials of the Major War Criminals: Reflections after Seventeen Years, 13 DePaul L. Rev. 233 (1964) (Chief Counsel for Schacht); Carl Haensel, The Nuremberg Trials Revisited, 13 DePaul L. Rev. 248 (1964) (Chief Counsel for the S.S. and S.D.); Otto Kranzbuhler, Nuremberg Eighteen Years Afterwards, 14 DePaul L. Rev. 333 (1965) (Chief Counsel for Donitz); Otto Pannenbecker, The Nuremberg War Crimes Trial, 14 DePaul L. Rev. 348 (1965) (Chief Counsel for Frick). For two other authors who address the question of Allied violations, see James Basque, Other Losses: The Shocking Truth Behind the Mass Deaths of Disarmed German Soldiers and Civilians Under General Eisenhower’s Command (1991); Alfred M. de Zayas, The Wehrmacht War Crimes Bureau: 1939–1945 (1989). In the latter book, the author reveals that the German Army established a bureau to record war crimes committed by the Allies against German



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2.7. Control Council Law No. 10 Subsequent to the London Charter, the Allies, by virtue of Germany’s unconditional surrender, exercised sovereignty over Germany and enacted Allied Control Council Law No. 10 (CCL 10) which permitted the Allies to prosecute German nationals in their respective zones of occupation. Political will, sufficient resources, control of the territory, and the nature of the German military and civil service systems combined to make the prosecutions at Nuremberg effective. The same considerations made the Subsequent Proceedings under CCL 10 by the Americans, British, and French equally effective. The Russians, however, proceeded in a summary manner with little or no regard for legal considerations.91 Prosecutions in the Allied zones of occupation could be said to have been in the nature of domestic, as opposed to international, prosecutions because the Allies were presumably exercising sovereign power in Germany as a result of that country’s unconditional surrender.92 CCL 10 was, nevertheless, patterned after the IMT’s charter, and Article II of the IMTFE Statute provided for the same three crimes as Article 6 of the IMT Statute. The only difference in Article II(c), concerning “crimes against humanity,” was the removal of the connection to the initiation of war or to war crimes.93 2.8. The Instrument of Surrender of Italy While CCL 10 was promulgated by the Four Major Allies acting as the sovereign authority in Germany, it did not apply to other Axis countries which were also defeated and occupied by the Allies. Thus, for example, Italy was occupied by the U.S. and Great Britain subject to a Surrender Treaty, which provided for the prosecution and extradition of war criminals.94 The goals of the treaty, however, were supplanted by the fear of communism that was pervasive in Europe. The Major Powers believed that reformed fascists were the best opponents of communism and therefore did not actively pursue their prosecution or extradition for fear of the internal political repercussions. The UNWCC listed 750 Italian war

military personnel. These apparently uncontroverted violations were never pursued by the Allies. For a contemporary critical evaluation, see David Irving, Nuremberg: The Last Battle (1996). 91 With respect to prosecutions in certain eastern and central European countries as well as extra-judicial execution, see István Deák, Postworld War II Political Justice in a Historical Perspective, 149 Mil L. Rev. 137 (1995). 92 The nature of the separate proceedings was different. The U.S. proceedings were before civilian judges, while the British, French, and Russian trials were before military courts. See Taylor supra note 56; Buscher, supra note 56. 93 CCL 10, at art. II(c). 94 The Instrument of Surrender of Italy, art. 29, Sept. 29, 1943, 61 Stat. 2742, 2746, 3 Bevans 775, 781.

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criminals whose different charges included the following:95 illegal use of poisonous gas in violation of the 1925 Geneva Protocol96 against Ethiopian civilians and combatants; killing of innocent civilians and POWs; torture and mistreatment of prisoners; bombing ambulances; destruction of cultural property; and other violations of the laws of armed conflict during the Italo-Abyssinian war.97 In addition, the UNWCC had extensive evidence of crimes committed by the Italian military personnel in Greece, Libya, and Yugoslavia during World War II. The governments of Ethiopia, Greece, Libya, and Yugoslavia requested extradition of the war criminals pursuant to Article 29 of the Instrument of Surrender of Italy, but the occupying forces of Italy, the U.S., and the U.K. did not act on their requests.98 Subsequently, in 1946, the Italian government denied requests for extradition.99 In short, political views once again prevailed over justice considerations. 2.9. The Far Eastern Commission and the International Military Tribunal for the Far East at Tokyo The Far Eastern Commission (FEC)100 was agreed to in Moscow in December 1945 as a measured response to the request of the U.S.S.R. The FEC gave the U.S.S.R. some element of control over the future of Japan as a reward for its late entry into the war, but left control of the FEC to the U.S. It consisted of eleven states, with the Four Major Allies having veto power. The Commission, whose seat was in Washington, transmitted its directives to an advisory group known as the Allied Council for Japan, seated in Tokyo. The U.S., the U.K., China, and the U.S.S.R. were the only members of the Allied Council for Japan, and they were to oversee the occupational policies and practices for Japan. The FEC was not an investigative body but a political one, which was to establish a policy of occupation for Japan and to coordinate the Allied policies in the Far East. The Commission played an important role in providing the joint Allied political umbrella for prosecution and other policies related to suspected war criminals, their trials, the carrying out of their sentences, and their release. Ultimately, however, “the Far Eastern Commission became little more than a 95 See Bassiouni, Crimes Against Humanity, supra note 23, at 319. Various governments submitted to the UNWCC charges against Italians. The total number of charged and listed Italian war criminals equaled 1,204. UNWCC, supra note 44, at 511. 96 The use of poisonous gas was in violation of the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65, T.I.A.S. No. 8061. 97 UNWCC, supra note 44, at 68, 189–90. 98 See supra notes 56–57. 99 See Bassiouni, Crimes Against Humanity, supra note 23, at 319. 100 See generally, Activities of the Far Eastern Commission. Report by the Secretary-General. February 26–July 10, 1947, 16 Dep’t St. Bull 804–06 (1947) [hereinafter FEC Report].



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debating society, and when a peace treaty was finally signed with Japan, it died a quiet death.”101 Control over occupational matters rested with General Douglas MacArthur as the Supreme Commander for the Allied Powers (SCAP). MacArthur’s views and his political perspectives on the region guided virtually every aspect of justice in the Far East. General MacArthur opposed the Commission’s establishment because it allowed the U.S.S.R. a role and a veto. As he stated, “The very nature of its composition and procedures eventually made the Far Eastern Commission ineffective.”102 On January 19, 1946, General MacArthur, in his capacity as the SCAP for the Pacific Theater, and on behalf of the FEC, promulgated an order establishing the IMTFE.103 Unlike the IMT, the IMTFE was not a treaty-based creation. Why the IMT and not the IMTFE required a treaty for its creation has never been explained, but several political considerations seem relevant. First, the Soviet Union had entered the war against Japan a few weeks before the latter was defeated, and the U.S. was concerned about the ambitions of the Soviet Union in the Far East. Furthermore, the U.S. did not want the U.S.S.R. to have any influence over these proceedings.104 The U.S. was also concerned about Japan’s 101 Bassiouni, From Versailles to Rwanda, supra note 8, at 31. 102 Douglas MacArthur, Reminiscences 292 (l964). 103 See IMTFE Charter, supra note 2. On the same day General MacArthur issued his proclamation, the Charter for the IMTFE was adopted. Pursuant to a policy decision by the FEC, the Charter was later amended by General’s Order No. 20, issued by MacArthur. See Charter for the International Military Tribunal for the Far East, approved Apr. 26, 1946, T.I.A.S. No. 1589, at 11, 4 Bevans 27 [hereinafter IMTFE Amended Charter]. The IMTFE consisted of eleven members. Nine were representatives from countries which had signed Japan’s surrender agreement: Australia, Canada, China, France, the Netherlands, New Zealand, the Soviet Union, the United Kingdom, and the United States. See Instrument of Surrender by Japan, Sept. 2, 1945, 59 Stat. 1733, 1735, 3 Bevans 1251, 1252. India and the Philippines were subsequently added as members due to their status as members of the FEC. See IMTFE Amended Charter, supra. The arraignment of the 28 defendants on 55 counts was on May 3, 1946, and the judgment was rendered on November 11, 1948, two years after the IMT’s. The charges were for “crimes against peace” and “war crimes,” not for “crimes against humanity” and no organization was charged. At the IMT, by contrast, the SS and SA were charged with, and found to be, criminal organizations. See Appleman, supra note 56, at 238. For a complete historical record of the IMTFE, see generally The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East in Twenty-two Volumes (R. John Pritchard & Sonia Magbanua Zaide eds., 1981); The Tokyo War Crimes Trial: The Comprehensive Index and Guide to the Proceedings of the International Military Tribunal for the Far East in Five Volumes (R. John Pritchard & Sonia Magbanua Zaide eds., 1981); Yuk Tanaka, Hidden Horrors: Japanese War Crimes in World War II (1996). 104 The political and military tensions between the United States and the Soviet Union during the IMTFE proceedings affected the proceedings in many ways. For instance, all information related to the existence of a bacteriological weapons research lab located in Manchuria during World War II was purposely kept from the IMTFE. Professor Bernard Röling believed that this information was withheld by American military authorities who wanted to reap the benefits of the research and keep the information from the Soviets. Professor Howard Levie has a differing view, however, believing that the information was withheld by both the Americans and the

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post-World War II course of conduct. Thus, everything that was done by the FEC and the IMTFE was guided by MacArthur’s wishes, as were the United States Military Commissions to try Japanese military personnel in the Philippines and other areas of the Far East Military Theater of Operations that he subsequently established pursuant to his authority as the SCAP in that Pacific Japan Theater. Although MacArthur tried to preserve the appearance of detachment from the various legal proceedings he had set in motion, his heavy hand was evident throughout. On April 3, 1946, the FEC issued a policy decision on the “Apprehension, Trial and Punishment of War Criminals in the Far East.”105 Article 6(a) of the FEC’s decision empowered the SCAP and General MacArthur to establish an agency, which acting under his command would investigate reports of war crimes, collect and analyze evidence, and arrange for the apprehension of suspects. Article 6(a) also gave SCAP the power to decide what individuals or organizations would be prosecuted and before which court they would appear.106 Participants in the FEC, and later in the IMTFE, were chosen on representational basis. Each individual member acted as a representative of his country’s government, and not in an individual capacity.107 This led to a politicization of the FEC and the IMTFE and affected the internal workings of these bodies as well as the quality of justice they administered. The proceedings themselves were fraught with procedural irregularities and marred by abuses of judicial discretion.108 The defendants were chosen on the basis of political criteria, and

Soviets because both countries had access to the information, and wanted to prevent the other from obtaining research results. See Howard Levie, Terrorism in War: The Law of War Crimes 141 et seq. (1992). Professor Levie highlights Soviet criticisms of the IMTFE, including accusations that the IMTFE displayed anti-Soviet tendencies and was influenced by the overwhelming American presence in its administration. Id. at 145. 105 See FEC Report, supra note 100. 106 Id. at art. 6(a). Accused war criminals were divided into Class A, B, and C. The first IMTFE proceedings were against 28 senior Japanese officials considered Class A suspected war criminals, though clearly some of them did not deserve being placed in that category, according to most experts on the subject. For an early appraisal, see Solis Horwitz, The Tokyo Trial, 465 Int’l Reconciliation 473 (1950). For a more recent appraisal, see Levie, supra note 104, at 141. 107 While the choice of judges at the IMT was made by the respective Four Major Powers, the U.S., British, and French judges and their alternates were highly qualified and known for their personal integrity and independence. The judges from the USSR, who were military officers were believed to be less knowledgeable than their western counterparts and subject to their government’s directives, though their performance on the bench paralleled that of their western counterparts. This was not the case at the IMTFE, however. With the exception of Röling (Netherlands), Pol (India), and Bernard (France), many of the judges appeared politically motivated, especially the president, and General MacArthur’s influence seemed rampant. See Appleman, supra note 56, at 239–44 (referring to page numbers in the transcript evidencing prejudice and unfairness, particularly by Presiding Judge Sir William Webb of Australia). Levie, supra note 104, is equally critical. 108 See Appleman, supra note 56, at 239–58.



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their trials were generally unfair.109 Others, such as Allied military personnel, were conspicuously absent from the list of defendants. None of the Allies were prosecuted for war crimes. In addition, the application of the law with respect to some of the defendants was at least dubious, if not erroneous.110 The execution of sentences was also inconsistent, controlled by the political whims of General MacArthur, who had the power to grant clemency, reduce sentences, and release convicted war criminals on parole.111 Ultimately, not one of the twenty-five convicted persons who were sentenced to prison remained incarcerated for his full term; every one was released by the end of the 1950s.112 This was also true of all those who were convicted as war criminals by the Allied military tribunals in the Far East.113 In 1949, the FEC issued a formal advisory to all nineteen Allied powers in the Far East that Japanese war crimes trials should be held no later than September 30, 1949.114 Subsequently, the Treaty of Peace with Japan, signed in San Francisco on September 8, 1951 by forty-eight states, provided in Article II that all convicted war criminals should be transferred to Japan to serve the remainder of their sentences under SCAP’s control.115 This was done to effectuate early releases and therefore, between 1951 and 1957, all convicted war criminals in the Far East were released on parole or had their sentences commuted.116 Previously, however, on November 3, 1946, Emperor Hirohito, on the occasion of the promulgation of Japan’s new American-inspired Constitution, signed an Imperial Restrict (edict) pardoning all members of the Japanese armed forces who may have committed offenses during the course of the war.117 The edict was tacitly approved by General MacArthur, but it was not publicized to avoid opposition from public opinion in Allied countries. Subsequently, Japan passed Law No. 103 of 1952, establishing a Commission to oversee the repatriation and release of Japanese convicted war criminals.118 This Japanese Commission acted in reliance on Article II of the Treaty of Peace, which provided for the repatriation to Japan of convicted war criminals.119 109 Id. 110 Bernard V.A. Röling, The Nuremberg and the Tokyo Trials in Retrospect, in 1 Bassiouni & Nanda Treatise, at 600–01, 605–07. 111 See Levie, supra note 104. 112 See John Mendelsohn, War Crimes Trials and Clemency in Germany and Japan, in Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 226 (Robert Wolfe ed., 1984). 113 Id. 114 R. John Pritchard, The Gift of Clemency following British War Crimes Trials in the Far East. 1946–1947, 7 Crim. L.F. 15, 18 (1996). 115 Id. at 37. 116 Id. at 37–49. 117 Id. at 24. 118 Id. at 38. 119 Id. at 37.

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Unlike Germany, where those accused and convicted of war crimes became, for the most, pariahs in their society, Japan did not view such persons as criminals but as victims.120 For the Japanese, the trials were victors’ vengeance couched in terms of victors’ justice.121 2.10. Politics of Defendant Selection in the Far East The influence of politics on the selection of defendants was evident in the FEC policy decision on February 3, 1950 not to prosecute Emperor Hirohito of Japan as a war criminal.122 The decision was based on a need to preserve the image of the Emperor who had agreed to the unconditional surrender of Japan as a means of ensuring better political cooperation by the post-World War II Japanese ruling elite and to obtain support for the administration of the occupied Japanese territories.123 Politics also played an important role subsequent to the IMTFE prosecutions when the U.S. conducted trials in the Philippines,124 and Australia, China, France, the Netherlands, the Philippines, the U.K., the U.S., and the U.S.S.R. all conducted

120 Indeed, Class A war criminals convicted by the IMTFE became members of The Cabinet, and one became Prime Minister: Shigemitsu Mamoru, a career diplomat, who was Foreign Minister in Tojo Midelki’s Wartime Cabinet and who signed on behalf of Japan the Instrument of Surrender on September 2, 1945 on board the USS Missouri, was sentenced by the IMTFE to seven years imprisonment. He was released on parole 21 November 1950, and in November 1951 he was given clemency. Shigemitsu became Foreign Minister in December 1954. During his two years as Minister, he was instrumental in obtaining the Allies’ clemency and ultimately, in 1957, the release of all Japanese held in captivity. On 7 April 1957, the Japanese Government announced that with the concurrence of a majority of the Allied Powers represented on the IMTFE, all major Japanese war criminals were granted clemency and unconditionally released forthwith. Kishi Nobusake, another Class A criminal suspect, was tried and convicted in further proceedings after the first Tokyo Trial, but later became Prime Minister in January 1956 and served until July 1960. He also held the portfolio of the Ministry of Foreign Affairs for some time in 1956. Letter from Dr. R. John Pritchard to the author ( Jan. 30, 1996) (on file with the author). 121 See generally A.C. Brockman, The Other Nuremberg, The Untold story of the Tokyo War Crimes Trial (1987); The Tokyo War Crimes Trial (C. Hosoya et al. eds., 1986); Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operation in the East 1945–1951 (1979); Baburo Bhiroyama, War Criminal: The Life and Death of Hirota Roki (1977); Richard H. Minear, Victor’s Vengence: The Tokyo War Crimes Trial (1971). 122 22 Dep’t St. Bull. 244 (1950). MacArthur reportedly instigated the decision because he felt that prosecuting the Emperor would make pacification of Japan a difficult task, costing the U.S. many casualties at the hands of Japanese guerrillas. 123 William Manchester, American Caesar: Douglas MacArthur 1880–1964 484–91 (1978). 124 For the two major cases, see In re Yamashita, 327 U.S. 1 (1946); Homma v. United States, 327 U.S. 759 (l946). See also Richard Lael, The Yamashita Precedent: War Crimes and Command Responsibility (1982); A. Frank Reel, The Case of General Yamashita (l949). A description of MacArthur’s role in this case and of the unfairness of these proceedings is described in lay terms by Manchester, supra note 123, at 484–85. But see MacArthur, supra note 102, at 318–19.



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trials in the Pacific Theater.125 Unlike proceedings in Germany under CCL 10, the Allied Military Prosecutions in the Far East were only for war crimes; they did not include “crimes against humanity.” The prosecution, conviction, and execution of General Tomoyuki Yamashita in the Philippines126 exemplifies how political considerations resulted in the release of convicted war criminals and in condemnation of those whose role in the atrocities was negligible or nonexistent. General Yamashita was the last Japanese Commander in the Philippines before the Allied Forces landed.127 MacArthur, who had escaped from the Philippines before it fell to Japanese forces, had vowed to return and punish the Japanese for their brutal occupational practices and for war crimes. MacArthur ordered the trial of Yamashita even though Yamashita had not ordered or even been aware of any war crimes; Yamashita had only been in command in the Philippines for less than a month before it was re-taken by the Allied forces. In December 1945, General MacArthur set up a special Military Commission to prosecute Japanese war criminals in the Philippines.128 General MacArthur influenced the military judges who invoked an inappropriate legal standard that has not been applied since earlier cases of command responsibility: Yamashita was held responsible for acts of his subordinates

125 For example, from 1946 to 1948, the British Army held 305 war crimes trials in the Pacific Theater. A total of 889 suspected war criminals were tried in 931 prosecutions, of whom 553 were convicted. See Pritchard, supra note 114. Country

Trials

Accused

Convictions

Australia 296 924 844 China 605 893 504 France 39 230 198 Netherlands 448 1,038 969 Philippines 72 169 133 U.K. 314 933 777 (Including proceedings that Canada would have undertaken) USA 474 1,409 1,229 R. John Pritchard, The Quality of Mercy: Appellant Procedures, the Confirmation and Reduction of Sentences and the Exercise of the Royal Prerogative of Clemency towards Convicted War Criminals, 8 British War Crimes Trials in the Far East, 1946–48 (R. John Pritchard ed., 21 vols., forthcoming) (manuscript at 8, on file with author). 126 See supra note 124. 127 Reel, supra note 124. Reel was a JAG Captain who was one of General Yamashita’s defense counsels at these proceedings. For a critical view, see Bassiouni, Crimes Against Humanity, supra note 23, at 162–63. For other military trials, see Lawrence Taylor, A Trial of Generals (1981). 128 The Military Commission was established by General MacArthur’s Special Order 110, Oct. 1, 1945, para. 24. The record of the trial is found in United States of America v. Tomoyuki Yamashita, Records of the Military Commission Established by General Douglas MacArthur, reprinted in Lael, supra note 124.

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which he had not ordered and of which he was unaware.129 The U.S. Supreme Court regrettably denied Yamashita’s Petition for a writ of habeas corpus, but two Justices, Murphy and Rutledge, wrote compelling dissents.130 2.11. Comparison of the Legal Bases for Setting up the IMT, IMTFE, and CCL 10 and Far East Allied Military Prosecutions The use of different legal mechanisms for the establishment of these ad hoc tribunals produced divergent results as to substance and procedure. The IMT and IMTFE Charters both provided for the prosecution and punishment of those accused of committing “crimes against peace,” “war crimes,” and “crimes against humanity.”131 The respective instruments are substantially the same, with a few exceptions. One such exception is that Article 5(c) of the IMTFE Charter provided that persecution on political and racial grounds constituted “crimes against humanity,” whereas Article 6(c) of the IMT Charter included religious grounds as well. Such an inclusion was necessary in the IMT charter because of the Holocaust.132 Also, with respect to “crimes against humanity,” the IMT Charter provided that “inhumane acts committed against any civilian population” were subject to prosecution. The IMTFE Charter eliminated the phrase “against any civilian population” from Article 5(c), thereby expanding the class of persons beyond civilians only. The definition was dubiously broadened “to make punishment possible for large-scale killing of military personnel in an unlawful war.”133 CCL 10, which governed the Subsequent Proceedings of the Allies in their respective zones of occupation in Germany, also provided for the prosecution and punishment of “crimes against peace,” “war crimes,” and “crimes against humanity.”134 CCL 10 proceedings were not, however, conducted pursuant to a treaty or by promulgation of a military order by the commanding officer of occupying forces, but rather were mandated pursuant to a joint decision taken by the four Allies who occupied Germany after that country’s unconditional surrender. The legal authority advanced by the Allies was based on the fact that they carried out the functions of government in Germany. Such reasoning meant that the CCL 10 proceedings were part of the domestic law of Germany. But when each of 129 See Parks, supra note 81, at 1; Telford Taylor, Nuremberg and Vietnam: An American Tragedy (1968). 130 In re Yamashita, 327 U.S. 1, 26–81 (1946). 131 IMT Charter, supra note 65; IMTFE Amended Charter, supra note 103. 132 See Bassiouni, International Law and the Holocaust, supra note 71; Bassiouni, Crimes Against Humanity, supra note 23, at 132. 133 Bernard V.A. Röling, The Tokyo Trial and Beyond 3 (Antonio Cassese ed., 1993); see also Bernard V.A. Röling, The Nuremberg and Tokyo Trials in Retrospect, in Bassiouni & Nanda, Treatise, at 590. 134 CCL 10.



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the four Allies set out its own system of justice, with all but the U.S. system being of a military nature, the legal fiction of national proceedings was inverted.135 The definition of “crimes against humanity” contained in Article II(c) of the CCL 10 differed from the IMT and IMTFE Charters in two ways. First, Article II(c) expanded the list of crimes to include imprisonment, torture, and rape. Second, it eliminated the requirement that “crimes against humanity” be connected to the war by omitting the words “before or during the war” contained in Article 6(c) of the IMT’s Charter. Furthermore, with respect to “persecution,” Article II(c) broadened the category of crimes against humanity in a way that strained the principles of legality by eliminating the requirement that “crimes against humanity” be in the “execution of or in connection with any crime within the jurisdiction of the Tribunal.” Unlike the IMT’s judgment on sentences, General MacArthur could unilaterally reduce the IMTFE’s sentences, though he never used that authority.136 The proceedings in the Far East before separate military tribunals were sanctioned by the FEC, and to that extent the FEC is somewhat similar to CCL 10. Each Allied Power prosecuted Japanese and persons of other nationalities who were their prisoners of war. There was, however, no treaty or jointly promulgated law defining crimes. Each Allied Power established its own field military tribunals or commissions that applied its respective military laws and procedures. Although the FEC was a policy body, General MacArthur was the sole executor of that policy. The legal basis for his authority was that Allied Forces in the Far East were still under the Allied Power’s control, which included their military trials. Though the FEC was used to achieve the overall policy goals of the Allies, it was essentially the body through which the U.S. actuated some of its occupational policies. This was evident in the FEC’s decision to end prosecutions by 1950 and to repatriate to Japan by 1953 all those who were convicted. 2.12. The Years of Silence: 1955–1992 By 1955, CCL 10 Proceedings had ended in Germany. Prior to that, the Far Eastern Military Tribunals had also ended, and by 1958, all IMTFE convicted war criminals were released. In the west, Germany continued to prosecute persons charged with crimes arising out of World War II, as did some other countries. Since World War II, there have been many conflicts for which no international investigative or prosecutorial bodies were ever set up.137 Justice was the Cold War’s casualty.

135 See Bassiouni, Crimes Against Humanity, supra note 23, at 134. Germany subsequently conducted its own national proceedings before its ordinary criminal courts. 136 Levie, supra note 104, at 142. 137 See infra note 222.

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However, since the end of the Cold War, new initiatives have developed in connection with the conflicts in the Former Yugoslavia and Rwanda and in connection with the establishment of a permanent international criminal court. 2.13. The Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) On October 6, 1992, the Security Council adopted Resolution 780, establishing a Commission of Experts to investigate and gather evidence of “grave breaches of the Geneva Conventions and other violations of international humanitarian law” in the conflict in the former Yugoslavia.138 The history of the Commission and its work is fraught with the influences of politics. Resolution 780 defined the mandate of the Commission of Experts as follows: 2. [The Security Council] requests the Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts, to examine and analyze the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further information as the Commission of Experts may obtain through its own investigations or efforts, of other persons or bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia.139

The Commission of Experts interpreted its mandate as requiring the collection of all relevant information and evidence concerning violations of international humanitarian law that it could secure in light of its resources and capabilities.140 138 See Commission of Experts on Former Yugoslavia. Note that there is an uncanny resemblance between the problems faced by the Commission of Experts and those of the UNWCC. See id. at 22–23. 139 Commission of Experts on Former Yugoslavia, at para. 2. The Secretary-General appointed five members to the Commission of Experts on October 25, 1992: Professor Fritz Kalshoven (Netherlands) as Chairman; Professor M. Cherif Bassiouni (Egypt); Commander William J. Fenrick (Canada); Judge Keba M’Baye (Senegal); and Professor Torkel Opsahl (Norway). Professor Kalshoven resigned from the Commission of Experts due to medical reasons in August 1993 and Professor Opsahl, who was the Acting Chairman in July–August, passed away in September. As a result, on October 19, 1993, the Secretary-General appointed Professor Bassiouni as Chairman and Professor Christine Cleiren (Netherlands) and Judge Hanne Sophie Greve (Norway) as new members. Even though this writer is a naturalized U.S. citizen, he is a native-born Egyptian, and was listed as being from Egypt, because it was felt that no representative of the Permanent Members of the Security Council should be on the Commission of Experts. 140 See M. Cherif Bassiouni, The Commission of Experts Established pursuant to Security Council Resolution 780: Investigation of Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279–340 (1994); M. Cherif Bassiouni, The United Nations Commission of Experts Established pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L 784–805 (1994) (translated into French and reprinted with modifications in 66 Revue Internationale de Droit Pénal, 1–2, 1 (1995)); M. Cherif Bassiouni, Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 25 Security Dialogue 409 (1994).



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The Commission of Experts’ efforts resulted in 65,000 pages of documents, a database cataloguing the information in these documents, over 300 hours of videotape, and 3,300 pages of analysis, all of which comprise the Annexes to the Commission of Experts Final Report.141 This information and evidence was turned over to the Tribunal’s Prosecutor between April and August 1994. The political climate and the intensity of the conflict at that time created a situation in which the pursuit of a political settlement was deemed a priority.142 The pursuit of justice was a response to international humanitarian concerns and to the terrible atrocities of the war that the media brought so vividly to the attention of the world. But, because the major powers did not want to intervene militarily, the U.N. and E.C. mediators had neither a stick nor a carrot to induce cessation of hostilities. The establishment of an international investigative body with the broadest possible mandate since Nuremberg was not conducive to the pursuit of political settlements, since the very leaders involved in the negotiations could also become the targets of the investigation. Political settlement negotiations could not be conducted while the prospects of criminal investigation and eventual prosecution existed. In the face of this dilemma, the choice made was to favor politics over justice. As a result, the Commission never received any funding from the U.N. to conduct its field investigations. The limited resources provided by the U.N. only covered the bare minimum of administration costs for a short period of time.143 Moreover, the U.N. frequently placed bureaucratic and financial hurdles in the Commission’s way. Consequently, the Commission resorted to external funding sources and accepted the aid of volunteers and personnel

141 The analytical reports were prepared by or under the direction of the Chairman of the Commission of Experts, M. Cherif Bassiouni. The staff of the Prosecutor’s Office at the Tribunal reviewed them for purposes of relating sensitive information before the reports were submitted to the Secretary-General, who then transmitted them to the Security Council in December 1994 as Annexes to the Final Report of the Commission of Experts. See Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 47th Sess., Annex, U.N. Doc. S/1994/674 (May 27, 1994); Annexes to the Final Report, U.N. SCOR, 47th Sess., U.N. Doc. S/1994/674/Add.2 (Dec. 28, 1994) (see particularly Annex I on paramilitary groups). 142 For a more ample description of what follows, see supra note 140. See also M. Cherif Bassiouni, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University); and M. Cherif Bassiouni, The Commission of Experts Established pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 7–11 (Occasional Paper #2, 1996, International Human Rights Law Institute, DePaul University). With respect to the conflicting approaches to peace and justice, see Payam Akhavan, The Yugoslav Tribunal At Crossroads: The Dayton Peace Agreement and Beyond, 18 Hum. Rts. Q. 259 (1996). Cf. Anonymous, Human Rights in Peace Negotiations, id. at 249. This article, which appeared under the authorship of “Anonymous,” probably a member of the Vance-Owen staff, argues that these peace efforts were not in contradiction with the pursuit of justice. 143 This situation is reminiscent of the situation facing the UNWCC, supra note 44, discussed above at 13.

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contributed by certain governments. A document collection and database operation was set up at the International Human Rights Law Institute (IHRLI) of DePaul University in Chicago under the direction of this writer, and was entirely funded by private sources. While IHRLI’s work was opposed by the U.N. bureaucracy, it was eventually recognized as contributing a great amount of information. In fact, it was on the basis of the IHRLI’s work that the Commission produced its Final Report and Annexes. The Commission of Experts undertook thirty-five field missions, which included mass grave exhumations and the world’s largest rape investigation. Participants in all of these missions, with the exception of the Commission members and the three secretariat staff members of the Commission, were either contributed by governments or were volunteers. As the Commission’s work and the IHRLI database grew and became substantial enough to evidence patterns of criminality that could not have occurred without design and senior political and military leadership, the Commission’s work became threatening to the political process. While press reports charging responsibility for “ethnic cleansing,” “systematic rape,” and other systematic violations of international humanitarian law could be ignored, evidence substantiating these allegations was the real danger. Consequently, it became politically necessary to terminate the work of the Commission while attempting to avoid the negative consequences of such a direct action. There could have been a problem in circumventing the tenth preambular paragraph of Security Council Resolution 827, which states: Pending the appointment of a Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report.144

Nevertheless, by employing bureaucratic measures, an obstruction of justice was carried out quietly. An administrative decision was taken—probably at the behest, but certainly with the support of, some of the Permanent Members— leaving no legal trace of the deed. Thus, the Chairman was administratively notified that the Commission should end its work by April 30, 1994. When the Commission’s mandate was terminated, it still had over US $250,000 in a trust fund and had not yet completed its Final Report. Between April 30 and December 31, 1994, the Chairman completed the Final Report and Annexes, and then continued to work until July 1995 to see that they were published by the U.N. 144 S.C. Res 827, U.N. SCOR, 48th Sess., at preamble, U.N Doc. S/RES/827 (1993). Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159, art. 5 [hereinafter ICTY Statute].



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2.14. The International Criminal Tribunal for the Former Yugoslavia On February 22, 1993, following the submission of the Commission of Experts’ First Interim Report,145 the Security Council provided for the establishment of such a tribunal.146 Resolution 808 stated that the Security Council: Decides that an international criminal tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.147

Resolution 808 requested that the Secretary-General report back on the matter of establishing an ad hoc international tribunal within sixty days.148 The Report of the Secretary-General pursuant to this request was issued on May 3, 1993, and contained a draft Statute for the Tribunal and commentaries on the provisions of the Statute.149 Subsequently, the Security Council unanimously approved Resolution 827, which established the Tribunal and approved the Secretary-General’s draft of the Statute without change.150 Thus, the Tribunal, with its seat in The Hague, officially came into legal existence on May 25, 1993. The judges were elected on September 15, 1993, and the Prosecutor took office on August 15, 1994. The Tribunal was subsequently named by its Judges the “International Criminal Tribunal for the Former Yugoslavia.” Article 1 of the Statute states that the ICTY “shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.”151 The Statute also establishes individual criminal responsibility, including the Head of State, for certain violations committed during the temporal jurisdiction of the ICTY. These crimes are: (1) grave breaches of the Geneva Conventions of 1949;152 (2) violations of the

145 Interim Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 48th Sess., Annex, at 20, U.N. Doc. S/25274 (1993). 146 ICTY Statute, supra note 144. 147 Id. at preamble. 148 Id. 149 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993) [hereinafter Report of the Secretary-General]. For commentary on the Statute, see Bassiouni, Yugoslavia Tribunal, and Morris & Scharf, An Insiders Guide, supra note 62. 150 ICTY Statute, supra note 144, paras. 1–2. For insights into the establishment of the ICTY and the politics surrounding it, see Peter Burns, An International Criminal Tribunal: The Difficult Union of Principles and Politics, in The Prosecution of International Crimes 125 (Roger S. Clark & Madeleine Sann eds., 1996); David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, in The Prosecution of International Crimes 185 (Roger S. Clark & Madeleine Sann eds., 1996). 151 See ICTY Statute, supra note 144. 152 Id. at art. 2.

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laws or customs of war;153 (3) genocide;154 and (4) crimes against humanity.155 Unlike other ad hoc tribunals such as the IMT and IMTFE, the ICTY is not limited to the prosecution of some offenders. Rather, its jurisdiction applies to all those who violated international humanitarian law, irrespective of their side in this conflict. As a judicial organ, the Tribunal must be independent, according to established general principles of law.156 The fact that the Tribunal is a subsidiary organ of the S.C. does not affect the independence of the Tribunal per se. In particular, Article 12 of the Statute expressly refers to the ICTY’s Chambers being composed of “independent” judges. In addition, Article 16 of the Statute specifically provides for the Prosecutor’s independence, though he/she is appointed by the S.C.157 The Tribunals are subject to the U.N.’s administrative rules. Furthermore, the S.C. does not fund the Tribunal. Instead, the Council requested that the General Assembly do so through the regular budget of that body. Not all of the S.C.’s Permanent Members supported the initiative for a Tribunal, which was seen as potentially disruptive of negotiations for a political settlement of the conflict. Some S.C. members, as well as other member states, felt that such a judicial organ should be established by the General Assembly or by a multilateral treaty. Other members urged that this was an opportunity to establish a permanent international criminal court, but the political advantages of controlling ad hoc institutions by the S.C. prevailed. The delay in the appointment of the Prosecutor was further evidence of the politicization of the Tribunal.158 Although Resolution 827 provided for the 153 Id. at art. 3. 154 Id. at art. 4. 155 Id. at art. 5. 156 See G.A. Res. 40/32, U.N. GAOR, 40th Sess., U.N. Doc. A/RES/40/32 (1985), endorsing the Basic Principles on the Independence of the Judiciary, adopted by the Seventh Crime Congress, Milan (26 Aug. ­6 Sept. 1985); Draft Principles on the Independence of the Judiciary and on the Independence of the Legal Profession, 5 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1982). One hundred and fifteen national constitutions provide for an independent judiciary, and an additional forty-two explicitly require that criminal trials be conducted by an independent and impartial tribunal. See M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 271 & nn. 170–71 (1993). 157 See ICTY Statute, supra note 144, at arts. 16, 19, 20. 158 The first and only nominee of the U.N. Secretary-General was M. Cherif Bassiouni in August 1993. That candidacy the U.S. at first supported, alongside the non-aligned members of the Council, but it was rejected by the European powers on the Security Council. Several months later the Council agreed in October 1993 on Roman Escobar Salom of Venezuela. But he could not assume the post for several months and so notified the U.N. Office of Legal Affairs that his assumption of the post would be sometime in February 1994. The responsible official in that office apparently omitted to communicate that fact to the Secretary General and consequently the Secretary General was unaware of that eventuality. In January 1994, Escobar notified the Secretary General that he could not assume the post. It was not until July 1994 that Richard Goldstone of South Africa was appointed. See Bassiouni, Yugoslavia Tribunal, supra note 62, at 210–12.



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continuation of the work of the Commission of Experts until the appointment of the Prosecutor,159 the Commission of Experts was prematurely terminated as of April 30, 1994 by administrative fiat, while the Prosecutor was not appointed until July 15, 1994. Although this bureaucratic lag might have severed the institutional links between the Commission of Experts and the Prosecutor, requiring the Prosecutor to begin his investigations ab initio and delaying the issuing of any indictments, the Commission Chair and the Prosecutor established a direct personal link.160 The Prosecutor was able to indict twenty-two persons within months of taking office. In the Tribunal’s initial stages, the Government of the then Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republica Srpska, the Bosnian-Serb de facto government, refused to recognize the competence of the Tribunal and did not cooperate with respect to the investigation and surrender of indicted persons.161 159 Resolution 827, supra note 144, para. 10. 160 See Report of 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 1991, U.N. GAOR/SCOR, 49th Sess., at paras. 157–58, U.N. Doc. A/49/432, S/1994/1007 (1994): 157. Not long after the establishment of the Tribunal, the judges had the opportunity to meet with Mr. Cherif Bassiouni, Chairman of the Commission of Experts established pursuant to Security Council Resolution 780 (1992). On 25 February 1994, the Acting Deputy Prosecutor and other staff members of the Tribunal met in The Hague with Mr. Bassiouni and other members of the Commission. The work and findings of the Commission were discussed at length and certain materials were handed over to the office of the Prosecutor. Subsequently, the Acting Deputy Prosecutor visited the Commission’s premises in Geneva. A staff member also visited Chicago to inspect and receive instruction on the Commission’s computer database. The Acting Deputy Prosecutor also had meetings with most of the Commission’s commissioners and staff members. 158. During April 1994, the Office of the Prosecutor obtained a copy of the Commission’s database. Subsequently, in May 1994, all of the documents from Chicago, which form the basis of the information in the database, were received by the Tribunal. By the end of May 1994, action had commenced to scan those documents onto the Prosecutor’s own computer system. The Office of the Prosecutor has enjoyed a close working relationship with the Commission of Experts. See also M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia 5 Crim. L.F. 279 (1994). 161 The Federal Minister of Justice of the FRY, Professor Stojanovic, expressed the position of the FRY as follows: The federal government is prepared to make it possible for one representative of the International Criminal Tribunal, and/or the prosecutor of the tribunal to be present within the framework of the United Nations Protection Force in Belgrade, without having the right to specifically display the title of the International Criminal Tribunal and/or the prosecutor of the tribunal. This representative would be enabled contacts with responsible federal and republican bodies and non-governmental organizations, on the understanding that he would be in no position to undertake investigative action vis à vis domestic physical person.  Lawyers Committee for Human Rights, The International Criminal Tribunal for the Former Yugoslavia: Establishment, Organization, Jurisdiction and Proceedings to Date 9 (1995) (citing Letter dated December 20, 1994 from the Federal Minister of Justice of the FR of Yugoslavia addressed to the Prosecutor of the Tribunal, U.N. GAOR/SCOR, 49th Sess., U.N. Doc. A/50/56, S/1994/1450 (1994) (emphasis added). The FRY also reiterated its view

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This lack of cooperation hampered the initial ability of the ICTY to bring indicted war criminals to trial.162 Notwithstanding, cooperation with Serbia began improving following a change in government in October 2000, which resulted in the reopening of the Prosecutor’s Belgrade field office. In 2001, Serbian authorities arrested former President Slobodan Milošević and transferred him to the Tribunal. In the ensuing years, cooperation with Serbia was mixed and contingent on political developments in the country. However, from the end of 2004 it grew stronger and culminated in the arrests of the Tribunal’s three remaining fugitives, Radovan Karadžić in 2009 and Ratko Mladić and Goran Hadžić in 2011. The ICTY rendered its first Trial Judgement in 1996 and is projected to deliver its last judgement on appeal by mid-2015. As of May 2012, the ICTY had indicted 161 persons and concluded proceedings for 126 accused. There are ongoing proceedings concerning 35 accused, with 17 at the appellate stage, 16 at trial, and 2 in pre-trial proceedings. The appeals of cases which are not concluded at trial before 1 July 2013 will be considered by the newly created International Residual Mechanism for Criminal Tribunals which will come into effect, for the ICTY, on that date.163 2.15. The Rwanda Commission of Experts In July 1994, the S.C. passed Resolution 935 establishing a commission of experts to investigate grave violations of international humanitarian law committed during the Rwandan civil war, including possible acts of genocide, and to report its findings to the Secretary-General.164 The Rwandan Commission lasted only four months, which was not long enough for the commission to effectively fulfill its investigatory mandate. The S.C. made sure that the Rwanda Commission would not embark on the same path taken by the Commission of Experts for Yugoslavia. The Rwanda Commission was given a limited mandate, three months to carry it out, and no means to investigate any specific allegations. The three-man Commission spent a total of one week in the field, and conducted no investigations. Its report was patterned on the Final Report of the Commission of Experts for the Former that a permanent international tribunal should be established to prosecute war criminals. By implication, the FRY took the position that in the absence of a permanent international tribunal, the FRY would undertake national prosecutions under Chapter XVI of the Criminal Code of the FRY. The letter concludes that the FRY “seriously calls into question assurances of the tribunal’s impartiality, which may adversely affect future cooperation” due to the fact that the first indictments were against Serbians. 162 There are also other political, economic and bureaucratic factors which hampered the early work of the ICTY. But the determination of all those involved in it demonstrated will, tenacity and conviction. 163 See UNSC Res. 1966 (2010). 164 S.C. Res. 935, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/935 (1994) [hereinafter ICTR Statute].



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Yugoslavia, but lacked the thoroughness of the latter. The Rwanda Commission Report was based on reports made by other bodies and other media and published reports. On October 4, 1994, the Rwandan Commission submitted its preliminary report165 to the Secretary-General, and on December 9, 1994, its final report.166 These reports laid the groundwork for the S.C. to establish an ad hoc tribunal for Rwanda. 2.16. The International Criminal Tribunal for Rwanda (ICTR) The Statute and the judicial mechanism for the Rwandan Tribunal were adopted in Security Council Resolution 955.167 The article of the Statute regarding individual criminal responsibility mirrors its counterpart article in the Statute for the ICTY.168 In fact, the “statute of the Rwanda tribunal . . . was an adaptation of the statute of the Yugoslav Tribunal to the circumstances of Rwanda . . .”169 The Rwandan Tribunal has temporal jurisdiction from January 1, 1994 to December 31, 1994.170 Like the ICTY, the ICTR can prosecute for genocide171 and “crimes against humanity.”172 Because the conflict in Rwanda was a civil war, violations of the laws and customs of war and the Geneva Conventions of 1949 covering international conflicts are not within the jurisdictional scope of the ICTR.173 Rather, violations of Article 3 common to the Geneva Conventions of 1949 and of Additional Protocol 2 are included.174 165 See Letter Dated 1 October 1994 from the Secretary-­General Addressed to the President of the Security Council, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/1125 (1994). 166 Letter Dated 9 December 1994 from the Secretary-General Addressed to the President of the Security Council, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/1405 (1994). 167 ICTR Statute, supra note 164; see Roman Boed, The International Criminal Tribunal in Rwanda, in 3 Bassiouni, ICL, supra note 37, at 103; Larry Johnson, The International Tribunal for Rwanda, 67 Revue Internationale de Droit Pénal 211 (1996); Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 Am. J. Int’l L. 501 (1996). For more recent analysis of the tribunal’s work, see Dr. George William Mugwanya, Recent Trends in International Criminal Law: Perspectives from the U.N. International Criminal Tribunal for Rwanda, 6 Nw. J. Int’l Hum. Rts. 415 (2008). 168 Compare Resolution 955, art. 6, supra note 164, to the ICTY Statute, supra note 144, at art. 7. 169 Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), U.N. SCOR, 50th Sess., at para. 9, U.N. Doc. S/1995/134 (1995); see also Johnson, supra note 167. 170 ICTR Statute, supra note 164, at art. 7. 171 Id. at art. 2. 172 Id. at art. 3. The Rwanda Statute’s definition of that crime differs somewhat from that of the ICTY. See Bassiouni, Crimes Against Humanity, supra note 23, at 183–89; Bassiouni, Yugoslavia Tribunal, supra note 62, at 491; Akhavan, supra note 167, at 503. 173 See Bassiouni, Yugoslavia Tribunal, supra note 62; Akhavan, supra note 167, at 504. 174 ICTR Statute, supra note 164, at art. 4. Akhavan states: The most significant difference between the two Statutes relates to Article 4 of the ICTR Statute, which includes violations of Article 3 common to the 1949 Geneva Conventions and of the 1977 Additional Protocol II within the subject matter jurisdiction of the Tribunal . . . [T]he Secretary-General had excluded common Article 3 and Additional Protocols I and II from the Yugoslav Statute on the grounds that they were not “rules of international humanitarian law which are beyond doubt part of the customary law.” . . . The Report of the Secretary-General

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Because of the total devastation wrought by the Rwandan civil war, the S.C. was compelled to deal with many political, logistical, and practical problems in the establishment of the ICTR. The S.C. had to negotiate with the new government on the establishment of the Tribunal at a time when Rwanda was also a member of the S.C. This situation complicated the Council’s task, particularly because the views of that government and its expectations of an international tribunal differed from those of the rest of the Council. For instance, while the Government of Rwanda wanted the new Tribunal to be able to impose the death penalty, the Council was opposed to it, because it had already decided against that penalty in connection with the ICTY. In addition, the U.N. had some difficulty convincing the Rwandan Government to agree that the Tribunal would also prosecute Tutsi violations against Hutu victims. Finally, the U.N.’s Legal Counsel, Hans Corell, had to conduct extensive negotiations with the new Rwandan Government regarding the site of the Tribunal. Because of the absence of an effective infrastructure, and because the U.N. feared that a Tribunal in Kigali would be under the influence of the Rwandan Government, which, after all, represented the victorious Tutsi who were the victims of Hutu crimes, the Tribunal was located in Arusha, Tanzania. Establishing the Tribunal in another country was unprecedented and required a U.N. host country agreement with Tanzania, which took some time to conclude. Because most defendants and witnesses would have to come from Rwanda, this is an enterprise fraught with logistical problems and practical difficulties. Moreover, Arusha was not the ideal place for locating the Tribunal, since there, too, the U.N. also had to build the Tribunal’s infrastructure from scratch under trying conditions. These difficulties demonstrate the fundamental inability of the S.C. to micromanage action-oriented bodies that require constant attention to details. This experience led to what David Scheffer, Senior Counsel to then U.S. Ambassador to the U.N., Madeline Albright, called the Council’s “Tribunal fatigue.” Even though the statutes for the ICTR and the ICTY differ, the composition of their respective Appeals Chambers is identical175 and, for a time,176 they also shared a common Prosecutor. This was a curious formula for two separate ad hoc

on the ICTR Statute notes that the Security Council “has elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal. Furthermore, . . . the Report suggests that the Council has thereby included within the subject matter jurisdiction of the Rwanda Tribunal “international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime.” Akhavan, supra note 167, at 503–04 (citations omitted). 175 See ICTR Statute, supra note 164, at art. 13(4). 176 See UNSC Res. 1503 (2003).



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tribunals established separately by the S.C. through two unrelated resolutions. According to the Secretary-­General, however, the “institutional links . . . ensure a unity of legal approach, as well as economy and efficiency of resources.”177 The decision to link the two bodies was not, however, based on any valid legal argument. The U.S., which pushed for this formula, wanted to avoid delays in selecting the Prosecutor, as was the case with the ICTY. The rationale for sharing the Appeals Judges was based entirely on a cost-saving consideration. The choice of a single Prosecutor was particularly ill-­advised because no person, no matter how talented, can oversee two major sets of prosecutions separated by 10,000 miles. The idea that one can shuttle between The Hague, Netherlands, and Arusha, Tanzania as part of a normal work schedule is nothing short of absurd. Recognizing this, in 2003 the S.C. amended the ICTR Statute to provide for its own Prosecutor.178 The ICTR rendered its first Trial Judgement in 1998 and is projected to deliver its last by mid-2012. In that 14-year span, the Tribunal will have adjudicated at the trial level 55 cases involving 76 persons, including the former Prime Minister, a number of Cabinet Ministers, as well as other political, military, religious and business leaders. All appellate work is projected to conclude by the end of 2014. Cases of the nine remaining fugitives, should they be apprehended, will be considered by the newly created International Residual Mechanism for Criminal Tribunals which will come into effect, for the ICTR, on 1 July 2012.179 In preparation for the closure of the tribunal, trial chambers have started proceedings under Rule 71bis, which allows for the court to “preserve” evidence by taking depositions of witnesses. In Mpiranya the Trial Chamber held that “a designated Trial Chamber may grant a request for the preservation of evidence by special deposition if it is satisfied that: (i) reasonable efforts have been made to execute the warrant of arrest; (ii) the execution of the warrant of arrest is not likely to take place within a reasonable time; and (iii) it is in the interests of justice to do so.”180 Section 3. Establishing an International Criminal Court 1937–1994 The efforts to establish a permanent ICC started with the League of Nations and were continued by the U.N. The League of Nations’ efforts were linked to a

177 Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 935 (1994), supra note 169, para. 9. 178 S.C. Res. 1503, ¶ 8, U.N. Doc. S/RES/1503 (Aug. 28, 2003). 179 See S.C. Res. 1966, ¶ 1, U.N. Doc. S/RES/1966 (Dec. 22, 2010). 180 Mpiranya, Case No. ICTR-00-56A-71bis, Decision on Motion for the Preservation of Evidence by Special Deposition for a Future Trial (March 3, 2011). 

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permanent international criminal court whose jurisdiction was limited only to enforcement of the 1937 Terrorism Convention, but regrettably failed owing to the world crisis that followed the Spanish civil war, Italy’s invasion of Abyssinia, and Germany’s aggressive and militaristic policies in the years that preceded World War II.181 The U.N. goal was, however, more encompassing than that of the League of Nations as it aimed at establishing a permanent international criminal court. These efforts can be traced along two separate tracts: codification of international crimes182 and the elaboration of a draft statute for the establishment of an international court.183 Curiously, however, the two tracts evolved separately, though 181 Convention for the Creation of an International Criminal Court, opened for signature at Geneva, 16 Nov. 1937, League of Nations O.J. Spec. in Supp. No. 156 (1938), League of Nations Doc. C.547(I).M.384(I).1937.v (1938) (never entered into force). 182 G.A. Res. 174(II), U.N. Doc. A/519, at 105–10 (1946). For a history of these efforts, see M. Cherif Bassiouni, The History of the Draft Code of Crimes Against the Peace and Security of Mankind, 27 Isr. L. Rev. 1–21 (1993), reprinted in Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales 1 (1993) [hereinafter Bassiouni, Draft Code]; M. Cherif Bassiouni, International Criminal Law: A Draft International Criminal Code (1980); Farhad Malekian, International Criminal Law: The Legal and Critical Analysis of International Crimes (2 vols. 1991); M. Cherif Bassiouni, Principles of Legality in International and Comparative Criminal Law, in 1 Bassiouni, ICL, at 73; Yoram Dinstein, International Criminal Law, 1981 Isr. Y.B. Int’l L. 9; Robert Friedlander, The Foundations of International Criminal Law: A Present Day Inquiry, 15 Case W. Res. J. Int’l L. 13 (1983); Robert Friedlander, The Enforcement of International Criminal Law: Fact or Fiction, 17 Case W. Res. J. Int’l L. 79 (1985); Leslie C. Green, An International Criminal Code—Now?, 3 Dalhousie L.J. 560 (1976); Leslie C. Green, Is There an International Criminal Law?, 21 Alberta L. Rev. 251 (1983); Leslie C. Green, New Trends in International Criminal Law, 1981 Isr. Y.B. Int’l L. 9; M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 153 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL]; Georg Schwarzenberger, The Problem of International Criminal Law, 3 Current Legal Probs. 263 (1950), reprinted in International Criminal Law 3–36 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965); Quincy Wright, The Scope of International Criminal Law, 15 Va. J. Int’l L. 562 (1975). See also 52 Revue Internationale de Droit Pénal (1984), symposium issue on Draft International Criminal Court: Pierre Bouzat, Introduction, 331; Hans-Heinrich Jescheck, Development, Present State and Future Prospects of International Law, 377; John Decker, A Critique of the Draft International Criminal Code, 365; Valeri Shupilov, General Comments on the Draft International Criminal Code, 373; Reynald Ottenhof, Considerations sur la Forme le Style, et la Methode d’Elaboration du Projet de Code Pénal International, 385; Robert Friedlander, Some Observations Relating to the Draft International Criminal Code Project, 393; Dietrich Oehler, Perspectives on the Contents of the Special Part of the Draft International Criminal Code, 407. For a more detailed discussion, see M. Cherif Bassiouni, The Discipline of International Criminal Law, in 1 Bassiouni, ICL, supra note 23, at 3; see also The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999). 183 See generally Guiliano Vassalli, LaGiustizia Internazionale Penale (1995); International Courts for the Twenty-First Century (Mark W. Janis ed. 1992); Farhad Malekian, International Criminal Law: The Legal and Critical Analyses of International Crimes (1991); M. Cherif Bassiouni, An International Criminal Code and Draft Statute for an International Criminal Tribunal (1987); Benjamin Ferencz, An International Criminal Court (2 vols. 1980); Julius Stone & Robert Woetzel, Toward a Feasible International Criminal Court (1970); Pierre Carjeu, Projet D’une Juridiction Pénale Internationale



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(1953); A. Sottile, The Problem of the Creation of a Permanent International Criminal Court (1951); L’Union Interparliamentaire, Compte Rendu de la xxvii Conference Tenue a Rome en 1948 (1949); United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War 443–50 (1949) (discussing a project for the establishment of a convention for the creation of a United Nations Tribunal for War Crimes); U.N. Secretary General, Historical Survey of the Question of International Criminal Jurisdiction, U.N. Doc. A/AC.4/7/Rev.1, U.N. Sales No. V.8 (1949); The International Law Association, Report of the 34th Conference, Vienna, August 5–11, 1926 (1927) (adopting the Projet d’une Cour Criminelle Internationales); Compte Rendu de la xxiii Conference Tenue A Washington et a Ottawa en 1925 (1926); Report of the Task Force on an International Criminal Court of the American Bar Association (Alaire Bretz Rieffel ed. 1994); The International Criminal Court: Observations and Issues before the 1997–98 Preparatory Committee; and Administrative and Financial Implications, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1997); Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998); Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15–July 17, 1998, 13ter Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998); 1996 ICC Preparatory Committee Report; 1995 Summary of the Proceedings of the Preparatory Committee during the Period 25 March–12 April 1996, U.N. Doc. A/AC.249/1 (1996); 1995 Ad Hoc Committee Report, supra note 8; Report of the International Law Commission, 46th Sees., U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994). See also Bassiouni, Statute of the ICC, supra note 62; M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 Bassiouni, ICL, at 29; Giorgio Bosco, Verso l’istituzione di una Corte Penale Internazionale, 250 Rivista di Studi Politici Internazionali 223 (1998); Verso un Tribunale Permanente Internazionale sui Crimini l’umanità. Precedenti Storici e Prospettive di Istituzione (P. Ungari & M.P. Pietrosanti Malintoppi eds. 1998); Hans-Peter Kaul, Towards a Permanent International Criminal Court: Some Observations of a Negotiator, 18 Hum. Rts. L.J. 169 (1997); Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int’l L. Rev. 201 (1997); Daniel B. Pickard, Proposed Sentencing Guidelines for the International Criminal Court, 20 Loy. L.A. Int’l & Comp. L.J. 123 (1997); Bruce Broomhall, Looking Forward to the Establishment of an International Criminal Court: Between State Consent and the Rule of Law, 8 Crim. L.F. 317 (1997); Christopher L. Blakesley, Comparing the Ad Hoc Tribunal for Crimes Against Humanitarian Law in the Former Yugoslavia and the Project for an International Criminal Court: An Appraisal, 67 Revue Internationale de Droit Pénal 139 (1996); M. Cherif Bassiouni, Recent United Nations Activities in Connection with the Establishment of a Permanent International Criminal Court and the Role of the Association Internationale de Droit Pénal (AIDP) and the Istituto Superiore Internazionale di Scienze Criminali (ISISC), 67 International Review of Penal Law (1996); Leila Sadat Wexler, The Proposed International Criminal Court: An Appraisal, 29 Cornell Int’l L.J. 665 (1996); M. Cherif Bassiouni, Establishing an International Criminal Court: Historical Survey, 149 Mil. L. Rev. 49 (1995); Henri D. Bosly, Actualité du Tribunal International Penal, 1–2 Annales de Droit de Louvain 3 (1995); William C. Gilmore, The Proposed International Criminal Court: Recent Developments, 5 Transnat’l L. & Contemp. Probs. 263 (1995); Daniel H. Derby, An International Criminal Court for the Future, 5 Transnat’l L. & Contemp. Probs. 307 (1995); Sandra L. Jamison, A Permanent International Criminal Court: A Proposal that Overcomes Past Objections, 23 Denv. J. Int’l L. & Pol’y 2 (1995); James Crawford, Prospects for an International Criminal Court, 48 Current Legal Probs. 303 (1995); Matthew Lippman, Towards an International Criminal Court, 3 San Diego Just. 1 (1995); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Transnat’l L. 73 (1995); Timothy L. H. McCormack & Gerry J. Simpson, A New International Criminal Law Regime, 42 Neth. Int’l L. Rev. 177 (1995); Manuel Rama-Montaldo, Acerca de Algunos Conceptos Basicos Relativas al Derecho Penal Internacional y a una Jurisdiction Penal Internacional, in El Derecho Internacional en un Mundo en Transformacion (Manuel Rama-Montaldo ed. 1995); Brigitte Stern, La Cour Criminelle Internationale dans le projet de la Commission du Droit International, in International Legal Issues Arising Under the United Nations Decade of International Law 739–60 (1995); Peter Burns, An International Criminal Tribunal: The Difficult Union of Principles and Politics, 5 Crim. L.F. 341 (1994); James Crawford, The ILC’s Draft Statute for an International Criminal Tribunal, 88 Am J. Int’l L. 140 (1940); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 Pace Int’l L. Rev. 121 (1994); M. Cherif

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Bassiouni, Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 25 Sec. Dialogue 409 (1994); Alfred P. Rubin, An International Criminal Tribunal for the Former Yugoslavia, 6 Pace Int’l L. Rev. 7 (1994); Michael P. Scharf, Getting Serious About an International Criminal Court, 6 Pace Int’l L. Rev. 103 (1994); American Bar Association Task Force on an International Criminal Court, New York Bar Association Joint Report with Recommendations to the House of Delegates: Establishment of an International Criminal Court, 27 Int’l L. 270 (1993); M. Cherif Bassiouni, Draft Statute International Criminal Tribunal, 9 Nouvelles Études Pénales 1 (1993); M. Cherif Bassiouni, Draft Statute International Criminal Tribunal (French and Spanish translations) 10 Nouvelles Études Pénales 1 (1993); William N. Gianaris, The New World Order and the Need for an International Court, 16 Fordham Int’l L.J. 88 (1992–93); M. Cherif Bassiouni & Christopher Blakesley, The Need for an International Criminal Court in the New International Order, 25 Vand. J. Transnat’l L. 151 (1992); Joel Cavicchia, The Prospects for an International Criminal Court in the 1990s, 10 Dick. J. Int’l L. 223 (1992); John W. Rolph, Perfecting an International Code of Crimes, 39 Fed. B. News & J. 528 (1992); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 Fletcher Forum World Aff. 77 (1992); Benjamin J. Ferencz, An International Criminal Code and Court: Where They Stand and Where They’re Going, 30 Colum. J. Transnat’l L. 375 (1992); James A. Leach, The Case for Establishing an International Criminal Court (Occasional Paper No. 1, Parliamentarians for Global Action 1992); Bryan F. MacPherson, An International Criminal Court: Applying World Law to Individuals (The Center for U.N. Reform Education 1992); M. Cherif Bassiouni, A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Criminality, Including the Establishment of an International Criminal Court, 15 Nova L. Rev. 353 (1991); M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991); Michael Scharf, The Jury is Still Out on the Need for an International Criminal Court, 1 Duke J. Comp. & Int’l L. 135 (1991); Draft Statute for an International Commission of Criminal Inquiry and a Draft Statute for an International Criminal Court, in Report of the 60th Conference of the International Law Association (1983); M. Cherif Bassiouni & Daniel Derby, Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments, 9 Hofstra L. Rev. 523 (1981); Louis Kos-Rabcewicz-Zubkowski, La Création d’une Cour Pénal Internationale et L’Administration International de la Justice, 1977 Can. Y.B. Int’l L. 253; Louis Kos-RabcewiczZubkowski, The Creation of an International Criminal Court, in International Terrorism and Political Crimes 519 (M. Cherif Bassiouni ed. 1975); La Création d’une Jurisdiction Pénale Internationale et la Cooperation Internationale en Matiére Pénale, 45 Revue Internationales de Droit Pénale 435 (1974); Jean Y. Dautricourt, The Concept of International Criminal Court Jurisdiction– Definition and Limitations of the Subject, in II Bassiouni & Nanda, Treatise; Draft Statute for am International Criminal Court, in Work Paper, Abidjan World Conference on World Peace Through Law, Aug. 26–31 (1973); Richard I. Miller, Far Beyond Nuremberg: Steps Toward International Criminal Jurisdiction, 61 Ky. L.J. 925 (1973); Draft Statute for an International Criminal Court, Foundation for the Establishment of an International Criminal Court (Wingspread Conference, Sept. 1971); Fannie Klein & Daniel Wilkes, United Nations Draft Statute for an International Criminal Court: An American Evaluation, in International Criminal Law 526 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965); George A. Finch, Draft Statute for an International Criminal Court, 46 Am. J. Int’l L. 89 (1952); Yeun-Li Liang, The Establishment of an International Criminal Jurisdiction: The First Phase, 46 Am. J. Int’l L. 73 (1952); John J. Parker, An International Criminal Court: The Case for its Adoption, 38 A.B.A. J. 641 (1952); Quincy Wright, Proposal for an International Criminal Court, 46 Am. J. Int’l L. 60 (1952); George A. Finch, An International Criminal Court: The Case Against Its Adoption, 38 A.B.A. J. 644 (1952); Comments Received from Governments Regarding the Report of the Committee on International Criminal Jurisdiction, U.N. GAOR, 7th Sess., Annex 2, Agenda Item 52, at 1, U.N. Doc. A/2186 and Add.1 (1952); Vespasian V. Pella, Towards an International Criminal Court, 44 Am. J. Int’l L. 37 (1950); Bienvenido C. Ambion, Organization of a Court of International Criminal Jurisdiction, 29 Philippine L.J. 345 (1950); Bienvenido C. Ambion, Establishment of the Proposed International Criminal Court, 30 Philippine L.J. 370 (1955); Constitution et Procédure d’un Tribunal Approprié pour Juger de la Responsabilitié des Auteurs des Crimes de Guerre, Presenté a la Conference Preliminaire de Paix par la Commission de Responsabilites des Auteurs de la Guerre et Sanctions, III



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logic would have required that they be integrated. But the history of these two tracts reveals the lack of political will by the world’s major powers to join them in a coordinated endeavor. This is evidenced in the separate courses that the various U.N. institutions have taken between 1947 and 1998. In 1947, the General Assembly mandated the Committee on the Codification of International Law, the International Law Commission’s (ILC) predecessor, to: (1) formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, and (2) prepare a draft code of offenses against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subparagraph (a) above.184

Two years later, in compliance with that resolution, the ILC started to “[formulate] the principles recognized in the Charter of the Nuremberg Tribunal” and to “[prepare] a draft code of the offences against the peace and security of mankind.”185 A subcommittee was formed and a special rapporteur was appointed to prepare a Draft Code of Offences Against the Peace and Security of Mankind.186 That title was changed in 1988 to the Draft Code of Crimes Against the Peace and Security of Mankind.187 La Paix de Versailles (1930); Vespasian V. Pella, Plan d’un Code Repressif Mondial, 6 Revue Internationale de Droit Pénal (1928) (presented by the International Association of Penal Law to the League of Nations in 1927); Projet de Statut pour la Création d’une Chambre Criminelle au Sein de la Cour Permanente de Justice Internationale, 5 Revue Internationale de Droit Pénal (1928) (presented by the International Association of Penal Law to the League of Nations in 1927); Project of an International Criminal Court of the International Association of Penal Law, in Actes de Premier Congrés International de Droit Pénal, Bruxelles, June 26–29 1926 (1927); Vespasian V. Pella, An International Criminal Court, in L’Union Interparliamentaire Compte Rendu de la XXII Conference Tenue a Berne et a Genève en 1924 (1924). 184 G.A. Res. 174, U.N. GAOR, 2nd Sess., U.N. Doc. A/519 (1947). 185 1 Y.B. Int’l L. Comm’n vi (1949), referring to Resolution 174, supra note 184, and G.A. Res. 95, U.N. GAOR, 1st Sess., U.N. Doc. A/64/Add.1 (1946). 186 The first report was completed in 1950. Report of the International Law Commission, U.N. GAOR, 5th Sess., U.N. Doc. A/CN.4/25 (1950). 187 See Report of the International Law Commission, U.N. GAOR, 40th Sess., Supp. No. 10, at 145, U.N. Doc. A/43/10 (1988). The Draft Code of Offences, subsequently the Draft Code of Crimes, was never intended to codify all international crimes. The number of crimes included within the code has fluctuated from a current high of twenty-five to a low of five; see Draft Code of Crimes Against the Peace and Security of Mankind: Titles and Texts of Articles on the Draft Code of Crimes Against Peace and Security of Mankind Adopted by the International Law Commission at its Forty-eighth Session (1996), U.N. GAOR International Law Commission 48th Sess., U.N. Doc. A/CN.4/L.532 (July 8, 1996) [hereinafter 1996 ILC Draft Code of Crimes]. As of 2012, the categories of international crimes are: aggression; genocide; crimes against humanity; war crimes; unlawful possession of, use or emplacement of weapons; theft of nuclear materials; mercenarism; apartheid; slavery and slaverelated practices; torture and other forms of cruel, inhuman or degrading treatment or punishment; unlawful human experimentation; piracy; aircraft hijacking and unlawful acts against international air safety; unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; threat and use of force against internationally ­protected persons; crimes against United

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Concurrently, the task of formulating a draft statute for the establishment of an international criminal court was assigned to another special rapporteur, who submitted his first report to the ILC in March of 1950.188 That report argued that a substantive criminal code and a statute for an international criminal court should complement one another.189 Contrary to logic and rational drafting policy, these two codification projects remained purposely separated.190 In 1950, another rapporteur was appointed to study the further development of an international criminal court.191 The two rapporteurs differed on whether the time was ripe for an international criminal court.192 Jean Spiropoulos was moved by idealism while Emil Sandstrom espoused political realism. Their clashing perspectives represented the two trends in a world that had just emerged from the terrifying experience of World War II, only to be thrust into the reality of the new post-World War II “Cold War.” While certain governments believed the establishment of an international criminal court was desirable in theory, they were always skeptical about its success in view of the absence of consensus among the world’s major powers.193 These positions can be summarized as follows: the Soviet Union believed its sovereignty would be affected by the establishment of such a tribunal;194 the United States was not prepared to accept the establishment of such a court at the height of the “Cold War;” France expressed support for the establishment of a perma-

Nations and associated personnel; taking of civilian hostages; unlawful use of the mail; unlawful traffic in drugs and related drug offenses; destruction and/or theft of national treasures; unlawful acts against certain internationally-protected elements of the environment; international traffic in obscene materials; falsification and counterfeiting; unlawful interference with international submarine cables; and bribery of foreign public officials. The three crimes most-recently included are: crimes against United Nations and associated personnel, mercenarism, and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas. See M. Cherif Bassiouni, International Crimes, Digest/Index of International Instruments 1815–1985 (2 vols., 1985); International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997). 188 Report of the International Law Commission on Question of International Criminal Jurisdiction, U.N. GAOR, 5th Sess., U.N. Doc. A/CN.4/15 (1950). 189 Id.; see also Report of the International Law Commission, U.N. GAOR, 5th Sess., Supp. No. 12, U.N. Doc. A/1316 (1950), and discussions on this report by the Sixth Committee of the General Assembly, reprinted in Ferencz, supra note 182. 190 That situation continued in part because of political considerations, and later, in part because the ILC’s 1991 Draft Code of Crimes was not well received. Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1993) [hereinafter Commentaries on 1991 Draft Code]. 191 Report of the International Law Commission, U.N. GAOR, 5th Sess., U.N. A/CN.4/20 (1950). 192 Id.; Report of the Sixth Committee to the General Assembly, U.N. GAOR, 5th Sess., U.N. Doc. A/1639 (1950), reprinted in Ferencz, supra note 183, at 306–11. 193 Id. at 26–31. 194 Id.



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nent international criminal court, but did not throw its weight to further the process; and the U.K. regarded the idea as politically premature.195 Nevertheless, a Special Committee of the General Assembly was established in 1950, composed of representatives of seventeen states, for the purpose of drafting a convention for the establishment of an international criminal court.196 The Special Committee appointed to draft the statute for the formulation of an international criminal court finished its task in 1951, modeling the statute in part after that of the International Court of Justice.197 The discussions and written comments, particularly those of major powers, clearly indicated that the project had no chance of acceptance and was politically premature.198 Because these states did not want to assume political responsibility for the demise of a permanent international criminal court within only five and six years of the IMTFE and IMT’s judgments, respectively,199 the Committee’s mandate was extended, with some membership changes, and in 1953 it produced a revised text.200 The reason for the 1953 revision of the 1951 Draft Statute stemmed, for the most part, from political influence. In 1951 the committee appeared to work from an optimistic base, creating what they felt was the best possible structure for an international criminal court. However, by 1953 the committee had become a little less optimistic and bowed to political pressure by adding provisions that limited jurisdiction and allowed state parties to retain more control. For example, the article on attribution of jurisdiction was modified to specify that “jurisdiction 195 Id. While no state openly opposed the establishment of such a court, some extended the debate as a way of delaying the drafting of a statute. See 1995 Ad Hoc Committee Report, supra note 8. The proposals that came out of the Second Session of the Preparatory Committee on “international cooperation,” in effect would have required the ICC to be subject to national laws and procedures on surrender of accused, and legal assistance to obtain evidence. See 1996 ICC Preparatory Committee Report. 196 See Report of the Sixth Committee, reprinted in Ferencz, supra note 183, at 298–305; 1995 Ad Hoc Committee Report, supra note 8; M. Cherif Bassiouni, Recent United Nations Activities in Connection With the Establishment of a Permanent International Criminal Court and the Role of the Association Internationale de Droit Pénal and the Istituto Superiore Internazionale di Scienze Criminali, 67 Revue Internationale de Droit Pénale 127 (1996). 197 Report of the Committee on International Criminal Court Jurisdiction, U.N. GAOR, 7th Sess., Supp. No. 11, at 21–25, U.N. Doc. A/2136 (1952) [hereinafter 1951 Draft Statute]; see also Comments Received from Governments Regarding the Report of the Committee on International Criminal Jurisdiction, U.N. GAOR, 7th Sess., U.N. Doc. A/2186 and U.N. Doc. A/2186/Add.1; Historical Survey of the Question of International Criminal Jurisdiction, Memorandum by the Secretary-General, U.N. GAOR, 4th Sess., U.N. Doc. A/CN.4/7/Rev.1 (1949), reprinted in Ferencz, supra note 183, at 399. 198 See Report of the Sixth Committee, U.N. GAOR, 7th Sess., U.N. Doc. A/2275 (1952) and discussions on this report by the Sixth Committee, reprinted in Ferencz, supra note 183, at 424–28. 199 In 1952 the Allies were still holding trials in Germany under CCL 10 and in the Far East. 200 Report of the Committee on International Criminal Jurisdiction, U.N. GAOR, 7th Sess., Supp. No. 12, at 21, U.N. Doc. A/26645 (1954). The revised statute made a number of changes to the 1951 Draft Statute in order to encourage more states to accept such a proposal, mostly softening the compulsory jurisdiction of the court by allowing more flexibility and voluntary participation on the part of states, including the opportunity for states to withdraw from the court’s jurisdiction upon one year’s notice. The Special Committee was eager to develop a project that was politically acceptable to the major powers, but even so, the political climate was still not ripe.

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of the Court is not to be presumed,” and stated precisely that acceptance of the Court’s jurisdiction did not bind a state to bring specific cases before the Court, but only permitted a state to do so. The new draft also included an express provision on the powers of states to withdraw jurisdiction once conferred on the Court, and deleted the requirement that jurisdiction be approved by the General Assembly.201 The 1953 revised Draft Statute was submitted to the General Assembly, which found it necessary to first consider the ILC’s work on the Draft Code of Offences, which had not yet been completed. The statute for an international criminal court was, therefore, tabled until the Draft Code of Offences was finalized in 1954.202 The ILC’s approved text of the Draft Code of Offences, consisting of five articles listing thirteen separate international crimes, was submitted to the General Assembly in 1954.203 But, the 1954 Draft Code was tabled until such a time as “aggression” could be defined.204 The reason for this incongruent situation was that the General Assembly in 1950 had removed “aggression” from the ILC’s mandate to elaborate a Draft Code of Offences, and gave that task to a special committee of the General Assembly. That committee was re-mandated in 1952, and then again in 1954; it consequently took twenty years for the committee to define “aggression.”205 The completed definition of aggression in 1974 thus removed the reason for tabling the 1954 Draft Code of Offences. But between 1974 and 1978, the General Assembly did not take up the previously suspended subject. In 1978, efforts by a number of governments and non-governmental organizations (NGOs) forced the issue and the General Assembly placed the matter back on its agenda. However, it was only two years later that it mandated the ILC to work on that question. In 1982, a new rapporteur of the ILC produced his first report on the Draft Code,206 which contained a variety of generalities concerning international criminal law, individual and state responsibility, and observations on the eventual contents of such a code.207 The new rapporteur was starting his work on the project 201 These political considerations that figured so prominent in the 1950s were revisited at the PrepCom and the Diplomatic Conference. Many of them were included in the statute adopted in Rome. See ICC Statute, Part 2, arts. 5–21, U.N. Doc A/Conf.183/9 (1998). 202 G.A. Res. 898 (IX), U.N. GAOR, 9th Sess., Supp No. 21, at 50, U.N. Doc. A/2890 (1954) [hereinafter Resolution 898 (IX)]. 203 See Third Report Relating to a Draft Code of Offenses Against the Peace and Security of Mankind, U.N. GAOR, 6th Sess., U.N. Doc. A/CN.4/85 (1954); see also D.H.N. Johnson, The Draft Code of Offenses Against the Peace and Security of Mankind, 4 Int’l Comp. L.Q. 445 (1955). 204 See U.N. G.A. Res. 898 (IX) (14 Dec. 1954) (tabling the Draft Code of Offences until aggression was defined); U.N. G.A. Res. 1187 (XII) (11 Dec. 1957) (tabling the Draft Code of Offences for a second time). 205 Infra section 5. 206 See Report of the International Law Commission on the work of its Thirty-Fifth session, U.N. GAOR, 38th Sess., Supp. No. 10, at 11–28, U.N. Doc. A/38/10 (1983). 207 It should be noted that the new rapporteur, like his predecessors, confined criminal responsibility to individuals, excluding organizations and states. But see Farhad Malekian, Interna-



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ab initio, and it took him until 1991 to produce what was intended to be a final text.208 Because governments and scholars alike criticized the report,209 it was revised before being adopted by the ILC in 1996.210 As stated above, during the period in which the General Assembly had mandated the ILC to prepare the Draft Code of Offences, later renamed the Draft Code of Crimes, it also gave a mandate to another special committee to prepare a draft statute for an international criminal court. That committee produced a text in 1951211 that was revised in 1953.212 The 1953 Draft Statute of the court was tabled because the Draft Code of Offences was not completed, and when it was completed in 1954, the Draft Code of Offences was tabled because the definition of aggression, which had been entrusted to another body, was not completed. That result was expected since there were different bodies working separately at different venues (Geneva and New York), and producing different texts at different times. It was, therefore, easy for the General Assembly to table each text successively because one or the other was not then ready. That lack of synchronization was not entirely fortuitous: it was the result of a political will to delay the establishment of an international criminal court, because that was a time when the world was sharply divided and frequently at risk of war. Even after the establishment of the ICC, States did not reach a consensus on the definition of aggression until 2010 at the Review Conference in Kampala, Uganda.213

tional Criminal Responsibility of states (1985). The enunciation of the principles of state responsibility have, however, since 1976 contained the notion of state criminal responsibility. See 1976 Y.B. Int’l L. Comm’n, U.N. GAOR, 31st Sess., U.N. Doc A/CN/SER.A/1976 (1976); Report of the International Law Commission, U.N. GAOR, 36th Sess., Supp. No. 10, U.N. Doc. A/36/10 (1984). Commenting on this concept, see Ian Brownlie, System of the Law of Nations: State Responsibility 32–33 (1983); Yearbook of the International Law Commission, supra, at 26–54 (containing Special Rapporteur Ago’s approach): Virginia Morris & M. Christiane Bourloyannis-Vrailas, Current Development: The Work of the Sixth Committee at the Fiftieth Session of the U.N. General Assembly, 90 Am. J. Int’l L. 491, 494 (1996). By 2001, the ILC had abandoned the notion of state criminal responsibility in its approved Principles of State Responsibility. See Report of the International Law Commission, Fifty-third session, April 23–June 1 and July 2–August 10, 2001, U.N. Doc. A/56/10 and Corr. 1 (2001), at ch. 4. 208 Report of the International Law Commission, U.N. GAOR, 46th Sess. Supp. No. 10, U.N. Doc. A/46/10 (1991) [hereinafter 1991 Draft Code of Crimes]. 209 Commentaries on 1991 Draft Code, supra note 190. 210 1996 ICL Draft Code of Crimes, supra note 187. 211 1951 Draft Statute, supra note 197. 212 Revised Draft Statute for an International Criminal Court (Annex to the Report of the Committee on International Criminal Jurisdiction, 20 Aug. 1953), GAOR, 9th Sess., Supp. 12, at 21, U.N. Doc. A/2645 (1954); see also Report of the Sixth Committee to the U.N. General Assembly considering the (Final) Report of the 1953 Committee on International Criminal Jurisdiction, U.N. GAOR, 9th Sess., Supp., U.N. Doc. A/2827/Corr.1 (1954); Report of the 1953 Committee on International Criminal Jurisdiction to the Sixth Committee, U.N. GAOR, 9th Sess., Supp. No. 12, at 23, U.N. Doc. A/2645 (1953). 213 Res. RC/Res. 6, U.N. Doc. RC/Res. 6 ( June 11, 2010) at annex 1–2 (adding Article 8bis to the Rome Statue, defining the crime of aggression); see infra section 5.

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Since World War II, only two international conventions have referred to an international criminal jurisdiction: Article 6 of the 1948 Genocide Convention214 and Article 5 of the 1973 Apartheid Convention.215 The former, however, only referred to the jurisdiction over genocide of an eventual international criminal court.216 The latter referred to the establishment of an international criminal jurisdiction to prosecute apartheid, but none was established. In 1979, the United Nations ad hoc Committee for Southern Africa requested this writer to prepare a draft statute for the establishment of an international criminal jurisdiction to prosecute violators of the Apartheid Convention, but there was no further action on the proposal for obvious political reasons.217 The question of an international criminal court came back to the U.N. by an unexpected route in 1989 after a hiatus of twenty-six years.218 In 1989, the General Assembly held a special session on the problem of drug trafficking, and Trinidad and Tobago suggested that a specialized international criminal court be established. Following that, the General Assembly requested that the ILC prepare a report on the establishment of an international criminal court for the prose­ cution of persons engaged in drug trafficking.219 Contemporaneously, an NGO

214 Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277, reprinted in 45 Am. J. Int’l L. 7 (1951) (Supp.). 215 Convention on the Suppression and Punishment of the Crime of Apartheid, 30 Nov. 1973 G.A. Res. 3068 (XXVIII), 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030, reprinted in 13 I.L.M. 50. 216 See Matthew Lippman, Genocide, in 1 Bassiouni, ICL, supra note 23, at 403; William A. Schabas, Genocide in International Law: The Crime of Crimes 354–55 (2000); Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B.U. Int’l L.J. 1 (1984); The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later, 8 Temp. Int’l & Comp. L.J. 1 (1994); Pieter N. Drost, The Crime of State: Book II, Genocide (1959); Leo Kuper, Genocide (1981). See generally Bassiouni, Crimes Against Humanity, supra note 23. 217 Study on Ways and Means of Insuring the Implementation of International Instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid, Including the Establishment of the International Jurisdiction Envisaged by the Convention, U.N. Doc. E/CN.4/1426 (1981) [hereinafter Study on the Suppression and Punishment of the Crime of Apartheid]. See generally Bassiouni & Derby, supra note 183. The draft has never been acted upon, and it is not likely to be in view of the recent changes in South Africa. See Internal Memorandum, Ministry of Justice of South Africa, Promotion of National Unity and Reconciliation Bill 011094JE, Act Number 30 of 1995; Ziyad Motala, The Promotion of National Unity and Reconciliation Act: The Constitution and International Law, 28 Comp. & Int’l L.J. S. Africa 338 (1995). That text, however, served as a model to the ILC in its formulation of the 1993 Draft Statute for an ICC. See International Law Commission Revised Report of the Working Group on the Draft Statute for an International Criminal Court, ILC, 45th Sess., U.N. Doc. A/CN.4/L.490 (1993) [hereinafter 1993 Draft Statute]; see also Bassiouni, Statute of the ICC, supra note 62. 218 See Revised Draft Statute for an International Criminal Court, U.N. GAOR, 9th Sess., Supp. No. 12, Annex, U.N. Doc. A/2645 (1954). 219 G.A. Res. 43/164 (1988) and 44/39 (1989). In particular, see Agenda item 152, International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking of Narcotic Drugs



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committee of experts,220 chaired by this author, prepared a draft statute in June 1990221 for an international criminal court that would have jurisdiction over all international crimes. The draft was modeled on the 1981 text prepared for the implementation of the Apartheid Convention mentioned above. The 1990 unofficial text was submitted to the Eighth United Nations Congress on Crime Prevention and the Treatment of Offenders,222 which recognized the need for an international criminal court and recommended that the ILC take up the matter.223 In response to the General Assembly’s mandate arising out of the 1989 special session on drugs, the ILC in 1990 completed a report that was submitted to the 45th session of the General Assembly.224 Though that report was not limited to the drug trafficking question, it was, nonetheless, favorably received by the General Assembly, which encouraged the ILC to continue its work. Thus, without a clear and specific mandate, the ILC went from a mandate limited to drug trafficking to an all-encompassing project of preparing a comprehensive statute for an international criminal court. Wisely, the ILC started with a preliminary report in 1992,225 and when that report was favorably received by the General Assembly, the ILC produced a comprehensive text in 1993,226 which it later Across National Frontiers and Other Transnational Criminal Activities Establishment of an International Criminal Court with Jurisdiction Over Such Crimes, Report of the Sixth Committee to the General Assembly, U.N. Doc. A/44/770 (1989). The proposal made by Trinidad and Tobago was the brainchild of President A.N.R. Robinson, who has been a consistent supporter of the ICC. 220 The committee of experts was assembled by the International Institute of Higher Studies in Criminal Sciences (Siracusa, Italy), in cooperation with the United Nations Crime Prevention Branch and the Italian Ministry of Justice. See M. Cherif Bassiouni, Draft Statute International Tribunal, 9 Nouvelles Études Pénales 1 (1993); M. Cherif Bassiouni, Draft Statute International Tribunal, 10 Nouvelles Études Pénales (1993) (containing French and Spanish translations of the statute). 221 This draft statute was based on this author’s proposal to the United Nations to prosecute apartheid violators. See Study on the Suppression and Punishment of the Crime of Apartheid, supra note 217. Subsequently, the draft statute was amended and published in Bassiouni, Draft Code, supra note 181. 222 U.N. Doc. A/Conf.144/NGO.7, Draft Statute: International Criminal Tribunal (1990), Item 5, reprinted in 15 Nova L. Rev. 375 (1991); see also M. Cherif Bassiouni, A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Criminality, Including the Establishment of an International Criminal Court, 15 Nova L. Rev. 353 (1991). 223 Report of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/Conf.144/28, at 277 (1990). 224 Report of the International Law Commission on the Work of its forty-second session, U.N. GAOR, 45th Sess., Supp. No. 10, A/45/10 (1990). 225 Report of the International Law Commission on the work of its 44th Session, May 4–July 24, 1992, U.N. GAOR, 47th Sess., Supp. No. 10, U.N. Doc. A/47/10 (1992). 226 See Revised Report of the Working Group on the Draft Statute for an International Criminal Court, ILC, 45th Sess., May 3–July 23, 1993, A/CN.4/L.490 (1993); Revised Report of the Working Group on the Draft Statute for an International Criminal Court: Addendum, ILC, 45th Sess., May 3– July 23, 1993, A/CN.4/L.490/Add.1 (1993); Report of the International Law Commission, U.N. GAOR, 47th Sess., Supp. No. 10, U.N. Doc. A/47/10 (1992); Report of the International Law Commission, U.N.

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modified in 1994.227 The changes made in 1994 were intended to answer the political concerns of some of the world’s major powers,228 and as a result the draft was less ideally satisfactory than its earlier 1993 version.229 Still, the ILC’s perseverance and ingenuity in developing the limited mandate it received from the General Assembly in 1989 into the 1994 Draft Statute for an International Criminal Court merits high praise. The 1994 ILC report on the draft statute for an international criminal court was submitted to the 49th Session of the General Assembly, which resolved to consider it at its 50th session, but first it set up an ad hoc committee to discuss the proposal. This committee, referred to as the 1995 Ad Hoc Committee for the Establishment of an International Criminal Court, met inter-sessionally for two meetings of two weeks each from April through August 1995.230 In the resolution establishing the Ad Hoc Committee, the General Assembly, however, decoupled the ILC’s 1994 Draft Statute for an International Criminal Court from its 1991 Draft Code of Crimes Against the Peace and Security of Mankind.231 GAOR, 44th Sess., Supp. No. 10, at 255, U.N. Doc. A/46/10 (1991). An NGO committee of experts was convened under the chairmanship of this writer by the International Institute of Higher Studies in Criminal Sciences (Siracusa, Italy), in cooperation with the United Nations Crime Prevention Branch and the Italian Ministry of Justice and prepared the text of a substitute based on the 1981 Study of Ways and Means of Insuring the Implementation of International Instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid, Including the Establishment of the International Criminal Court Envisaged by the Convention. See Study on the Suppression and Punishment of the Crime of Apartheid, supra note 217. The new text was published as M. Cherif Bassiouni, Draft Statute International Tribunal, 9 Nouvelles Études Pénales 1 (1993); M. Cherif Bassiouni, Draft Statute International Tribunal, 10 Nouvelles Études Pénales 1 (1993) (containing French and Spanish translations of the statute). 227 Report of the International Law Commission, 46th Sess., May 2–July 22, 1994, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994) reprinted in Bassiouni, Statute of the ICC, supra note 62; Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 Pace Int’l L. Rev. 121 (1994); Michael P. Scharf, Getting Serious about an International Criminal Court, 6 Pace Int’l L. Rev. 103 (1994). 228 The process was reminiscent of the same reaction that occurred in 1953 when the Revised Draft Statute for an International Criminal Court amended the Report of the Committee on International Criminal Court Jurisdiction to placate political opposition. See the 1951 and 1953 drafts, supra notes 197 and 212 respectively, and corresponding text. 229 Report of the International Law Commission, 46th Sess., U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994). For example, the 1994 Draft does not define the crimes within the “inherent” jurisdiction of the Court, but rather draws an incorrect distance between the “laws and customs of war” and the Geneva Conventions of 19 August 1949, which are deemed in that text “treaty crimes,” when these conventions are well recognized as having become part of the customary laws of armed conflict. Since this article is not intended to be a critique of the 1994 text, which otherwise has great merit, no discussion is presented on its weaknesses. See M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991); M. Cherif Bassiouni & Christopher Blakesley, The Need for an International Criminal Court in the New International World Order, 25 Vand. J. Transnat’l L. 151 (1992); see also Evered & Scharf, supra note 227. 230 U.N. GAOR 6th Comm., 49th Sess., U.N. Doc. A/C.6/49/L.24 (Nov. 23, 1994). 231 See 1991 Draft Code of Crimes, supra note 208. This text was subsequently redrafted by the ILC, see 1996 ILC Draft Code of Crimes, supra note 187. The latter however was not completed by



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In late 1995, the Ad Hoc Committee produced the report that became the basis for the General Assembly to establish the 1996 Preparatory Committee on the Establishment of an International Criminal Court (PrepCom). The 1996 PrepCom also relied on the ILC’s 1994 Draft Statute and proceeded to modify it.232 The 1996 PrepCom Report was then submitted to the General Assembly’s 51st session on October 28, 1996, with a recommendation that the General Assembly extend the PrepCom term with a specific mandate to negotiate proposals with a view to producing a consolidated text of a convention, statute, and annexed instruments by 1998.233 The General Assembly thereupon extended the PrepCom’s mandate from 1996 to April 1998.234 During that period (1994–1997) many governments changed their position on the ICC, and in December 1997 the General Assembly called for the convening of a diplomatic conference in Rome, June 15–July 17, 1998, to adopt a Convention on the Establishment of an International Criminal Court.235 This meant that the PrepCom had to produce a consolidated text in time for the Diplomatic Conference. The change in the political climate and in the attitude of governments towards an ICC was extraordinary. While there was little hope for the prospects of an ICC between 1989 and 1992, a chain of events was set in motion when the S.C., in Resolution 780,236 established a Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia. This was the first time since World War II that the international community provided for the investigation of violators of international humanitarian law. In its first interim report, the Commission of Experts stated that the establishment of an ad hoc international criminal tribunal would be “consistent with the direction of its work.”237 Recalling that report, the S.C., in Resolution 808, proceeded to establish the International Criminal Tribunal for the former Yugoslavia.238 The resolution stated that the S.C.: the ILC until 1996, and took into account the experiences of the ICTY and the ICTR, as well as the debates of the Ad Hoc Committee and of the Preparatory Committee on the International Criminal Court which the General Assembly set up after the Ad Hoc Committee completed its mandate. 232 G.A. Res. 50/46, U.N. GAOR, 50th Sess., U.N. Doc. A/RES/50/46 (1995); see also Summary of the Proceedings of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995). 233 1996 ICC Preparatory Committee Report, reprinted in Bassiouni, Statute of the ICC, supra note 62. M. Cherif Bassiouni, Recent United Nations Activities in Connection with the Establishment of a Permanent International Criminal Court and the Role of the Association Internationals de Droit Pénal and the Instituto Superiore Internazionale di Scienze Criminali, 67 Revue Internationale de Droit Pénal 127 (1996). 234 G.A. Res. 207, U.N. GAOR, 51st Sess., U.N. Doc. A/RES/51/207 (1997). 235 G.A. Res. 160, U.N. GAOR, 52nd Sess., U.N. Doc. A/RES/52/160 (1997). 236 See Commission of Experts on Former Yugoslavia, supra note 141. 237 Letter from the Secretary-General to the President of the Security Council, Feb. 9, 1993, U.N. Doc. S/25274 (1993), transmitting Interim Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), para. 74. 238 ICTY Statute, supra note 144.

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chapter six [d]ecide[d] that an international criminal tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991[.]239

The S.C. followed the same procedure in 1994 in connection with the events in Rwanda, and established the International Criminal Tribunal for Rwanda. The events in Yugoslavia and Rwanda shocked the world out of its com­ placency, and the idea of prosecuting those who committed international crimes acquired a broad-based support in world public opinion and in many governments. The early experience with the two ad hoc tribunals was mixed and can be generally characterized by, inter alia, the following: (1) The ICTY initially worked better on the whole than the ICTR and started functioning at high capacity well before the ICTR. The latter was inefficient and neglected during its first three years; (2) The Security Council, as the organ that created both tribunals, found itself frequently seized with issues and problems concerning these tribunals and their administration, and as a result became less inclined to establish other similar organs; (3) After their initial phases, the productivity of the two tribunals increased and they gained, on the whole, world-wide recognition and credibility, and thus gave support to the need for the establishment of a permanent international criminal court; (4) The international community gave strong support to the two tribunals and became more vocal about a permanent institution with universal recognition that would not suffer from the problems of ad hoc institutions. These and other factors combined to create a new international climate that compelled governments to support the establishment of a permanent international criminal court. Among these other factors was the rising influence of international civil society, which was no longer willing to tolerate that perpetrators of major international crimes went unpunished. It was believed that a permanent international criminal court would help put an end to impunity for international crimes and serious violations of fundamental human rights.240

239 Id. at para. 1. 240 See the articles contained within Accountability for International Crimes and Serious Violations of Fundamental Human Rights, 59 Law & Contemp. Probs. (M. Cherif Bassiouni, Special Ed., 1996); and Reining In Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1997, 14 Nouvelles Études Pénales (Christopher C. Joyner, special ed. & M. Cherif Bassiouni, general ed., 1998).



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4.1. Assessing the Progress from 1989 to 1998 In 1994 The General Assembly established an Ad Hoc Committee to review the ILC’s 1994 Draft Statute.241 According to General Assembly resolution 49/53 of 9 December 1994, the mandate of the Ad Hoc Committee was: to review the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and, in the light of that review, to consider arrangements for the convening of an international conference of plenipotentiaries.242

The General Assembly hoped that the Ad Hoc Committee would resolve the differences between states favoring the establishment of an ICC and those who were opposed or reluctant to see this result in the short term. The Ad Hoc Committee met for two sessions in 1995,243 but failed to come to sufficient agreement to call a conference of plenipotentiaries. However, these meetings had the positive effect of allowing states to familiarize themselves with the issues involved in the creation of an International Criminal Court. The educational value produced by the work of the Ad Hoc Committee served a beneficial purpose and led to the establishment of a Preparatory Committee in 1996.244 The mandate of the 1996 PrepCom was explicit and goal-oriented. But the fact that most of the delegates at the PrepCom had been delegates at the Ad Hoc Committee and that the same persons remained engaged in the process between 1996 and 1998 was invaluable,245 and that led to a consolidated text.246 The benefits of the 1995 Ad Hoc Committee must be tempered, however, with the acknowledgment of the difficulties that still confronted the PrepCom. Proponents of the ICC have had to face many difficulties that prevented the process from moving forward. The process was slow due to the unfamiliarity of some delegates with the technical issues involved, and the desire of some to cast a court that would be most responsive to the political concerns of their governments. Furthermore, the large number of proposals made by states at the PrepCom made it difficult to deal with them efficiently in the time available, namely twelve weeks of working sessions between 1996 and 1998. It would be unfair, however, to say that a purposeful war of attrition was being waged by opponents of the court, though there were certainly some delaying tactics. Lastly, the costs that governments had to bear in sending experts from their capitals to the meetings in New York was felt by many 241 U.N. Doc. A/RES/49/53. 242 U.N. Doc. A/RES/50/46. 243 The two sessions were held from April 3 to 13 and from August 14 to 25, 1995. 244 The two sessions were held from March 25 to April 12 and from August 12 to 30, 1996. 245 The four sessions of the 1997–98 PrepCom were held from February 11 to 21, 1997, from August 4 to 15, 1997 from December 1 to 12, 1997 and from March 16 to April 3, 1998. 246 1996 ICC Preparatory Committee Report, reprinted in Bassiouni, Statute of the ICC, supra note 62.

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delegations, and may have caused more limited participation of developing and least-developed countries at the Ad Hoc Committee and PrepCom meetings.247 Building on the work of the Ad Hoc Committee, the 1996 PrepCom was mandated by the General Assembly: to discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and, taking into account the different views expressed during the meetings, to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries, and [it was] also decide[ed] that the work of the Preparatory Committee should be based on the draft statute prepared by the International Law Commission and should take into account the report of the Ad Hoc Committee and written comments submitted by States . . . and, as appropriate, contributions of relevant organizations.248

As stated above, this mandate had a more specific, goal-oriented character, and it signified a progression from the earlier mandate of the Ad Hoc Committee. The 1996 PrepCom did not, however, produce a “consolidated” text of a draft statute, and only succeeded in creating a report which compiled various proposals. On the basis on this work, the 1996 PrepCom proposed to the General Assembly to continue its work with an enhanced mandate and meet for another nine weeks in 1997–98 before a diplomatic conference could be held. With all of this in mind, the 1996 PrepCom, in its report to the Sixth Committee stated: recognizing that this is a matter for the General Assembly, . . . on the basis of its scheme of work, considers that it is realistic to regard the holding of a diplomatic conference of plenipotentiaries in 1998 as feasible.249

Some of the language in this recommendation was troubling, in particular, the insistence by some delegations on the inclusion of a footnote in the recommendations of the 1996 PrepCom reserving their positions on its findings and its decision to move towards a Diplomatic Conference in 1998 necessitates caution. The footnote states that:

247 This is why the U.N. established a trust fund to assist Least Developed Countries (LDC’s) in having one delegate per applying country. A similar program was developed by the International Human Rights Law Institute of DePaul University, funded by the John D. and Catherine T. MacArthur Foundation, which helped bring over 200 LDC delegates to meetings of the Preparatory Committee, as well as the meetings of the first Assembly of States Parties. These programs also helped to bring LDC delegates to the Diplomatic Conference in Rome. Specifically, the U.N. program brought forty-five delegates to Rome and the DePaul program brought twenty-three delegates to Rome. 248 U.N. Doc. A/RES/50/46 at para. 2. 249 1996 ICC Preparatory Committee Report, supra note 3, at Vol. I, para. 370.



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[s]ome delegations expressed reservations on the conclusions of the Preparatory Committee and felt that these conclusions do not prejudge the position of the States in the General Assembly.250

The lack of an imperative to complete its work by April 1998 in the language of the recommendation to the PrepCom raised concerns that the 1997–98 work could delay the convening of the conference in June 1998, and the wording of the 1996 PrepCom Report may not have been sufficiently peremptory. But the General Assembly’s resolution was quite specific.251 It mandated the 1997–98 PrepCom to: (a) to meet three or four times up to a total of 9 weeks before the diplomatic conference. To organize its work so that it will finalize its work in April of 1998 and so as to allow the widest possible participation of States. The work should be done in the form of open-ended working groups, concentrating on the negotiation of proposals with a view of producing a widely acceptable draft consolidated text of a convention, to be submitted to the diplomatic conference. No simultaneous meetings of the working groups were to be held in order to not handicap smaller delegations. The working groups were to work with complete transparency and should be by general agreement to secure the universality of the convention. Submission of reports of its debates was not required. Interpretation and translation services were however made available to some of the working groups. (b) the subjects to be dealt with by the Preparatory Committee were: 1. Lists, definition, and elements of crimes 2. Principles of criminal law and penalties 3. Organization of the court 4. Procedures 5. Complementarity and trigger mechanism 6. Cooperation with states 7. Establishment of the ICC and relationship with the U.N. 8. Final clauses and financial matters 9. Other matters

The renewed mandate of the 1997–98 PrepCom was a more positive, goaloriented statement than that of the 1996 PrepCom, and it engendered a successful progression to the negotiation stage of the process, which occurred during the 1997–98 PrepCom.252 The 1997–98 PrepCom attained its goal, and the draft report of the PrepCom253 stated:

250 Id. at p. 77, note 168. 251 U.N. Doc. A/51/627. This resolution was adopted by the U.N. General Assembly on December 17, 1996. 252 Id. 253 Draft Report of the Preparatory Committee, A/AC.249/1998/L.16, 1998.

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chapter six 1. The General Assembly, in its resolution 50/46 of 11 December 1995, decided to establish a preparatory committee for the establishment of an international criminal court to discuss the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission in 1994 and to draft texts with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries. 2. The Preparatory Committee on the Establishment of an International Criminal Court met from 25 March to 12 April and from 12 to 30 August 1996, during which time it discussed further the issues arising out of the draft statute and began preparing a widely acceptable consolidated text of a convention for an international criminal court.254 3. In its resolution 51/207 of 17 December 1996, the General Assembly decided that the Preparatory Committee would meet in 1997 and 1998 in order to complete the drafting of a text for submission to the diplomatic conference of plenipotentiaries. 4. The Preparatory Committee met from 11 to 21 February, from 4 to 15 August and from 1 to 12 December 1997, during which time it continued to prepare a widely acceptable consolidated text of a convention for an international criminal court.255 5. The General Assembly, in its resolution 52/160 of 15 December 1997, accepted with deep appreciation the generous offer of the Government of Italy to act as host to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and decided to hold the Conference in Rome from 15 June to 17 July 1998. 6. In the same resolution, the General Assembly requested the Preparatory Committee to continue its work in accordance with Assembly resolution 51/207 and, at the end of its sessions, to transmit to the Conference the text of a draft convention on the establishment of an international criminal court prepared in accordance with its mandate. 7. The Preparatory Committee met from 16 March to 3 April 1998 and had before it a consolidated text compiled by the Bureau and coordinators on the basis of all the texts that it had worked out or that had been submitted to it (A/AC.249/1998/ L.13). The compilation was the product of an informal meeting held in Zutphen, the Netherlands, from 19 to 30 January 1998 and was used as a basis for the work of the Committee at that session. 8. At its 56th meeting, on 16 March, the Preparatory Committee decided to conduct its work through working groups on the following subjects: procedural matters (chaired by Ms. Silvia Fernádndez de Gurmendi); composition and administration of the court (chaired by Mr. Lionel Yee); establishment of the court and relationship with the United Nations (chaired by Mr. Rama Rao); applicable law

254 See Official Records of the General Assembly, Fifty-first Session, Supplement No. 22 (A/51/22) [This is an original footnote from document A/AC.249/1998/L.16]. 255 See Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21 July 1997 (A/AC.249/1997/L.5); Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997 (A/AC.249/1997/L.8/Rev.I); and Decisions Taken by the Preparatory Committee at its Session Held from 1 to 12 December 1997 (A/AC.249/1997/L.9/Rev.1) (This is an original footnote from document A/AC.249/1998/L.16); see also Bassiouni, Statute of the ICC, supra note 62.



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(chaired by Mr. Per Saland); on non bis in idem (chaired by Mr. John Holmes); jurisdictional issues (chaired by Mr. Erkki Kourula), and enforcement (chaired by Mrs. Molly Warlow). The final clauses were considered at the informal meetings under the chairmanship of Mr. Adriaan Bos. 9. At its 57th meeting, on 1 April, the Preparatory Committee adopted the reports of the working groups mentioned above. 10. At its meeting of 3 April, the Preparatory Committee adopted the text of a draft statute on the establishment of an international criminal court (A/AC.249/ CRP.6–18) and the draft final act (A/AC.249/1998/CRP.19). 11. In its resolution 52/160, the General Assembly requested the Secretary-General to prepare the text of the draft rules of procedure of the Conference, to be submitted to the Preparatory Committee for its consideration and recommendations to the Conference, with a view to the adoption of such rules by the Conference in accordance with the rules of procedure of the General Assembly, and to provide for consultations on the organization and methods of work of the Conference, including rules of procedure, prior to the convening of the last session of the Committee. At its meeting of 3 April, the Preparatory Committee adopted the draft provisional rules of procedure of the Conference prepared by the Secretary-General (A/AC.249/1998/CRP.3) pursuant to resolution 52/160. 12. At meeting in April, the Preparatory Committee took note of the draft organization of work prepared by the Secretariat and decided to transmit it to the Conference. 13. At its meeting in April, the Preparatory Committee agreed to transmit to the Conference the following documents: (a) Draft statute for the establishment of an international criminal court; (b) Draft final act, (c) Draft provisional rules of procedure of the Conference; (d) Draft organization of work. 14. In its resolution 52/160, the General Assembly requested the Secretary-General to invite non-governmental organizations, accredited by the Preparatory Committee with due regard to the provisions of section VII of Economic and Social Council resolution 1996/3 1 of 25 July 1996, and in particular to the relevance of their activities to the work of the Conference, to participate in the Conference, along the lines followed in the Committee, on the understanding that participation meant attending meetings of its plenary and, unless otherwise decided by the Conference in specific situations, formal meetings of its subsidiary bodies except the drafting group, receiving copies of the official documents, making available their materials to delegates and addressing, through a limited number of their representatives, its opening and/or closing sessions, as appropriate, in accordance with the rules of procedure to be adopted by the Conference. On the basis of the list of non-governmental organizations compiled by the Secretariat with the assistance of the NGO Coalition for the Establishment of an International Criminal Court (A/AC.249/1998/CRP.22), the Preparatory Committee decided that the non-governmental organizations listed therein should be invited to participate in the Conference in the manner set out in resolution 52/160. 15. At the 57th meeting, on 1 April, the representative of the Netherlands announced his country’s candidacy of The Hague for the seat of the international criminal court.

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chapter six 16. Pursuant to paragraph 7 of resolution 51/207, the Secretary-General established a trust fund for the participation of the least developed countries in the work of the Preparatory Committee and the Conference. Guidelines were established for the administration of the fund. The Committee noted that the following Governments had made contributions to the fund: Belgium, Canada, Denmark, Finland, Netherlands, Norway, Sweden and United Kingdom of Great Britain and Northern Ireland. Thirty-three representatives from 18 States had thus far utilized the trust fund to facilitate their participation in the meetings of the Preparatory Committee during 1997 and 1998. The European Commission had awarded a grant to the trust fund, but owing to procedural difficulties, the transfer of the contribution had been delayed. 17. Pursuant to paragraph 7 of resolution 52/160, the Secretary-General also established a trust fund for the participation of other developing countries in the work of the Preparatory Committee and in the Conference. The Government of the Netherlands had made a contribution, which would be available to those developing countries requesting assistance to facilitate their participation in the Conference. 18. The Preparatory Committee expressed its deep appreciation to the Governments that had made contributions and to the European Commission for its award to the above­mentioned trust fund. The Committee noted that the General Assembly, in its resolution 52/160, called upon States to contribute voluntarily to the trust fund.256

The 1997–98 PrepCom completed its work on April 3, 1998 with a consolidated text of 173 pages containing 116 articles, but which had some 1300 words in brackets.257 This was the text that the Diplomatic Conference was going to deal with in its five weeks in Rome. 4.2. Informal Inter-Sessional Meetings A number of delegations met inter-sessionally during the Ad Hoc Committee in 1995, the 1996 PrepCom sessions, as well as during the 1997–98 PrepCom sessions. Four inter-sessional meetings took place at the International Institute of Higher Studies in Criminal Sciences (ISISC), producing the Siracusa Draft in a meeting from December 3–8, 1995; the Updated Siracusa Draft during the July 10–14, 1996 meeting; the Abbreviated Compilation of Proposals on Rules of Procedure and Evidence during the May 29 to June 4, 1997 meeting;258 and the Abbreviated Compilation of Proposals on International Cooperation and Judicial Assistance and Enforcement during the November 17–21, 1997 meeting.259 Another informal inter-sessional meeting took place in Zutphen, The Netherlands, consisting of members of the Bureau and working group coordinators. This meeting resulted 256 Draft Report of the Preparatory Committee, supra note 253. 257 See supra note 233. 258 U.N Doc. A/AC.249/L.2, 1996, presented by The Netherlands and Australia. 259 A/AC.249/1997/WG.5/CRP.1, 1997, presented by South Africa.



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in the Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands.260 These inter-sessional meetings proved very useful to the work of the Ad Hoc Committee and to the PrepCom, as all but the Zutphen meeting were open to all interested delegations and NGOs. 4.3. The “Like-Minded” States A group of delegations known as the “like-minded states” have been a significant driving force behind the ICC’s momentum. Their contributions have been effective and constructive. This group, which has benefited from the coordination and hospitality of the U.N. Canadian mission, has grown in number. By April 1998, it included: Australia, Austria, Argentina, Belgium, Canada, Chile, Croatia, Denmark, Egypt, Finland, Germany, Greece, Guatemala, Hungary, Ireland, Italy, Lesotho, Netherlands, New Zealand, Norway, Portugal, Samoa, Slovakia, South Africa, Sweden, Switzerland, Trinidad and Tobago (representing 12 Caricon states), Uruguay, and Venezuela. 4.4. The NGO Community Non-governmental organizations, and particularly the “NGO Coalition for an ICC,”261 played an important and useful part in the process. Their contributions took

260 Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, U.N. Doc. A/AC.249/1998/L.13 (1998) reprinted in Bassiouni, Statute of the ICC, supra note 62. 261 The NGO Coalition for an ICC had some 300 participating organizations including: African Law Students, Young Lawyers Association; All Saints Newman Center; ALTERLAW; American Bar Association; Amnesty International; Avocats Sans Frontieres; B’nai B’rith International; Baha’i International Community; Campaign for Tibet; Canadian Network for an International Criminal Court; The Carter Center; Center for Civil Human Rights; Center for Development of International Law; Center for Reproductive Law and Policy; Center for U.N. Reform Education; Center for Women’s Global Leadership; Coordinating Board of Jewish Organizations; Counseling and Mediation Center; Crusade Against Violence; Drug Free Society; Egyptian Organization for Human Rights; Equality Now; European Law Students Association; European Peace Movement; Evangelical Lutheran Church in America; Federation Internationale des Ligues Droits de l’Hommes; FN-Forbundet/ Danish UNA; Global Policy Forum; Guatemala Human Rights Commission/USA; Helsinki Citizens Assembly; Human Rights Internet; Human Rights Watch; Humanitarian Law Center; International Law Association (U.S. Branch) Committee on an International Criminal Court; International Association of Penal Law; Institute for the Study of Genocide; Istituto Superiore Internazionale di Scienze Criminali; Interkeekelyk Vredesberaad; International Bar Association; International Commission of Jurists; International Human Rights Law Group; International Human Rights Law Institute, DePaul University School of Law; International Indian Treaty Council; International League for Human Rights; International Service for Human Rights; International Society for Human Rights; International Society for Traumatic Stress Studies; International Committee for the Convention against Microwave Weapons; Lawyers Committee for Human Rights; Lawyers Committee on Nuclear Policy; League of Human Rights; Legal Aid for Women and Environmental Development; Leo Kuper Foundation; Manobik Unnayan Parishad; Maryknol Society Justice and

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the form of aiding the PrepCom through publishing expert NGO papers, which contributed to a deeper understanding of the issues and created opportunities for generating ideas, and for informal meetings with delegates through which NGO experts could offer advice to the delegates. Equally, the close attention which NGOs have paid to the proceedings of the PrepCom, the meetings which the NGO Coalition has held during the PrepCom with various states, groups of states, and other influential persons inside the ICC process, and the lobbying which has gone on at the United Nations, all served to sustain and strengthen the momentum of the endeavor. At a broader level, outside of the PrepCom, efforts were undertaken by NGOs to influence political leaders and create worldwide awareness of the Court issue; such support for the Court has proved crucial, and should be acknowledged as such. 4.5. The Draft Statute of the International Criminal Court From 1995 to 1998, two committees set up by the General Assembly worked thirteen weeks cumulatively at United Nations Headquarters in New York to produce what was called a “consolidated text” of a Draft Statute for the establishment of an international criminal court.262

Peace Office; Medecins Sans Frontieres; Morgan, Lewis & Bockius LLP; No Peace Without Justice (TRP); Nuclear Age Peace Foundation; Nurnberger Menschenrecthszentrum; Ordre des Avocats a la Cour de Paris; Organization for Defending Victims of Violence; Pace Peace Centre, Pace Law School; Parliamentarians for Global Action; Procedural Aspects of International Law Institute; Quaker U.N. Office; Redress; Robert F. Kennedy Memorial Center for Human Rights; SOS Balkanes; Syracuse University; The People’s Decade of Human Rights Education; Transnational Radical Party; United Church Board for World Ministries; United Nations Association; Urban Morgan Institute for Human Rights; War & Peace Foundation; Washington Office on Latin America; World Federalist Association; World Federalist Movement, Institute for Global Policy; Womens’ Environment and Development Organization; World Order Models Project; World Organization of Building Officials. A list of the NGOs who participated at the Diplomatic Conference is contained in Annex IV of A/Conf.183/9 (1998). Many organizations and individuals deserve recognition, but some truly stand out for their hard work and commitment and for the effectiveness of their contribution. They are: Harry Barnes, The Carter Center; Bill Butler, International Commission of Jurists; Rhonda Copeland, Women’s Caucus; Richard Dicker, Human Rights Watch; Adama Dieng, International Commission of Jurists; Steven Gerber, Washington Working Group on the International Criminal Court; Christopher Hall, Amnesty International; Jelena Pejic, Lawyers Committee for Human Rights; Michael Posner, Lawyers Committee for Human Rights; Shazia Z. Rafi, Parliamentarians for Global Action; Mona Rishmawi, International Commission of Jurists; Ken Roth, Human Rights Watch; and the team of No Peace Without Justice which includes many but those who must be mentioned include Gianfranco Dell’Alba; Sergio Stanzani, and Marino Busdachin. 262 The Ad Hoc Committee worked in 1995 and was followed by the Preparatory Committee from 1996–1998. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, A/50/22, 1995; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, A/51/22, 1996. These two reports are reprinted in Bassiouni, Statute of the ICC, supra note 62. This compilation also contains the April 1998 draft statute prepared by the Preparatory Com-



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The Ad Hoc Committee on the Establishment of an International Criminal Court (hereinafter referred to as “Ad Hoc Committee”) spent the year 1995 discussing issues, and to that extent it was a useful experience, but no negotiations or drafting took place. For all practical purposes, the same occurred in 1996 during the first year of the Preparatory Committee on the Establishment of an International Criminal Court (hereinafter referred to as “PrepCom”). At that time, the feeling of some was that the PrepCom was going to wind up doing the same thing as the Ad Hoc Committee did, namely “discuss the issues,” because certain powers were not ready to let the drafting process go forward. Had mere discussions continued throughout 1997, the PrepCom would not have been able to complete its work on April 3, 1998, and the Rome Diplomatic Conference of June 15, 1998 would have been postponed. While some governments wanted this, most governments did not. The PrepCom’s Chairman, Adriaan Bos, an experienced diplomat, was sensitive to these concerns and efforts to push things along were cautious. By 1997 the “consolidated text” that the PrepCom was to prepare for the Diplomatic Conference was an unstructured and substantially unusable compilation of all governmental proposals. It was not until an inter-sessional of the Bureau and the coordinators of the different parts met at Zutphen, The Netherlands, January 19–30, 1998, that some structure and streamlining emerged. Even so, the text was essentially a cumbersome accumulation of alternative governmental proposals. The procedural parts were so unwieldy that they became known as the “telephone directory.” But, more troublesome was the fact that the definition of crimes, jurisdictional mechanisms, and “complementarity” were still at a very early stage of negotiations. The Zutphen product still required much technical work and certainly a great deal more negotiation. The Draft Statute, which was to be submitted to the Rome Diplomatic Conference on June 15, 1998, was completed on April 3, 1998 at the last session of the PrepCom, along with the Draft Final Act.263 Due to the time it took to have it translated into six languages, it was made available to the U.N. missions in New York at the end of April. This left only six weeks for the text to make its way from the U.N. Missions in New York to their respective ministries of foreign affairs, and then from there to ministries of justice and in some cases to ministries of

mittee, the final text of the statute, and a historical background. For a commentary on the work of the PrepCom, see The International Criminal Court: Observations and Issues Before the 1997–98 Preparatory Committee; and Administrative and Financial Implications, 13 Nouvelles Études Pénales (M. Cherif Bassiouni, General Ed., 1997); and Observations on the Consolidated ICC Text Before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler, Special Ed., M. Cherif Bassiouni, General Ed., 1998). 263 Id.

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defense.264 Thus, by the time the text reached those officials who later joined their government’s delegations in Rome, there was little time available for them to study the Draft Statute, to go through their internal governmental processes to assess it, and to obtain specific instructions for the Diplomatic Conference. But, what made things more difficult was the complex nature of the Draft Statute, which consisted of 116 articles contained in 173 pages of text with some 1,300 brackets for entire optional provisions and for multiple optional and single word choices.265 To follow such a text was not easy, even for those who participated in the three and a half years work of the Ad Hoc Committee266 and the PrepCom,267 and more so for those delegates who saw it for the first time just before coming to Rome.268 It is significant to note that during the years 1995–98, when the Ad Hoc Committee and the PrepCom met in New York, there was little debate about the ICC in the capitals of most U.N. Member-States. This applied to governmental bodies, parliamentary circles, the media, and above all, the general public. It was as if the advent of an ICC was so remote that few deliberated it outside a very limited number of states. Even in those cases, however, the discussion was somewhat limited to a few foreign affairs specialists, human rights organizations, and a few academics. As to mass media all over the world, it paid very little attention to the question. This lack of preparation and sensitization of official circles, the influential sectors of society, and the general population was probably due to the belief that the prospects of an ICC were remote. As a result, it made the negotiating climate in New York and then in Rome that much more difficult. To this date, even though 120 states voted in support of the final act of the Rome Diplomatic Conference, 139 states have signed the Rome Treaty, and eighty-eight states have ratified or acceded to it,269 the ICC is scarcely discussed in circles of government and parliament, and even less so in the mass media in these countries.

264 In Rome, many representatives of Justice Ministries complained that their Ministries of Foreign Affairs had not communicated with them on the ICC until the last minute. Many also noted that Ministries of Foreign Affairs were not particularly involving colleagues from other ministries. 265 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, A/Conf.183/2/Add.1, 1998, reprinted in Bassiouni, Statute of the ICC, supra note 62. 266 G.A. Res. 49/53, U.N. GAOR, U.N. Doc. A/RES/49/53 (1994). 267 G.A. Res. 50/46, U.N. GAOR, U.N. Doc. A/RES/50/46 (1995). 268 There were also many delegates who started to study the Draft Statute after their arrival in Rome. 269 As of November 2011, 119 states have ratified the treaty establishing the ICC. For an updated list of ICC States-Parties, see The State Parties to the Rome Statute, ICC, http://www.icc-cpi.int/ Menus/ASP/states+parties/ (last visited Nov. 15, 2011). See also, ICC Progress Report No. 10 (International Human Rights Law Institute, DePaul University College of Law, January 1, 2003).



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4.6. The Rome Diplomatic Conference June 15–July 17, 1998 It is estimated that two-thirds of the Rome Delegates had not participated in the Ad Hoc Committee and the PrepCom’s three and a half years of work, and that, for reasons stated above, a majority of those in attendance either did not have the time to study the text, or had to study it superficially. That meant that the delegates needed a learning curve period and that would slow down the negotiations. It was almost like turning the clock back to the first meeting of the Ad Hoc Committee in 1995. Anticipating this worst-case scenario and other difficulties, particularly because of the Diplomatic Conference’s relatively short period of five weeks (officially twenty-four working days of six hours per day),270 the PrepCom’s Bureau271 decided at its last session in March–April 1998 that it would be useful to hold an organizational meeting of the Bureau before the beginning of the Diplomatic Conference with the three chairs,272 the coordinators of the working groups that had worked so effectively during the PrepCom, and members of the Secretariat. However, a legal problem arose in that the PrepCom’s mandate from the General Assembly ended on April 3,273 and therefore the Bureau and the coordinators of the working groups no longer had any official capacity after that date. As to the three persons who were nominated by the PrepCom as chairs of the Diplomatic Conference, they would not be formally elected until June 15, the Conference’s opening day, and thus had no legal capacity before their formal election in Rome. Consequently, no formal meetings could take place. The pragmatic solution was to have an informal meeting, but that still left the problem of who was to convene that meeting and how it was to be funded. The International Institute of Higher Studies in Criminal Sciences,

270 While it may appear that five weeks is a long time for a Diplomatic Conference, the fact is that there were only twenty-four working days of six hours a day with simultaneous interpretation for the Committee of the Whole, the Working Group of the Committee of the Whole, and the Drafting Committee. During that period of time the delegates had to cover 116 articles, including reaching political compromises on the definitions of crimes, jurisdiction, triggering mechanisms, the role of the Security Council and the prosecutor, and other difficult political issues that the PrepCom had not resolved. If one considers the fact that the articles of a legal technical nature require significant drafting attention, and approximately thirty articles involve sensitive political judgments, it is quite clear that twenty-four working days would simply not be enough. The participation of 161 delegations and an estimated 2,000 delegates (out of the 5,000 registered ones) compounded the difficulty of achieving consensus in such a limited period of time. 271 Consisting of: Adriaan Bos, Chairman; M. Cherif Bassiouni, Sylvia Fernandez de Gurmendi, Marek Madej; followed by Peter Tomka, Vice-Chairmen; and Juan Yoshida; followed by Masataka Okano, Rapporteurs. 272 Conference Chairman, Professor Giovanni Conso (Italy); Chairman of the Committee of the Whole, Ambassador Adrian Bos (Netherlands); and Chairman of the Drafting Committee, Professor M. Cherif Bassiouni (Egypt). See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Rules of Procedure, A/Conf.183/2/Add.2, 1998. 273 G.A. Res. 51/207, 17 Dec. 1996.

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an NGO with a special cooperation agreement with the UN,274 offered to assume that responsibility in cooperation with another NGO, the International Scientific and Advisory Professional Council,275 and the Italian Ministry of Foreign Affairs supported the initiative.276 This informal arrangement was agreed to by the outgoing PrepCom and the meeting took place May 4–8 at Courmayeur, Italy, with all of the above-mentioned participants, the designated Executive Secretary of the conference,277 other members of the United Nations Secretariat, and officials of the Italian Ministry of Foreign Affairs representing the host country. The purposes of the Courmayeur meeting were: to discuss the organizational plan for the Diplomatic Conference’s work proposed by the PrepCom278 to 274 See M. Cherif Bassiouni, International Institute of Higher Studies in Criminal Sciences, in The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program (In honor of Adolfo Beria di Argentine) 209 (M. Cherif Bassiouni ed. 1995). 275 See Ernesto Ugo Savona, International Scientific and Advisory Professional Council, in The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program (In honor of Adolfo Beria di Argentine), supra note 274, at 249. 276 The meeting was organized by International Scientific and Professional Advisory Council (ISPAC) and International Institute of Higher Studies in Criminal Sciences (ISISC). The latter had already hosted several informal meetings in Siracusa of working groups of the PrepCom and the work produced by the delegates who participated in these meetings proved quite useful to the PrepCom. 277 Mr. Roy Lee, Director, Codification Division, OLA. 278 The PrepCom’s Draft Organization of Work, A/AC.249/1998/CRP.21, 1998, provided that: 1. As mandated by the General Assembly in its resolution 52/160, of 15 December 1997, the task of the Conference is to finalize and adopt a convention on the establishment of an international criminal court. The Conference should move promptly to the consideration of substantive matters after a short session on organizational matters. 2. After the opening of the Conference by the Secretary-General of the United Nations, the Conference will meet to elect the President, adopt the agenda and the rules of procedure and elect other officers. 3. The General Committee will meet immediately following the election of its members. Its work will include, inter alia, assisting the President in the general conduct of business and making recommendations with respect to the election of members of the Drafting Committee. 4. The plenary, on the recommendations of the General Committee, will then elect the members of the Drafting Committee and adopt the programme of work of the Conference. 5. The plenary will then proceed to hear statements from States in accordance with an established list of speakers prepared on a first-come-first-served basis. The Conference will also hear statements from a limited number of intergovernmental organizations and non-governmental organizations. The list of speakers will be opened for inscription on 15 April 1998. 6. With a view to the efficient and expeditious discharge of the work of the plenary, a time limit may be established for statements by States on the one hand (e.g., 10 minutes) and intergovernmental organizations and non-governmental organizations on the other. In principle, States should be given more time than intergovernmental organizations and non-governmental organizations. A total of eight meetings may be allotted for this purpose. 7. The Committee of the Whole should concentrate on the substantive work and should begin its work on 16 June. It may hold up to four meetings (with full interpretation) per



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develop a tactical approach to the order of discussion by the Committee of the Whole of the various parts of the Draft Statute and to establish the manner in which the flow of work would proceed between the Committee of the Whole, the Working Group, and the Drafting Committee.279 Among the tactical decisions made at that meeting was that the Plenary would only convene the first week to allow senior delegation heads, usually ministers of foreign affairs and ministers of justice, to make their speeches.280 But, it was also planned, in order to save time, that as of June 17, while the speeches were still being made at the Plenary, that the Committee of the Whole, the Working Group, and the Drafting Committee, the only three official bodies of the Diplomatic Conference, would start their meetings. It was also agreed that Parts I and III of the Draft Statute would be discussed first by the Committee of the Whole and the Working Group, since they were more likely to be readily accepted. These parts would then be sent to the Drafting Committee, which would rapidly complete them in order to create a positive momentum likely to lead into a rapid pace of accomplishment by the Committee of the Whole. The Courmayeur plan was sound, and the PrepCom’s working group coordinators, who were subsequently reappointed at the Conference to serve in that capacity, would provide leadership, continuity, and expertise. It was the three chairs’ belief that this plan was important to the Conference’s success because of the large number of anticipated delegates that would come to the Conference without having previously been involved in the process and the Conference’s relatively short duration of twenty-four working days. Shortly after the Courmayeur meeting, however, Ambassador Adriaan Bos, Chairman of the Ad Hoc Committee and PrepCom, who was also the Chairman designate of the Committee of the Whole of the Diplomatic Conference, day throughout the Conference, i.e., two bodies may meet concurrently, both morning and afternoon. The Committee of the Whole will report to the plenary upon the completion of its work. 8. A working group of the Committee of the Whole will begin its work on the afternoon of 17 June. 9. The Drafting Committee may begin its work on 19 June; two meetings (with full interpretation) per day may be allotted to it throughout the Conference. The Drafting Committee will receive its work from the Committee of the Whole and report to it. Time constraints might make it necessary to allow the Drafting Committee to report on the last portion of its work directly to the plenary. 10. The Credentials Committee will meet sometime during the second or third week of the Conference. One meeting has been allotted for that purpose. 11. The last day of the Conference is reserved for the signature of the Final Act and of the Statute of the Court and for the closure of the Conference. 279 The official structures established in the Conference’s rules, see supra note 255, were the Plenary, the Committee of the Whole with one Working Group of the Committee of the Whole, and the Drafting Committee. 280 To maximize the use of time, Heads of Delegations were each given five to seven minutes for their opening remarks and Inter-governmental and some NGO’s three to five minutes.

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underwent emergency surgery. His wise leadership of three and one half years was going to be missed at the Diplomatic Conference, particularly because, as stated above, the time available at the Conference was so limited.281 Adriaan Bos suggested Ambassador Philippe Kirsch of Canada as his replacement, and the choice was readily accepted by the many governments which were consulted. Kirsch, a skilled and decisive diplomat, proved to be most effective at the Conference. But at that time in May, Kirsch was representing his government in a fisheries dispute before the International Court of Justice at The Hague and could only come to Rome on June 13, two days before the Conference started. Thus, he went directly from fisheries to the International Criminal Court, making his success at the Conference all the more meritorious. To coordinate the planning of the Conference’s work with the new chairman of the Committee of the Whole, a meeting was arranged on Sunday, June 14 in Rome to review the Courmayeur plan of action by the three designated chairpersons282 and the coordinators of the PrepCom’s working groups, as well as the United Nations Secretariat staff, representatives of the Italian Ministry of Foreign Affairs, and the Secretary General’s Representative, Hans Corell. Kirsch accepted the Courmayeur plan, and judiciously reappointed the coordinators of the PrepCom as coordinators of the same topics for the Diplomatic Conference. But he also argued, with prescience, that there should be more flexibility in the allotted time for the discussions of the various parts of the Draft Statute by the Committee of the Whole and the Working Group of the Committee of the Whole. Kirsch’s vast diplomatic experience with multilateral processes urged all concerned to push the negotiating process, curtail speech-making by delegates, and to have the coordinators develop rolling texts to advance the negotiating process. No sooner did the Committee of the Whole meet on June 17, than it became clear that the Courmayeur schedule could not be maintained, owing to the large number of delegates who apparently were, for one reason or another, unprepared to deal with the issues contained in the Draft Statute. Thus, the Committee of the Whole and its Working Group (which consisted of all interested delegations in the Committee of the Whole) found themselves bogged down in the same discussions that the Ad Hoc Committee and PrepCom had previously gone through for over three years, without much negotiation going on. For veterans of the process it was all dèja vu. The 5,000 or so delegates became an estimated 2,000 after the first week, as many had only come for the initial ceremonial part of the Conference.283 Those 281 See supra note 270. 282 Conso, Kirsch (who replaced Bos) and Bassiouni. 283 “The delegations were composed of a mixture of career diplomats from missions to the UN, senior civil servants from capitals, public and private experts (the largest group), and a few



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who remained and attended the sessions fell into two categories: those who were veterans of the Ad Hoc Committee and PrepCom or had participated in some of the sessions of these committees, along with the few who had studied the Draft Statute, and those who had either scant or no knowledge of the text. The former, who only constituted an estimated one-tenth of the delegates, were optimistic; the latter were not, and their initial reaction was to express concerns and raise questions that had been previously debated, and, in some cases, even settled by the PrepCom. With this difficult beginning, a positive outcome of the Conference was not promising, and by the second week some delegates started to float the idea of a second Diplomatic Conference—Rome II as it was called. This situation made the first two weeks of the Conference very tenuous, not to say pessimistic. To accelerate the pace of the discussions, Kirsch allowed several “informal working groups” to be established. These “informal working groups” then broke down into smaller “informal-informal working groups.” At times, there were as many as a dozen “informal working groups” and “informalinformal working groups” convening simultaneously while delegations were consulting amongst themselves and regional and political groups were holding their own meetings.284 As a result, most of the delegates’ daily schedule after the second week consisted of ten to twelve working hours, including weekends, while delegates who assumed leading roles worked even longer hours. The pace was hectic and the work was grueling, while the mood was turning more and more pessimistic. Worst of all, there were few effective negotiations on the Statute’s major provisions as discussed below. The breakdown into smaller groups and the extensive work schedule was to the detriment of the smaller delegations, which consisted of two or three delegates, who could not cover all the meetings.285 It was also particularly

politicians. Most came from foreign ministries, but larger countries (France, the U.K., the United States, Russia) included representatives from justice and defense ministries.” See Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterward on the Rome Diplomatic Conference, 5 Global Governance 1, 16 ( Jan.–Mar. 1999). 284 Among the most active for example was the Arab Group which met frequently and adopted common positions that were not necessarily supportive of the ICC, though some states like Egypt and Jordan were part of the “like-minded” group of states. The latter met most frequently and they were the driving force for completing the Statute in Rome and for establishing the ICC. 285 Delegations with ten delegates could adequately cover all of the proceedings, and even so, at that working pace, it was a grueling experience, but not so for smaller ones. The pressure on the Secretariat however was even more intense. The extraordinary performance of the leading Secretariat staff deserves recognition and praise. This includes Hans Corell, Representative of the Secretary-General; Roy Lee, Executive Secretary of the Diplomatic Conference; Mahnoush Arsanjani, Secretary of the Committee of the Whole, and Christiane Bourloyannis-Vrailas and Virginia Morris, who assisted her; Manuel Rama-Montaldo, Secretary of the Drafting Committee, who was assisted by Vladimir Rudnitsky and Renan Villacis; and Mpazi Sinjela, who was the special assistant to Mr. Corell and Secretary of the Credentials Committee.

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detrimental to non-English-speaking delegations, which had difficulties attending informal meetings conducted in English only.286 Nevertheless, as a result of this technique, the process moved faster, even though only a few delegates had some grasp of the overall picture as it evolved. In fact, most delegates saw only some of the trees, but not the forest, and there was no time during the hectic course of the Conference to take stock of the overall progress. Despite the accelerated pace afforded by the several working groups, things moved both too slowly and in an unwieldy way, leaving most delegates uncertain about the ultimate outcome of their efforts. To make matters worse, the FAO building was not conducive to having multiple meetings. The FAO building had not been vacated by its staff, and some 100 rooms scattered throughout the building were made available for the Diplomatic Conference’s staff, translators, interpreters, meeting rooms, and secretarial and clerical space. Meetings of the various working groups had to frequently be arranged on an ad hoc basis, the rooms changed, and the delegates had to scurry about to find out where they were meeting on a daily basis, except for the two permanent meeting rooms of the Committee of the Whole and the Drafting Committee, which met in the remote Malaysia Room.287 The FAO building, a relic of the Mussolini-era architectural style, was not user-friendly.288 Its three different horizontal wings were connected by vertical corridors, which did not correspond to the same floors, and delegates frequently lost their way from one meeting room to another. Finding U.N. staff offices was another difficult endeavor. Further, air conditioning existed in only a few of 286 One of the difficulties with the work of these groups was the absence of simultaneous interpretation in six languages, which, for obvious reasons of personnel, logistics and costs could not be afforded. Since the dominant language was English, delegates from non-English-speaking countries were at a disadvantage, while delegations without English-speaking delegates, or with only a few of them, were in fact shut out of that aspect of the process. 287 The Malaysia Room, named after the Government that had donated its furnishings, was in Building C on the second floor. It was far removed from the first floor rooms of the Committee of the Whole and the NGO room, the Sudan Room, which were in Building A. Thus, most delegates and NGOs did not even know where the Drafting Committee met, let alone what it accomplished. This gave the Drafting Committee an aura of mystery and remoteness, but it also meant that its efforts were not as appreciated as they should have been. Nevertheless, this anonymity allowed the Drafting Committee to work in complete confidentiality and with effectiveness, particularly since the media was oblivious to its existence, and thus to its work. Even the daily NGO bulletin, Terra Viva, referred to the Drafting Committee only once in five weeks. 288 For example, participants were often confused as to the location and time of their meetings since the monitor placed in the main lobby of the building for this purpose did not reflect updates or changes in meeting times and places. Distribution of proposals by governments was also encumbered by a general shortage of computers available to conference delegates. Moreover, the Secretariat quickly became overwhelmed with the volume of documents that required translation into the six official languages and distribution among the delegates. Many difficulties were further compounded by the inadequate facilities for communicating to individuals outside of the conference. The hundreds of conference attendees waited in long lines for the six phones and two fax machines available for general use.



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the rooms, with the balance of the building and the corridors subject to one of Rome’s hottest and more humid summers. 4.6.1. The Flow of Texts to the Drafting Committee The breakdown of the working groups into “informal working groups” and “informal-informal working groups” also meant that the various articles in the various parts of the Draft Statute were dealt with on a piecemeal basis. Consequently, only parts of draft articles were sent to the Drafting Committee289 after their pro forma approval by the Committee of the Whole,290 their assignment by the Secretariat of a conference symbol number, and their translation in either Geneva or New York.291 Thus, the Drafting Committee, as of the second week, received 289 Twenty-five elected delegations formed the Drafting Committee: Cameroon, China, Dominican Republic, Egypt, France, Germany, Ghana, India, Jamaica, Lebanon, Mexico, Morocco, Philippines, Poland, Republic of Korea, Russian Federation, Slovenia, South Africa, Spain, Sudan, Switzerland, Syrian Arab Republic, United Kingdom of Great Britain and Northern Ireland, United States of America and Venezuela. The members of these delegations were not always the same throughout the five weeks. Since there was no official roster of delegates representing these delegations, the following names are those that I recorded, though other delegates also occasionally participated. Thus, the following list is incomplete. Cameroon: Maurice Kamto, Victor Tchatchouwo; China: Xu Hong; Dominican Republic: Christina Aguiar; Egypt: M. Cherif Bassiouni; France: François Alabrune, Pierre-André Lageze; Germany: Hans-Joerg Behrens; Ghana: Immanuel Akwei Addo; India: S. Rama Rao; Republic of Korea: Sung-Kyu Lee; Lebanon: Hicham Hamdan; Jamaica: Wayne McCook, Cheryl Thompson-Barrow; Mexico: Socorro Rovirosa, Jorge Palacios Treviño, Luis Fernández Doblado; Morocco: Amal Belcaid, Fakhr Eddine Essaaidi; Philippines: Antonio Morales, Jose Tomas Syquia; Poland: Maria D. Frankowska, Kirill G. Gevorgyan; Russian Federation: Alexei Dronov; Slovenia: Mirjam Skrk; South Africa: Sabelo Sivuyile Maqungo; Spain: Juan Antonio YañezBarnuevo, Julio Montesino Ramos; Sudan: Awad El-Hassan El-Noor, Abdalla Ahmed Mahdi; Switzerland: Lucius Caflisch, Jürg Lindenmann; Syrian Arab Republic: Mohammad Said Al-Bounni; United Kingdom: Susan Dickson, Franklin Berman; United States: Clifton Johnson, Michele Klein Solomon, Jamison S. Borek; Venezuela: Victor Rodríguez Cedeño, Milagros C. Betancourt, Norman L. Monagas. 290 Though there were lengthy discussions in the Committee of the Whole, it essentially approved the texts presented by of the various working groups, which were submitted to it as a report of the Coordinator of that working group. This led to some criticism because it precluded the opportunity for the delegations to review a larger number of articles and to discuss their connection to other articles. But there was no time for that for reasons discussed above. 291 It should be noted that for each text distributed during the Rome Conference, the same process was followed for document distribution. One of the six Secretariats attending the various meetings would receive a document and bring it to their support staff. The support staff, consisting of three individuals from the New York office, typed the documents in formats that were compatible with the U.N. computer system. The documents were assigned a different symbol depending on whether they were bound for the Committee of the Whole, the Drafting Committee, and the working groups (each of these three had an individual symbol). They would then send the documents to the sites for translation and then keep track of all documents that were sent and ensure their translation and return to Rome. The Secretariat was also assisted by four law student interns from various countries that would attend all meetings and produce summaries. These interns were the official “notetakers” as there was no other method for recording the positions of various delegates. Their notes were used to produce reports and charts to assist the Secretariat and the various Chairmen in formulating their final reports. As the weeks progressed and more informal meetings were being held, the understaffed Secretariat was desperate for assistance at each of

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only a few complete articles and an average of ten to fifteen paragraphs of articles a day concerning different parts of the Draft Statute.292 This meant that on a daily basis the Drafting Committee received pieces of a large jigsaw puzzle without knowing precisely where any one piece might fit and what its connection to another piece might be.293 Furthermore, the Drafting Committee never knew when to expect the remaining parts of a given article. Thus, for example, the Drafting Committee would receive on a given day a paragraph of an article, while one or more paragraphs of the same article would be submitted to it a week or two later. Furthermore, the disparity in language, approach, and legal or drafting technique of the various groups that worked on these texts made the drafting work on these referred articles very difficult.294 That led to the need for these articles to be redrafted by the Drafting Committee at least twice and sometimes even three times before they were completed.295 But this discrete referral the meetings, and the interns began to attend working groups and act as the Secretariat for the informal discussions. 292 At the end of the first three weeks many of the working groups were completing their portion of the Statute, and Chairman Kirsch began to put pressure on the coordinators to complete the remaining texts that were pending. As these final texts began to make their way to the Drafting Committee, the group began working around the clock to keep current and ensure the internal accuracy. See Benedetti & Washburn, supra note 283, at 29. 293 As each sentence was received and considered by the Committee of the Whole, it was labeled “rolling text” and placed aside to wait for further parts of the given article to be transmitted. Once a given article was received in full, the Secretariat would prepare a separate document, translated in to the six official languages, and then distribute the article for review by the Drafting Committee. Once the Drafting Committee had the opportunity to discuss the portions of each article, it was labeled “text adopted on first reading.” The Drafting Committee would then await the remaining parts of the Draft Statute to determine whether the language for the individual articles was consistent with the rest of the parts. Once that was accomplished the text would be labeled “text adopted on second reading.” When an entire part of the Draft Statute was completed, the Drafting Committee made a “report” to the Committee of the Whole. 294 The articles transmitted from the Committee of the Whole to the Drafting Committee started on June 19 and continued up to and including July 15, 1998. Thirty-five articles were received in two to nine different parts at different dates, which were sometimes two to three weeks apart. For example: seven articles were received in eight to nine parts; nine articles were received in four to seven parts; eight articles were received in two to four parts. These and other articles were transmitted over a four-week period. The specifics are as follows: Art. 3 (in 3 parts); Art. 4 (in 3 parts); Art. 24 (in 2 parts); Art.29 (in 3 parts); Art. 31 (in 9 parts); Art. 35 (in 4 parts); Art. 37 (in 9 parts); Art. 39 (in 4 parts); Art. 40 (in 3 parts); Art. 43 (in 9 parts); Art. 45 (in 4 parts); Art. 49 (in 6 parts); Art. 52 (in 3 parts); Art. 54 (in 9 parts); Art. 58 (in 6 parts); Art. 61 (in 9 parts); Art. 67 (in 2 parts); Art. 68 (in 7 parts); Art. 69 (in 8 parts); Art. 71 (in 2 parts); Art. 72 (in 2 parts); Art. 74 (in 3 parts); Art. 75 (in 2 parts); Art. 77 (in 3 parts); Art. 80 (in 5 parts); Art. 81 (in 3 parts); Art. 82 (in 5 parts); Art. 83 (in 4 parts); Art. 86 (in 7 parts); Art. 87 (in 3 parts); Art. 90 (in 9 parts); Art. 91 (in 5 parts); Art. 94 (in 2 parts); Art. 99 (in 3 parts); Art. 102 (in 2 parts). Until July 15, the Drafting Committee had not received Part 2 and several of the Final Clauses. There were moments in which many doubted that the Drafting Committee could finish this undertaking, considering the way in which things were progressing. 295 Rule 49 of the Conference, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Rules of Procedure, supra note 272, provided that the Drafting Committee would not deal with substantive issues. The drafting issues however became more difficult in the third and fourth week when the working groups, eager to move on at a faster pace,



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process also caused the Drafting Committee significant difficulties in maintaining consistency in form and style, and in making sure that the same words had the same meaning in the different articles while providing cross-references to other related articles.296 Considering also that the Drafting Committee worked in six languages simultaneously and that it did its own corrections on all the translated articles, the task was most burdensome for the twenty-five elected delegations on the Drafting Committee. In order to help the Drafting Committee along, various articles also came from the Committee of the Whole with “notes,” which represented the understandings of the Committee of the Whole at the time that the articles were transmitted. The “notes” drew the attention of the Drafting Committee to certain terms that should not be changed or that requested the assistance of the Drafting Committee in selecting another term that would best reflect the ideas that were being contemplated within the smaller working groups. The difficulties that the Drafting Committee faced were compounded by the fact that much of the translation in the six official languages was done by translators in New York and Geneva. That meant that texts were e-mailed to New York and Geneva as they were ready in Rome and that different translators worked on different articles and on different paragraphs of a given article. Thus, there was no consistency in the quality of translation. As Chairman of the Drafting Committee, this writer called upon the good will and support of the members of the Committee to tackle this seemingly intractable task. All of them demonstrated an extraordinary willingness to do work above and beyond what was expected of them. This writer first asked the delegates to agree to rearrange their seating order and to be seated on the basis of linguistic affinity as opposed to being seated by the alphabetical order of their country’s name, which is U.N. protocol, and they agreed. The room consisted of connected tables arranged in a horseshoe–the center for the presidency and secretariat, and the sides for the delegates. In the new seating arrangements, the Anglophones sat to this writer’s left, followed by the Arabphone delegations; the Francophone sat to the right, followed by the Hispanaphone and the Chinese and Russian delegates. This approach brought together delegates whose national positions were diverse and thus contributed to focusing the delegates’ attention on the text while diminishing the psychological implications of holding only to nationalistic positions. Each linguistic became less concerned with the way the texts were drafted and more reliant on the Drafting Committee to do that. The Drafting Committee had therefore much to do in terms of clarification. Furthermore, as each change was made to the text referred by the Committee of the Whole, members of the Secretariat took notations not only to the suggested changes, but also the reasons why the text was being changed. These efforts were made in order to have a record for future questions as to why certain changes were made by the drafting committee. 296 Cross-referencing was an almost impossible task as article numbers changed daily with the addition of new paragraphs.

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grouping focused on the text in its language, reviewed the translation of each adopted text, and then compared the translated text in their different languages to make sure that they reflected the same meaning. For all practical purposes, the Drafting Committee engaged in some translation and much review of the translated texts.297 This in itself was unprecedented in multilateral treaty processes. These texts were then sent to reviewers of the U.N.’s translator teams, but the Drafting Committee still had to reexamine the translations.298 Though the U.N. reviewers of the texts worked diligently and for long hours every day, there were still technical errors in some parts of the texts. As a result, the Secretariat had to resort to a procedure known as the “no-objection” procedure to make corrections of a non-substantial nature.299 The members of the Drafting Committee performed extraordinarily well and worked in an unsurpassed spirit of friendly cooperation;300 by Wednesday, 297 The Drafting Committee usually started by clarifying the meaning of a certain concept or term in English and then discuss its equivalence in the world’s major legal systems represented at the Committee to determine the counterpart of a given legal concept represented by some terminology. This was a fascinating exercise of comparative criminal law and procedure. At times, of course, the Committee was unable to reconcile the different legal concepts that were presented in the form of carefully chosen diplomatic terms. One of this writer’s frequent remarks was that it may be diplomatically possible to join a horse and a donkey to make mule, but such a process does not work in comparative criminal law and procedure any more than it does biologically. There was a limit to what the Drafting Committee could do in light of its mandate. Nevertheless, whenever the Committee felt that something was particularly troublesome, it would alert the coordinator of that topic and seek to clarify matters. At times, this writer or someone from the Drafting Committee would meet with the coordinator of the working group that produced a given troublesome provision and sometimes the group invited the Coordinator and some influential members of the working group to come to the Drafting Committee for consultations. On several occasions the Drafting Committee was able to effectuate change, but where the choice of term was purposeful as a result of lengthy negotiations, it had no choice but to accept it, even when that choice of term was ambiguous. 298 Because of the volume of texts and the press of time, the translations still had some errors. These updated translations were released by the U.N. in July 1998 and are available at http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/ (last visited Nov. 15, 2011). They contain certain changes in four languages: Arabic, French, Spanish, and Russian. 299 A set of corrections based on the “no-objection” procedure was released by the Secretariat on October 1998 as U.N. Doc. C.N. 577.1998 Treaties-8. As stated in footnote 281, it is anticipated that another set of corrections on translations will be released soon. 300 One of the difficulties, as an illustration, was to keep track of the flow of documents. Each document that was transmitted by the Committee had a symbol number. Then, when the Drafting Committee had to separate the various articles and paragraphs contained in that transmittal document, each article (if it was complete) or each paragraph, or each paragraph or more of an article transmitted, had to be re-issued as a separate document with Drafting Committee symbols. That meant that when the Committee had to consider an article in its entirety, it had to refer to several documents. As the Drafting Committee went through second and third readings, there were new document symbols for each article. In short, the Drafting Committee had to deal with hundreds of documents. To facilitate the task of its members, the Secretariat and the Chairman prepared daily lists of documents which the delegates had to gather from their files to deal with the day’s work. Since the Committee worked in six languages, the documents dealt with were multiplied by six. The Secretariat, the Chairman and most delegates were usually surrounded by large piles of documents and the search for a given document was a constant and endless task, leading to



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July 15, the Drafting Committee had completed all 111 articles referred to it by the Committee of the Whole. It was truly a tribute to the members of the Drafting Committee that on July 15, the Committee of the Whole, in less than two hours, approved the Drafting Committee’s proposed text, save for Part 2 (Articles 5–21)301 and some of the “Final Clauses,” which the Chairman of the Committee of the Whole presented to that Committee on behalf of the Bureau on the last day of the Conference.302 4.6.2. The Negotiating Process It is important to keep in mind that the negotiations did not commence in Rome. That genesis is traced to the Ad Hoc committee in 1995 and the Preparatory Committee from 1996 to 1998. During the meetings of these committees, as well as the frustration and frequently to delays. If it were not for the preparatory work done by the Secretariat and the Chairman every evening and into the late hours of the night, the next day’s work would have been unfruitful. 301 On the afternoon of July 16th, the Drafting Committee received Part 2 of the Draft Statute (articles 5–21) from the Bureau with the instructions that the text could be read but not altered. The Drafting Committee unanimously refused to accept this conditional referral, as its members felt that this violated the letter if not the spirit of the Diplomatic Conference’s rules. This approach led several delegations to question the procedural validity of submitting a text at the last minute on a “take it or leave it” basis when only some delegations participated in its preparation. If the Drafting Committee had the chance to review Part 2, it may have been able to clarify and resolve some of the issues which continue to be troublesome. For example, Article 12(3) refers to acceptance of the ICC’s jurisdiction using the terms “with respect to the crime in question.” That terminology may imply that a non-state party can pick and choose the “crime” for which it would accept the Court’s exercise of jurisdiction and exclude any “crime” it may wish to exclude. This was clearly not intended. What was intended was the acceptance of the Court’s exercise of jurisdiction with respect to “any crime” within the jurisdiction of the Court arising out of “a situation” as is stated in Article 13. Other drafting problems have also subsequently surfaced. For example, both Articles 27(2) and 98(1) concern immunity. This could potentially foster inconsistent interpretation of the Statute’s immunity provisions. To avoid future interpretation problems, the content of these two Articles should have been joined. The Statute’s omission of the material elements of crimes, or actus reus, creates another problem area. During the Conference, an article defining actus reus was dropped from the Statute because the delegations could not agree on its content. However, until the last moment, the Drafting Committee expected to receive such a provision. Lacking a provision on the elements of crimes, the Court will have to determine what constitutes an act or omission by analogy to national legal systems. However, Article 22(2) specifically excludes interpretation by analogy. Furthermore, Article 22(2)’s prohibition of interpretation by analogy also conflicts with Article 31(3), which allows the Court to develop other grounds for exclusion from criminal responsibility. Additionally, there is no valid methodological explanation for the separation and placement of the provision concerning the presumption of innocence (Article 66) in Part 6 and the provisions concerning ne bis idem (Article 20) and the applicable law (Article 21) in Part 2. All of these provisions properly belong in Part 3 of the Statute, which deals with general principles of criminal responsibility. 302 See Philippe Kirsch & John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 Am. J. Int’l L. 2 (1999). Surprisingly, an article by Mahnoush H. Arsanjani, the Secretary of the Committee of the Whole, The Rome Statute of the International Criminal Court 93 Am. J. Int’l L. 22 (1999), does not refer to the work of the drafting committee.

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three inter-sessional meetings in Siracusa, Italy and the Zutphen inter-sessional meeting, strong informal relations were created between delegates of certain active governments and the NGO community. The fact that the same people met for thirteen weeks in New York, three weeks in Siracusa, and two weeks in Zutphen certainly contributed to the type of collegial atmosphere and working relations which not only advanced the process, but also created a climate of harmony and cooperation. This climate existed notwithstanding differences of opinion and government policies. A significant driving force behind the Statute was a coalition known as the “like-minded states.” This diverse group of states emerged out of the meetings of the Ad Hoc Committee and the PrepCom, and grew to over sixty states. It was well organized, and its meetings and briefings for smaller countries were carefully prepared. It should be noted that throughout the process, from the Ad Hoc Committee to the Diplomatic Conference, many NGOs played a significant role in discussing the issues and proposing options to government delegations. The work of 238 NGOs at the Diplomatic Conference was coordinated by the Coalition for an ICC. The work of NGOs has been recognized by all concerned as productive and professional, and as having significantly contributed to the positive outcome in Rome. The contribution of the NGO community was so valued at the meetings of the Ad Hoc Committee and the PrepCom, that they were given unprecedented access to meetings at Rome. Several notable organizations were actively involved in lobbying for the tribunal and providing legal and technical expertise. These organizations maintained a good rapport with the delegates, and included the American Bar Association, Amnesty International, the Association International de Droit Pénal, the Carter Center, the European Law Students Association, Human Rights Watch, the International Commission of Jurists, the International Human Rights Law Institute, the International Institute for the Higher Studies in Criminal Sciences, the Lawyers Committee of Human Rights, No Peace Without Justice, Parliamentarians for Global Action, the Women’s Caucus, the World Federalist Association, and the Washington Working Group on an International Criminal Court. Furthermore, IGOs such as the International Committee of the Red Cross made valuable technical contributions to the process. In light of the situation described in the previous section, the first two weeks of the Diplomatic Conference reinforced the skepticism of those who did not want a successful outcome or who doubted the possibility of completing the task within twenty-four working days. Most of the senior personalities and heads of delegations who attended the opening session and the first week, which was largely devoted to ceremonial speeches, had left, and with them many delegates. Those who remained the second week and beyond had varying degrees of instructions from their respective



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governments.303 Delegations from developed countries had detailed and specific instructions. Other delegations varied in the level of instructions, degree of detail, specificity of content, and, above all, as to the levels of discretion left to the heads of delegations that remained in Rome. Most developing countries, based on this writer’s observation, had only general instructions that were limited in detail. As is frequently the case in multilateral negotiations, much depends on the reports delegations send to their capitals and the responses they receive in return. Some delegations, for example, sent detailed daily reports, while other delegations only sent occasional reports with limited detail. The instructions from capitals depended on staff availability in the legal departments of the ministries of foreign affairs, and the degree of knowledge home-based staff had of the issues. Larger delegations tended to make more detailed reports to their capitals and received more specific instructions in return. This correlation between delegation size and interaction with capitals reflected the ability of a government to field a well staffed delegation and yet retain enough knowledgeable staff in the capital to interact with the delegation in Rome. These characteristics applied mostly to developed countries, among which many heads of delegations in Rome had wide-ranging discretionary authority giving them the ability to conduct broader and more effective negotiations. Conversely, delegations with rigid instructions could not engage in similar negotiations, while delegations with limited instructions could not undertake broad negotiations, particularly if the ultimate result would meet with home-front opposition whenever their capitals decided to take specific positions. Combining these considerations with the number of delegations that did not have the time to carefully study the Draft Statute before coming to Rome and those delegations who were not ready for the wide-ranging negotiations on the many aspects of the Statute, the result was rigidity in the entire negotiating process. Even as more informal working groups developed, there was no progress made on the major issues. Thus, by the end of the second week, skepticism increased to the point where a large number of delegations spoke of a Rome II. Many delegations pointed to two reasons for their belief that a Rome II was inevitable. The first was the obvious lack of progress on the major issues contained in Part 2 and in some of the Final Clauses. The second was the piecemeal approach, described above, which left everyone with only the knowledge of what he/she may have been directly involved in, but uncertain as to what others may have accomplished. Thus, delegates had different knowledge of the pieces of the

303 Furthermore, it has been noted that certain delegations were in special or unique circumstances such as Italy (the host of the conference) or the Netherlands (the undisputed candidate to host the Court). See Benedetti & Washburn, supra note 283, at 17.

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puzzle sent to the Drafting Committee, which were not returned from the Drafting Committee until July 15 when the pieces finally fit. Very few had enough knowledge to see the full picture.304 On July 5, however, concern increased. The danger to a successful outcome of the Rome Conference was in direct proportion to the increased acceptance of failure. To forestall this eventuality, Chairman Kirsch, with the help of the Bureau of the Committee of the Whole, members of the Canadian delegation, and some members of “like-minded states” delegations, produced a Chairman’s Paper which dealt with major issues contained in Part 2 and in some of the Final Clauses. That Chairman’s Paper focused attention on a concrete text which sought to find an acceptable level of compromise on the major issues still pending. Chairman Kirsch, however, found that while many delegations were willing to discuss the Paper, few actively engaged in negotiations with each other, though he constantly urged them to do so.305 Usually in such multilateral negotiating processes, delegations with differing views negotiate among themselves to try and resolve these differences, and while some negotiations were taking place among some delegations, the process was on the whole quite constrained. More particularly, the U.S. had exhibited greater obstinacy than anyone had expected. In fact, most delegations, particularly the “like-minded states,” were bending over backwards to accommodate the U.S., which secured broad concessions on almost everything that it had requested until then. The parts dealing with procedure were, for example, substantially as the U.S. wanted. The definitions of crimes were also mostly as the U.S. wanted them to be. But when it came to jurisdiction and the independent role of the Prosecutor, the U.S.’s delegation seemed unyielding. Many delegations were dismayed at such lack of diplomatic flexibility, which seasoned diplomats believed to be a weakness in the American negotiating approach. Many delegations, however, saw it as another sign of American intransigence. The American response failed to alleviate these concerns, or at least so it was perceived, and as a result confirmed prevalent negative opinions.306

304 One way that this writer was able to see the unfolding picture and to inform the Drafting Committee was to have the Draft Statute on computer and to replace the draft provisions with the newly adopted ones, or parts thereof. Since the Drafting Committee was dealing with several hundreds of pages of different documents, this tracking system was accompanied by a parallel chart of the document symbols for each provision or paragraph dealt with. Without this approach, the Drafting Committee would have drowned in paper. 305 Beginning on July 8, Chairman Kirsch opened the Committee of the Whole for a point-bypoint discussion of the Chairman’s Paper. Kirsch requested that each state answer to a set of specific questions rather that make general comments. This technique limited the scope of the debate and forced states to be specific, which in turn allowed Kirsch to take a “virtual vote.” See Benedetti & Washburn, supra note 283, at 31. 306 The American position was not, however, always clear, probably because of the uncertainty with which the U.S. Administration dealt with the entire endeavor. This situation made productive



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By July 12, the gaps between the more active delegations narrowed, thanks to Kirsch and those working with him. The two most important delegations that were not going along with the compromise package contained in Part 2 and in some of the Final Clauses were the U.S. and India, though each for different reasons.307 As other delegations grew weary of what they felt was a stubborn U.S. delegation and its lack of negotiating flexibility, not to say lack of subtlety, the feeling grew that it was better to stop giving in to the U.S. when it was believed that it would never be satisfied with the concessions it got and ultimately never sign the Treaty for domestic political reasons totally unrelated to the merits of the issues involved. The conclusion therefore was to go ahead with the Kirschproposed compromise package rather than to have it unravel with last minute changes sought by the U.S. For sure, there were several other delegations that had problems with the Kirsch-proposed package, and in that respect the U.S. was not alone. But the support of the U.S. was always deemed of great importance, and that is why there was so much attention paid to its position. 4.6.3. The Final Stage Part 2 contained, inter alia, the definition of crimes, jurisdiction, triggering mechanisms, “complementarity,” the role of the prosecutor, the role of the Security Council, and the prospective application of the substantive provisions of the Statute. In other words, it contained all of the political issues that had not been fully addressed by governments at the PrepCom. While the Conference delegates were heavily involved in all of the technical legal issues, as well as other political issues of a lesser significance, the big issues contained in Part 2 were characteristically left for last moment political compromises.308 By the third week, however, the Chairman of the Committee of the Whole saw the necessity of producing a Chairman’s text that identified the points on which agreement had been reached and those on which it appeared possible to reach a compromise. He and members of the Bureau held extensive meetings and consultations for the remaining two weeks of the Conference, and, on the last day of the Conference, a Bureau text was presented to the Committee of the Whole on a “take it or leave it” basis. The reason for that approach was that if whatever text presented was left open for further discussions by the Committee of the Whole at so late a stage of the negotiations more difficult than expected. One insightful commentator described the Administration’s ambivalent stance quite aptly. See Ruth Wedgewood, Fiddling in Rome: America and the International Criminal Court, 6 Foreign Aff. 20 (1998). 307 For example, India wanted to prohibit the use of nuclear weapons, while the U.S. fought hard against most states to keep nuclear weapons permissible. 308 As some veteran negotiators later said, if the conference had another week these issues would still have been debated on the last week and not before.

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Conference, it would have meant the collapse of the Conference. Thus, it was both a tactical political judgment by the Chairman and a gamble, since some delegations could have opposed the approach and blocked it procedurally in the few remaining hours of the Conference. The Bureau’s text was completed in all six languages at 0200 hours on Friday, July 17, while the Conference was officially supposed to end at 1800 hours on that day, or midnight at the latest. To allow delegations to study the Part 2 “package,” the Committee of the Whole convened after 1800 hours on that last Friday to adopt the Bureau’s proposal, which was by then, thanks to the extraordinary efficiency of the Secretariat and staff of the Conference, integrated with the remaining parts of the Statute that had been completed by the Drafting Committee and which the Committee of the Whole had previously adopted on Wednesday the 15th.309 At that late hour in the Conference, with the clock ticking towards the midnight call, two delegations, namely India and the U.S., sought to introduce last minute amendments to the proposed “package.”310 For reasons stated above, to reopen discussions at that point would have meant abandoning the work of the Conference. Thus, the Chairman of the Committee of the Whole acted boldly and decisively. Norway introduced, with respect to each of the two proposed amendments, a “no action” motion, which is the same as a motion to table. The vote of the “no action” motion on India’s proposal was 114 in favor, sixteen against, and twenty abstentions. The vote on the “no action” motion on the U.S.’s proposal was 113 in favor, seventeen against, and twenty-five abstentions. That represented 155 present and voting delegations out of 161 registered for the Conference. After this second vote, which was final,311 the delegates burst into a spontaneous standing ovation that turned into rhythmic applause that lasted close to ten minutes, while some delegates embraced one another, and others had tears in their eyes. It was one of the most extraordinary emotional scenes ever to take place at a diplomatic conference. The prevailing feeling was that the long historic journey that started after World War I had finally reached its destination. It was truly a historic moment of great significance for all who had worked so hard to bring about that momentous result. But it was also a

309 Unlike the other parts of the Statute, Part 2, Articles 5 to 21, was not, because of time constraints, referred to the Drafting Committee. 310 India, for example, wanted to limit the role of the Security Council and that was opposed by most delegations, and to include nuclear weapons as prohibited weapons which most developing countries supported. The United States, for example, wanted primarily to have jurisdiction subject to the consent of the state of nationality, but that was opposed by most states. India and the United States also wanted to limit Article 12 affecting non-State-Parties. 311 Draft Statute for the International Criminal Court, A/Conf.183/C.1/L.76; A/Conf.183/C.I/L.76/ Add.1–Add.14, 1998, reprinted in Bassiouni, Statute of the ICC, supra note 62.



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moment of release from the tensions and pressures of the previous five weeks of intensive work.312 The Committee of the Whole adjourned at about 2100 hours, and shortly thereafter the final session of the Plenary was convened. It was to be a quick formal session, but, to everyone’s surprise, the U.S. asked for another vote.313 This time 120 delegations voted for the adoption of the Statute, the Final Act of the Diplomatic Conference,314 and for the opening of the Convention for signature on the next day, while seven voted against315 and twenty-one abstained. This overwhelmingly positive vote was followed by explanations and general statements of the delegations, which went on past 0200 hours of the following day. The clock was, however, figuratively stopped at one minute before midnight so that the Plenary could be said to have completed its work within the General Assembly’s mandate to end the Conference on July 17.

312 Some observers interpreted the elation of the delegates as anti-American, but that is mostly inaccurate. The delegates were genuinely happy to have completed this historic task, which, coupled with the release of tensions after a long and arduous process, produced a sense of euphoria. For sure, there was also a sense of “enough is enough” with what was perceived as American tergiversations, with maybe a touch of what some saw as American intransigence or arrogance. But on the whole the euphoric reaction was not anti-American. After all, the negotiations resulted in many significant concessions to the American positions on various issues. The American delegation did not walk away with all that it wanted, but it was close. What it failed to achieve would have severely hampered the ICC’s ultimate purpose, and these requests were mainly motivated by domestic U.S. politics that very few were sympathetic with. But, there were also matters on which the American position was understandable. 313 This was an unrecorded vote, presumably designed to encourage some States to vote against the Statute. 314 As a result of the limited time available between the adoption of the Statute and the treaty’s opening for signature ceremony, the adopted Statute required a few corrections. The updated statute, with corrections, is available at http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/ Official+Journal/. The procedure established by the Treaty Section of the office of Legal Affairs is called “non-Objection Procedure.” It is based on Article 79 of the 1969 Vienna Convention on the Law of Treaties. It has been resorted to with respect to a number of multi-lateral conventions. This procedure is essentially designed to correct non-substantive errors such as typographical errors, punctuation errors, errors in cross-referencing which refer only to numbering, numbering of paragraphs and the like. Corrections having a substantive significance are: Article 8, paragraph 4; Article 121, paragraph 5; and Article 124. The Office of Legal Affairs obtained the “Non-Objection” of the states that signed the treaty as well as the 161 states that participated in the Diplomatic Conference. The translation of the English text was the one submitted for signature in Rome. The text was translated into the other official United Nations languages (Arabic, Chinese, French, Russian and Spanish) after the “Non-Objection” procedure was completed. Thus, until such time as other language texts are available, the English one is the only authoritative text. 315 Regrettably the United States, China and India did not join in the vote for the establishment of the ICC, and because of the importance of these states, it is hoped that they will see fit to join at a later date. The Preparatory Commission which is to be established by the General Assembly based on the Diplomatic Conference’s resolution contained in Annex I, F of the Final Act may be the vehicle through which these major governments and others could explore possibilities of finding solutions to their concerns. See also Benedetti & Washburn, supra note 283, at 27 (noting that “ the U.S. delegation found itself, according to the records of most observers, dissenting in the company of the delegations of Israel, China, Iraq, Yemen, Libya, and Qatar”).

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4.6.4. Legal Methods and Techniques Multilateral treaty negotiation processes differ significantly from the manner in which states undertake legislative processes. The former is essentially a political process, while the latter is essentially a technical one. Multilateral treaty negotiations are conducted mostly by diplomats and not legal technicians of the subject at hand. The rules and practices of multilateral treaty negotiations are shaped by years of practice in such processes, and techniques in the international and national processes are thus radically different. The various informal working groups and their sub-groups had a heterogeneous composition of delegates coming from various legal systems and traditions. Many were diplomats whose expertise was not in international criminal law, comparative criminal law, or comparative criminal procedure. Furthermore, almost none had domestic criminal practice experience whether at the judicial, prosecutorial or defense level. In addition, the composition of these groups changed on a daily basis, save for a core number of constant delegates, mostly from larger delegations who could afford to have delegates assigned to specific groups for the duration of the work or from smaller ones that had a specific interest in a given area. These groups were led by able coordinators who were mostly experienced veterans of the Ad Hoc Committee and Preparatory Committee. On the whole, the primary goal of the diplomats was to achieve compromise and agreement even at the cost of a consistent and coherent legal method and legal technique as these are conceived in national legislative processes. Any comparativist can attest to the difficulty of reconciling different legal systems, and any jurist in a particular legal system can also attest to the difficulty of maintaining a coherent and cohesive method and consistency in legal drafting technique. The combination of these two objective difficulties is in itself a significant hurdle to overcome. But when we add all the different factors mentioned above, then the task of producing a homogenous, coherent, cohesive, and consistent text was indeed an extraordinary challenge. On the whole, however, the text produced is, given all the factors mentioned above, an exceptional result. The Drafting Committee, unknown to maybe all but a few, contributed significantly to that final result. The relatively anonymous Secretariat (with the exception of a few insiders who were part of the process of putting the text together) also made a significant contribution to that end.316 316 The members of the Secretariat worked indefatigably and in an efficient and selfless way. During the last week many of them slept only a few hours a day, with some, in the last three days working almost around the clock. Their extraordinary contribution should not be overlooked by posterity. They are: Hans Corell, Under-Secretary-General, the Legal Counsel; Roy Lee, Director of the Codification Division of the Office of Legal Affairs, who was the Conference’s Executive Secretary; Manuel Rama-Montaldo, Secretary, Drafting Committee; Mahnoush Arsanjani, Secretary, Committee of the Whole; Mpazi Sinjela, Secretary, Credentials Committee; and Christiane



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The various parts of the Statute did not, however, present a uniform complexity.317 The following observations illustrate some of these difficult issues and how they were dealt with. Part 2 contains, inter alia, the definition of crimes, “complementarity,” and jurisdictional mechanisms. The definition of the crime “genocide,” Article 6, represented no problem, as it was taken almost verbatim from the 1948 Genocide Convention.318 Thus, some of the gaps in the protected categories of victims were not filled.319 “Crimes against Humanity,” Article 7, however, is substantially expanded from the original definition contained in the Nuremberg Charter’s Article 6(c),320 and also from Article 5 of the ICTY Statute321 and Article 3 of the ICTR Statute.322 The language of Article 7 is substantially clear, though some of the prohibited acts are mere labels323 whose elements will need to be established, thus raising questions about their conformity to the requirements of the principles of legality. The characterizing legal element of “policy” is represented by the terms “widespread or systematic.”324 Even so, it is not the clearest statement of that legal element.325 The reason may have been uncertainty by the drafters, but most likely it was a diplomatic way around NGO pressures that wanted to transform the character of this crime into one that applies to massive depredations of human rights. The drafters’ method was to require a policy element contained in Paragraph 2 and not in Paragraph 1 where it should have been, which left the door ajar for future jurisprudential developments.

Bourloyannis-Vrailas, Virginia Morris, Vladimir Rudnitsky and Renan Villacis, Assistant Secretaries of the Conference. 317 See Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/Conf.183/2/Add.1, July 17, 1998; see also Bassiouni, Statute of the ICC, supra note 62. 318 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 8, 19748, 78 U.N.T.S. 277, reprinted in 45 Am. J. Int’l L. 7 (1951) (Supp.). 319 Article 2 of Genocide Convention refers only to “national, ethnical, racial or religious” groups. It does not include social or political ones. The drafters did not want to open the Genocide Convention’s definition since this may have required states to revise their laws on the implementation of that Convention. It was the loss of a historic opportunity to fill these unjustified gaps. Thus written, the Ad Hoc Committee consistently urged that these gaps be filled, but to no avail. 320 Agreement for the Prosecution and Punishment of London Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 299, E.A.S. 742. 321 ICTY Statute, supra note 144; see also Bassiouni, Yugoslavia Tribunal, supra note 62. 322 ICTR Statute, supra note 164; see also Morris & Scharf, An Insider’s Guide, supra note 62. 323 The reason is that the drafters were under pressure from different sources to include certain prohibited acts, but they did not provide more specificity since that would have required lengthy and complicated sub-paragraphs. Above all, there was no time to engage in this type of detailed technical legal drafting. 324 What distinguishes “crimes against humanity” from other mass violations is the characteristic of state policy or action and by extension the policy of non-state actors. If that policy element is not unequivocally understood, “the nature of that crime can be radically altered.” The required element of “policy” is the jurisdictional element which makes “crimes against humanity” a category of international crimes. See generally Bassiouni, Crimes Against Humanity, supra note 23. 325 Id.

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“War Crimes,” Article 8, was the most difficult article to draft, mostly because the U.S., the U.K., and France wanted to avoid having their military personnel engaged in peace-keeping operations and the like from being exposed to charges arising out of such misconduct. The legal method employed was to have the text subdivided into segments reflecting the different sources of law that apply to different legal contexts. Since the conventional and customary law of armed conflict is not evenly balanced or clear, particularly as to the application of these two sources of law to both conflicts of an international and non-international character and also as to prohibited weapons, the text reflects this imbalance and insufficiency as to legal specificity. Paragraph 2 of Article 8 deals with “grave breaches” of the 1949 Geneva Conventions, which are only applicable to conflicts of an international character. Since that paragraph is verbatim from these conventions, it poses no problems of specificity. But other paragraphs embody violations of the laws and customs of war and are applicable to conflicts of an international and non-international character.326 The problem for the drafters was that, unlike conventional law, which is well established, customary law is open to question as to some of its purported violations. This is particularly true with respect to prohibited weapons and weapons of mass destruction. Consequently, the paragraphs of Article 8 reflect not only the objective uncertainty of the law, but more so the subjective desires of certain governments to have some built-in ambiguities. The result was a very lengthy provision fraught with a lack of clarity and specificity and also an awkward structure. Article 8 also contains different terms referring to a requisite mental element, but the reconciliation of these terms with the provisions contained in Part 3 on the mental element was not made. The mental element and the defenses are contained in Part 3. More troublesome with respect to this article is the repeated use of the term “unlawful” in connection with certain military acts. The question will surely arise as to what is meant by that term, since in most legal systems of the world what is unlawful is contained in a specific prohibitory norm. It is unclear where that norm exists with respect to each and every type of conduct that is subject to the characterization of being “unlawful,” and what source may be relied upon to determine the legal scope of the unlawfulness and its applicability in a given case. Furthermore, the characterization of “unlawful” in connection with 326 Including the provisions of Common Article 3 of the 1949 Geneva Conventions and some provisions of Protocol (II) Additional to Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Conflicts, opened for signature Dec. 12, 1977, U.N. Doc. A/32/144 Annex II, reprinted in 16 I.L.M. 1391, both of which apply to conflicts of an international character. Also some provisions of Protocol (I) Additional to Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Conflicts, opened for signature, Dec. 12, 1977, U.N. Doc. A/32/144 Annex I, reprinted in 16 I.L.M. 1391, which apply to conflicts of an international character.



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certain conduct also involves the mental element of “knowledge.” The absence of knowledge negates criminal responsibility, and a “mistake of law” or “mistake of fact” affecting knowledge constitutes a legal defense; these are contained in Part 3. But, since there is no clear indication of what legal source to rely upon for defining “unlawfulness,” Part 3 alone cannot solve some of these problems. This purposeful ambiguity was probably intended by certain delegations, but they were not brought out in the open. Furthermore, the members of the working group on Part 3 and those of Article 8 worked separately and these texts were never confronted or reconciled. The Drafting Committee also did not review Part 2, which includes Article 8. Part 2, as stated above, went directly to a vote by the Committee of the Whole on July 17 without the possibility of discussing amendments, for the reasons noted above. More troublesome in Articles 6, 7, and 8 are the overlapping legal elements of “genocide,” “crimes against humanity,” and “war crimes,” which were not dealt with by the drafters of Part 2.327 This was due to the more immediate concerns with producing a compromise consensus text than with legal technicalities. But the chairman’s informal working group on Part 2 also lacked expertise on this question, which may in part explain the result. This particular question will surely add to the future problems of judicial interpretation, as the ICC judges will have to wrestle with the problems of overlapping legal elements, or concours d’infractions, as they are known in the French legal system and those that follow it.328 Part 3, the General Principles of Criminal Responsibility, represented a broader and deeper problem of reconciling different legal conceptions.329 It is objectively the most difficult technical part of the Statute, and it is the one that comparative criminal law experts are most likely to criticize.330 In that respect, one of the aspects of Part 3 that will seem incongruous to many is the lack of any limitations on defenses such as “insanity,” “intoxication,” “mistake of law,” and “mistake of fact,” insofar as they may appear to be available to decision-makers and perpetrators of mass victimization in the context of the crimes of “genocide” and “crimes against humanity.” One can image a senior decision-maker or a senior executor of an order to commit mass killing claiming that at the time he was intoxicated and should therefore be exonerated of all criminal responsibility. Surely, it was not the intent of the drafters to allow such defenses to 327 See M. Cherif Bassiouni, Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities, 8 Transnat’l. L. & Contemp. Prob. 199 (1998). 328 This problem has already arisen in connection with the ICTR’s Akeyusu case (The Prosecutor vs. Jean-Paul Akayesu, Case No. ICTR-96-4-T). 329 This writer faced this problem when developing a “general part” of international criminal law. See Bassiouni, Draft Code, supra note 182. 330 See various authors in 67 Revue International de Droit Pénal (1996), commenting on Bassiouni, Draft Code, supra note 182.

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those who order, command, or execute such crimes, but it should nevertheless have been clearly stated instead of left open to judicial interpretation. More difficult however, is the mental element required for each of the crimes within the ICC’s jurisdiction where the distinction between specific and general intent is not sufficiently clear, and where no distinction exists between those who order and command the commission of these crimes (the higher echelons of perpetrators), the mid-level bureaucrats who make it possible, and those who carry them out (the lower echelons of perpetrators).331 The legal standards to establish intent are also not specified in the Statute. Since the common law, civilist legal systems, and other legal systems differ in these and in other respects, the problems posed to the drafters were significant, and while the drafters resolved some of the problems, most of them were left standing in Part 3 for the ICC’s jurisprudence to resolve. It was a diplomatic solution to difficult, if not intractable legal questions. It should be remembered that the drafting of the statute was essentially a diplomatic exercise. The approach was the same as to other multilateral treaties. But that approach is not, however, the legal method and technique that would be employed in almost all legal systems undertaking a similar enterprise. The diplomatic pragmatism that characterizes many provisions of the Statute is simply not the generally accepted legislative approach of many national legal systems. The alternative could have been different, though admittedly any alternative would have had its problems.332 It is probably because of these complexities that Article 9 of the Statute required the Preparatory Committee to prepare a set of “legal elements of crimes.” But that very concept is unknown to almost all the world’s legal systems. How the judges of the Court will interpret these “legal elements” which are in the nature of non-binding guidelines in conjunction with the binding legal nature of the Statute’s norms and other sources of interpretation are difficult to foresee.333 But Article 9 was a way to try to resolve some of the problems illustrated above, and that post hoc technique, though valid in international law, is anomalous in criminal law. Parts 4, 5 and, 6 on procedures is a veritable conglomeration of different legal processes, though the adversary-accusatorial process prevails in substance as

331 See Bassiouni, Crimes Against Humanity, supra note 23, at 520. 332 For example, the “general part” could have been that of the State where the crime took place or that of the perpetrator’s nationality. Though this alternative would have solved the problems of legality and notice, it would have created problems of disparity in the law that would offset any benefits gained by this approach. 333 Article 21 of the Statute permits resort to alternative legal sources of international law. That very norm however, may pose problems in light of Article 22 of the Statute which clearly states the applicability of the principle nullum crimen sine lege.



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well as in numerous specific provisions.334 The detail contained therein is prodigious and, considering that more detail is included in the “Rules of Procedure and Evidence” prepared by the Preparatory Committee (adopted by the Assembly of State-Parties September 9, 2002), is truly as exhaustive as many national codifications on criminal procedure. The excessive attention to adversaryaccusatorial detailed norms and rules (with a few norms deriving from so-called inquisitorial systems) was an exercise in international criminal law codification never before undertaken.335 Its raison d’être was the insistence of the U.S. and the U.K., whose justice representatives, later joined by others, worked diligently on these parts. Whether the drafters envisioned the formalistic impact of these procedures on the ICC’s processes and their effectiveness is not certain.336 The extraordinary detail of these provisions was also in part intended to curtail the ability of the Court to enact rules of procedures, as is the case with respect to the ICTY337 and ICTR.338 Part 7 on penalties may also raise questions with jurists who have a more rigid view of the principle nulla poena sine lege contained in Article 23. This part was extensively negotiated and represents a compromise among many positions, some of which were, on their face, irreconcilable. The provisions on victim compensation contained in Articles 75 and 79 are sketchy as to the substantive and procedural aspects of that right, and would not satisfy most legal codifications, but this is due to the fact that international law is far from settled on this question.339 However, there were strong pressures by the NGO community to

334 The French delegation repeatedly sought to introduce a different approach and finally gave in to demands by U.S. and other delegations from Common Law systems. 335 But this approach may not necessarily benefit the accused, in connection with gathering evidence. This was evidenced by the work of the Commission of Experts on the former Yugoslavia. See Final Report, Commission of Experts; Annexes to the Final Report of Yugoslavia Commission of Experts; M. Cherif Bassiouni, The Commission of Experts Established pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the former Yugoslavia, 5 Crim. L.F. 279 (1994). Representatives of the ICTY repeatedly pointed out the practical problems they faced when they appeared before the PrepCom, but their concerns about effectiveness and operational questions were not sufficiently heeded. 336 Whether such detail was necessary was questioned by many, but that was one of the concessions granted to the United States delegation which was intent on such an approach. In the final analysis however, such an approach is likely to make the ICC’s processes cumbersome and seriously hampered by procedural hurdles. The effectiveness of ICC may ultimately suffer from that, and its proceedings are likely to be lengthy and procedurally contentious. 337 See ICTY Statute, supra note 144, at art. 15. 338 See ICTR Statute, supra note 164, at art. 14. 339 See, e.g., Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34 (1985), Study concerning the right to restitution, compensation, and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Final Report submitted by Mr. Theo Van Boven, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1993/8 (2 July 1993), Revised set of basic principles and guidelines on the rights to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo Van Boven pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/Sub.2/1996/17 (24 May 1996), Question of the Human Rights

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have some recognition of victims’ rights. This was also the case at the time the Security Council established the ICTY, but the Council paid only lip service to the question of victim compensation and included a paragraph about it in Resolution 827.340 Part 9 on Cooperation also reflects a delicate compromise, and that is why it is not as unambiguous as it should be as to the legal nature of the obligations it requires. A link to “complementarity” would have been helpful in overcoming the possibility that some may raise about the supremacy of national legal norms concerning surrender and other forms of penal cooperation over the norms of the Statute.341 But precisely because of the tensions between what could have been deemed to be a supra-national process as opposed to an international process, this compromise approach was produced. All of these and other questions were raised and debated at several stages of the Rome process, and also at the PrepCom, but the search for compromise in Rome was more prevalent than that for rigorous legal formulations. Commentators on the Statute will surely find much grist for their critical mills in the legal method and technique (or lack thereof) used by the drafters of the Statute. Such a complex text is not likely, however, to be amended easily, if for no other reason than it would require another lengthy process of ratification by states parties. Hopefully the jurisprudence of the ICC will straighten out most of the others, and the Assembly of States Parties can also remedy some of these problems. That expectation is in itself a legal technique in addressing difficult questions, and it would surely be valid, provided that it can be reconnected with Article 22, “Nullum crimen sine lege.”342 of All Persons Subject to any Form of Detention or Imprisonment, U.N. Doc. E/CN.4/1997/104; and Report of the Independent Expert on the right to restitution, compensation, and rehabilitation for victims of grave violations of human rights and fundamental freedoms, Mr. M. Cherif Bassiouni, submitted pursuant to Commission on Human Rights resolution 1998/43, U.N. Doc. E/CN.4/2000/62 (18 January 2000). 340 See S.C. Res. 827, U.N. SCOR, 48th Sess., U.N. Doc S/RES 827 (1993). 341 See M. Cherif Bassiouni, Observations Concerning the 1997–98 Preparatory Committee’s Work, in 13 Nouvelles Études Pénales, supra note 3, at 12–13, M. Cherif Bassiouni, Observations on the Structure of the (Zutphen) Consolidated Text, in 13bis Nouvelles Etudes Penales, supra note 3, at 8–9, 11–16. 342 It should be noted that Article 21, “Applicable Law,” states: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions.



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A more pressing problem, however, is how states desirous of ratifying the Treaty will develop national implementing legislation. Because states will do so on the basis of their respective legal systems, there will surely be much diversity in this regard. Consequently, the ICC and those who work with the Statute will have to grapple not only with the problems of the Statute and the “Elements of Crimes” and “Rules of Procedure and Evidence” that will be adopted by the Assembly of States Parties, but also with a wide range of legal issues arising out of the variously employed methods of ensuring domestic compliance. From the Ad Hoc Committee in 1995 to Rome in 1998, delegations swayed between having a supra-national or infra-national institution, the latter clearly prevailing. The comprises on jurisdiction evidence this most clearly. But Part 9 is where deference to national sovereignty is most evident. Its provisions require the Prosectuor to go through national systems for cooperation, and to make the Court’s orders and judgments enforceable through the recognition and cooperation of state parties. In so doing, the Statute makes the ICC only as effective as its states’ parties national implementing legislation. The ICC relies on the cooperation of state parites and non-state parties when it investigates, prosecutes, and adjudicates cases. After adjudication, the ICC also needs the cooperation of state paties to execute sentences. Throughout this process, various levels of cooperation are required of state parties. More importantly, state parties seeking to rely on the Court’s complementarity mechanism will need national implementing legislation to be able to assume the role of investigation, prosecution, and adjudication of persons believed to have committed a crime within the Court’s jurisdiction. Consequently, national implementing legislation is indispensable for the Court’s effective operation. As of November 2011, sixty-five countries have enacted national legislation containing either complementarity or cooperation provisions, or both.343 Thirty-five countries have drafted some form of implementing legislation.344 Ideally, national implementing legislation should be comprehensive, including an amendment to the criminal code (or the like) containing the definition of crimes, so that States may rely on their national legal systems, thereby making the complementary relationship between state parties and the ICC more effective.

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief.  This Article may well appear to be in contradiction with a rigid interpretation of Article 22, Nullum Crimen Sine Lege. 343 Coalition for the International Criminal Court, Implementation of the Rome Statute, http://www.iccnow.org/?mod=romeimplementation (last visited Nov. 2, 2011). 344 Id.

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Whether some of the difficulties throughout the drafting and implementation process could have been avoided if there were more international criminal experts and comparative criminal law and procedure experts, as well more time to deal with these problems, is something that may be continuously debated.345 But it is certain that the process is fundamentally flawed. An intricate statute like the Rome Statute cannot be drafted in open-ended meetings with delegates making unilateral statements directed at the chair, or by meeting informally on a catch-us-if-you-can basis to produce texts whose acceptance is more frequently dependent on the dynamics among the participants, or that are composed in deference to the obstinacy of a few or even a single delegate or delegation, as was frequently the case.346 The Rome Conference clearly demonstrates the need for a better method of drafting complex multilateral treaties. 4.6.5. The Signing of the Convention On July 18 the Convention was open for signature at Il Campidoglio in Rome. In order to permit the Secretariat and the translators to put the final touches to the text of the Convention, the ceremony started at 1600 hours. The United Nations protocol sheet of that Ceremony describes it as follows:347 There will be a head table in the room and a small side-table on which the Statute will be placed for signature. Seated at the head table will be the minister for Foreign Affairs of Italy, the Representative of the Secretary-General, the President of the Conference, the Mayor of Rome, the Chairman of the Committee of the Whole, the Chairman of the Drafting Committee, the Chairman of the Credentials Committee and the Executive Secretary of the Conference. The flags of the United Nations, the Republic of Italy and the City of Rome will be displayed behind the head table—UN flag in the center, Italian flag to its right and the City flag to its left. Visual media will be present to record the event. The ceremony starts. The Mayor of Rome makes a statement of welcome. The Executive Secretary hands over the Final Act to the Minister for Foreign Affairs of Italy. The Representative of the Secretary-General, the Legal Counsel, hands over the Statute to the Minister for Foreign Affairs of Italy and reads a message from the Secretary-General. The President of the Conference makes a statement. The Chairman of the Committee of the Whole makes a statement followed by a statement by the Chairman of the Drafting Committee. The Minister for Foreign Affairs of Italy makes a statement and then declares that those States that are in a position to sign but did not do so on 17 July may sign the Statute. Representatives of those States are called upon to sign. An Italian official will assist in calling the States and also in

345 As one who has gone through this process, this writer must however testify to the extraordinary amount of hard work and dedication of so many delegates. 346 Supra note 265. 347 Text available in the author’s files.



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the signing ceremony. The duration of each statement is expected to be not more than three minutes. The ceremony is concluded.348

By 1800 hours of July 18, 1998, twenty-six governments had signed the treaty, which remained in Rome at the Italian Ministry of Foreign Affairs where states could sign it until October 30, 1998. Thereafter, the treaty was transferred to its depository with the Secretary-General of the United Nations at New York Headquarters.349 By the end of March 1998 seventy-six states had signed the treaty, and Senegal was the first to ratify it. But the treaty containing the ICC Statute required ratification by sixty states before it could enter into force. The long-awaited sixtieth deposit of ratification came on April 11, 2002, as ten states simultaneously ratified, bringing the number of ratifying countries to sixty-six. Pursuant to the terms of the Rome Statute, the ICC entered into force sixty days later on July 1, 2002. Section 5. Recent Developments 1998–2011350 The Preparatory Commission351 was established by the General Assembly to prepare the way for the Court to function without delay as soon as the treaty

348 On file with the author. 349 By April 11, 2002, sixty-six countries had ratified the treaty, and it entered into force July 1, 2002. As of May 2012, 121 states have ratified or acceded to the treaty. The Assembly of States Parties, at its meeting of February 3–7, 2003, elected the ICC’s first judges. The formal ceremony for the inauguration of the Court too, place on March 11, 2003, and on that occasion, the judges were sworn into office. The Prosecutor, however, was not elected at the February, 2003 session of the ASP. Instead, Mr. Luis Moreno Ocampo of Argentina was elected to the post during the April 21, 2003 Assembly of State Parties. 350 This section is based in part on M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l. L. 269 (2010) [hereafter Bassiouni, Perspectives]; 1 M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text (2005); see also M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l. L. 81, 137 (2001) [hereinafter Bassiouni, Universal Jurisdiction]. 351 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/Conf.183/9, 1998, at Annex I (F). The text of Annex I (F) follows: The United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Having adopted the Statute of the International Criminal Court, Having decided to take all possible measures to ensure the coming into operation of the International Criminal Court without undue delay and to make the necessary arrangements for the commencement of its functions, Having decided that a preparatory commission should be established for the fulfillment of these purposes, Decides as follows:

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entered into force; its first session took place in New York in February 1999.352 The Preparatory Commission was created through resolution F of the Final Act of the United National Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, which required that the Preparatory Commission be made up of States that have signed the Final Act and States that had been invited to participate.353 Resolution F explicitly mandated the 1. There is hereby established the Preparatory Commission for the International Criminal Court. The Secretary-General of the United Nations shall convene the Commission as early as possible at a date to be decided by the General Assembly of the United Nations. 2. The Commission shall consist of representatives of States which have signed the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and other States which have been invited to participate in the Conference. 3. The Commission shall elect its Chairman and other officers, adopt its rules of procedure and decide on its programme of work. These elections shall take place at the first meeting of the Commission. 4. The official and working languages of the Preparatory Commission shall be those of the General Assembly of the United Nations. 5. The Commission shall prepare proposals for practical arrangements for the establishment and coming into operation of the Court, including the draft texts of: (a) Rules of Procedure and Evidence; (b) Elements of Crimes; (c) A relationship agreement between the Court and the United Nations; (d) Basic principles governing a headquarters agreement to be negotiated between the Court and the host country; (e) Financial regulations and rules; (f ) An agreement on the privileges and immunities of the Court; (g) A budget for the first financial year; (h) The rules of procedure of the Assembly of States Parties. 6. The draft texts of the Rules of Procedure and Evidence and of the Elements of Crimes shall be finalized before 30 June 2000. 7. The Commission shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute. 8. The Commission shall remain in existence until the conclusion of the first meeting of the Assembly of States Parties. 9. The Commission shall prepare a report on all matters within its mandate and submit it to the first meeting of the Assembly of States Parties. 10.  The Commission shall meet at the Headquarters of the United Nations. The SecretaryGeneral of the United Nations is requested to provide to the Commission such secretariat services as it may require, subject to the approval of the General Assembly of the United Nations. 11. The Secretary-General of the United Nations shall bring the present resolution to the attention of the General Assembly for any necessary action. 352 Proceedings of the Preparatory Commission at its First Session (Feb. 16–26, 1999), PCINICC/ 1999/L.3/Rev.1, at paragraph 10. 353 U.N. Doc. A/CONF.183/10; U.N. Doc. A/CONF.183/10 (Resolution F), in pertinent part.



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Preparatory Commission to prepare drafts texts of certain documents, including the Rules of Procedure and Evidence (to be finalized by June 30, 2000), Elements of the Crimes, a relationship agreement between the Court and the United Nations, financial regulations and rules as well as a first year budget, and procedural rules for the Assembly of States Parties.354 To facilitate this task, the General Assembly passed four resolutions that called for the Preparatory Commission to meet during ten different sessions to carry out the mandates of Resolution F and, in that connection, to discuss ways to enhance the effectiveness and acceptance of the Court.355 To ensure that all member States had the opportunity to participate, the General Assembly passed Resolution 51/207, which requested the Secretary General to establish a trust fund for the participation of the least developed countries in the work of the Preparatory Commission and the diplomatic conference of plenipotentiaries.356 States were called to voluntarily contribute to this fund. The Preparatory Commission’s progress on the mandate was swift as far as international conventions were concerned. The work was completed by July 12, 2002. During the first three sessions, held throughout 1999, the Commission primarily focused on creating a draft of the Rules of Procedure and Evidence and the Elements of the Crimes.357 During the first session, the Preparatory Commission elected officers, adopted rules of procedure (which were the same as the UN General Assembly as applied to the Main Committees), and created Working Groups to focus on certain topics, such as the Working Group for the Elements, which focused on the substantive issues concerning genocide, war crimes, and crimes against humanity.358 In the fifth session, on June 30, 2000, the Preparatory Commission completed and adopted the finalized draft texts of the Rules of Procedure and Evidence and the Elements of Crimes, thereby meeting the June 30, 2000 deadline as delineated in Resolution F.359 The Preparatory Commission completed three additional draft texts during the eighth session, including the Relationship Agreement between the Court 354 Id. 355 U.N. G.A. Res. 53/105 of December 8, 1998 established meeting dates from February 16 to 26, July 26 to August 13, and November 29 to December 17, 1999; U.N. G.A. Res. 54/105 of Dec. 9, 1998 established meeting dates from March 13 to 31, June 12 to 30, and November 27 to December 8, 2000; U.N. G.A. Res. 55/155 of December 12, 2000 established meeting dates from February 26 to March 9, 2001 and from September 24 to October 5, 2001; U.N. G.A. Res. 56/85 of December 12, 2001 established meeting dates from April 8 to 19 and from July 1 to 12, 2002. 356 U.N. G.A. Res. 51/207, paragraph 7 (Dec. 17, 1996). 357 Bassiouni, supra note 350, at 101–10. 358 Proceedings of the Preparatory Commission at its First Session (Feb. 16–26, 1999), PCINICC/ 1999/L.3/Rev.1, at paras. 10, 12, Appendix III. 359 Finalized draft test of the Rules of Procedure and Evidence, PCNICC/2000/1/Add.1 (Nov. 2, 2000); Finalized draft text of the Elements of Crimes, PCNICC/2000/1/Add.2 (Nov. 2, 2000); Report of the Preparatory Commission for the International Criminal Court, PCNICC/2002/2, para. 4. The ASP adopted this version of the Preparatory Commission’s draft of the Rules and the Elements.

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and the United Nations, the Financial Regulations and Rules of the Court, the Agreement on the Privileges and Immunities of the Court, and the Rules of Procedure of the Assembly of States Parties.360 During its ninth session, the Commission completed and adopted draft texts of the Basic Principles Governing a Headquarters Agreement and Financial Rules.361 Throughout all ten sessions, the Commission and its working groups continued to discuss the crime of aggression, focusing on the substantive definition of the crime and the conditions for the exercise of jurisdiction over the crime.362 Although the working group’s continued discussions resulted in progress, the Preparatory Commission completed its mandate in accordance with Resolution F without adopting a final definition on the crime of aggression.363 In accordance with the decision of the Preparatory Commission and Article 112 of the Rome Statute, the Assembly of States Parties (ASP) held its first session on September 3–10, 2002. The ASP consists of one representative from each State Party and, under Article 112, is mandated to provide both specific mandatory functions, such as considering and deciding the ICC’s budget, as well as general administrative functions, such as oversight of the ICC organs. During the first session, the ASP considered and adopted the recommendations and draft texts of the Preparatory Commission, the Rules of Procedure of the ASP, the Agreement on the Privileges and Immunities of the ICC, the prior work concerning the crime of aggression, and procedure for the nomination, election, and selection of judges, prosecutor, deputy prosecutors, staff, and Board of Directors of the Trust Fund for the benefit of victims for the ICC. In its resumed sessions, the ASP also elected ICC judges and the first Prosecutor, Mr. Luis Moreno Ocampo of Argentina, and created the Special Working Group on the Crime of Aggression. In its second session, September 8–12, 2003, the ASP, among a number of other important decisions, elected Mr. Serge Brammertz of Belgium as Deputy Prosecutor of the ICC,364 adopted guidelines for the establishment of the 360 Proceedings of the Preparatory Commission at its eighth session, Summary PCNICC/2001/L.3/ Rev.1 (Sept. 24–Oct. 5, 2001). 361 See PCNICC/2002/1/Add.1 Draft Basic Principles Governing a Headquarters Agreement ( July 23, 2002); PCNICC/2002/1/Add.2 Draft Financial Rules (July 23, 2002). 362 Bassiouni, supra note 350, at 101–10. 363 Part II of the Report of the Preparatory Commission includes a proposal for a provision of the crime of aggression (PCNICC/2002/2/Add/1), a discussion paper on the definition and elements of the crime of aggression prepared by the Coordinator of the Working Group on the Crime of Aggression (PCNICC/2002/WGCA/RT.1/Rev/2), a draft resolution of the Assembly of States Parties on the continuity of work in respect of the crime of aggression, a list of proposals and related documents on the crime of aggression, and a historical review of developments relating to aggression prepared by the Secretariat for transmission to the Assembly of States Parties (PCNICC/2002/ WGCA/L.1 and Add.1). 364 Assembly of States Parties to the Rome Statute of the International Criminal Court, Second Session, New York, Sept. 8–12, 2003, ICC-ASP/2/10. Summary of proceedings, at http://untreaty. un.org/cod/icc/asp/2ndsession/report/second_report_contents.htm (last visited Sept. 19, 2011).



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Secretariat,365 adopted a 2004 budget of 60 million euros.366 On September 6–10, 2004, the ASP held its third session at The Hague,367 during which the ASP elected a new Deputy Prosecutor, Ms. Fatou Bensouda (Gambia),368 a new ASP President, Mr. Brunto Stagno Ugarte (Costa Rica) and new members for the Committee on Budget and Finance.369 The ASP also discussed future ICC financial considerations,370 revised the judicial nomination and election procedures,371 created the position of Victims Trust Fund secretariat,372 and adopted a Relationship Agreement between the ICC and the UN.373 Highlights of ASP sessions four through ten include the election of new members of the Bureau, judges, and legal personnel, continued negotiations regarding the crime of aggression, and discussions about financial considerations and approval of yearly budgets. The fourth session of the ASP took place in The Hague from November 28 to December 3, 2005; at this session the ASP adopted the draft regulations of the Trust Fund for Victims and the draft Code of Professional Conduct for Counsel and created an ICC liaison office in New York.374 The fifth session, held at The Hague from November 23 to December 1, 2006, included the first participation of over thirty-five non-state actors, including NGOs.375 At this session, the ASP discussed budgetary concerns and adopted the omnibus

365 Id. at para. 45. 366 Programme budget for 2004, Working Capital Fund for 2004, scale of assessments for the apportionment of the expenses of the International Criminal Court and financing of appropriations for 2004, ICC-ASP/2/Res.1. This appropriated amount is approximately U.S. $82 million for the Court’s expenses the following year. The ASP also expressed concern on program budgeting. 367 Assembly of States Parties to the Rome Statute of the International Criminal Court, Third Session, The Hague, Sept. 6–10, 2004, ICC-ASP/3/25. 368 Out of the 78 ballots cast, an absolute majority required 48 votes. Ms. Fatou Bensouda (Gambia) obtained 58 votes, Ms. Nicola Crutchley (New Zealand) 16 votes, and Mr. Josaia Naiguleva (Fiji) four votes. 369 See ICC/ASP/3/25 (2004), at 6. Mr. Eduardo Gallardo Aparicio (Bolivia), Mr. Petere Lovell (UK), Mr. John F.S. Muwanga (Uganda), Mr. Karl Paschke (Germany), Ms. Inna Steinbuka (Latvia) and Mr. Michel-Etienne Tilemans (Belgium). 370 Resolution ICC-ASP/3/Res.4 appropriated 66,784,200 Euros (approximately U.S. $84 million) for the Court’s expenses for the following year. 371 The procedures for nominating and electing judges were adopted by the ASP consensus resolution ICC-ASP/3/Res.6, which replaced resolution ICC-ASP/1/Res.3 and parts A, B, and C of resolution ICC-ASP/1/Res.2. 372 ICC-ASP/3/Res.7 (2004). 373 Relationship Agreement Between the United Nations and the International Criminal Court, New York, 10 October 2004, Vol. 2283, II-1272. On October 4, 2004, the Agreement between the ICC and the United Nations was signed by UN Secretary-General Kofi Anan and ICC President Philippe Kirsch. The Agreement entered into force upon signature. Id. 374. Assembly of States Parties to the Rome Statute of the International Criminal Court, Fourth Session, The Hague, Nov. 28–Dec. 3, 2005, ICC-ASP/4/32. 375 Assembly of States Parties to the Rome Statute of the International Criminal Court, Fifth Session, The Hague, Nov. 23–Dec. 1, 2006, ICC-ASP/5/32; Assembly of States Parties to the Rome Statute of the International Criminal Court, Resumed Fifth Session, New York, Jan. 29–Feb. 1, 2007, ICC-ASP/5/35.

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resolution, Strengthening the International Criminal Court and the Assembly of States Parties.376 The sixth session took place from November 30 to December 14, 2007 in New York; at this session, the ASP emphasized the urgent need for cooperation with, and support for, the Court and the need to agree on a definition for the crime of aggression.377 The seventh session in New York was held from November 14–22, 2008; at the two subsequent Resumed Seventh Sessions, the Special Working Group on the Crime of Aggression produced a working paper on the crime of aggression378 that immensely impacted the 2010 Kampala Review Conference.379 The eighth session took place from November 18–26, 2009 in The Hague and included discussions on cooperation between States Parties and the upcoming review conference.380 The ninth session took place from December 6–10, 2010 in New York, and the tenth session took place from December 12–21, 2011 in New York. 381 5.1. ICC Review Conference, Kampala, Uganda (May 31–June 11, 2010) In accordance with the decision of the ASP at its eighth session pursuant to Article 123 of the Rome Statute, the UN Secretary General convened the first Review Conference of the International Criminal Court in Kampala, Uganda, from May 31 to June 11, 2010.382 Sixty-seven States Parties, seventeen observers, and several non-state actors participated in the Review Conference, where the attendees adopted the Kampala Declaration, which reaffirms States’ commitments to the Rome Statute as well as the Statute’s full implementation, universality, and integrity.383 376 ICC-ASP/5/Res.3 (2006). 377 Assembly of States Parties to the Rome Statute of the International Criminal Court, Sixth Session, New York, Nov. 30–Dec. 14, 2007, ICC-ASP/6/20; Assembly of States Parties to the Rome Statute of the International Criminal Court, Resumed Sixth Session, New York, June 2–6, 2008, ICC-ASP/6/20/Add.1. 378 Discussion Paper on the Crime of Aggression Proposed by the Chairman (Revision June 2008), ICC-ASP/6/SWGCA/2 (May 18, 2008). 379 Assembly of States Parties to the Rome Statute of the International Criminal Court, Seventh Session, The Hague, Nov. 14–22, 2008, ICC-ASP/7/20; Assembly of States Parties to the Rome Statute of the International Criminal Court, Resumed First and Second Seventh Sessions, New York, Jan. 19–23, 2009 and Feb. 9–13, 2009, ICC-ASP/7/20/Add.1. 380 Assembly of States Parties to the Rome Statute of the International Criminal Court, Eight Session, The Hague, Nov. 18–26, 2009, ICC-ASP/8/20; Assembly of States Parties to the Rome Statute of the International Criminal Court, Resumed Eight Session, New York, Mar. 22–25, 2010, ICC-ASP/8/20/Add.1. 381 Assembly of States Parties to the Rome Statute of the International Criminal Court, Ninth Session, New York, Dec. 6–10, 2010, ICC-ASP/9/20. 382 ICC Statute, supra note 8, art. 123; Assembly of States Parties to the Rome Statute of the International Criminal Court, Eight Session, The Hague, Nov. 18–26, 2009, ICC-ASP/8/20. 383 Kampala Declaration, RC/Decl.1 ( June 1, 2010); Review Conference of the Rome Statute of the International Criminal Court, Official Records, Kampala, May 31–June 11, 2010, RC/11 [hereinafter RC/11].



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The Review Conference contained a holistic exercise of stocktaking to assess the impact of the Rome Statute to date, particularly on victims and affected communities.384 The stocktaking performed by the international criminal justice panel focused on the right to participate, the treatment of outreach, victim, and witness protection as necessary components to achieve the ICC’s mandate, the right to reparation, and the role of the Trust Fund for Victims.385 The Review Conference also hosted three panel discussions on peace and justice, cooperation, and complementarity. The peace and justice panel concluded that the establishment of the ICC produced a paradigm shift in which amnesty and immunity are no longer available for the most heinous crimes and, therefore, alternative justice mechanisms should be viewed as supplementary to criminal justice procedures.386 The cooperation panel adopted the Declaration on Cooperation, which reaffirmed States’ obligations to cooperate and comply with requests from the Court, emphasized the crucial role that the execution of arrest warrants play in ensuring ICC effectiveness, and encouraged States to continue to enhance voluntary cooperation with the Court while providing assistance to other states to do the same.387 The complementarity panel adopted a resolution that recognized the primary responsibility of States Parties to investigate and prosecute core crimes, as well as to assist other states in strengthening domestic capacity in order to ensure that investigations and prosecutions of the most serious international crimes occur at the national level to bridge impunity gaps.388 The Review Conference attendees also adopted a resolution amending Article 8 of the ICC Statute by expanding the list of prohibited weapons in noninternational armed conflicts to include certain poisonous and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials, and devices.389 Additionally, the States Parties present at the Review Conference reviewed Article 124 of the ICC Statute, which allows new States Parties to opt out

384 The Impact of the Rome Statute System on Victims and Affected Communities, Kampala, June 8, 2010, RC/Res. 2. 385 RC/11, supra note 383, annex V(a); Report of the Bureau on the Impact of the Rome Statute System on Victims and Affected Communities, Assembly of States Parties, Ninth Session, New York, Nov. 22, 2010, ICC-ASP/9/25; Review Conference Outcomes, ASP Special Edition Newsletter No. 5, Dec. 2010, at 6, ICC-ASP-NL-05/10. 386 RC/11, supra note 383, annex V(b); Review Conference Outcomes, supra note 385, at 6; Strengthening the Enforcement of Sentences, Kampala, June 8, 2010, RC/Res/3. 387 Declaration on Cooperation, Kampala, June 8, 2010, RC/Decl.2; RC/11, supra note 383, annex V(d); Report of the Bureau on Cooperation, Assembly of States Parties, Ninth Session, New York, Nov. 17, 2010, ICC-ASP/9/24; Review Conference Outcomes, supra note 385, at 7. 388 RC/11, supra note 383, annex V(c); Complementarity, Kampala, June 8, 2010, RC/Res. 1; Report of the Bureau on Complementarity, Assembly of States Parties, Ninth Session, Nov. 17, 2010, ICCASP/9/26; Review Conference Outcomes, supra note 385, at 7. 389 Amendments to Article 8 of the Rome Statute, Kampala, June 10, 2010, RC/Res. 5. This resolution makes it a war crime to employ any one of these weapons in an armed conflict not of an international character.

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of the Court’s jurisdiction over war crimes for the initial seven years of membership. Although the States did not change or revise the article, the States Parties decided to review this provision again during the fourteenth session of the ASP in 2015.390 The most difficult and notable achievement at the Review Conference involved reaching a consensus on a definition of the crime of aggression. Defining this crime meant looking back to prior attempts to create a workable definition while at the same time considering how to best formulate a definition that will appropriate address future conflicts. 5.1.1. Evolution of the Definition of the Crime of Aggression Article 5(2) of the Rome Statute provided for the eventual definition of aggression: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 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.391

Defining the crime of aggression has long challenged the international community. It was against this complex backdrop that the Review Conference attendees aimed to solidify a definition for the crime of aggression. The crime of aggression was called the “supreme international crime” in judicial decisions of the International Military Tribunal (IMT) at the Nuremburg prosecutions following World War II.392 The IMT was the first court to recognize an international penal tribunal as a suitable forum for the trial and punishment of international crimes and the principle that individuals who launched a war of aggression, no matter how high their rank or situation, should be treated no differently than ordinary felons.393 Wars and the accompanying destruction of persons and property result from various acts of aggression, whether a fired shot or an encroachment on the territorial sovereignty of a state. But there was

390 Article 124 of the Rome Statute, Kampala, June 10, 2010, RC/Res. 4. 391 ICC Statute, supra note 8, at art. 5. 392 Nazi Conspiracy and Aggression, Opinion and Judgment of the International Military Tribunal, at 16 (U.S. Gov’t Printing Office, 1947), reprinted in Ferencz, supra note 183, Doc. 20, at 452; Bassiouni & Ferencz, supra note 79, at 9 (The IMT indicted 24 major Nazi war criminals in October 1945 and accused them of a conspiracy to commit crimes against peace, war crimes and crimes agianst humanity.); Claus Kreb & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int Criminal Justice 1179, 1181 (2010). 393 Bassiouni & Ferencz, supra note 79, at 10.



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no Convention defining the crime of aggression in a legally enforceable manner before or during the Rome Conference.394 Forty-nine multilateral treaties, from 1899 to date, have dealt directly with the prohibition of war and the preservation of peace.395 Throughout history, efforts to define and codify aggression have also taken place in official and academic circles, famously commencing with the Prosecution and Punishment of Major War Criminals of the European Axis (the “London Charter” or “Nuremberg Charter”); this foundation doctrine of the Nuremberg prosecutions contained Article 6(a), which permitted prosecution of crimes against peace encompassing “planning, preparation, initiation or waging of a war of aggression.”396 Similarly defined, crimes against peace “of a declared or undeclared war of aggression,” was one of three charges established in the Charter of the International Military Tribunal of the Far East and within the jurisdiction of the Tokyo Trials convened April 29, 1947 to prosecute leaders of the Empire of Japan for war crimes committed during WWII.397 In these prosecutions, the count of crimes against peace was the most difficult to construct due to a lack of legal specificity with respect to the prohibition against the initiation or resort to war. Many of these instruments aimed at prohibiting or punishing aggression were linked instead to the charge of war crimes.398 In 1974, the United Nations Special Committee on Defining Aggression produced the first agreed upon, but not binding, definition of aggression in UN General Assembly Resolution 3314 (IXXIX).399 Throughout the 1980s and early 1990s, some scholars viewed the crime against peace (soon to be the crime against aggression) as part of customary international law—a laudable desideratum, for if custom is evidenced by the consistent practice of states, it is a position that the record of history regrettably belies. At that time, the evidence of the world community’s position accepting aggression as an international crime, instead of by explicit ratification or penal characteristics, was evident in the historical baggage of various doctrines, conventions, and other instruments and practices.400 By 394 1 M. Cherif Bassiouni, International Criminal Law: Sources Subjects, and Contents 227 (2008); see 1 M. Cherif Bassiouni, International Crimes: Digest/Index of international Instruments 1815–1985, 133–44 (1986) [hereinafter Bassiouni, Digest] (analysis of the ten basic penal characteristics of aggression as set forth in various international treaties and agreements). 395 Bassiouni & Ferencz, supra note 79, at 3. 396 London Agreement, supra note 65. 397 IMTFE Charter, supra note 2, at art. 5. 398 Bassiouni, Digest, supra note 394. 399 Bassiouni & Ferencz, supra note 79, at 19; see Report of the Special Committee on Defining Aggression, U.N. Doc. A/9619 (XXIX) (1974) [hereinafter UN Resolution 3314]; U.N. Doc. A/9890 (XXIX) (1974). For a discussion of definitional issues, see Ferencz, supra note 183. See also Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (1971). 400 Bassiouni, Digest, supra note 394.

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implication and with reference to the historic context of preventing and punishing aggressive wars, Resolution 3314 and Article 6(a) of the Nuremberg Charter comprised the basis for subsequent efforts to define and criminalize aggression so that the ICC could exercise its jurisdiction over this crime.401 Although not contributing substantially to the definitional process, the International Law Commission (ILC) worked from 1991 to 1996 to adopt a definition of aggression by producing numerous reports establishing individual responsibility for aggression, but ultimately failed to generate the crime’s elements, international criminal jurisdiction, and draft code for the Rome Statute.402 Although the crime of aggression was proposed at the Rome Conference in 1998, States could not agree upon the crime’s definition, conditions of exercise, jurisdictional scope, and triggering mechanism (i.e. the mechanism used to determine that an act of aggression has been committed by a state against another state before the ICC could undertake a criminal proceeding against an individual allegedly responsible for the crime of aggression).403 The creative compromise of the Rome Conference is found in Article 5(2) of the Rome Statute, and the job of defining the crime was ultimately placed in the hands of the Preparatory Commission, who was unable to succeed in its mandate.404 In 2002, the ASP created a Special Working Group on the Crime of Aggression (SWGCA) to continue the Commission’s work and address the outstanding issues regarding the crime of aggression in time for the Rome Statute Review Conference in 2010.405 Initiating the work of the Preparatory Committee and the SWGCA, Egypt and Italy submitted a proposal on the definition of Aggression in 1997.406 This proposal began by recognizing the crime of aggression as a leadership crime 401 U.N. Resolution 3314, supra note 79, at art. 1. 402 Bassiouni & Ferencz, supra note 79, at 29–36. 403 Judge Philippe Kirsch, Q.C., The International Criminal Court: From Rome to Kampala, 43 J. Marshall L. Rev. 515, 518 (2010). 404 Bassiouni, supra note 350, at 109. Part II of the Report of the Preparatory Commission includes a proposal for a provision of the crime of aggression (PCNICC/2002/2/Add/1), a discussion paper on the definition and elements of the crime of aggression prepared by the Coordinator of the Working Group on the Crime of Aggression (PCNICC/2002/WGCA/RT.1/Rev/2), a draft resolution of the Assembly of States Parties on the continuity of work in respect of the crime of aggression, a list of proposals and related documents on the crime of aggression, and a historical review of developments relating to aggression prepared by the Secretariat for transmission to the Assembly of States Parties (PCNICC/2002/WGCA/L.1 and Add.1). For a review of proceedings in the Rome Conference and the Preparatory Committee, see Garth Schofield, The Empty U.S. Chair: United States Nonparticipation in the Negotiations on the Definition of Aggression, 15 Hum Rts. Brief 20 (2007). 405 Assembly of States Parties to the Rome Statute of the International Criminal Court, Continuity of Work in Respect of the Crime of Aggression, Sept. 9, 2002, ICC Doc. ICC-ASP/1/RES.1. Meetings of the SWGCA were open to all interested states as well as States Parties. The United States never participated in these meetings. 406 Compilation of proposals on the crime of aggression submitted to the Preparatory Committee on the Establishment of an International Criminal Court (1996–1998), the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal



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committed by “a person who is in a position to exercise control or capable of directing political/military actions in his State against another State,” and included the use or threat of force in contravention of the Charter of the United Nations in the proposed definition.407 The second paragraph of the proposed definition listed various crimes which would constitute acts of aggression. Footnote two to the proposal suggested that there could be another paragraph inserted that would have provided that a Security Council determination as to whether an act constituted aggression would not be binding on the ICC.408 At the end of the ASP’s ninth session in 2008, the SWGCA produced a working paper on the crime of aggression409 that immensely impacted the 2010 Kampala Review Conference. 5.1.2. Defining Aggression and Its Triggering Mechanism The most difficult task facing the participants of the Review Conference was obtaining a consensus on a definition of the crime of aggression and determining the ICC’s jurisdiction over the crime of aggression, while respecting the role of the U.N. Security Council in regards to maintaining international peace and security.410 In particular, States Parties were divided between two competing positions: treating the Security Council as having exclusivity when addressing breaches of peace versus recognizing the ICC as a judicial body that is empowered to act independent from the consensus of States or political bodies.411 The effect of either position would be to limit or expand the framework of the crime of aggression while forcing a review of the role of power politics in international criminal law.412 In formulating a definition, the Working Group on the Crime of Aggression considered all determinative proposals since 2002 as well as general provisions contained in the Rome Statute and the U.N. Charter, but concentrated primarily on a 2008 working paper drafted by the ASP’s Special Working Group on the Crime of Aggression.413 In the end, the Review Conference adopted RC/Res. 6 by Court (1998) and the Preparatory Commission for the International Criminal Court (1999), U.N. Doc. PCNICC/1999/Inf/2, 3–4 (Aug. 2, 1999). 407 Id. 408 Id. at 4 n. 2. 409 Discussion Paper on the Crime of Aggression Proposed by the Chairman, May 18, 2008 (Revision June 2008), ICC-ASP/6/SWGCA/2. 410 Review Conference of the Rome Statute, Coal. for the Int’L. Criminal Court, http://www .iccnow.org/?mod=review (last visited Sept. 6, 2011); see generally Beth Van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 Colum. J. Transnat’l L. 505 (2011) (providing a firsthand account of the negotiations at Kampala). 411 Van Schaack, supra note 410, at 506–07. 412 Id. at 514. 413 Report of the Special Working Group on the Crime of Aggression, Special Working Group on the Crime of Aggression, June 6, 2008, ICC-ASP/6/20/Add.1, Annex II; Discussion Paper on the Crime

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consensus, agreeing to insert Article 8bis defining the crime of aggression into the Rome Statute.414 Article 8bis defines the crime of aggression as the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, consitutes a manifest violation of the Charter of the United Nations.”415 Article 8bis further defines an “act of aggression” as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”416 Thus, as a threshold requirement, the act of aggression must qualify as a manifest violation of the U.N. Charter. Acts that qualify as a sufficient act of aggression, regardless of a declaration of war, include an attack by the armed forces of one state on another state, the blockade of ports or coasts of a state by another state, and the action of a state in assisting another state to perpetrate an act of aggression against a third state.417 In actuality, however, the heart of the debate centered on jurisidctional issues, rather than the definition of the crime of aggression.418 A key question concerned which entity, namely political or judicial, would determine whether an act by a State consituted a “manifest violation of the Charter of the United Nations.”419 The Review Conference attendees utlimately adopted Articles 15bis and 15ter addressing the exercise of jurisdiction over the crime of aggression. Article 15ter provides that when a situation is referred to the ICC prosecutor by the U.N. Security Council, the court’s jurisdiction is triggered and the prosecutor may investigate the crime of aggression, as in the case of other crimes in the Rome Statute under Article 13.420 In the case of a Security Council referral, the Court may exercise jurisdiction regardless of whether the State has accepted jurisdiction.421 Conversely, under Article 15bis, the prosecutor may investigate crimes of aggression at the prosecutor’s own initiative after notifying the Security Council of the situation, waiting six months for a determination of aggression by the Security Council, and receiving authorization by the Pre-Trial Division of the Court.422

of Aggression Proposed by the Chairman, Assembly of State Parties, Sixth Session, New York, May 14, 2008, ICC-ASP/6/SWGCA/2; The Crime of Aggression, Coal. for the Int’L. Criminal Court, http://www.iccnow.org/?mod=aggression (last visited Oct. 6, 2011). 414 Res. RC/Res. 6, U.N. Doc. RC/Res. 6 ( June 11, 2010). Annex II outlines the elements of the crime of aggression. 415 Id. at annex 1. 416 Id. 417 Id.; see infra Chapter 7 for a discussion of the substantive elements of the crime. 418 Van Schaack, supra note 410, at 519–20. 419 Id. at 560. 420 RC/Res. 6, supra note 213, at annex 1. 421 Id. at annex 3. 422 Id. at annex 1; id. at annex 3; Review Conference Outcomes, supra note 385, at 1–4.



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This provision, however, does not apply where the State act was committed by a non-State Party or by a State Party that previously declared it does not accept the Court’s jurisdiction—illustrating the debate around state consent, the treatment of non-States Parities, and the role of the Security Council during negotiations.423 Determining the proper role of the Security Council relative to the ICC’s jurisdiction over the crime of aggression was the political “question of questions” and dividing point of the States Parties attending the Review Conference in Kampala.424 The International Law Commission’s Draft ICC Statute in 1994 suggested giving the Security Council a monopoly over determining whether a prosecutable act of aggression had occurred by making ICC proceedings dependent on a prior Security Council determination.425 The permanent members of the Security Council (the P-5) advocated this position, which would serve to limit the definition of aggression.426 But this proposition drew criticism from the majority of States Parties who were not members of the Security Council.427 The negotiating dynamic at Kampala was distinctly more complex than at the Rome Conference, where the “Like-Minded States”, in conjunction non-governmental organizations, created an effective alliance to support a largely independent Court.428 Non-permanent Security Council States were concerned that the Security Council tended to avoid making determination for political reasons even in clear cases of aggression.429 These states were concerned that “the Council would be paralyzed by political dissension, which would, in turn, immobilize the court.”430 If the only way the ICC could exercise jurisdiction over the crime of aggression would be by Security Council referral, it would be unlikely, if not impossible, for the ICC to exercise jurisdiction over an act of aggression committed by a member of the P-5, as that member’s veto could effectively defeat any referral of 423 RC/Res. 6, supra note 213, at annex 1, annex 3; Review Conference Outcomes, supra note 385, at 1–4; Van Schaack, supra note 410, at 578–91. 424 Kreb & von Holtzendorff, supra note 392; Van Schaack, supra note 410, at 506–07. For a general discussion of political and legal concerns of various States Parties regarding the ICC’s competence over the Crime of Aggression, and a rebuttal of those concerns, see Benjamin B. Ferencz, The Crime of Aggression, in Substantive and Procedural Aspects of International Criminal Law The Experience of International and National Courts 59–60 (Gabrielle Kirk McDonald & Olivia Swaak-Godlman eds., 2000). For a summary of the concerns of States Parties during the debate regarding inclusion of the Crime of Aggression in the Rome Statute prior to the adoption of the Rome Statute, see M. Cherif Bassiouni, The Statute of The International Criminal Court, a Documentary History, 626–27 (1998) (reprinting the “Report of the ad hoc committee on the establishment of an International Criminal Court,” original at G.A., 50th Sess., Supp. No. 22, A/50/22, 1995). 425 Kreb & von Holtzendorff, supra note 392, at 1179; see also Ferencz, supra note 424. 426 Van Schaack, supra note 410, at 514. 427 Kreb & von Holtzendorff, supra note 392, at 1194. 428 Van Schaack, supra note 410, at 513. 429 Judge Philippe Kirsch, Q.C., The International Criminal Court: From Rome to Kampala, 43 J. Marshall J. Rev. 515, 518 (2010). 430 Van Schaack, supra note 410, at 567.

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the issue to the ICC.431 Thus, impunity would extend to members of the P-5, and potentially to other State members of the Security Council, with respect to the crime of aggression. States Parties to the Rome Statute at the Review Conference in Kampala would have been aware of this potential situation and thus would not have voted in favor of a provision that essentially gave privileged status under international law to a few states. But the Security Council would need to have some role in the process, as removing the Security Council from the equation would posture the ICC as a competing institution of international criminal justice rather than a complementary institution of international criminal justice, thus potentially undermining the ICC’s legitimacy among United Nations States Parties. Embedded in the discussions held at the Kampala Review Conference is the general feeling that powerful countries are not willing to be bound by the definition of aggression or have their power diminished by the precedential value of establishing a crime of aggression. Both the negotiations at Kampala and the final compromise pitted principles involving the exclusivity of the Security Council in dealing with breaches of peace, the independence of the Court, and the role of state consent against each other.432 Unfortunately, the Court, though a legal institution, operates within a political context. Simply stated, the political will present in Kampala was not able to overcome the authority and concerns of the P-5 members who expressed that the Security Council’s determination of an act of aggression must be the sole filter or at least consulted before the ICC may proceed with investigations.433 But failure to allow the ICC to criminalize and punish acts of aggression is a repudiation of Nuremberg and an immense blow to the legitimacy of international criminal law. Prohibiting the ICC from exercising its jurisdiction over the crime of aggression only results in an indefinite guarantee of immunity for future aggressors; however, enabling this jurisdiction may deter future crime and bring aggressors to justice.434 Reliance on the Security 431 Article 13(b) of the Rome Statute specifies that the ICC has jurisdiction over matters referred to it by the Security Council pursuant to Chapter VII of the U.N. Charter. Article 27 of the U.N. Charter requires the affirmative vote of 9 members of the Security Council for an effective decision on a procedural matter, and nine votes plus the concurrence of all five permanent members for an effective decision on all other matters. Thus, if the decision to refer a claim to the ICC hinges on an initial determination that a State engaged in an act of aggression, a substantive matter, all five members of the P-5 would need to concur. If the alleged State actor was a member of the P-5, that member would understandably not be inclined to declare it had engaged in an act of aggression. Thus, the P-5 would essentially be insulated from prosecution for the crime of aggression if the ICC’s jurisdiction hinged exclusively on a referral from the Security Council. 432 Van Schaack, supra note 410, at 559. 433 Donald M. Ferencz, The Crime Of Aggression; Some Personal Reflections on Kampala, 23 Leiden J. Int’l L. 905, 908 (2010); Philippe Kirsch, The International Criminal Court: From Rome to Kampala, 43 J. Marshall L. Rev. 515, 528–29 (2010). 434 ICC Statute, supra note 8, at art. 16 (Article 16 of the ICC Statute reads “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months



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Council to make such a determination or authorization involves risking the commencement of investigations of current mass human rights abuses involving citizens who cannot afford to wait for a delayed prosecution procedure. Finally, although the amendments were adopted by consensus and will enter into force a year after acceptance,435 the Court may only exercise jurisdiction over the crime of aggression after at least thirty states have ratified the amendments— and then only after January 1, 2017, provided that States Parties decide to activate such jurisdiction by a two-thirds majority vote.436 In practicality, the result of these activation conditions means that it may be over a decade before the ICC has the ability to prosecute the crime of aggression, as some States may hold off on accepting the amendments until after a decision in 2017 to enact or reject Articles 15bis and 15ter, thus delaying ratification by the requisite thirty states.437 The States Parties at the 2010 Kampala Review Conference ultimately agreed to an operational definition of the crime of aggression that was substantially similar to the joint Egyptian and Italian proposal and the SWGCA 2008 working paper, but the compromise was contemporaneously subject to criticism, particularly over the treatment of an amendment to the Rome Statute.438 Article 121(5) of the Rome Statute governs amendments to Articles 5 through 8 and states that an amendment to the enumerated articles will enter into force for States Parties that accepted the amendment one year after ratification or acceptance.439 Article 121(5) also contains an element of state consent by providing that if a State Party that do not accept the amendment, the Court shall not exercise jurisdiction for a crime covered by the amendment when committed by that State Party’s nationals or on its territory. All other amendments are governed by Article 121(4), which requires ratification or acceptation by seven-eighths of State Parties.440 Thus, the question at Kampala was whether the amendments concerning the crime of aggression, namely Articles 8bis, 15bis, and 15ter were

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.”); Ferencz, supra note 183, at 288. 435 ICC Statute, supra note 8, art. 121(5). 436 RC/Res. 6, supra note 213, at annex 1. 437 Van Shaack, supra note 410, at 556. For a thorough discussion of the debate over the entry into force of amendments and jurisdictional conditions under the ICC Statute, see id. at 523–59, 592–98. 438 The States Parties adopted an amended Article 8bis which, though similar to the Egyptian and Italian proposal did not include the threat of force in the definition of aggression. See RC/Res. 6, supra note 213; see also Van Schaack, supra note 410 at 520. 439 ICC Statute, supra note 8, at art. 121(5). 440 Id. at art. 121(4).

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covered by subsection 4 or 5 of Article 121.441 Article 121(5) was ultimately employed in the amendment process.442 Article 5(2) of the Rome Statue states that “[t]he Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Japan stated, after the adoption of the amendments to the Rome Statute at the Review Conference that it had “serious doubts regarding the legality of the amendment procedures contained in the amendments” that had just been adopted, in part because of “cherry picking” Article 5(2) as the basis for amendment and Article 121(5) as the basis for entry into force of the amendment.443 Japan argued that the amendment process would accentuate the complex relationship between States Parties and the relationship between States Parties and Non-States Parties.444 For example, Japan posited the uncertainty that may result in ensuring that a Non-State Party that accedes to the Rome Statute after adoption of the amendments is bound by the amended Rome Statute, given the absence of “provisions stipulating about the entry into force of the amendments per se.”445 Japan’s criticism, although accurately reflecting the complexity of the adopted jurisdictional scheme and ambiguity in the interplay of Articles 5(2) and 121 of the Rome Statute, appears to be aimed at an unsatisfactory political process more than an unsatisfactory legal process.446 Japan’s criticism referenced a perceived departure from a “sound interpretation of the Rome Statute as agreed upon in Rome,” and conditioned the future of Japanese cooperation with the ICC on the development of a common understanding among States Parties resolving these legal ambiguities.447 The nature of Japan’s complaint is based on a politicization of legal procedures by which legal clarity is sacrificed for political expediency. The call for understandings among States Parties reflects an unstated premise: that only a 441 Van Schaack, supra note 410, at 525–26. 442 Id. at 525–32 (describing the debate over basing the amendments in subsection 4 or 5 of Article 121); id. at 556. 443 Statement by Japan, available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP9/OR/RC-11Annexes-ENG.pdf (last visited Sept. 6, 2011). 444 Id. 445 Id. 446 A detailed discussion of the complexity of the relation between States Parties and States Parties and Non-States Parties is beyond the scope of this brief paper, but may be found at Kreb & von Holtzendorff, supra note 392 (discussing the “(Softly) Consent-based Pillar” of ICC jurisdiction over the Crime of Aggression); Astrid Reisinger Coracini, The International Criminal Court’s Exercise of Jurisdiction over the Crime of Aggression—at Last . . . in Reach . . . Over Some, 2 Goettingen J. Int’l L. 745, 787–89 (2010). 447 See generally Making of The Rome Statute, supra note 8; ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 8; Schabas, Commentary, supra note 8; Schabas, An Introduction to the International Criminal Court, supra note 8.



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political mechanism can resolve the ambiguity caused by political compromises reflected in the text of the Rome Statute on the issue of the crime of aggression. Although it is frustrating that the jurisdictional compromise reached by the Kampala attendees limits the ICC’s reach for acts by Non-States Parties, even though those acts are no less deplorable than the same acts committed by States Parties, the ICC is a court of last resort and one part of a larger system designed to end impunity.448 The ICC depends on cooperation by States Parties and its provisions must garner the consensus of States Parties if the provisions are to be implemented. Although the political processes resulted in a less than ideal legal standard, the latitude given to States Parties to amend the ambiguous language of Article 5(2) in the Rome Statute was itself a product of political compromise and provided an adequate, though not ideal, basis for the resulting compromise. Ultimately, however, it may be the Court that decides, among other issues regarding the crime of aggression, “whether Article 121(5) is the appropriate amendment provision at all.”449 The amendments adopted at Kampala are not likely to be the last word on the crime of aggression, particularly regarding the jurisdictional questions. The ICJ previously held that a state cannot be compelled to submit to international jurisdiction.450 Ultimately, it may be up the ICC to determine which states’ consent is required before an aggression prosecution moves forward.451 Informal negotiations continue regarding the question of when States Parties are bound by the Kampala amendments in the absence of a Security Council referral.452 Open questions involve whether nationals of States Parties that do not ratify the amendments may be prosecuted for committing the crime of aggression on the territory of any state and whether the crime of aggression may be prosecuted if the crime is committed on the territory of a State Party that does not ratify the Kampala amendments.453 The interplay between the Security Council, the ICC, and states in dealing with the crime of aggression also remains to be seen, as these entities interpret and implement the amendments.454 In the author’s opinion, just like the development of the Rome Statute took many years, the Kampala Review Conference has been a decisive step towards transferring the crime of aggression from an inoperative soft power into an effective charge under the 448 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 143 (M. Cherif Bassiouni, ed., 2010) (statement of Sang-hyung Song, Pres., Journal of the International Criminal Court). 449 Van Schaack, supra note 410, at 557. 450 See Monetary Gold Removed from Rome in 1943 (It. v. U.S., U.K. & Fr.), 1954 I.C.J. 19 ( June 15); Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90 ( June 30); Van Schaack, supra note 409, at 579–84. 451 Van Schaack, supra note 410, at 581. 452 Id. at 597–98. 453 Id. at 598. 454 See id. at 598–601.

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ICC’s jurisdiction. Ultimately, as determined under the Rome Statute and the codification of international criminal law, it is a common interest of the world to let the ICC have control over the definition and triggering mechanism of the crime of aggression. 5.2. Looking Forward By December 31, 2014, the two ad hoc tribunals established by the Security Council, the ICTY and ICTR, will have finished their work because the United Nations Security Council will stop funding the tribunals.455 Thereafter remaining cases will be dealt with by the International Residual Mechanism for Criminal Tribunals. At present there nine ICTR indictees at large; all remaining ICTY indictees are in custody. With the approaching expiration of their respective U.N. mandates, most of the mixed-model tribunals will also be shut down in the near future. The states that brought about these institutions will have concluded that they have given enough attention to international criminal justice, and that the beneficial effects of their proceedings are not enough from a cost-benefit standpoint to continue their existence. International prosecutions have been sporadic, limited in number, high in cost and selective. More significantly, none of the five permanent members of the Security Council has ever had to face an international criminal trial.456 The inference, if not presumption, of exceptionalism is self-evident. However, exceptionalism goes even further. It includes, on occasion, that courts heed the wishes of these major powers regarding whom to prosecute, on what charges, and when. Thus, it becomes an exercise in political hegemony.457 For sure, no evidence allowing such exceptionalism or hegemonic influence appears anywhere. There are no fingerprints, but those working in the vineyards of international criminal justice get the message.458 If not, they unexpectedly find their work slowed down by bureaucratic entanglements, dried-up funding, and 455 As early as 2003, the UN Security Council began calling for the closure of the ICTY and ICTR by 2010. It has now extended the deadline to 2012. See Press Release, Security Council, With 2010 Completion Target for Yugoslavia War Crimes Tribunal Unlikely to be Met, Security Council Calls for “Quick and Efficient” Conduct of Trials, U.N. Doc. SC/9549 (2008); Security Council Lengthens UN Tribunals for War Crimes in Balkans and Rwanda, UN News Centre, Dec. 16, 2009, available at http://www.un.org/apps/news/story.asp?NewsID=33276&Cr=tribunal&Cr1. 456 See M. Cherif Bassiouni, International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice, in The Oxford Companion to Int’l Crim. Justice 131 (Antonio Cassese ed., 2009). 457 Bassiouni, Perspectives, supra note 350; 1 Bassiouni, ICL, supra note 23; The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and PostConflict Justice 269 (2 vols., M. Cherif Bassiouni ed., 2010). 458 Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (2010); Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Alette Smeulers ed., 2010); Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009).



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negative media publicity, followed by personal attacks and the threat of removal from office. With respect to the ICC, other crimes may be subsequently included within the Court’s jurisdiction in accordance with the mechanism described in Article 121.459 Crimes such as drug-trafficking and terrorism have been discussed for inclusion, and a resolution was included to ensure their future review.460 Jurisdiction for new crimes takes effect one year after the deposit of the instrument of ratification by the accepting States Parties. The ICC will not, however, exercise jurisdiction for a new crime covered by an amendment when the crime is committed by the nationals of a State Party that has not accepted the amendment or a crime committed on the territory of a State Party that has not accepted the jurisdiction of the ICC over such new crimes. Admittedly, the costs of contemporary international criminal justice are high, particularly those of the ICTY, followed by the ICTR and the ICC. That is not the case, however, with respect to the mixed-model tribunals. A quantitative analysis is always fraught with dangers of oversimplification and trivialization. Conducting a cost-benefit analysis of the “price” of justice risks devaluing the importance of ICJ. Perhaps that is one of the relevant ways to approach the quantitative analysis of direct enforcement systems. For example, between 1994 and 2012, the ICTY, ICTR, and ICC indicted 281 persons (respectively 161, 92, and 28).461 At the ICTY 16 persons are on trial, 17 on appeal and two are in the pre-trial phase. Of the concluded cases, 64 persons were convicted, 13 acquitted, 13 transferred to national jurisdictions pursuant to Rule 11bis and 36 indictments were withdrawn (either at the Prosecutor’s request or due to the death of the accused). At the ICTR 3 persons are on trial, 18 on appeal and 1 is in the pre-trial phase. Of the concluded cases, 44 persons were convicted, 10 acquitted, 3 transferred to national jurisdictions pursuant to Rule 11bis and 5 indictments were withdrawn (either at the Prosecutor’s request or due to the death of the accused). At the ICC the Pre-Trial Chamber confirmed the charges of 25 of the 28 individuals the Office of the Prosecutor indicted. Of those 25, three are at trial, one has been convicted and is awaiting sentencing, eight are in the pre-trial phase, two died, ten are at-large, and two are in the custody of non-state parties. Of these, 166 have been brought to trial (respectively 99, 61, and 6).462 There are

459 ICC Statute, supra note 8, at art. 121. 460 See Herman von Hebel & Darryl Robinson, Crimes Within the Jurisdiction of the Court, in Making of The Rome Statute, supra note 8, at 85–87. 461 Key Figures, Int’l Crim. Tribunal for Former Yugoslavia, http://www.icty.org/sections/ TheCases/KeyFigures (last visited Nov. 15, 2011); Status of Cases, Int’l Crim. Tribunal for Rwanda, http://www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx (last visited Nov. 15, 2011); All Cases, Int’l Crim. Court (last visited Nov. 15, 2011) http://www.icc-cpi.int/Menus/ICC/ Situations+and+Cases/Cases/. 462 Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Alette Smeulers ed., 2010); Schabas, Commentary, supra note 8; see Judgment List,

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twenty-six judges for the ICTY (17 permanent and nine ad litem), twenty-four judges for the ICTR (13 permanent and 11 ad litem), and eighteen judges for the ICC.463 In 2008 and 2009, the three tribunals employed over 3,200 prosecutors, investigators, registrars, and administrative and security personnel.464 In 2010 and 2011, the three tribunals employed over 2,380 prosecutors, professional staff, investigators, registrars, and general service staff in addition to an estimated 550 temporary assistance, consultants, and visiting professionals, cumulatively representing over seventy-nine different nationalities.465 The approximate cumulative costs for operating the tribunals through December 2011 are as follows: ICTY, $1.8 billion; ICTR, $1.7 billion; and ICC, $1.1 billion (€830 million).466 The approximate cost per indictment is as follows: ICTY, $11.2 million; ICTR, $18.5 million; and ICC, $39 million (€29.5 million).467 The means to qualitatively measure the justice impact of the ICTY, ICTR, and ICC is not easily determined. The ICC is much too new to accurately assess its impact. The ICTY and ICTR have more established records, but there are still no agreed-upon criteria by which to make qualitative assessments of international criminal justice. How do we assess outcomes, and by what criteria do we Int’l Crim. Tribunal for Former Yugoslavia, http://www.icty.org/action/cases/4 (last visited Nov. 15, 2011) Status of Cases, Int’l Crim. Tribunal For Rwanda, http://www.unictr.org/Cases/ StatusofCases/tabid/204/Default.aspx (last visited Nov. 15, 2011); All Cases, Int’l Crim. Court, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/ (last visited Nov. 15, 2011). 463 The Judges, The Int’l Crim. Court, http://www.icc-cpi.int/Menus/ICC/Structure+of+the+ Court/Chambers/The+Judges/ (last visited Sept. 16, 2011); 464 1 Bassiouni, ICL, supra note 23. 465 General Information, Int’l Crim. Tribunal for Rwanda (last visited Sept. 16, 2011), http:// www.unictr.org/AboutICTR/ (The ICTR employed 693 personnel in 2010 and 628 personnel in 2011); Registry Facts and Figures, Int’l Crim. Court, The Hague, Twelfth Diplomatic Briefing (April 8, 2011) (The ICC employed 768 staff in 2010 with additional 299 temporary assistance, interns, and visiting personnel and, in 2011, 766 staff with additional 193 temporary assistance and 93 interns or visiting professionals); The Cost of Justice, Int’l Crim. Tribunal for Former Yugoslavia (last visited Sept. 16, 2011), http://www.icty.org/sid/325 (The ICTY employed 919 personnel in 2011). 466 Philippe Kirsch, The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, 28 Fordham Int’l L.J. 292 (2005); see The Cost of Justice, Int’l Crim. Tribunal For Former Yugoslavia, http://www.icty.org/sid/325 (last visited Nov. 15, 2011) (The ICTY budget for 2008–2009 (two-year budget) was $ 342 million and for 2010–2011, almost $302 million); General Information, Int’l Crim. Tribunal For Rwanda, http://unictr.org/ tabid/101/default.aspx (last visited Nov. 15, 2011), (The ICTR budget for biennium 2010–2011 is gross $245,295,800); Registry Facts and Figures, Int’l Crim. Court, The Hague, Twelfth Diplomatic Briefing (April 8, 2011) (The ICC budget for 2010 was $142,800,000 and for 2011 $142,654,000. The proposed 2012 budget requests $162 million.). 467 These costs are estimated per indictment, which includes, among others, individuals who are transferred to local jurisdictions, whose cases are dropped by the prosecution, who are at large or whose charges are not confirmed. If these numbers are factored the approximate costs rise substantially. The costs rise most sharply for the ICC, where a sizable portion of indictees are still at large, and the ICTY, where nearly a third of all indictees where either transferred to national jurisdictions or the indictment was withdrawn due to the death of the accused or on the prosecutor’s motion.



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compare them with similar international institutions or, for that matter, with the world’s 198 national judicial systems? Few empirical studies have been undertaken and few sociological or socio-psychological studies have been conducted to measure impacts and perceptions. We are, therefore, left with general impressions derived from limited facts and selective observations.468 The costs of prosecutions in national criminal justice systems are usually a small proportion of what is contained in national budgets, usually not more than five percent. Even for States like the United States, the costs of individual trials are relatively limited. On occasion, there are exceptional cases such as the Oklahoma bombing case, which cost an estimated $82 million; and the special prosecutor’s costs to bring impeachment charges against President Clinton, which cost $45 million.469 But across the fifty states, as well as within the federal criminal justice system, complex violent crimes cases do not average millions per case, as for a case before the ICTY, ICTR, or ICC.470 Governments and legislative bodies in most countries are not likely to see the merits of having an international criminal justice system that costs so much, particularly in relation to what they are likely to perceive are the positive outcomes of these trials on peace and security. In other words, a cost-benefit analysis is inevitable, as is a comparison between national and international costs, and that would not be favorable to international criminal law. Although the struggle for international criminal justice is still a work in progress and how it develops and evolves is something history will record, direct enforcement systems are now parts of post-conflict justice, applying to conflicts of an international and non-international character alike. When we look at the ICTY, ICTR, and ICC over the past fifteen years, handling hundreds of cases, how can the international criminal justice system cope with a potential thirty to forty conflicts in the world at one time with thousands of victims?471 The system is simply unable to deal with such a volume. Consequently, the international community needs to focus more on strategies of conflict prevention and to address

468 Id. 469 Id.; Mindy Sink, McVeigh’s Defense Cost Millions, N.Y. Times, June 30, 2001; Independent probes of Clinton Administration cost nearly $80 million, CNN, Apr. 1, 1999, http://articles.cnn.com/1999-04-01/ politics/counsel.probe.costs_1_special-counsel-probe-david-m-barrett?_s=PM:ALLPOLITICS. 470 Bassiouni, Perspectives, supra note 350. 471  See M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in The Pursuit of Int’l Crim. Justice: A World Study on Conlifct, Victimization, & Post-Conflict Justice (M. Cherif Bassiouni ed., 2009) (detailing a project of the International Institute for Higher Studies in Criminal Sciences, Siracusa, Italy that was funded by a grant of the European Union); Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in The Global Community: Yearbook Of Int’l Law & Jurisprudence 1, 5 (Giuliana Ziccardi Capaldo ed., 2008); see also M. Cherif Bassiouni, International Criminal Justice in the Era of Globalization: Rising Expectations, in The Global Community: Yearbook Of Int’l Law & Jurisprudence 6, 3–14 (Giuliana Ziccardi Capaldo ed., 2006).

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the issues that give rise to conflict—extreme poverty, poor governance, corruption, and climate change, just to name a few.472 If more states fall prey to these problems we will witness more conflicts, and thus more victims and human suffering. The greater the volume of conflicts, the less likely it will be that the international criminal justice system can adequately address them. Most people evaluate international criminal institutions on the basis of common sense. The first question they ask is why the ICTY and ICTR did not have their respective seats in the conflicts’ territories, where they would have had a much greater impact on the interested population. Moreover, their presence in these territories would have enhanced national capacity-building where it would have been most needed. If the ICTY and ICTR had been located in Sarajevo and Kigali instead of The Hague and Arusha, their impact would have been more significant to the victim populations and they would have helped promote a greater sense of justice and closure for victims. Locating these tribunals where the conflicts occurred would have employed locals, whose training and work in these international institutions could have transferred much needed expertise to their national legal system and would have lessened costs. The ICTY, ICTR, and ICC employed 79 different judges and some 3,000 other personnel from 2009 to 2011.473 Cumulatively, an estimated 5,000 staff personnel and 130 judges have been involved in these institutions. They constitute a pool of individuals who possess some knowledge of international criminal law and of the functioning of international criminal justice institutions. If nothing else, these institutions provide for an admittedly expensive international training program. Their benefits include the fact that there is now, more than ever, a constituency for international criminal justice. There are now experienced judges, prosecutors, investigators, and administrators of international criminal justice who can staff new institutions as well as their own national justice institutions. This experienced pool of international criminal justice operators is likely to make “complementarity” between national and international justice institutions a reality. More importantly, the survival powers of bureaucracies should not be underestimated once institutions are established.474 Another important constituency is the generation of young jurists who study international criminal law, a subject taught in law schools all over the world. Generations of jurists in all countries have not only become knowledgeable of international criminal law, but supportive of it. Academics and their writings

472 Bassiouni, Universal Jurisdiction, supra note 350, at 137. 473 1 Bassiouni, ICL, supra note 23; Statistics about these tribunals can be found on their respective websites: Int’l Crim. Tribunal for the Former Yugoslavia, http://www.icty.org/ (last visited Nov. 15, 2011); Int’l Crim. Tribunal for Rwanda, http://www.ictr.org/ (last visited Nov. 15, 2011); Int’L Crim. Court, http://www.icc-cpi.int/ (last visited Nov. 15, 2011). 474 Bassiouni, Perspectives, supra note 350.



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have given the subject greater recognition and acceptance. International criminal justice is no longer the utopian topic it was only forty years ago. Today, there are courses on international criminal law in at least fifty U.S. law schools and all international law courses include a component of international criminal justice.475 Legal education, publications on international criminal justice, and direct enforcement systems have expanded exponentially in the past decade, and these developments are not likely to be reversed. Yet there is surely more to it. How can we objectively assess the real and symbolic meaning and impact of seeing the twenty-two major Nazi criminals stand in the dock at Nuremberg,476 and the twenty-eight major Class A criminals stand in the dock at Tokyo?477 How can we assess the impact of what is probably one of the most direct manifestations of direct enforcement systems, when the helicopter carrying Charles Taylor on March 29, 2006 flew from Freetown, Sierra Leone, over the city, heading to the site of the Sierra Leone Special Chambers, with throngs of people who had suffered from Taylor’s war walking along the road and chanting beneath his helicopter? When the helicopter landed at the Tribunal’s site, there was a brief moment of silence, followed by an explosion of applause. For the people of Sierra Leone, that was a palpable sign of international criminal justice.478 Finally, how can we measure the impact on a victim population of trials of heads of states, such as Jean Kambanda, the Rwandan head of state, Slobodan Milosevic, the Serbian head of state, and Taylor, the Liberian head of state?479 If in 1950, one had asked how much it would cost to establish head-of-state international criminal responsibility and bring three brutal ones to trial, what would the answer have been? It is difficult—if not impossible—to put a price on it.

475 Bassiouni, Universal Jurisdiction, supra note 350, at 137. 476 See generally Eugene Davidson, The Trial Of The Germans: An Account of the TwentyTwo Defendants Before the Int’l Military Tribunals at Nuremberg Trial (Univ. of Missouri Press 1997) (1966); Perspective On The Nuremberg Trial (Guenael Mettraux ed., 1st ed. 2008). 477 See generally Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trials (1st ed. 2001); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008); Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008). 478 Bassiouni, Perspectives, supra note 350. 479 Prosecuting Heads of State (Ellen Lutz and Caitlin Reiger eds., 2009); M. Cherif Bassiouni, International Criminal Law (vols. 1–3, M. Cherif Bassiouni ed., 3d rev. ed. 2008); The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Michael P. Scharf and Leila Nadya Sadat eds., 2008).

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The development of direct enforcement systems like the ICC, ICTY, and ICTR inspired the establishment of new institutions, the advancement of norms and jurisprudence, and above all, the normalization (in the French sense of normalité) of international criminal justice. It is no longer exceptional, and it is increasingly seen as simply another dimension of ordinary criminal justice practiced at the international level. The ICC, ICTY, and ICTR necessarily had difficulties in their initial years, as do many institutions, but the systems’ abilities to overcome political opposition and to effectively tackle inevitable problems are the main factors that will insure their success.480 Perhaps another perspective of the integral role and major accomplishments of direct enforcement mechanisms is portrayed in this writer’s speech delivered at the Rome Ceremony on July 18, 1998, which follows and expresses the moral, ethical, and policy significance of this historical journey.481 The world will never be the same after the establishment of the international criminal court. Yesterday’s adoption of the Final Act of the United Nations Diplomatic Conference and today’s opening of the Convention for signature marks both the end of a historical process that started after World War I as well as the beginning

480 Bassiouni, supra note 350, at 119. 481 In that speech this writer refers to the few to which so many owe their thanks. Among those who were delegates and who merit special recognition for their commitment, hard work, and dedication to the success of this endeavor are: François Alabrune, France; Zeid Ra’ad Zeid Al-Hussein, Jordan; Hans-Joerg Behrens, Germany; Franklin Berman, U.K.; Trevor Chimimba, Malawi; Jamison S. Borek, U.S.; Adriaan Bos, The Netherlands; Lucius Caflisch, Switzerland; Delia Chatoor, Trinidad and Tobago; Roger Clark, Samoa; Harvey Dalton, U.S.; Phani Daskalopoulou-Livada, Greece; Susan J. Dickson, U.K.; Paula Escarameia, Portugal; Sylvia Alejandra Ferandez de Gurmendi, Argentina; Rolf Einar Fife, Norway; Charles Garraway, U.K.; Fabricio Guariglia, Argentina; Gerhard Hafner, Austria; John Holmes, Canada; Mark B. Jennings, Australia; Hans-Peter Kaul, Germany; Philippe Kirsch, Canada; Erkki Kourula, Finland; Sung-Kyu Lee, Korea; Beatrice Le Fraper du Hellen, France; Lamia Mekheimer, Egypt; Phakiso Mochochoko, Lesotho; Christopher Muttukumaru, U.K.; Yasumasa Nagamine, Japan; Hisashi Owada, Japan; Marc Perrin de Brichambaut, France, Donald Piragoff, Canada; Mauro Politi, Italy; Rama Rao, India; Medard R. Rwelamira, South Africa; Waleed Sadi, Jordan; Per Saland, Sweden; David Scheffer, U.S.; Joanna Scott, France; Cathrine Lisa Steans, Australia; Peter Tomka, Slovakia, Peter Vallance, U.K.; Hermann Von Hebel, The Netherlands; Mary Ellen Warlow, U.S.; Elizabeth Wilmhurst, U.K.; Felicity Wong, New Zealand; Lionel Yee, Singapore. The responsibility for the Diplomatic Conference rested on the Italian Ministry of Foreign Affairs, and more particularly on Ambassador Umberto Vattani, Secretary-General of the Ministry; Professor Umberto Leanza, Director of Legal Affairs and his Deputy Counselor, Umberto Colesanti; and at the Italian Mission to the U.N., Ambassador Francesco Paolo Fulci and Professor Mauro Politi. Last, but not least, is Professor Giovanni Conso, Former Minister of Justice and Honorary President of the Constitutional Court, who was the President of the Diplomatic Conference. Many academics have worked for the establishment of the ICC and their scholarly work made it possible for the idea to gain international recognition and national support. As with all such developments, it takes dedicated, knowledgeable and capable persons to transform ideals into reality.



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of a new phase in the history of international criminal justice. The establishment of the ICC symbolizes and embodies certain fundamental values and expectations shared by all peoples of the world and is, therefore, a triumph for all peoples of the world. The ICC reminds governments that realpolitik, which sacrifices justice at the altar of political settlements, is no longer accepted. It asserts that impunity for the perpetrators of “genocide,” “crimes against humanity,” and “war crimes” is no longer tolerated. In that respect it fulfils what Prophet Mohammad said, that “wrongs must be righted.” It affirms that justice is an integral part of peace and thus reflects what Pope Paul VI once said, “If you want peace, work for justice.” These values are clearly reflected in the ICC’s Preamble. The ICC will not be a panacea for all the ills of humankind. It will not eliminate conflicts, nor return victims to life, or restore survivors to their prior conditions of well-being, and it will not bring all perpetrators of major crimes to justice. But it can help avoid some conflicts, prevent some victimization, and bring to justice some of the perpetrators of these crimes. In so doing, the ICC will strengthen world order and contribute to world peace and security. As such, the ICC, like other international and national legal institutions, will add its contribution to the humanization of our civilization. The ICC also symbolizes human solidarity, for as John Donne so eloquently stated, “No man is an island, entire of itself; each man is a piece of the continent, a part of the main . . . Any man’s death diminishes me because I am involved in mankind.” Lastly, the ICC will remind us not to forget these terrible crimes so that we can heed the admonishment so aptly recorded by George Santayana, that those who forget the lessons of the past are condemned to repeat their mistakes. Ultimately, if the ICC saves but one life, as it is said in the Talmud, it will be as if it saved the whole of humanity. From Versailles to Rwanda, and now to the “Treaty of Rome,” many have arduously labored for the establishment of a system of international criminal justice. Today our generation proudly, yet humbly, passes that torch on to future generations. Thus, the long relay of history goes on, with each generation incrementally adding on to the accomplishments of its predecessors. But today, I can say to those who brought about this historic result, the government delegates in Rome, those who preceded them in New York since 1995, the United Nations staff, members of the Legal Office, the non-governmental organizations, and here in Rome the staff of the Italian Ministry of Foreign Affairs, what Winston Churchill once said about heroes of another time, “Never have so many, owed so much, to so few.” Thank you.482

482 On file with the author.

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The International Criminal Court: A Hybrid “Direct Enforcement System” Section 1. The Need for an ICC World War I was to be “the war to end all wars,” but even its horrors were not enough to compel post-conflict justice.1 A relatively short time later, the world again found itself embroiled in another conflict of even greater proportions. After the atrocities of World War II were revealed, the international community embarked on the first systematic experience in post-conflict justice, though limited to the defeated.2 After that, the international community promised “never again,” but that promise was never kept.3 Since then, some 250 international, regional, and internal armed conflicts have occurred.4 These conflicts, along with human rights violations perpetrated by repressive regimes, have resulted in casualties that range in estimate from 70 to 170 million deaths.5 The harmful consequences are almost beyond comprehension when viewed cumulatively, but these stark realities must now be faced and addressed. Tragically, there have been few mechanisms for accountability, and thus also for deterrence. Since the trial of the Nazi leadership at Nuremberg, governments have for the most part regressed to the convenient practices of realpolitik, whereby accountability and justice are bargained-for political compromises.6 One of the outcomes

1 See M. Cherif Bassiouni, World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002); see supra Chapter V, section 2. 2 See supra Chapter V, section 2. 3 See, e.g., M. Cherif Bassiouni, Post-Conflict Justice (2002). 4 M. Cherif Bassiouni, Searching for Peace and Achieving Justice, 59 Law & Contemp. Probs. 9, 10 (1996); see also Daniel Chirot, Modern Tyrants: The Power and Prevalence of Evil in our Age (1994); Pierre Hassner, Violence and Peace: From the Atomic Bomb to Ethnic Cleansing (1995); Rudolph J. Rummel, Death by Government (1994); Erik Hobsbawm, The Age of Extremes: A History of the World, 1914–1991 (1995); SIPRI Yearbooks 1975–1996; A.J. Jongman & A.P. Schmid, Contemporary Conflicts: A Global Survey of High and Lower Intensity Conflict and Serious Disputes, 7 PIOOM Newsletter and Progress Report 14 (Winter 1995) (Interdisciplinary Research Program on Causes of Human Rights violations, Leiden, The Netherlands), and Study, 6 PIOOM Newsletter 17 (1994); Alex P. Schmid, Early Warning of Violent Conflicts: Casual Approaches, in Violent Crime & Conflicts 47 (ISPAC 1997); PIOOM World Conflict Map 1994–1995, 7 PIOOM Newsletter, supra. 5 See supra note 1. 6 See M. Cherif Bassiouni, Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000).

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of this approach has been that jus cogens crimes,7 such as aggression, genocide, crimes against humanity, war crimes, slavery and slave-related practices, and torture, have increased in almost all parts of the world. Moreover, many governments in a position to prevent or mitigate these tragic events or to pursue restorative and retributive justice have regrettably remained passive, and at times even supportive of these practices.8 Consequently, instead of being held accountable for these international crimes, most of the perpetrators have benefited from impunity either de facto or de jure.9 International civil society has, however, expressed a growing opposition to the practice of granting impunity, particularly for the leaders who ordered the commission of atrocities and those senior commanders who executed these unlawful orders. A large part of the international community wants to put an 7 See M. Cherif Bassiouni, The Discipline of International Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. 8 The Rwandan genocide is a striking example of passivity on the part of the world community in violation of its pledge “never again.” While a criminal tribunal was ultimately enacted in the wake of the genocide which occurred in 1994, the world community watched as the slaughter unfolded over the course of a year. See generally Gerard Prunier, The Rwanda Crisis: History of a Genocide (1997); Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed With Our Families (1998); Frontline: The Triumph of Evil (PBS television broadcast, 1 Jan. 1999) (recounting the passivity of the international community during the Rwandan genocide); Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), U.N. Doc. S/Res/1995/134 (Feb. 13, 1995); Roman Boed, The International Criminal Tribual for Rwanda, in Bassiouni, Post-Conflict Justice, supra note 3, at 487; William A. Schabas, The Rwanda Case: Sometimes It’s Impossible, in Bassiouni, Post-Conflict Justice, supra note 3, at 499. Another example is the U.S.’s early support of Indonesia’s repression of East Timor. See Christopher Hitchens, The Trial of Henry Kissinger 90 (2002). 9 De facto impunity may occur either when the failure to investigate or prosecute is intentional, though not sanctioned by law, or when a legal system is unable to meet its obligations to investigate and prosecute. In some instances, a given state may be willing but unable to carry out investigation and prosecution. This may occur in the aftermath of conflict, when states are faced with many competing priorities. In these situations, governments often fail to prioritize effective criminal justice and limit resources for prosecutions or fail to ensure that positions are staffed with competent professionals who pursue their functions with diligence and ethics. Thus, states without functioning judicial systems impede the goals of international civil society to provide accountability and justice. De jure impunity occurs when any of a number of appropriate accountability mechanisms are preempted by the granting of amnesties or like measures. These may include blanket amnesties covering a given period of time or applying to a given group of persons or may be specifically given to an individual. The following accountability mechanisms have been employed in the resolution of conflicts: international prosecutions, international investigatory commissions, national investigatory and truth commissions, national prosecutions, lustration mechanisms, civil remedies, and mechanisms for victim compensation. See Bassiouni, Searching for Peace, supra note 4, at 18–22. It should also be noted that de jure impunity also can result when a state selects an inappropriate accountability mechanism, given the nature of the violation. This is especially true when the selection of a particular mechanism excludes all other forms. Thus, for example, a state may be fostering a policy of impunity if it opts for a truth commission as an accountability mechanism for genocide with an absolute bar on prosecution. Cumbersome legal procedures or inadequate periods of limitations that operate to frustrate prosecution or civil claims for damages are further examples.



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end to the practices of impunity and the bartering of justice in political settlements. A number of recent indictments and prosecutions reveal that a change is already in place, though far from being systemic.10 As discussed in Chapter V, since World War I, the demands for justice have brought about the establishment of five international investigative commissions11 and four ad hoc international tribunals.12 These institutions benefited from the support of governments motivated by humanistic values and also by those governments who recognized the importance of international criminal accountability mechanisms as a means to maintain world order and restore peace. Such developments reflect the emergence of accountability and justice as values common to the international community.13 However, the pursuit of international criminal justice on an ad hoc basis is less than satisfying, particularly when it is 10 For example, the indictment of former and current leaders such as: (a) Augusto Pinochet of Chile, see Regina v. Bartle and the Commissioner of Police for the Metropolis and others, ex parte, Pinochet; Regina v. Evans and another and the Commissioner of Police for the Metropolis and others, ex parte, Pinochet, House of Lords, 24 March 1999; Warren Hoge, British Court Rules Pinochet Extraditable for Trial in Spain, N.Y. Times, Oct. 8, 1999 (however, he was ultimately not extradited to stand trial in Spain when the British Home Secretary found him to be too ill and allowed his return to Chile). On August 8, 2000, the Chilean Supreme Court announced its 14 to 6 decision to affirm the Corte de Apelaciones’ decision to strip Pinochet of his immunity, thereby subjecting him to trial and opening up the possibility of accountability for the 154 civil charges he faces. He was later found too ill to stand trial. Pinochet died December 10, 2006 without being convicted of any crimes associated with his dictatorship; (b) Slobodan Milosevič of Serbia, see Indictments of Slobodan Milosevič, Nos. IT-99-93-I (May 24, 1999) (violations of the laws and customs of war and crimes against humanity in Kosovo); IT-01-50-I (Oct. 8, 2001) (Croatia); IT-01–51–I (Nov. 22. 2001) (Bosnia) (it should be noted, however, that he was not indicted prior to the Kosovo conflict as a result of the Dayton Peace Accords); (c) Radovan Karadzic of the former Republika Srpska in Bosnia, see Indictments of Radovan Karadžic, Nos. IT-95-18-1-I (Jul. 25, 19 95); IT-9505-I (Nov. 16, 1995) (Srebrenica) (grave breaches of the 1949 Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity); (d) Hissène Habré, see Norimitsu Onishi, An African Dictator Faces Trial in His Place of Refuge, N.Y. Times, March 1, 2000, at A3. (The former dictator of Chad was arrested on charges of torture in Dakar, Senegal where he had been living in exile since his regime was toppled in 1990); and (e) Foday Sankoh and other members of the Revolutionary United Front (RUF), see U.N. SCOR, 4186th mtg., U.N. Doc. S/Res/1314 (2000) (Although the Special Court for Sierra Leone has been established, Sankoh died while in custody in Freetown and Sam Bokarie, a top RUF general, was killed in Liberia before standing trial). See also supra Chapter II, section 3. 11 The five international investigative commissions are: (1) The 1919 Commission on the Responsibilities of Authors of War and on the Enforcement of Penalties; (2) The 1943 United Nations War Crimes Commission; (3) The 1946 Far Eastern Commission; (4) The 1992 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate War Crimes and other Violations of International Humanitarian Law in the Former Yugoslavia; and (5) The 1994 Independent Commission of Experts Established Pursuant to Security Council Resolution 935 (1994) to Investigate Grave Violations of International Humanitarian Law in the Territory of Rwanda. See generally M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11 (1997). 12 The four ad hoc international tribunals are: (1) the 1945 IMT; (2) the 1946 IMTFE; (3) the 1993 ICTY; and (4) the 1994 ICTR. See generally Bassiouni, From Versailles to Rwanda, supra note 11. 13 See M. Cherif Bassiouni, Policy Perspectives Favoring the Establishment of the International Criminal Court, 52 Colum. J. Int’l Aff. 795 (1999).

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only for the defeated. For example, while tribunals were established in the wake of World War II, they were tainted with their one-sidedness. Conversely, the ICTY and ICTR exercise their jurisdiction over all parties to these conflicts. But different international action was taken in the aftermath of the atrocities committed in the conflict in Sierra Leone14 or in Cambodia.15 To avoid the pitfalls of ad hoc justice, international criminal justice requires clearly established norms that are consistently applied to all violators by a permanent international criminal court with impartiality, fairness, and effectiveness. Section 2. The Characteristics of the ICC 2.1. The Nature of the ICC16 The ICC is a permanent international institution established by treaty for the purpose of investigating and prosecuting individuals who commit “the most serious crimes of international concern” [Article 1], namely: genocide [Article 6], crimes against humanity [Article 7], and war crimes [Article 8]. Article 5 provides also for aggression as a crime within the Court’s jurisdiction, but only after it is ratified and approved after January 2017.17 The three crimes mentioned above are well-defined in ICL, and presently carry international legal obligations to investigate, prosecute, or extradite those individuals who are accused of having committed such crimes, and to punish those individuals who violate these well-established norms. 14 See infra Chapter VIII, section 5. 15 United Nations, The United Nations and Cambodia 1991–1995 (1995); Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations, and the International Community (Ben Kiernan ed., 1993). The United Nations and Cambodia are pursuing some semblance of a tribunal to prosecute a few of the purported leaders. See generally Advisory Services and Technical Cooperation in the Field of Human Rights, Situation of Human Rights in Cambodia, Report of the Special Representative of the Secretary-General for Human Rights in Cambodia, Mr. Thomas Hammarberg, Submitted in Accordance with Resolution 1999/76, U.N. Doc. E/ CN.4/2000/109 at para. 30–40 (Jan. 13, 2000). See also infra Chapter VIII, section 2. 16 See generally Roy S. Lee, The Rome Conference and its Contributions to International Law, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 1–40 (Roy S. Lee ed., 1999) [hereinafter Making of The Rome Statute]. For additional commentary on the Establishment of the Court, see Otto Triffterer, Article 1: The Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 51–64 (Otto Triffterer ed., 1999) [hereinafter Commentary on Rome Statute]; The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed., 2001) [hereinafter Lee, ICC Elements of Crimes and Rules of Procedure and Evidence]; The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) [hereinafter Lattanzi, ICC Comementary]; William A. Schabas, An Introduction to the International Criminal Court (2001) [hereinafter Schabas, ICC Introduction]; Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002). 17 The ASP did not adopt at a definition of aggression until 2010. See supra Chapter VI, section 5; infra section. 4.5–4.6.



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The ICC is a treaty-based institution that is binding only on its states parties. It is not a supra-national body, but an inter-national body similar to other existing ones. The ICC is not a substitute for national criminal jurisdiction and does not supplant national criminal justice systems, but rather is “complementary” to them [Articles 1, 17].18 The ICC does no more than what each and every state in the international community can do under existing international law. It is the expression of collective action by states parties to a treaty that establishes an institution to carry out justice for certain international crimes. The ICC is therefore an extension of national criminal jurisdiction, established by a treaty whose ratification under national law makes it part of that law. Consequently, the ICC neither infringes upon national sovereignty nor overrides national legal systems capable of and willing to carry out their international legal obligations. The ICC also regulates its relationship to, and the obligations of states parties with, non-states parties. As a general rule, the ICC’s jurisdiction does not extend to non-states parties, with the exception of three situations. The first is where a non-state party refers a situation to the ICC pursuant to Article 12(3).19 The second exception is where the citizen of a state party commits a crime within the Court’s jurisdiction, on the territory of a state party, or against a state party or its nationals. The third exception is where the Security Council refers a matter. The remaining question is whether a state party can surrender the national of a non-state party who is on its territory to the ICC. 2.2. Complementarity of the ICC and National Legal Systems20 The ICC’s jurisdiction extends to its states parties. The exercise of its jurisdiction is “complementary” to that of the national legal systems of its states

18 See supra Chapter I, section 1.4. 19 It should be noted that this article’s drafting may give rise to questions as to what a non-state party can refer to the ICC. In this author’s opinion, a non-state party can do no more and no less than a state party in connection with a referral of a “situation,” and thereafter be bound by the same obligations of the Statute as a state party, with respect to the referred situation. 20 The term “complementarity” entered the English language in 1911, meaning, “a complementary relationship or situation; spec. in physics, the capacity of the wave and particle theories of light together to explain all phenomena of a certain type, although each separately accounts for only some of the phenomena.” Oxford English Dictionary. Subsequently, it has come to mean something to complement. In 1995 and 1996, the Ad Hoc Committee and the Preparatory Committee used the term, which is a transposition from the french term “complementarité,” to describe the relationship between the ICC and national systems. See M. Cherif Bassiouni, Observations Concerning the 1997–98 Preparatory Committee’s Work, 13 Nouvelles Études Pénales 5, 21 (1997). For a discussion of the principle of complementarity, see generally John T. Holmes, The Principle of Complementarity, in Making of the Rome Statute, supra note 16, at 41–78. For additional commentary on Complementarity, see Sharon A. Williams, Article 17: Issues of admissibility, in Commentary on Rome Statute, supra note 16, at 383–394; Flavia Lattanzi, The Complementary Character of the Jurisdiction of the Court with Respect to National Jurisdictions, in Lattanzi, ICC Commentary, supra note 16, at 1. For a discussion of complementarity, see supra Chapter I, section 1.4.

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parties [Articles 1, 17]. National criminal jurisdiction always has priority over the ICC, and only in two situations can the ICC exercise its jurisdiction [Article 17], namely: (a) when a national legal system has collapsed; or (b) when a national legal system refuses or fails to carry out its legal obligations to investigate and prosecute persons alleged to have committed the three crimes presently within its jurisdiction or punish those who have been convicted. The standards for determining the applicability of the ICC’s jurisdiction are contained in Articles 17 and 18 of the Statute. The principles of the primacy of national legal systems and the ICC’s complementarity are evident in other provisions of the Statute. Perhaps most indicative of these principles are the provisions of the Statute in Part 9 that require all requests for cooperation, including the arrest and surrender of an accused and the securing of evidence, to be directed to and executed by national legal systems. In furtherance of these principles, judicial safeguards are established in connection with the ICC Prosecutor’s investigations and indictments. Article 15(4) requires the authorization of the Pre-Trial Chamber before the Prosecutor commences an investigation proprio motu as opposed to when it is referred by a state party or the Security Council [Article 15]. Section 3. Applicable Law21 Article 10 contains the overarching principle with respect to the applicable law and, appropriately so, it requires the application of international law whose four sources are listed in Article 38 of the Statute of the International Court of Justice, namely: a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. International custom, as evidenced by a general practice accepted as law; c. The general principles of law recognized by civilized nations; d. [. . .] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.22

Consequently, this also means that the Treaty must be interpreted in accordance with the 1969 Vienna Convention on the Law of Treaties.23

21 Per Saland, International Criminal Law Principles, in Making of the Rome Statute, supra note 16, at 189–216. For additional commentary on Applicable law, see Margaret McAuliffe de Guzman, Article 21: Applicable Law, in Commentary on Rome Statute, at 435–446; Sadat, supra note 16, at 73. 22 See Statute of International Court of Justice, 1983 U.N.Y.B. 1334 (1945). 23 See Vienna Convention on Law of Treaties, 1155 U.N.T.S. 331 (1969).



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Any provision in the Statute that conflicts or is inconsistent with general international law shall be subordinate to it, unless the provision is intended to be a lex specialis, in which case it supercedes other provisions and sources of international law. An exception to this exception is where the lex specialis is in contradiction with a peremptory norm of international law. In that case, the latter prevails. Furthermore, a conflict or inconsistency between any obligations arising under the Statute and other treaty obligations by states parties shall first be subject to applicable sources of international law referred to above and then to Article 21(1)(c). Article 2124 adds specificity to the general provisions of Article 10. As stated in Article 21, the law to be applied by the ICC is first a) the text of the statute itself; b) the Elements of Crimes; and c) its Rules of Procedure and Evidence [Article 21(1)(a)]. In the second place, where it is appropriate, the ICC will refer to applicable treaties and the principles and rules of international law [Article 21(1)(b)]. Lastly, the Court will apply general principles of law derived from national laws of the world’s legal systems, including the national laws of the states that would normally exercise jurisdiction over the crime (provided that those principles are not inconsistent with the ICC and international law) [Article 21(1)(c)]. The court may also apply principles and rules of law as interpreted in its prior decisions [Article 21(2)]. However, the application and interpretation of law applied by the Court must “be consistent with internationally recognized human rights and be without adverse distinction founded on grounds of gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth, or other status” [Article 21(3)]. There appears to be a possibility of a conflict between the ranking of sources of applicable law in Article 10 and the more specific aspects of Article 21. In accordance with the rules of treaty interpretation of the 1969 Vienna Convention on the Law of Treaties, it is the intent of the parties which is controlling; in this case the parties did not intend to limit the well-established sources of international law referred to in Article 10 and contained in Article 38 of the Statute of the International Court of Justice. Consequently, the specificity contained in Article 21 is subordinate to the generality of Article 10 because of the intent of the drafters (if that were not the case, then the specificity of Article 21 would control over the generality of Article 10.)25

24 Article 21 should have been merged with Article 10 but was not because Part 2, which contains Article 10, was not submitted to the Drafting Committee. Rather, it was sent directly to the Committee of the Whole. See M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell Int’l L. J. 443 (1999). 25 Because of the manner in which the statute was drafted, it cannot be said that one provision was drafted or adopted before another one.

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Another apparent inconsistency arises between Article 21 and Article 9 on “Elements of Crimes,” in that Article 21 lists “Elements of Crimes” as a source of applicable law, whereas Article 9 specifically states that these “Elements of Crimes shall assist the Court in interpretation and application of Articles 6, 7, and 8.” It should be noted that “Elements of Crimes” which are to “assist the Court” [Article 9] are to be considered a source of law that cannot be applied in a manner that modifies the provisions of the Statute [Articles 6–8]. The “Elements of Crimes” were adopted by the ASP at its first session.26 The ASP, however, cannot modify the Statute through the “Elements of Crimes,” since modification of the Statute requires “two-thirds majority of those present and voting provided an absolute majority of states parties constitutes the quorum for voting,” as set forth in Article 112. Consequently, the Court also cannot interpret the “Elements of Crimes” in a manner that modifies the provisions of the Statute. Section 4. The Jurisdiction of the ICC27 4.1. Preconditions to the Exercise of Jurisdiction28 Before the Court can exercise jurisdiction over a crime, the alleged crime must have been committed on the territory of a state party or by one of its nationals [Article 12(2)]. In addition, the ICC may exercise its jurisdiction when a state that is not a state party consents to the Court’s jurisdiction, and the crime has been committed on that state’s territory or the accused is one of its nationals [Article 12(3)].29 The Court can also exercise its jurisdiction over a national of a non-state party, if the latter committed a crime on the territory of a state party, 26 International Criminal Court, Elements of Crimes, ICC-ASP/1/3, U.N. Doc. PCNICC/2000/1/ Add.2 (2000) [hereinafter Elements of Crimes]. 27 See supra note 16. 28 See generally Elizabeth Wilmhurst, Jurisdiction of the Court, in Making of the Rome Statute, supra note 16, at 127–42. For additional commentary on Preconditions to Jurisdiction, see Sharon A. Williams, Article 12: Preconditions to Exercise of Jurisdiction, in Commentary on Rome Statute, supra note 16, at 329–42; Christopher K. Hall, The Jurisdiction of the Permanent International Criminal Court over Violations of Humanitarian Law, in Lattanzi, ICC Commentary, supra note 16, at 19; Schabas, ICC Introduction, supra note 16, at 54; Sadat, supra note 16 at 103. 29 Article 12(3), in connection with a referral to the ICC by a non state party, uses the terms “the crime in question” instead of “a situation in which one or more crimes within the jurisdiction of the court appear to have been committed.” In all other referrals to the ICC, by a state party or the Security Council, the statute uses the term “situation,” which is intended to exclude a possible selectivity of instances or individuals to be referred to the ICC on an exclusive basis. The drafting of Article 12(3) (which was part of the Part 2 package that was sent directly to the Committee of the whole and not to the Drafting Committee, see Bassiouni, Negotiating the Treaty of Rome, supra note 24) did not intend to deviate from other methods of referrals. Thus, Article 12(3) must be read in pari materia with Article 13 (“a situation in which one or more crimes within the jurisdiction of the court appear to have been committed”).



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or against one of its citizens, and the state party refers to the ICC the situation involving the national of a non-state party. One question that remains open is whether a state party can surrender to the Court a non-state party who is on its territory, but who is not charged or accused of having committed a crime within the Court’s jurisdiction, against that state party. Moreover, there is a question under Article 98, whether a state party should defer to another jurisdiction if a prior treaty exists that provides for a jurisdictional priority to another state.30 Jurisdiction of the ICC is based on the principle of territorial criminal jurisdiction, and not on a theory of universality of criminal jurisdiction.31 While the reach of the Court’s jurisdiction is universal, it does not represent the theory of universality, except for “referrals” from the Security Council, which are not linked to the territoriality of any state, whether they are parties or non-states parties.32 It is clearly established in ICL that whenever a crime is committed on the territory of a given state, that state can prosecute the perpetrator, even when that person is a non-national.33 Because of that principle, a state may extradite a non-national to another state for prosecution.34 Accordingly, every state has the right, in accordance with its constitutional norms, to transfer jurisdiction to another state that has jurisdiction over an individual accused of committing a crime,35 or to an international adjudicating body. Such jurisdictional transfer is an entirely valid exercise of national sovereignty, but it must be done in accordance with international human rights norms.36 Thus, the ICC, with respect to the prosecution of a national of a non-state party who commits a crime on the territory of a state party, does not provide for anything more than already exists in the customary practice of states.37 Since the ICC is complementary38 to national criminal jurisdiction, a state party’s surrender of an individual to the ICC’s jurisdiction pursuant to the Treaty: 30 See infra section 11. 31 For theories of jurisdiction, see M. Cherif Bassiouni, International Extradition (5th ed. 2007) , at ch. VI. 32 See, e.g., M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Intl. L. 81 (2001). 33 See Bassiouni, International Extradition, supra note 31, at 357. 34 Id. at 682–89. 35 See, e.g., the European Convention on the Transfer of Proceedings in Criminal Matters, ETS. No. 73, 30 (March 1978); Ekkehart Müller-Rappard & M. Cherif Bassiouni, European InterState Cooperation in Criminal Matters 831 (1992). 36 International human rights law norms provide for certain substantive and procedural guarantees. These norms also arise under regional conventions such as the European Convention on Human Rights and Fundamental Freedoms. See Bassiouni, Human Rights Compendium; and M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent in National Constitutions, 3 Duke J. Comp. & Int’l L. 235–97(1993). See generally Les Droits de L’Homme a L’Aube du XXIe Siecle (Karel Vasak ed., 1999). 37 See Bassiouni, International Extradition, supra note 31, at 357. 38 See infra section 2.2, and supra Chapter I, section 1.4.

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a) does not detract from its national sovereignty; b) does not infringe upon the national sovereignty of another state (such as the state of nationality of the perpetrator or the victim); and c) does not violate the rights of the individual whose prosecution is transferred to a competent criminal jurisdiction (which will exercise its jurisdiction in accordance with international human rights law norms). 4.2. Ratione Temporis: When the ICC May Exercise Its Jurisdiction39 The ICC’s jurisdiction is only prospective [Articles 11, 24(1)],40 and therefore does not apply to crimes that occurred before the Treaty’s entry into force, namely, 1 July 2002.41 With respect to states that accede to the Treaty, the jurisdiction of the ICC applies only to crimes that are committed after that state’s accession. For states that accede to the treaty after its entry into force, the effective date of entry into force for such states is the first day of the month that follows sixty days from the deposit of that state’s ratification [Article 126(2)]. The Statute provides that a state may, at the time it becomes a state party, opt-out to delay the applicability of the ICC’s jurisdiction with respect to war crimes [Article 8] for a period of seven years [Article 124]. 4.3. Ratione Personae: The Subjects of Criminal Responsibility 42 The ICC’s jurisdiction applies only to individuals [Articles 1, 25(1)] who commit a crime after the age of eighteen [Article 26]. It has no jurisdiction over states or legal entities for the commission of “a crime within the jurisdiction of the Court”

39 See generally Saland, supra note 21. For additional commentary on Ratione Temporis, see Sharon A. Williams, Article 11: Jurisdiction ratione temporis, in Commentary on Rome Statute, supra note 16, at 323–28; Sadat, supra note 16, at 104. For additional commentary on the treaty’s entry into force, see Roger S. Clark, Article 126: Entry into force, in Commentary on Rome Statute, supra note 16, at 1289–91. 40 Article 11 should have been merged with Article 24. Article 11 overlaps with Article 24, but as stated above, because Article 11 was contained in Part 2, it went directly to the Committee of the whole and not to the Drafting Committee. See Bassiouni, Negotiating the Treaty of Rome, supra note 24. In the event of a possible inconsistency, Article 24 should control as it is elaborated in Part 3, which concerns general criminal law principles. 41 The ICC Statute entered into force when the treaty that embodies it was ratified by sixty states; specifically, the first day of the month after the sixtieth day following the deposit of the sixtieth instrument of ratification [Article 126(1)], which occurred with the deposit of sixty-six ratifications on 11 April 2002. 42 See Making of the Rome Statute, supra note 16, at 32. For additional commentary on Ratione Personae, see Kai Ambos, Article 25: Individual criminal responsibility, in Commentary on Rome Statute, supra note 16, at 475–93; Sadat, supra note 16, at 104. On the subject of individual criminal responsibility, see generally Andrea Sereni, Individual Criminal Responsibility, in Lattanzi, ICC Commentary, supra note 16, at 139. See also supra Chapter II.



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[Article 5].43 Furthermore, no individual is exempted from criminal responsibility based on his or her official capacity as might be dictated under domestic law [Article 27].44 4.4. Ratione Materiae: The Crimes within the Jurisdiction of the ICC45 The ICC’s ratione materiae jurisdiction under Article 5 extends, at this time, to three well-established international crimes: genocide,46 war crimes,47 and crimes against humanity.48 These three crimes are presently within the ICC’s jurisdiction and defined in Articles 6, 7, and 8. They conform to existing international criminal law and fall within the meaning of jus cogens, which are binding upon all states and are norms that carry obligations from which a state may not derogate.49 The Statute also lists the crime of aggression, which was not defined until 2010 and cannot come into force until at least 2017. Furthermore, the Court also has jurisdiction over crimes against the administration of justice and may impose sanctions [Article 70, 71].50 43 For a discussion of the criminal responsibility of states and organizations under international criminal law, see Bassiouni, supra note 7. 44 See Saland, supra note 21, at 202. For additional commentary on Immunity, see Otto Triffterer, Article 27: Irrelevance of official capacity, in Commentary on Rome Statute, supra note 16, at 501–15. See also infra Chapter II, section 4. 45 See generally Herman von Hebel & Darryl Robinson, Crimes within the Jurisdiction of the Court, in Making of the Rome Statute, supra note 16, at 79–126. For additional commentary on Ratione Materiae, see Andreas Zimmerman, Article 5: Crimes within the jurisdiction of the Court, in Commentary on Rome Statute, supra note 16, at 97–107. 46 For a discussion of the crime of genocide, see William A. Schabas, Genocide in International Law: The Crimes of Crimes (2000); Matthew Lippman, Genocide, in 1 Bassiouni, ICL, supra note 7, at 403; Wiebke Rückert & Georg Witschel, Genocide and Crime Against Humanity in the Elements of Crimes, in International and National Prosecution of Crimes Under International Law 59 (Horst Fischer, Claus Kress & Sascha R. Lüder eds., 2002). 47 For a historical overview of the evolution of formal and informal limitations on the conduct of war among Western states, see M. Howard, G. Andreopoulos & M. Shulman, The Law of War: Constraints on Warfare in the Western World (1994). See also generally The Law of War Crimes: National and International Approaches (Timothy McCormack & Gerry Simpson eds., 1997); The Law of Armed Conflict into the Next Millennium (Michael Schmitt & Leslie Green eds., 1998); Essays on the Modern Law of War (Leslie Green ed., 2d ed. 1999); Yves Sandoz, Penal Aspects of International Humanitarian Law, in 1 Bassiouni, ICL, supra note 7, at 293; Lindsay Moir, Non-International Armed Conflict and Guerilla Warfare, in 1 Bassiouni, ICL, supra note 7, at 323. 48 For a discussion of crimes against humanity see M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011); Margaret McAuliffe de Guzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22 Hum. Rts. Q. 335 (2000); Rückert & Witschel, supra note 46. 49 See Vienna Convention on the Law of Treaties, supra note 23, at arts. 53, 64; M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63 (1996). 50 See von Hebel & Robinson, supra note 45. For additional commentary on Offenses against the administration of justice, see Kenneth Harris, Article 70: Offences against the administration of justice, in Commentary on Rome Statute, supra note 16, at 917–24; Otto Triffterer, Article 71:

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Article 6 defines genocide in accordance with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,51 which is ratified by 142 states,52 but which is also deemed part of jus cogens.53 It states in Article 6: Article 6 Genocide For the purpose of this Statute, “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.

Article 7 defines crimes against humanity54 in keeping with the spirit of Article 6(c) of the Nuremberg Charter,55 but significantly expanded upon it. The detail included in the ICC’s article provides more specificity as to the acts deemed to fall within those that qualify for that category of crime and reflects the progressive evolution of customary international law.56 It states in Article 7: Article 7 Crimes against humanity 1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement;

Sanctions for misconduct before the Court, in Commentary on Rome Statute, supra note 16, at 925–36. 51 Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (New York, United Nations: 9 December 1948) reprinted in M. Cherif Bassiouni, International Criminal Conventions and Their Penal Provisions 247–50 (1997) [hereinafter Bassiouni, ICL Conventions]. See also  Lippman, Genocide, supra note 46. 52 As of November 2011. 53 See supra note 49. 54 Rome Statute of the International Criminal Court, art. 7, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]; see Bassiouni, Crimes Against Humanity, supra note 48, at 199–204. 55 Bassiouni, ICL Conventions, supra note 51, at 457–94. 56 Article 7(1) requires that an “attack upon a civilian population” be “systematic” or “widespread” as does Article 3 of the Statute of the ICTR, but Article 7(2) requires that such an “attack” be the product of a state’s “policy.” Thus, the element of “policy” is a prerequisite. See Bassiouni, Crimes Against Humanity, supra note 48, at 199–204; see David Donat-Cattin, Crimes Against Humanity, in Lattanzi, ICC Commentary, supra note 16, at 49; Darryl Robinson, The Elements for Crimes Against Humanity, in Lee, ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 57; Rodney Dixon, Crimes Against Humanity, in Commentary on Rome Statute, supra note 16, at 121.



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(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 as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

It should be noted that in order for crimes against humanity to occur, the following elements are necessary: a) there has to be a state policy, or a policy of non-state actors [Article 7(2)]; b) to commit the specific crimes enumerated in Article 7(1); and c) the commission of these crimes take place on a “widespread” or “systematic” basis [Article 7(1)]. The policy element is jurisdictional because it transforms crimes that would otherwise be national crimes into international crimes. It is, therefore, a threshold requirement. The chapeau of the “Elements of Crimes” adopted by the Preparatory Commission states: 3. “Attack directed against a civilian population” is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The act need not constitute a military attack. It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population [footnote 1].57

This provision also has a footnote at its end which states: [Footnote 1] A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.58

Consequently, the policy of a state, consistent with Article 7 (“widespread” or “systematic”), must be evidenced by “actively encouraging or supporting” such 57 See Report of the Preparatory Commission for the International Criminal Court, Part I: Finalized Draft Text of the Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2000). 58 Id.

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conduct. It should be noted that a failure to prevent these crimes does not create an automatic inference in this regard, but rather only “in exceptional circumstances” does a failure to prevent amount to “actively encouraging or supporting.”59 Article 7 brings a new development to “crimes against humanity” in that it recognizes its applicability to non-state actors. However, this does not mean that every group or band of criminals who engage in “widespread or systematic” criminal conduct against civilian populations can be charged with “crimes against humanity.” If that were the case, the mafia, for example, could be charged with such crimes before the ICC, and that is clearly not the intent of Article 7. What is intended are groups which have some state-like characteristics such as control of a portion of territory, or ability to exercise control over it. This is the same in some insurgencies in conflicts of a non-international character.60 The question arose after September 11, 2001 as to whether a group such as al-Qaeda, which operates on a worldwide basis, and is capable of inflicting significant harm in more than one state, falls within this category. In this author’s opinion, such a group would qualify. The war crimes provision of Article 8 includes: 1) the “grave breaches”61 and Common Article 3 of the 1949 Geneva Conventions, which have been ratified by 189 states; and 2) the “grave breaches” of Protocols I62 and II63 of 1977, which are deemed part of the customary law of armed conflict.64 Protocol I has been ratified by 161 states, and Protocol II by 156 states.65 Furthermore, Article 8 includes, in part, that which is considered the customary law of armed conflict, including prohibitions of certain weapons, though without much legal certainty as to what is prohibited and under what circumstances. As all three crimes within the ICC’s jurisdiction are already well-established in ICL, the ICC does not establish new crimes, but rather embodies pre-existing

59 Id. at Intro. to art. 7, para. 3. 60 In a recent Human Rights Watch report, with which the author disagrees, Palestinian resistance groups who engage in suicide bombing fall within that category. By Human Rights Watch’s reasoning, every guerilla group who consistently violates IHL would, in addition to committing war crimes, also commit crimes against humanity, and that is unnecessary. 61 See 1949 Geneva Conventions. See also authorities mentioned supra note 36. 62 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977); see also Yves Sandoz, Commentary on the 1977 Additional Protocols (1986). 63 See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts; see also Sandoz, Commentary, supra note 62. 64 See also Convention Respecting the Laws of Customs of War on Land (Second Hague IV), 36 Stat. 2277 (1907). 65 For ratifications of the two protocols to the four Geneva Conventions, see the International Committee of the Red Cross’ database on international humanitarian law, available at http://www .icrc.org/eng/resources/ihl-databases/index.jsp.



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ICL. However, the “Elements of Crimes”66 expand on what both conventional and customary law have recognized so far. Nevertheless, since the ICC is the product of a treaty and provides only for prospective application,67 the fact that the ICC adds to ICL does not violate international law, or the “principles of legality” in ICL.68 The Preparatory Commission established by Resolution F of the Diplomatic Conference is to provide for the “Elements of Crimes” pursuant to Article 9 of the Statute. These “elements” do not amend the Statute nor do they supplement the definition of the crimes presently contained in Articles 6, 7, and 8. They are merely designed to “assist” the Court to prove these crimes. The “Elements of Crimes” agreed upon in the fifth session of the Preparatory Commission and which were adopted by the ASP69 have clarified in varying degrees what needs to be proven. The “Elements of Crimes” do not add anything of a significant nature to the general understanding of the well-established definition of genocide. With respect to Article 8, the “Elements of Crimes” introduce concepts such as military necessity, reasonableness, and unlawful conduct without setting forth an evidentiary standard by which to assess these conditions.70 Thus, these will be left to the jurisprudence of the Court on the basis of the relevant applicable sources of law contained in Articles 10 and 21.71 With respect to crimes against humanity, the “Elements of Crimes” emphasizes the need to prove the policy of a state or non-state actor, by means of showing active promotion or encouragement, including omission or failure to act. It should be noted that general principles of criminal law contained in most legal systems recognize that an intentional, deliberate, or purposeful failure to act when there is a preexisting legal duty or obligation to act is part of the material element of major crimes. Consequently, it is possible to establish policy by a state or nonstate actor through intentional, deliberate, or purposeful failure to act. “Actively promoting and encouraging” obviously includes engaging in conduct by a state or non-state actor that results in the commission of crimes against humanity. In both cases, commission and omission (or failure to act or passive conduct) must be accompanied by at least an element of knowledge. With respect to all three crimes, the mental element articulated in Article 30 applies, except where another mental element is required in Article 6 (genocide), which requires specific intent. The “Elements of Crimes” probably reveal some confusion between general intent and specific intent. This confusion could

66 See Elements of Crimes, supra note 26. 67 Articles 11 and 24 of the ICC Statute expressly state that ICC jurisdiction is prospective. 68 See supra Chapter III, section 9. 69 See Elements of Crimes, supra note 26. 70 Id. 71 See supra section 3.

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have been resolved by requiring a lower standard for policy-makers (e.g., a general intent up to and including knowledge) because of the ability of such persons to know or foresee the consequences of their acts through greater access to information and an ability to control the apparatus of the state. For lowerlevel executors, specific intent or knowledge of the overall policy of which they are acting in furtherance of should be required. This knowledge would not be required, however, for the commission of war crimes [Article 8], which do not require a specific intent. The three crimes overlap as to their legal elements, but the Statute does not contain a provision on how to deal with either legal or factual overlaps.72 Similarly, the Statute does not address the problems of overlaps with respect to penalties [Articles 70–80] whenever a person is convicted of several crimes (which have similar legal elements) arising out of the same conduct. The problems of overlapping legal provisions [Articles 6, 7 and 8] will also arise in respect to the Court’s determination of ne bis in idem [Article 20]. These problems will also arise in the courts of the states parties. How ICC judges and national judges will deal with these problems is uncertain. 4.5. The Definition and Elements of the Crime of Aggression As a result of the high level of agreement on the substantive definition of the crime of aggression from prior negotiations,73 the States Parties at the 2010 Kampala Review Conference adopted RC/Res. 6 by consensus, agreeing to insert into the Rome Statute Article 8bis defining the crime of aggression based on the UN General Assembly Resolution 3314 (IXXIX) of December 14, 1974.74 The amendment reads are follows: 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of

72 See M. Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, 8 Transnat’l L. & Contemp. Probs. 199 (1998). The civilist legal systems address this problem as a Concours ideal d’infractions. See Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law, supra note 46; Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1 (2002). 73 See supra Chapter 6, section 5. 74 Res. RC/Res. 6, U.N. Doc. RC/Res. 6 (June 11, 2010) at annex I–II (adding Article 8bis to the Rome Statue, defining the crime of aggression). The Resolution relies heavily on the 1974 General Assembly UN Resolution 3314 definition but adds qualities regarding the leadership character of the crime and the “manifest” character of its violation.



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an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f ) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.75 Allowing the ICC to prosecute crimes of aggression as the other three core crimes upholds the respected judicial decisions of Nuremberg, affirms the U.N. Resolution 3314, and codifies developments in customary international law.76 But the ICC may only exercise jurisdiction over the crime of aggression (1) one year after 75 Amendments to the Rome Statute of the International Criminal Court art. 8(2), June 11, 2010, Depository Notification C.N. 651.2010.Treatites-8 [hereinafter Rome Statute Amendments]; RC/ Res. 6, supra note 74; ICC Statute, supra note 54, at art. 8bis. 76 Benjamin Ferencz, The International Criminal Court and the Crime of Aggression: Ending Impunity for the Crime of Aggression, 41 Case W. Res. J. Int’l L. 281, 285 (2009).

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the ratification or acceptance of the amendments by thirty States Parties and (2) after a decision is made after January 1, 2017 by two-thirds of States Parties to activate jurisdiction.77 The definition adopted at the Kampala Review Conference, almost identical to the Special Working Group on the Crime of Aggression [SWGCA] discussion paper distributed in 2008, effectively establishes the following as the elements of the crime of aggression: (1) the planning, preparation, initiation, or execution of an act of aggression, (2) by an individual who has a high level of control over the political or military actions of a state, and (3) which constitutes a manifest violation of the UN Charter.78 The crime’s elements and definition herein warrant discussion about whether the definition agreed upon at the Review Conference is one that will withstand the test of time. 79 Given the current climate of the international community, Article 8bis fails to match the goals of the Rome Statute and international criminal law stay current with evolving conflict patterns. The definition adopted at Kampala may already be out-of-date in light of modern warfare. First, in addition to the ICC’s built-in discretionary valve of hearing cases for the most serious crimes, the new definition of aggression is restricted to acts “which by its character, gravity and scale, constitutes a manifest violation” of the UN Charter.80 This qualifying threshold lacks any descriptive regulations or notes defining these terms. Inclusion of this phrase was denounced by some as an ambiguous loophole that seemed to leave room for the argument that the offending state did not regard its action as inconsistent with the Charter.81 Ultimately, in order to prosecute violations of the UN Charter, an act or situation implying the occurrence of an armed attack or act of aggression must be recognized by the UN Security Council as such. Although the use of language like “manifest violation” indicated that the ICC may use discretion in prosecutions, it remains unclear precisely what constitutes an act of aggression, leaving room for the UN Security Council to make a discretionary determination on the 77 RC/Res. 6, supra note 74, at art. 15bis, para. 3. 78 Compare International Criminal Court, Assembly of State Parties, Discussion Paper on the Crime of Aggression Proposed by the Chairman (Revision June 2008), ICC-ASP/6/SWGCA/2 (May 18, 2008), with Rome Statute Amendments, supra note 75, at art. 8(1). 79 RC/Res. 6, supra note 74, at annex II (Amendments to the Elements of the Crime); see also Report of the Special Working Group on the Crime of Aggression, ICC/ASP/7/20/Add.1, para. 4. For a critical view of the definition, see Michael J. Glennon, The Blank-Prose Crime of Aggression, 35 Yale J. Int’l L. 71, 109 (2010); Andreas Paulus, Second Thoughts on the Crime of Aggression, 20 Eur. J. Int’l L. 1117, 1122–23 (2010). For a discussion of the relationship between the State responsibility for aggression and individual criminal responsibility, see A. Cassese, On Some Problematical Aspects of the Crime of Aggression, 20 Leiden J. Of Int’l L. 4, 841–49 (2007). 80 Rome Statute Amendments, supra note 75, at art. 8(1); ICC Statute, supra note 54, at art. 8(1). 81 M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Agression: From its Origins to the ICC, in 1 Bassiouni, ICL, supra note 7, at 207.



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subject. Furthermore, looking at the travaux preparatories, the SWGCA intended the qualifier to exclude all violations of the prohibition of the use of force which are controversial and thereby not “manifest” violation of the UN Charter.82 Next, Article 8bis limits prosecution to only “leadership crimes,” which restricts possible perpetrators by excluding prosecution of ordinary soldiers and presupposes that the crime of aggression by one state against another state is attributable only to the leaders of the state.83 Practically, the crime of aggression will only be charged against heads of states and governments, such as presidents, prime ministers, and military leaders—not criminal organizations or groups or non-state actors. Such limited prosecution leaves gaps in the international criminal justice system, likely resulting in a high probability of immunity for entire groups of rebels and guerilla warriors, who are capable of causing comparable harm as their state counterparts. The definition overlooks the reality that nonstate actors are increasingly performing and responsible for acts violating the laws of nations, as is evident in the September 11, 2001 terrorist attacks on the United States.84 Because the crime of aggression applies only to states, non-state actors, though capable of committing aggression with alarming and increasing frequency, will escape responsibility and legal prosecution for aggressive use of force.85 Thus, the 2010 amendment fails to address emerging problems in the international community and its effectiveness is severely hampered because of the failure to include non-state actors within its scope. Additionally, Article 8bis fails to contain any special requirement concerning the mandatory mental elements of the crime of aggression. Under the statutory interpretation of expressio unius est exclusio alterius, the crime of aggression requires no special intent like that required for the crimes of genocide, war crimes, and crimes against humanity.86 Instead, the amendment references Article 30 of the ICC Statute which requires only general “intent and knowledge.”87 In comparison, the crime’s elements require that the perpetrator was aware that the established use of an armed force was inconsistent with and constituted a

82 Informal Inter-session Meeting 2006 of the Special Working Group on the Crime of Aggression, Assembly of States Parties of the Rome Statute of the International Criminal Court, Fifth Session, ICCASP/5/SWGCA/INF.1, para. 19 (June 8–11, 2006); Robert Heinsch, The Crime of Aggression After Kampala: Success or Burden for the Future?, 2 Goettingen J. Int’l L. 2, 730 (2010). 83 See Heinsch, supra note 82, at 721–22. 84 See Andrew Clapham, Non-State Actors, in Post-Conflict Peacebuilding: A Lexcion 200 (Vincent Chetail, ed., 2009); M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L & Criminology 711 (2008). 85 Steve Beytenbrod, Defining Aggression: An Opportunity to Curtail the Criminal Activities of Non-State Actors, 36 Brookly J. Int’l L. 647, 671 (2011); see infra note 98 and accompanying text. 86 See Roger S. Clark, Amendments to the Rome Statute of the International Criminal Court Considered at the first Review Conference on the Court, Kampala, 31 May–11 June 2010, 2 Goettingen J. Int’l L. 689, 695–99 (2010); Heinsch, supra note 82, at 732. 87 U.N. Charter, art. 30.

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manifest violation of the UN Charter.88 The elements do not add anything to the mental element of the crime of aggression, but clarify the interpretation of the respective Article 30. Both the ICC Statute and international criminal law in general have always focused prosecution and responsibility on the individual, regardless of his or her defining characteristics, such as race or nationality.89 The Rome Statute Amendments on the crime of aggression, however, focuses on the state, defining aggression as a crime that is committed by the state, against states, and by individuals in “a position effectively to exercise control over or to direct the political or military action of a State.”90 Because the first part of Article 8bis is reproduced almost verbatim from UN Resolution 3314, originally drafted to enjoin UN member states from “the threat or use of force against the territorial integrity or political independence of any state,” Article 8bis regrettably takes its main authority for defining aggression from a resolution that was drafted for application to cases dealing with state criminal liability—not individuals.91 The drafters of the Rome Statute utilized this resolution, but only as a mere political guide, deeming the UN definition as incongruous for prosecution purposes.92 The Security Council has also historically and consistently failed to rely on UN Resolution 3314 or the London Charter (and their respective definitions of aggression) to determine that a given situation constitutes aggression, illustrating the Resolution’s lack of transformation into customary international law.93 Because Resolution 3314 is a non-binding UN General Assembly resolution, its legal relevance rests in its interpretation in part with the obligations of the UN Charter and as part of customary international law.94 The Security Council maintains economic and strategic interests through its ability to use force by not defining the act of aggression, which would constrict the Council’s abilities and decision-making opportunities. Defining aggression allows the ICC to create expectations in the international community when the definition will apply in similar situations or circumstances under Security Council control and cases in which the Council would be expected to react. Instead, the Security Council has tailored subsequent actions to its current political interests to avoid involvement in international conflicts that had little compensation for the P-5 members. 88 RC/Res. 6, supra note 74, at annex II. 89 ICC Statute, supra note 54, at art. 27(1); Beytenbrod, supra note 85, at 674. 90 Rome Statute Amendments, supra note 75; RC/Res. 6, supra note 74, at art. 8bis. 91 U.N. Resolution 3314 (1974). Resolution 3314 was passed after WWII when newly independent states were worried about the abuses of colonialism and major powers interfering with small nations, as illustrated during the Cold War. 92 Lawyers Comm. For Human Rights, Establishing An International Criminal Court: Major Unresolved Issues In The Draft Statute 13 (1996), available at http://www.coalition fortheicc.org/documents/2PrepCmtEstablishICCLCHR.pdf. 93 Bassiouni & Ferencz, supra note 81, at 227, 242. 94 M. Cherif Bassiouni, International Criminal Law: Sources, Subjects, and Contents, in 1 Bassiouni, ICL, supra note 7, at 140.



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Although the UN Resolution 3314 begins, quite logically, with the wording of UN Charter Article 2(4) to define aggression as “the threat of use of force against the territorial integrity or political independence of any state,” the Kampala definition makes no reference to the “threat of force,” even though the term is used in the UN Charter and the Nuremberg and Tokyo Trial judgements.95 The added reference to “sovereignty” in the Kampala definition seems to strengthen a concept that runs counter to the notion of the interdependence of states and the need for nations to yield some of their prerogatives if there is to be any effective control over the use of armed force. By limiting the definition to the use of “armed force,” other forms of coercion, such as economic or political sanctions, were deliberately left out of the generic article. Moreover, the definition of aggression has a decidedly territorial threshold, which does not account for the realty of warfare. The criteria in Article 8bis for an act of aggression is largely focused on the physical invasion of a territory. But as technology evolves, the means of aggression are also changing. No longer is it clear that an act of aggression begins when one state crosses the border of another. Remotely piloted aircraft, commonly referred to as drones, epitomize the effect of technology in international conflicts.96 There are still questions about the appropriate use of drones from a legal standpoint,97 and the relationship between remotely piloted aircraft and aggression is also to debate. Drones are but one type of modern warfare that raises questions about the ability of the definition of aggression to address future conflicts. Cyber-aggression and chemical and biological terrorism raise even more questions about the usefulness of the Kampala definition to withstand the evolution of modern conflicts, particularly as these types of warfare are often conducted by non-state actors.98

95 See Bassiouni & Ferencz, supra note 81, at 223; The Ministries Case, Military Tribunal IV, Case 11, The United States of America against Weizsaecker et al., Vol. XII, XIII, Trials of War Criminals, Nuremberg Military Tribunals, reprinted in Benjamin Ferencz, Defining International Aggression (1975). 96 See generally Mary Ellen O’Connell, Remarks: The Resort to Drones Under International Law, 39 Denv. J. Int’l L. & Pol’y 585 (2011). 97 Michael A. Newton, Flying Into the Future: Drone Warfare and the Changing Face of Humanitarian Law, Keynote Address to the 2010 Sutton Colloquium, 39 Denv. J. Int’l L. & Pol’y 601, 608 (2011). 98 See Clark, supra note 86, at 709–10 (noting that there were various sponsors of proposals prior to the Kampala Review Conference addressing, inter alia, chemical and biological weapons, but no consensus was reached on the topic of forbidding these weapons before the conference); see, e.g., Jonathan A. Ophardt, Cyber Warfare and the Crime of Aggression: The Need for Individual Accountability on Tomorrow’s Battlefield, 2010 Duke L. & Tech. Rev. 3, ¶ 12 (2010) (“The current State actor requirement in international law greatly limits its applicability to cyber attacks.”); US Needs New National Strategy for Era of Cyber Aggression, Researchers Urge, Science Daily, Apr. 19, 2010, available at http://www.sciencedaily.com/releases/2010/04/100419132359.htm (“In testimony on April 15th before the U.S. Congress, Lt. General Keith A. Alexander offered his view that a Cold War approach of nuclear deterrence as a strategy for securing the United States might not translate effectively into the new realm of cyberwarfare. . . .”).

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Additionally, the Nuremberg Trials’ London Agreement described “crimes against peace” as a “war of aggression” without any mention or reference to state liability of leadership crimes.99 Thus, compared to definitions found in the London Agreement, the Rome Statute Amendments might constitute a recession from the principles elucidated by the Nuremberg Trials.100 Finally, Article 51 of the UN Charter provides for the use of individual or collective self-defense when a state suffers an armed attack and the UN Security Council has not take action yet to maintain international peace and security.101 Article 51 recognizes that the right to self-defense is inherent in every state, both in the individual and collective capacities, including the consideration that there are many alliances for mutual self-defense which operate on the basis that aggression committed against one of the allies is aggression against all of them. Self-defense has been the most used and abused excuse to justify acts of aggression, but the amendment posed but did not answer what constitutes, as legal principles, justifiable or lawful self-defense. The heart of the difficulty lay in trying to prescribe what types of response would be legally permissible and under what circumstances of provocation. Small states insisted that UN Charter, Article 51 restricted permissible individual or collective self-defense to those cases where an armed attack had occurred. Even then, the response had to be proportionate and temporary until the Security Council could intervene. The Western powers insisted that self-defense was an inherent right which could be used against any form of aggression, including indirect forms that were not the equivalent of an armed attack.102 The interaction between aggression and self-defense was examined by the International Court of Justice (ICJ) in the case Military and Paramilitary Activities in and Against Nicaragua. There, the government of Nicaragua brought a claim before the ICJ alleging unlawful use of force by the United States violating Nicaragua’s sovereignty and territorial integrity. The United States counter-argued that its actions were justified under collective self-defense provoked by illegal Nicaraguan acts of support for Salvadoran insurgents. The ICJ decided in favor of Nicaragua.103

  99 Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals for the European Axis (“London Agreement”), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter London Agreement]. 100 Beytenbrod, supra note 85, at 676. 101 See U.N. Charter, art. 51. 102 Bassiouni & Ferencz, supra note 81, at 226. 103 All updated case documents, pleadings, decisions, and judgments may be found at: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), The International Court of Justice, http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=nus &case=70&k=66 (last visited Nov. 16, 2011).



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Aggression was one of the core issues raised in the trial when the Court needed to determine whether Nicaragua’s actions amounted to “armed attack,” legalizing the U.S. response, or whether the United States was the aggressor using force without legal justification. The ICJ majority decision cited Article 3(g) of the 1974 UN Definition of Aggression as declaratory of existing customary international law, holding that the gravity of a foreign state’s involvement will be a decisive factor in the determination whether an act qualifies as an armed attack entitling self-defense. Nicaraguan support for insurgents in El Salvador, in the form of weaponry shipment and logistical support, was determined to amount at the most to foreign intervention. It would qualify as an armed attack only when “its scale or effects would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.”104 But opinions within the legal community are deeply divided over the legal basis and potential consequences of the ICJ’s interpretation of aggression and self-defense. After years of fruitless debate, no compromise appeared and the drafters of the UN Resolution 3314 and the Rome State Amendments hoped that future experience would shed light on what exactly this language contained in the documents meant.105 Interestingly and consequently, because the Rome Statute Amendments only apply to states, a state could target non-state actors under an act of lawful selfdefense, triggering Article 51 and thereby requiring only one party to the conflict to conduct hostilities within the scope of aggression.106 Practical application of Article 51 captivatingly illustrates the inherent difficulties encountered in defining aggression. The thirty-six year process of defining aggression was not due to the impossibility of defining the term or describing its elements in a way that would satisfy the principles of legality in international criminal law.107 Admittedly, it is difficult to establish with some specificity the responsibility of those who are below the decision-making level. But aggression is no longer an individual decision by a head of state commanding troops to cross national boundaries outside the bounds of self-defense as referred to in

104 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 I.C.J Rep. 392 (June 27, 1986). The ICJ ruled in favor of Nicaragua, holding that the U.S. violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. In return, the U.S., who refused to participate in the proceeding after the Court rejected its argument for lack of jurisdiction, blocked enforcement of the ICJ judgment in the UN Security Council, thereby, effectively preventing Nicaragua from obtaining any actual monetary compensation awarded. See Edward Gordon, Appraisals of the ICJ’s Decision. Nicaragua v. United States (Merits), 81 Am. J. Int’l L. 129 (1987); Fred L. Morrison, Legal Issues in The Nicaragua Opinion, 81 Am. J. Int’l L. 160 (1987). 105 See Bassiouni & Ferencz, supra note 81, at 226–27. 106 Beytenbrod, supra note 85, at 689. 107 M. Cherif Bassiouni, Principles of Legality in International and Comparative Criminal Law, in 1 Bassiouni, ICL, supra note 7, at 73.

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Article 51 of the UN Charter. The complexities of modern war, including but not limited to the threats posed by missiles, nuclear weapons, and other weapons of mass destruction, are such that the classic doctrine based on military strategy and technology of the nineteenth century are not particularly relevant today. Suffice it to consider the contemporary assessment that international terrorism should be a war108 and that military, paramilitary, and other responses are justified irrespective of their conformity to traditional international law.109 Preemptive self-defense, which until the 1960s was considered as banned by the UN Charter, has become justifiable since September 11, at least as practiced by the U.S. and Israel. Whether this practice will expand to include other states and be deemed part of customary international law is yet to be seen.110 4.5.1. The Triggering Mechanisms of the Crime of Aggression It is critical to remember that changes to the ICC Statute affect the Court as well as the UN through the formal negotiated agreement recognizing the goal of reaching a “mutually beneficial relationship” between the ICC and UN.111 The underlying understanding to this symbiotic relationship is that the fulfilment of the goals of one party benefits the other. Although defining the crime of aggression is an ICC interest, it should also be a goal of the UN so that it can use and interpret the definition of aggression to recognize acts of aggression under Chapter VII of the UN Charter. The issue of the Security Council’s role in determining whether an act of aggression had occurred and triggering the ICC’s jurisdiction over that act of aggression was addressed in Articles 15bis and 15ter.112 First drafted by the SWGCA,113 Article 15bis and 15ter deal with the exercise of jurisdiction over the crime of aggression under two distinct schemes, thereby successfully attempting to accommodate most of the concerns raised by Member States and non-Member States. Article 15bis provides that a Security Council determination on the substance of aggression would not be binding on the ICC; thus the ICC would have independence

108 Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001); see also M. Cherif Bassiouni, The Institutionalization of Torture under the Bush Administration: Is Anyone Responsible? (2010). 109 Bassiouni & Ferencz, supra note 81, at 240–41. 110 Bassiouni & Ferencz, supra note 81, at 241. The repeated statements by the US and other major powers that a nuclearized Iran would be a threat to peace and security may well be an indication that these governments in the use of force against Iran in the not too distant future. 111 Negotiated Relationship Agreement between the International Criminal Court and the United Nations, U.N. Doc. A/58/874/Annex (Aug. 20, 2004) (highlighting the war in which the UN and the ICC are already connected, while providing future goals and areas of cooperation). 112 Rome Statute Amendments, supra note 75. 113 This special working group was established by the Assembly of States Parties after the Rome Statute entered into force in 2002.



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in determining whether a substantive act constituting aggression had occurred.114 Given that the Security Council has not made any declarations of state conduct as constituting aggression since UN Resolution 3314 was adopted in 1974, leaving the substantive determination of an act of aggression to the ICC independent of a Security Council determination would increase the likelihood that an act of aggression would be recognized as such.115 The Security Council is also able to refer cases of possible aggression to the ICC, giving the ICC jurisdiction over the possible case, pursuant to draft Article 15ter. Under these adoptions, the UN Security Council, acting under Chapter VII of the UN Charter, could recognize and refer an act of aggression to the Court regardless of whether the situation involved States Parties.116 Remarkably, in making a referral to the ICC, the Security Council need not make an official determination of the existence of an act of aggression.117 This flexibility allows the UN Security Council to refer an act of aggression to the Court while still retaining its past conspicuous reluctance to declare acts of aggression. In addition, the Court could also initiate prosecutions against crimes of aggression on the prosecutor’s own initiative or by States Party referral, except where the state act was committed by a non-State Party or a State Party filed a declaration of non-acceptance of Court’s jurisdiction.118 In situations of proprio motu or a state referral, the entire Pre-Trial Division must authorize the commencement of investigations, serving as check and balance to ensure the substantive requirement that the state act of aggression constitute a manifest violation of the UN Charter.119 But the jurisdictional scope for ICC action on the crime of aggression in cases of Security Council inaction will remain limited because jurisdiction in such cases will be governed by the consent principle found in Article 13 of the ICC Statute.120 Although splitting up the triggering mechanisms into two articles initially resulted as a means of accommodating concerns from large and small powers, 114 Claus Kreb & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179, 1181 (2010). 115 The Security Council has failed to meaningfully rely on the 1974 definition of aggression to condemn clear acts of aggression by one State against another, such as the Korean invasion in the 1950’s or Iraq’s invasion of Kuwait in the 1990’s. The United States and Israel have relied on doctrines of self-defense rooted in a sense of exceptionalism to attack other countries without having been labeled aggressors. M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Agression: From its Origins to the ICC, in 1 Bassiouni, ICL, supra note 7. 116 RC/Res. 6, supra note 74, at annex III; ICC Statute, supra note 54, at art. 8bis. 117 RC/Res. 6, supra note 74, at annex I; ICC Statute, supra note 54, at art. 15ter. 118 RC/Res. 6, supra note 74, at annex III; Review Conference Outcomes, ASP Special Edition Newsletter No. 5, Dec. 2010, at 1–4, ICC-ASP-NL-05/10; Kreb & von Holtzendorff, supra note 114. 119 RC/Res. 6, supra note 74, at annex I; ICC Statute, supra note 54, at art. 15bis(8); Asrid Reisingger Coracini, The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression— at Last . . . in Reach . . . Over Some, 2 Goettingen J. Int’l L. 745, 783–85 (2010). 120 Neils Blokker & Claus Kress, A Consensus Agreement on the Crime of Aggression, 12 Leiden J. Int’l L. 889, 893 (2010).

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the split was necessary to reach agreement on the crime’s definition and jurisdiction. The split represented a compromise regarding jurisdictional triggers that satisfied in part the States Parties who wanted the Security Council to have a strong role in triggering the ICC’s jurisdiction, and contented in part those States Parties who did not want the Security Council to have a monopoly on triggering the ICC’s jurisdiction over the crime of aggression. The main difference between the two provisions is that in Article 15bis, the Security Council does not need to make a determination of an act of aggression nor, when the Council refers a situation to the Court, does the Prosecutor need to wait for such a determination. But under Article 15ter, in cases of state referrals or prosecutor-initiated investigations, the prosecutor must first obtain a determination of an act of aggression from the Security Council and, if not, wait six months before proceeding with investigations provided that the Pre-Trial Division made a determination on the act of aggression and authorized the commencement of investigations. In addition to granting the Security Council the ability to refer situations to the ICC, the Rome Statute also authorizes the Security Council to defer the commencement of any ICC investigation for a renewable twelve month period, with or without reasoned justifications.121 Additionally, the Security Council can actively halt existing investigations or prosecutions under Article 16 of the Rome Statute and Chapter VII of the UN Charter with good reason for another twelve month period. Finally, paragraphs six to eight of Article 15bis highlight that the ICC Prosecutor must “first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned,” in order to initiate investigations.122 If the Security Council has not yet made a determination and “has not decided otherwise in accordance with Article 16,” the Council has a six-month period to make such a decision upon referral of the situation from the prosecutor before the prosecutor may proceed with investigations.123 Thus, within procedural compliance, the Security Council may, under Article 16, defer prosecution for a renewable twelve months, halt investigations for an additional twelve months, and then suspend proceedings for another six months to make a determination on the existence of an act or crime of aggression. In effect, the Security Council may delay ICC action for two and a half years, potentially weeding out a vast majority of cases falling outside of the national interest of the P-5. The Security Council controls the suspension and commencement of

121 ICC Statute, supra note 54, at arts. 30, 21. 122 ICC Statute, supra note 54, at art. 15bis; R/Res. 6, supra note 74, at annex I, art. 15bis, para. 6–8. 123 ICC Statute, supra note 54, art. 15bis; R/Res. 6, supra note 74, at annex I, art. 15bis, para. 6–8.



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ICC proceedings indefinitely, pursuant only to its mandate to preserve peace “in conformity with the principles of justice and international law.”124 This integrated relationship between the ICC and UN Security Council is a tango of supremacy, evidenced by the Security Council’s ability to make an initial determination on an act of aggression and to potentially favor political interests over the UN Charter’s mandate by suspending ICC action for over two years.125 Article 15bis contains two clarifications, the first of which states that a “determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.” Therefore, in cases where the Security Council has made its respective determination pursuant to outside influences as a political organ, the ICC may make its own independent conclusion. Second, Article 15bis, paragraph 9, applies “without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5 [of the ICC Statute].” This means that the special jurisdiction over the crime of aggression should never hinder proceedings exercised under the three other core crimes. Finally, as the brief history of the ICC has displayed with the shielding of UN forces from ICC prosecution, the Security Council is quick to evoke its Chapter VII and Article 103 of the U.N. Charter powers to claim precedence over the ICC.126 The UN Charter charges the Security Council with the goal of restoring and maintaining global peace and security, and in order to meet these obligations, the Council must have certain tools to utilize to address threats.127 In addition, Article 39 of the UN Charter directs the Security Council to determine the existence of any act of aggression or threat to peace and to make recommendations and decide upon measures to restore the peace.128 To some observers, Article 39 allows the Security Council a monopoly on determining whether a

124 U.N. Charter art. 1, para. 1. 125 See also Ferencz, supra note 76, at 287; Clark, supra note 86, at 706–07; Kreb & von Holtzendorff, supra note 115, at 1179. But see Beth Van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 Colum. J. Transnat’l L. 505, 573 (2011). Van Schaack argues that because Articles 15bis and 15ter do not grant the Security Council an exclusive filter, it is unlikely that the Security Council will refer a situation involving acts of aggression to the court if it does not also support the leveling of aggression charges. . . . This lack of a filter power threatens to reduce Security Council referrals, diminish the role of the Council in the work of the ICC and thus potentially reduce the number of cases coming before court involving other core crimes in addition to aggression. Id. 126 See Paulus, supra note 79, at 1118; see also S.C. Res. 1593, para. 6 (2005). 127 U.N. Charter art. 40. 128 ICC Statute, supra note 54, at art. 39.

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situation represents an act of aggression.129 But the text of Article 39 of the UN Charter left the term “aggression” undefined and gave equal weight to the “threat to the peace, breach of peace, or act of aggression.” It was hoped that Article 2(4) would satisfactorily prohibit a use of force unless it was “consistent with the purposes of the United Nations.” Should a “threat to the peace, breach of the peace, or act of aggression” take place, it is in the hands of the Security Council to determine its existence and what sanctions should be used to end it. When the Charter was drafted, it was felt that (1) no definition of aggression could be established that could cover every possible case and (2) it was best to let the Security Council decide what had happened and what actions to take.130 Both reasons fell short of their objective. The Security Council, bound by its mandate, wishes to avoid finding or determining a situation to be an act of aggression because, if it did, the Security Council would have to act to restore global peace and security under Article 40 of the UN Charter. Because the Assembly of States Parties, which is made up of equal states and not judges or veto members, enacted the definition of aggression without the weight of the Security Council, the Security Council, through the Article 15bis triggering mechanism, can still effectively prevent prosecution of the crime of aggression by controlling when the ICC is allowed to use the definition of aggression. As the preserver of international peace and security, the Security Council was delegated the task of deciding when and how to apply the definition of aggression. In reciprocity, the ICC must appeal to the Security Council to receive a determination on whether an act of aggression occurred in order to proceed in prosecution proceedings. Section 5. Elements of Criminal Responsibility: The General Part131 The Statute contains the elements of individual criminal responsibility in Articles 25–30, and the conditions of exoneration from criminal responsibility in Articles

129 Hans-Peter Kaul, Kampala June 2010—A First Review of the ICC Review Conference, 2 Goettingent J. Int’l L. 649, 664 (2010); cf. Ferencz, supra note 76, at 287. 130 Norman DeMattos Bentwich & Andrew Martin, Commentary On The Charter Of The United Nations 88 (1969); Beytenbrod, supra note 85, at 650. 131 See generally Saland, supra note 21. For additional commentary on Criminal Responsibility, see Raul C. Pangalangan, Article 25: Individual criminal responsibility, in Commentary on Rome Statute, supra note 16, at 475–92; Sadat, supra note 16, at 192. For additional commentary on Exoneration of Criminal Responsibility, see Albin Eser, Article 31: Grounds for excluding criminal responsibility, in Commentary on Rome Statute, supra note 16, at 537–54; Otto Triffterer, Article 32: Mistake of Fact or Mistake of Law, in Commentary on Rome Statute, supra note 16, at 555–72; Otto Triffterer, Article 33: Superior Order and Prescription of Law, in Commentary on Rome Statute, supra note 16, at 573–88; Sadat, supra note 16, at 211; Enrico Mezzetti, Grounds for Excluding Criminal Responsibility, in Lattanzi ICC Commentary, supra note 16, at 147. See generally Bassiouni, Discipline, in 1 Bassiouni, ICL, supra note 7, at 3.



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31–33.132 These provisions do not however contain a definition of the required “material element” or actus reus.133 Pursuant to Article 25 of the Statute, an individual is criminally responsible for “conduct” that constitutes a crime within the jurisdiction of the Court, regardless of whether it is committed individually or jointly, if that person: (a) orders, solicits, or induces the commission of the crime that either occurs or is attempted; or (b) facilitates the commission of such a crime, aids, abets, or otherwise assists in its commission or its attempted commission. An individual may also be guilty if that person contributes to the commission or attempted commission of a crime by a group with a common purpose [Article 25(d)]. The conduct of the individual must be intentional and made either with the aim of furthering the criminal activity of the group where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or made with the knowledge of the intention of the group to commit the crime [Article 25(d)(i)–(ii)]. Criminal responsibility cannot be avoided based on: (a) the official capacity of the offender [Article 27]; (b) any period of limitations [Article 29]; or (c) mistake of law, unless the mistake negates the mental element [Article 32(2)].134 A military commander or any person effectively acting as a military commander cannot avoid responsibility for crimes committed under his or her command when that commander knew, should have known, or failed to reasonably prevent such crimes [Article 28(a)]. This responsibility includes actions of subordinates if the superior: (a) knew or consciously disregarded such actions; (b) effectively controlled such actions; or (c) failed to take necessary preventive or repressive measures [Article 28 (b)].135 A person will not be criminally responsible in certain circumstances, if the person: (a) suffers from a mental disease or other capacity that diminishes the person’s ability to control his or her conduct; (b) acts in self-defense; or (c) was subject to duress [Article 31].

132 These elements reflect general principles of criminal law contained in the world’s major criminal justice system. The codification contained in these ICC provisions may not however be in full conformity with the requirements of all national legal systems, but they are not thereby in conflict with what is called the “general part” of criminal law of most legal systems. 133 The reason for the absence of such a provision was the failure of the delegates of the Diplomatic Conference to reach consensus on a failure to act or an omission as part of the material element. See Bassiouni, Negotiating the Treaty of Rome, supra note 24, at 464. 134 For additional commentary on official capacity of offender, see Otto Triffterer, Article 27: Irrelevance of official capacity, in Commentary on Rome Statute, supra note 16, at 501–14. For additional commentary on the Period of limitations, see William A. Schabas, Article 29: Nonapplicability of statute of limitations, in Commentary on Rome Statute, supra note 16, at 523–27. 135 For additional commentary on command responsibility, see William J. Fenrick, Article 28: Responsibility of Commanders and Other Superiors, in Commentary on Rome Statute, supra note 16, at 515–23; Sadat, supra note 16, at 216; Mezzetti, supra note 127, at 155. See also Evan Wallach & I. Maxine Marcus, Command Responsibility, in 1 Bassiouni, ICL, supra note 7, at 459.

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chapter seven Section 6. Invoking the Jurisdiction of the Court 6.1. Referring a “Situation” to the Court: Initiation of the Investigation and Prosecution136

The ICC may exercise jurisdiction over a crime after a factual situation, which involves the possible commission of one or more of the crimes defined by the Statute, is referred to the Prosecutor by: (a) a state party [Articles 13(b), 14]; (b) the Security Council [Article 13(b)]; or (c) a non-state party [Article 12(3)]. A referral by a state party must specify the relevant circumstances and be accompanied by supporting documentation [Article 14(2)]. In order to refer a “situation” to the Prosecutor, the Security Council must be acting pursuant to Chapter VII of the United Nations Charter. Thus, the “situation” must involve a threat to peace and security. In the event that the Security Council refers a “situation” to the Court pursuant to Chapter VII, the Court need not concern itself with the pre-conditions set forth in Article 12(2), namely that the crimes be committed by either a citizen of a state party or on the territory of a state party. The only requirement is that the situation be one that involves a “threat to peace and security.” It should be noted, too, that the Security Council has the power to delay the investigation and prosecution of a “situation” that has been referred to the Court (by either a state party [Article 13(1)] or the Prosecutor’s proprio motu action [Article 15]) for up to twelve months [Article 16]. This delay will only occur pursuant to a resolution by the Security Council acting pursuant to Chapter VII of the United Nations Charter in response to “a threat to peace and security.” In addition, the Prosecutor may also initiate an investigation concerning the commission of crimes defined by the Statute after obtaining approval of the PreTrial Chamber [Articles 13(c), 15]. A “situation” is the overall factual context in which it is believed that “a crime within the jurisdiction of the court” [Article 5] has been committed.137 Thus, the ICC’s jurisdiction cannot be triggered against a specific person, and, consequently, it cannot be used as a political instrument against anyone. 136 See generally Lionel Yee, The International Criminal Court and The Security Council, in Making of the Rome Statute, supra note 16, at 143–52; Pietro Gargiulo, The Relationship Between the ICC and the Security Council, in Lattanzi, ICC Commentary, supra note 16, at 95. For additional commentary on Referring “situations” to the Court, see Williams, supra note 20; Sharon Williams, Article 13: Exercise of Jurisdiction, in Commentary on Rome Statute, supra note 16, at 3433–52; Antonio Marchesi, Article 14: Referral of a situation by a State Party, in Commentary on Rome Statute, supra note 16, at 3293–59. 137 For additional commentary on crimes within the jurisdiction of the court, see Andreas Zimmerman, supra note 45. For additional commentary on the relationship between the U.N. Security Council and the ICC see Neha Jain, A Separate Law for Peacekeepers: The Clash Between the Security Council and the International Criminal Court, 16 Eur. J. Int’l L. 239 (2005).



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The term “situation” cannot be interpreted in a narrow or restrictive manner that singles out a given party to a given conflict, or a given group, or military unit, nor can it be interpreted to refer to a specific occurrence without regard to its overall context. The appropriate meaning of the term “situation” will of course vary from one instance to the next and must be determined contextually by the ICC Prosecutor, but will ultimately be subject to the judicial review of a three-judge panel [Article 61] and eventual review by the Appellate Chamber [Article 82]. Judicial review at two levels, by a total of eight judges, guarantees the integrity of the process. While there is no doubt that only a “situation” can be referred to the ICC Prosecutor by the Security Council or a state party, there is a material error in Article 12(3), which deals with acceptance of ICC jurisdiction by a non-state party of “the crime in question.” The term “crime” seems to have been inadvertently used by the unofficial drafters of this provision rather than the term “situation” which was used with respect to referrals by the Security Council or a state party.138 The intention was to have a non-state party refer a “situation” that gives rise to “a crime within the jurisdiction of the court.” It is not believed that this material error in Article 12(3) will create the risk of interpreting that provision in a manner inconsistent with what is stated above. When a situation is referred to the ICC Prosecutor, whether by the Security Council, state party, or non-state party, the Prosecutor may initiate an investigation if he or she believes that there is a “reasonable basis” to proceed under the Statute [Article 53(1)]. All “referrals” by the Security Council, a state party, or a non-state party are at the same level. Thus, the Security Council’s “referral” is not in any way to be understood as an obligation on the ICC Prosecutor to proceed with a prosecution. All three sources of referrals merely bring to the ICC Prosecutor’s attention facts which might prompt an investigation. Whether that investigation produces sufficient evidence to constitute a “reasonable basis” [Article 53] to prosecute will depend upon the outcome of the investigation.

138 The small group of delegates worked with the Chairman of the Committee of the Whole to develop the text. It is clear that they did not intend to alter the essence of a “referral,” namely, a “situation.” See Bassiouni, Negotiating the Treaty of Rome, supra note 24, at 443, 453, 4573–58. It is difficult to ascertain the view of the negotiating conditions, and the drafting of this provision by a few delegates and not by the Drafting Committee (that was not referred the provisions in Part 2), what the appropriate formulation was to be. Most likely it was intended to be “a situation giving rise to a crime within the jurisdiction of the court.” Even though most of these words are absent from the text, it is surely construed that way. Any other construction would absurdly result in nonparties having the ability to select which “crimes” are to be investigated and which ones should not, and by implication also predetermine which party is to be investigated. Such a situation would fly in the face of all the basic principles on which the ICC’s jurisdiction is founded.

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chapter seven 6.2. The Prosecutor’s Proprio Motu Initiation of an Investigation139

Pursuant to Article 15, the Prosecutor may also initiate proprio motu an investigation, absent a “referral” by a state [Articles 13(a), 14], the Security Council [Article 13(b)], or a non-state party [Article 13(b)]. However, prior to undertaking an investigation, the Prosecutor must submit a request along with supporting material to the Pre-Trial Chamber [Article 15(2)] and obtain its approval [Article 15(4)] by a majority vote (at least two out of three). In gathering supporting material or simply in evaluating whether to make such a request, the Prosecutor may seek information from reliable sources, such as states, organs of the United Nations, intergovernmental or non-governmental organizations, and receive written or oral testimony at the seat of the Court or elsewhere [Article 15(1)]. Moreover, victims are also permitted to make representations before the Pre-Trial Chamber. The Prosecutor may commence an investigation only after the Pre-Trial Chamber determines that there is a reasonable basis to proceed with an investigation and that the case falls within the jurisdiction of the Court [Article 15(4)]. If the Pre-Trial Chamber does not authorize an investigation, the Prosecutor may file subsequent requests based on new facts or evidence. [Article 15(5)]. 6.3. Admissibility and Inadmissibility140 Before an arrest warrant is issued, the Prosecution must seek approval of the PreTrial Chamber [Article 58].141 The Pre-Trial Chamber is to determine whether there are reasonable grounds to believe that the individual who is being sought has committed a crime within the jurisdiction of the Court. In addition, upon the individual’s surrender to the ICC, the charges must again be confirmed by the Pre-Trial Chamber [Articles 60(2), 61]. Thus, any investigation, initiated by any of the sources of “referrals” (state-party [Article 13(a)], non-state party [Article 12(3)], or Security Council [Article 13(b]) or by the Prosecutor proprio motu [Article 15], cannot result in a prosecution unless the criminal violation charged 139 See generally Silvia A. Fernandez de Gurmendi, The Role of the International Prosecutor, in Making of the Rome Statute, supra note 16, at 1753–88. For additional commentary on Proprio motu, see Morten Bergsmo & Jelena Pejic, Article 15: Prosecutor, in Commentary on Rome Statute, supra note 16, at 3593–73. 140 See generally Fabricio Guariglia, Investigation and Prosecution, in Making of the Rome Statute, supra note 16, at 227–37; Hakan Friman, Investigation and Prosecution, in Lee, ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 493. For additional commentary on admissibility of a case, see Williams, Article 17, supra note 20; Christopher K. Hall, Article 19: Challenges to the jurisdiction of the Court or the admissibility of a case, in Commentary on Rome Statute, supra note 16, at 405–19. 141 For additional commentary on the Pre-Trial Chamber and arrest warrants, see Angelika Schlunk, Article 58: Issuance by the Pre-trial Chamber of a Warrant of Arrest or a Summons to Appear, in Commentary on Rome Statute, supra note 16, at 753–64.



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by the Prosecutor in the indictment is “confirmed” by the Pre-Trial Chamber [Article 61].142 The Court will determine that a case is inadmissible if: (a) the case is being investigated or prosecuted by a state which has jurisdiction over it (for a discussion of the priority to national legal systems in accordance with the principle of complementarity, see supra paragraphs 7 to 9), unless the state is unwilling or unable to genuinely carry out these obligations [Article 17(1)(a)]; (b) the case has been investigated by a state with jurisdiction and the state has decided not to prosecute, unless the decision resulted from the unwillingness or inability of the state to genuinely prosecute [Article 17(1)(b)]; (c) the person has already been tried for conduct which is the subject of the complaint [Article 17(1)(c)]; and (d) the case is not of sufficient gravity to justify further action by the Court [Article 17(1)(d)]. If indeed a Prosecutor defers investigation or prosecution to the state, he or she may request the state to provide information concerning the domestic proceedings [Article 19(11)]. The Court will determine that a state is unwilling to genuinely investigate or prosecute if: (a) the state undertakes the proceedings for the purpose of shielding the person from the ICC’s jurisdiction [Article 17(2)(a)]; (b) there is an unjustified delay in the proceedings that is inconsistent with an intent to bring the person to justice [Article 17(2)(b)]; and (c) the proceedings are not conducted independently or impartially [Article 17(2)(c)]. A state’s inability to prosecute in a particular case is reflected in a total or substantial collapse or unavailability of its national judicial system that prevents it from obtaining an accused or acquiring necessary evidence [Article 17(3)]. The Court must always satisfy itself that it has jurisdiction in any case brought before it, and on its own motion may determine the admissibility of a case before it [Article 19]. In addition, challenges to the admissibility of a case may be brought by: (a) an accused; (b) a state with jurisdiction over a case (on the grounds that it is fulfilling or has fulfilled its duties to investigate and prosecute the case); (c) the state in which the conduct occurred; or (d) the accused’s state of nationality [Article 19(2)]. The Court’s jurisdiction may be challenged only once by any person or state listed above, and this challenge generally must be made prior to or at the commencement of trial [Article 19(4)-(5)]. Prior to the confirmation of charges, challenges will be directed to the Pre-Trial Chamber and, afterwards, to the Trial Chamber [Article 19(6)]. The rulings of either chamber may be appealed [Articles 19(6), 82].

142 For additional commentary on the Pre-Trial Chamber and prosecution, see Kuniji Shibahara, Article 61: Confirmation of the charges before trial, in Commentary on Rome Statute, supra note 16, at 783–92.

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If a challenge is made by a state, then the Prosecutor must suspend the investigation until the Court makes its determination [Article 19(7)]. However, pending the ruling, the Prosecutor may seek authority to continue the investigation from the court: (a) if it is necessary to preserve important evidence and the risk of destruction is high; (b) to complete a previously begun witness statement; (c) to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest [Article 19(8)]. If a case is deemed inadmissible, the Prosecutor may seek review by the Court should new facts or evidence arise [Article 19(10)]. The Preparatory Commission began its work in 1999 concerning the “Rules of Procedure and Evidence,” and they were completed in November 2000. They supplement the provisions of the Statute, and were adopted by the first meeting of the Assembly of states parties in 2002.143 6.4. Ne Bis In Idem144 The principle of ne bis in idem is a corollary to the principle of complementarity145 reflected in Article 17, which likewise prevents the Court from asserting jurisdiction when a competent national legal system has already accepted jurisdiction. The principle ne bis in idem prevents persons from being tried before the Court twice for conduct that formed the basis of crimes for which the person had either been convicted or acquitted by the Court [Article 20(1)]. Moreover, it prevents a national legal system of a state party from prosecuting an individual for the same conduct that formed the basis of a crime for which the person had previously been convicted or acquitted by the Court [Article 20(2)]. In addition, an individual who has been either previously acquitted or convicted by a national court for conduct that formed the basis of crimes under the Statute, may not be prosecuted by the Court [Article 20(3)]. However, a conviction or acquittal by a national jurisdiction will not bar subsequent prosecution by the ICC if: a) the purposes of the state proceedings were to “shield the person concerned from

143 Report of the Preparatory Commission for the International Criminal Court, Part I: Finalized draft text of the Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2 Nov. 2000); Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC-ASP/1/3 and Corr. 1), Part II, Instruments Adopted by the Assembly of States Parties, section A, Rules of Procedure and Evidence, at 10; see also, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed., 2001). 144 See generally Immi Tallgren, Article 20: Ne bis in idem, in Commentary on Rome Statute, supra note 16, at 419–34; Sadat, supra note 16, at 187. See also Stuckenberg and Bogdan, supra note 72. 145 See supra section 2.2; supra Chapter I, section 1.4.



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criminal responsibility” [Article 20(3)(a)]; or b) the domestic proceedings were not conducted independently or impartially [Article 20(3)(b)]. Thus, ne bis in idem only prevents a second prosecution of an accused in two circumstances: a) when the first attempt was either made by the ICC, and the second effort is by either a state party or the ICC; or b) when the first attempt was by a national legal system (assuming that the first prosecution was independent, impartial, and not for the purposes of shielding the accused from criminal responsibility [Article 20(3)(a)–(b)]) and the second prosecution is by the Court. The principle is plainly only applicable when the ICC is involved, and, as such, a conviction or acquittal by one national legal system, while barring a second prosecution by the ICC, seemingly does not then bar subsequent prosecution in another national jurisdiction. Section 7. The Court’s Exercise of Jurisdiction 7.1. Procedural Due Process146 The Statute provides for substantive and procedural due process rights that satisfy internationally established norms and standards.147 These rights are contained in the Statute’s provisions concerning investigation, trial, appeal, and criminal responsibility. The Pre-Trial Chamber has the responsibility to safeguard the rights of the accused [Article 67(1)]. Furthermore, the Rules of Procedure and Evidence developed by the Preparatory Commission148 pursuant to the Statute provide for fundamental fairness to the accused in a manner that satisfies international legal standards of procedural due process.149

146 See generally Hakan Friman, Rights of Persons Suspected or Accused of a Crime, in Making of the Rome Statute, supra note 16, at 247–61; Antonio Converti, The Rights of the Accused, in Lattanzi, ICC Commentary, supra note 16, at 219; Sadat, supra note 16, at 250. 147 See ICC Statute, supra note 54, at parts. 4–7; see also Bassiouni, Human Rights Compendium, supra note 36. See generally Les Droits de L’Homme a L’Aube du XXIe Siecle (Karel Vasak ed., 1999). 148 See supra note 72. 149 For additional commentary on Rules of Procedure and Evidence, see Bruce Broomhall, Article 51: Rules of Procedure and Evidence, in Commentary on Rome Statute, supra note 16, at 679–94.

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chapter seven 7.2. The Investigation Process150

The Prosecutor, after evaluating the information that has been made available, shall initiate an investigation unless the Prosecutor determines that there is no reasonable basis to proceed [Article 53(1)]. In determining whether to proceed, the Prosecutor will consider whether: (a) the information made available provides a reasonable basis to believe that a crime within the ICC’s jurisdiction has been committed; (b) the case would be admissible under Article 17 (for example, whether another state with jurisdiction is currently investigating or prosecuting the case); and (c) there are substantial reasons to believe that the investigation will not serve the interests of justice taking into account the gravity of the crime and the interests of victims. However, if the Prosecutor decides not to proceed, the Pre-Trial Chamber must be informed, and the Pre-Trial Chamber, the referring state, or the Security Council may request the Prosecutor to reconsider its decision not to proceed. The Prosecutor’s investigation must extend to cover all facts and evidence relevant to a determination of whether there is criminal responsibility, and thus both incriminating and exonerating evidence must be investigated equally [Article 54(1)]. In addition, the investigation must respect both the interests and personal circumstances of the victims and witnesses and the rights of the accused [Article 54(1)].151 Pursuant to Article 54(2), the investigation may be conducted on the territory of a state party in accordance with Part 9 concerning international cooperation and judicial assistance, or as authorized by the Pre-Trial Chamber when the state is “clearly unable to execute a request for cooperation due to the unavailability of any authority or component of its judicial system capable to execute the request for cooperation” [Article 57(3)(d)]. With respect to investigations on the territory of a non-state party, the ICC Prosecutor is empowered to enter into ad hoc agreements and arrangements to facilitate cooperation with the state [Article 54(3)(d)].

150 See generally Guariglia, Investigation and Prosecution, supra note 140. For additional commentary on the Investigation Process, see Morton Bergsmo & Pieter Kruger, Article 53: Initiation of an investigation, in Commentary on Rome Statute, supra note 16, at 701–14; Morten Bergsmo & Pieter Kruger, Article 54: Duties and Powers of the Prosecutor with Respect to Investigations, in Commentary on Rome Statute, supra note 16, at 715–26; Christopher K. Hall, Article 55: Rights of Persons During an Investigation, in Commentary on Rome Statute, supra note 16, at 727–34; Fabricio Guariglia, Article 56: Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity, in Commentary on Rome Statute, supra note 16, at 735–42; Fabricio Guariglia & Kenneth Harris, Article 57: Functions and Powers of the Pre-Trial Chamber, in Commentary on Rome Statute, supra note 16, at 743–52; Angelika Schlunk, Article 58, supra note 141. 151 See also infra section 7.3.1.



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In conducting an investigation, the Prosecutor may: (a) collect and examine evidence; (b) request the presence and question persons under investigation, witnesses, and victims; (c) enter into agreements to facilitate the cooperation of a state, organization, or person; (d) agree not to disclose information that the Prosecutor receives as confidential; and (e) take necessary measures to ensure confidentiality of information, the protection of persons, and preservation of evidence [Article 54(3)]. When a “unique investigative opportunity” arises, if necessary, at the request of the Prosecutor, the Pre-Trial Chamber can authorize the Office of the Prosecutor to take measures to collect evidence that may not be available subsequently for the purposes of a trial [Article 56]. A “unique investigative opportunity” refers to the civil law concept of “definitive and unrepeatable acts” or the “anticipated taking of evidence.”152 It is also related to the common law tradition of taking evidence depositions (which ensure full cross-examination) of witnesses who will not be available at trial.153 It also refers to evidence which, by its very nature, cannot be reproduced at trial (e.g., mass grave exhumations) and requires a record of the manner in which it was obtained or other extraordinary measures to preserve it.154 Persons under investigation are granted several rights pursuant to Article 55. They shall not be compelled to incriminate themselves or be subjected to any form of duress, coercion, threats, or torture. They shall be questioned with the assistance of a competent interpreter if necessary. Furthermore, the accused shall be informed of the charges against them, provided with legal assistance, and granted the right to remain silent. Upon the Prosecutor’s motion, the Pre-Trial Chamber may issue an arrest warrant if it is satisfied that reasonable grounds exist that an individual committed a crime within the ICC’s jurisdiction [Article 58]. The state party in which the accused is located is expected to “immediately take steps to arrest the person in question in accordance with its laws” as well as Part 9 of the Statute concerning international cooperation and judicial assistance [Article 59]. The Pre-Trial Chamber must hold hearings to confirm charges in the presence of the person charged [Article 61(1)]. If the circumstances warrant, the charges can be confirmed in the absence of the accused [Article 61(2)].155

152 See Guariglia, supra note 150, at 737–38. 153 Id. 154 Id. 155 For additional commentary on the confirmation of charges, see Shibahara, supra note 142.

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chapter seven 7.3. The Trial 156

7.3.1. The Rights of the Accused at Trial A trial before the ICC must be in the presence of the accused [Article 63] with full recognition of his or her rights, including the presumption of innocence [Article 66]. These rights include: (a) a public and fair hearing conducted impartially and without delay; (b) being promptly informed of the charges in a language he or she fully understands and speaks; (c) having adequate time and facilities to prepare a defense and to examine witnesses against him or her before and during the trial; (d) having the free assistance of a competent interpreter and necessary translations; and (e) not being compelled to testify or confess guilt [Article 67]. 7.3.2. Protection of Victims and Witnesses at Trial In addition to protecting the rights of the accused, the Court must protect the victims and witnesses who participate in the proceedings [Article 68]. This includes an exception to the principle of a public hearing to allow for an in camera presentation of evidence or by electronic or other means, particularly to protect children and victims of sexual violence. Moreover, the views and concerns of victims may be presented at appropriate stages of the proceedings as determined by the Court [Article 68(3)]. 7.3.3. Relevant Evidence and the Protection of National Security The Court will also rule on the relevance or admissibility of any evidence by taking into account its probative value weighed against the prejudice it might cause to a fair trial [Article 69].157 This should be done in accordance with the Rules of Procedure and Evidence. The Statute contains numerous safeguards to allow states parties to protect sensitive national security information that might potentially be used as evidence at trial. States may protect national security information that is either 156 See generally Hans-Jorg Behrens, The Trial Proceedings, in Making of the Rome Statute, supra note 16, at 238–46. For additional commentary on the Trial, see William A. Schabas, Article 63: Trial in the Presence of the Accused, in Commentary on Rome Statute, supra note 16, at 803– 09; William A. Schabas, Article 66: Presumption of Innocence, in Commentary on Rome Statute, supra note 16, at 833–44; William A. Schabas, Article 67: Rights of the accused, in Commentary on Rome Statute, supra note 16, at 845–68; David Donat-Cattin, Article 68: Protection of the Victims and Witnesses and their Participation in the Proceedings, in Commentary on Rome Statute, supra note 16, at 869–88; Harris, supra note 50; Rodney Dixon & Helen Duffy, Article 72: Protection of National Security Information, in Commentary on Rome Statute, supra note 16, at 937–46. 157 For additional commentary on Evidence, see Hans-Jorg Behrens & Donald K. Piragoff, Article 69: Evidence, in Commentary on Rome Statute, supra note 16, at 889–916; Donald Piragoff, Evidence, in Lee, ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 349.



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requested of them [Articles 72] or in the possession of a third state [Article 73]. Furthermore, any state may intervene in a case to protect its national security information from being disclosed [Article 72(4)]. The determination of whether the disclosure of information would prejudice a state’s national security is ultimately left to the state itself [Article 72]. However, the state must attempt to resolve the matter with the Court and take reasonable steps to resolve a dispute about protected material either through the use of: (a) in camera or ex parte proceedings; (b) summaries or redactions of the information; or (c) other protective measures [Article 72]. 7.3.4. Offenses against the Administration of Justice The Court also has jurisdiction over offenses against the administration of justice, including: (a) giving false testimony; (b) presenting false evidence; (c) interfering with witnesses; (d) intimidating and influencing Court personnel; (e) retaliation against Court personnel based on the performance of official duties; and (f) soliciting or accepting a bribe as an official of the Court [Article 70]. These offenses must be committed intentionally. 7.3.5. Decisions and Orders The decisions of the Court must be in writing and must contain a full and reasoned statement of the Trial Court’s findings on the evidence and conclusions [Article 74].158 The judgments of the Court as well as other decisions resolving fundamental issues will be published in the six official languages of the United Nations: Arabic, Chinese, English, French, Russian, and Spanish [Article 50(1)]. Decisions that are considered as resolving fundamental issues are [Rule 40(1)]:159 (a) all decisions of the Appeals Division; (b) all decisions concerning the jurisdiction of the Court and the admissibility of a case; (c) all decisions of the Trial Chamber on guilt or innocence, sentencing, and reparation to victims; and (d) authorization by the Pre-Trial Chamber for the Prosecutor to take investigative steps on the territory of a state party when that state is unable to execute a request due to the unavailability of an authority or any component of its judicial system [Article 57(3)(d)]. Other decisions may be published in the official languages when the Presidency of the Court determines that they resolve fundamental issues or concern a major issue of general interest [Rule 40(3)].160

158 For additional commentary on the Court’s decisions, see Otto Triffterer, Article 74: Requirements for the decision, in Commentary on Rome Statute, supra note 16, at 953–64. 159 Report of the Preparatory Commission for the International Criminal Court, Part I: Finalized draft text of the Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2 Nov. 2000). 160 Id.

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chapter seven 7.4. The Appeal161

Decisions of the trial chamber may be appealed by either the Prosecutor or the accused [Article 81]. An appeal may be raised based on: (a) procedural error; (b) error of fact; (c) error of law; or (d) any other ground that affects the fairness of the proceedings [Article 81(1)]. In addition, a sentence may be appealed [Article 81(2)]. Other decisions may be appealed, including: (a) jurisdiction and admissibility; (b) a decision granting or denying the release of the person investigated or accused; (c) a decision of the Pre-Trial Chamber to take measures to preserve evidence on its own motion; or (d) a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or outcome of trial [Article 82]. Section 8. The Penalties and Sentencing162 Pursuant to Article 77, the ICC may impose penalties for the commission of crimes within its jurisdiction. In general, a sentence should not exceed a maximum of thirty years [Article 70(1)(a)]. However, a life sentence may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person [Article 70(1)(b)]. In addition, the Court may impose fines or the forfeiture of assets or property derived from the commission of the crime [Article 70(2)]. The sentence is to be determined by the Court, in accordance with the Rules of Procedure and Evidence, which must take into account the gravity of the crime and the individual circumstances of the convicted person [Article 71].

161 See generally Helen Brady & Mark Jennings, Appeal and Revision, in Making of the Rome Statute, supra note 16, at 294–304. For additional commentary on Appeals, see Christopher Staker, Article 81: Appeal against decision of acquittal or conviction or against sentence, in Commentary on Rome Statute, supra note 16, at 1015–28; Christopher Staker, Article 82: Appeal against other decisions, in Commentary on Rome Statute, supra note 16, at 1029–33; Helen Brady, Appeal and Revision, in Lee, ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 575; Mercurio Galasso, Appeal and Revision in Front of the International Criminal Court, in Lattanzi, ICC Commentary, supra note 16, at 301; Sadat, supra note 16, at 240. 162 See generally Rolf Einar Fife, Penalties, in Making of the Rome Statute, supra note 16, at 319–44; Rolf Einar Fife, Penalties, in Lee, ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 555; William A. Schabas, Penalties, in Lattanzi, ICC Commentary, supra note 16, at 273. For additional commentary on penalties, see Harris, supra note 50; Triffterer, Article 71, supra note 50; Rolf Einar Fife, Article 80: Non-prejudice to national application of penalties and national laws, in Commentary on Rome Statute, 1009–14.



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The death penalty has been excluded from the Statute as a penalty for the proscribed crimes. However, the Statute assures states that the penalties provided for under the statute will not affect such penalties under their national laws. Thus, states may apply their own penalties when sentencing individuals convicted under an exercise of national jurisdiction, which may or may not include the death penalty [Article 80]. The sentence of imprisonment is to be served in a state designated by the Court from a list of states parties that have expressed their willingness to accept sentenced persons [Article 103(1)].163 In selecting a state where the convicted person will serve the sentence, the Court will take into account factors including: (a) the principle of equitable distribution of responsibility amongst the states parties; (b) the application of widely accepted treaty standards concerning the treatment of prisoners; (c) the views of sentenced persons; (d) the nationality of the sentenced person; and (e) such other factors regarding the circumstances of the crime, the person sentenced, and the effective enforcement of the sentence [Article 103(3)]. In the event that no state is designated by the Court, the sentence will be served in a facility provided by the host state [Article 103(4)]. The law of the state of enforcement will govern the imprisonment; however, the Court will supervise the conditions to ensure that they are consistent with international standards [Article 106].164 In addition, only the Court may authorize a reduction in sentence. Such a reduction is only possible after the individual has served two-thirds of a sentence or twenty-five years in the case of a life sentence [Article 110]. The lack of specific penalties for each crime may in some legal systems violate the principle nulla poene sine lege, but it seems that this practice by the ICTY and ICTR has not been at issue.165

163 For additional commentary on Sentences, see Gerhard A.M. Strijards, Article 103: Role of States in Enforcement of Sentences of Imprisonment, in Commentary on Rome Statute, supra note 16, at 1159–70. 164 For additional commentary on Enforcement of Sentences, see Roger S. Clark, Article 106: Supervision of Enforcement of Sentences and Conditions of Imprisonment, in Commentary on Rome Statute, supra note 16, at 1177. 165 See Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (2002); Mauro Catenacci, Nullum Crimen Sine Lege, in Lattanzi, ICC Commentary, supra note 16, at 159. For the “principles of legality” in ICL, see supra Chapter III, section 2.

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chapter seven Section 9. Victim Reparation166

The Rules of Procedure and Evidence167 define victims as: (a) “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court;” and (b) “organizations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals, and other places and objects for humanitarian purposes” [Rule 85]. The Court also has the power to order the payment of appropriate reparation to the victims by the convicted person [Article 75].168 The Court, either by request or in “exceptional circumstances” on its own motion, may “determine the scope and extent of any damage, loss and injury to, or in respect of, victims” [Article 75(1)]. The Court may then make an order for reparation169 (compensation, restitution, and rehabilitation) directly against the convicted person [Article 75(2)]. Before making an order, the Court may invite and take account of representations from or on behalf of the offender, victims, and other interested persons or states [Article 75(3)]. By inviting comment from other interested persons, the Court may take into account the needs of the victim and others who might be affected by the award, such as the offender’s family or a bona fide purchaser of property that is to be restored. In order to facilitate enforcement of awards, the ICC Statute mandates that states parties to the convention give effect to all decisions entered [Article 75(5)]. The ICC Statute also envisions a Trust Fund for the benefit of victims and their families [Article 79].170 Assets of the Trust Fund may come from money or property collected through fines or forfeiture [Article 79(2)]. The Court may 166 See generally Christopher Muttukumaru, Reparation to Victims, in Making of the Rome Statute, supra note 16, at 262–69; Hakan Friman & Peter Lewis, Reparation to Victims, in Lee, ICC Elembents of Crimes and Rules of Procedure and Evidence, supra note 16, at 474; Schabas, Introduction to the ICC, at 137. For additional commentary on Victims’ and Witness’ Rights, see Donat-Cattin, Article 68, supra note 156; David Donat-Cattin, The Role of Victims in the ICC Proceedings, in Lattanzi, ICC Commentary, supra note 16, at 251; Birte Timm, The Legal Position of Victims in the Rules of Procedure and Evidence, in International and National Prosecution of Crimes Under International Law 289 (Horst Fischer, Claus Kress & Rold Lüder eds., 2002). 167 Rules of Procedure and Evidence, ICC-ASP/1/3 (Sept. 10, 2002). 168 For additional commentary on Reparations, see David Donat-Cattin, Article 75: Reparations to victims, in Commentary on Rome Statute, supra note 16, at 965–78. 169 For a description of the various modalities of reparation, see Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, U.N. Doc. E/CN.4/62 (Jan. 18, 2000) (Annex); Commission on Human Rights Resolution 2002/44 (Apr. 23, 2002); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. GAOR, 7th Sess. (1985); Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159 [hereinafter ICTY Statute]. 170 For additional commentary on Payment of Awards, see Mark Jennings, Article 79: Trust Fund, in Commentary on Rome Statute, supra note 16, at 1005–08.



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order reparations to victims out of this fund [Article 75(2)]. According to Rule 98(3), “the Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.” The Court is powerless to order reparations from anyone other than the individual violator. Thus, even though the individual offender’s acts can be attributed to the state, an order for reparations cannot be imposed on the state. However, nothing in Article 75 is to be interpreted as prejudicing the rights of victims under national or international law, and thus these claims can be pursued in other forums [Article 75(6)]. In addition to the potential for reparation, the Statute contains other victimcentered aspects. Specifically, the Statute envisions the creation of a Victims and Witnesses Unit [Article 43(6)]. Moreover, victims are allowed to participate in several stages of the proceedings at the discretion of the court, including: (a) the Pre-Trial Chamber’s decision to authorize an investigation [Article 57]; and (b) the awarding of reparation [Article 75]. A concern regarding victim participation that manifested itself in the course of ICC operations was the possible strain that a large number of victims would place on the Court and on the due process rights of the accused.171 To allay this persisting concern, the drafters of the ICC provided that the victims as a class would be represented by a victim’s advocate, who would be appointed through the Victims and Witnesses Unit within the Registrar.172 Under Rule 91, the victim’s advocate, on behalf of the victim, has the right to participate in case hearings unless the Court issued a ruling limiting participation only to written proceedings.173 In practice, the various ICC chambers dealt with the contours of the proceeds, stages, and victims entitlted to advocate representation differently.174 The following, mainly unsettles, issues arose with victim participation in ICC proceedings: victim access to confidential information within the prosecution’s possession, the victim’s right to question witnesses,175 171 Gerard J. Mekjan and Matthew C. Varughese, Hearing the Victim’s Voice: Analysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court, 17 Pace Int’l L. Rev. 1, 20 (2005). 172 Id. at 22–24. 173 Id. at 25–26. 174 Mariana Pena, Victim Participation in the International Crimnial Court: Achievements Made and Challenges Lying Ahead, 16 ISLA J. Int’l & Comp. L. 497, 504 (2010). 175 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04–01/06–2340, Decision on the Defence Observations Regarding the Right of the Legal Representatives of Victims to Question Defence Witnesses and on the Motion of Personal Interest and Decision on the Defence Application to Exclude Certain Representatives of Victims from the Chamber During the Non-public Evidence of Various Defence Witnesses, ¶¶ 28–40 (Mar. 11, 2010) (finding that the vicitms have a right to question defense witnesses provided the victim’s application to do so sets forth a meritorious claim of having a personal interest affected justifying the requested questioning, and that the victims’ representative may attend closed court sessions where evidence of defense witnesses is

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the victim’s right to challenge and to tender evidence,176 and the victim’s right to challenge the Prosecutor’s decision on which charges to bring against the accused.177 The victim’s ability to challenge the Prosecutor’s charges in the appeals process was addressed by the Appeals Chamber, which reasoned that victims must meet specified criteria on a case-by-case basis to participate in the appeal under Article 82(1)(d).178 The Appeals Chamber reasoned that Regulation 55, which allows the Trial Chamber to consider the possibility of proposed changes to the charges in a case, is not incompatible generally with provisions of the ICC Statute, general principles of international law and the rights of the accused. Therefore, any proposed changes must be limited to the facts and circumstances described in the charges or amendments. Thereto as well as contrary to Article 61(9) of the ICC Statute, the Chambers cannot add new facts and circumstances not described in the charges.179 Additionally, the Appeals Chamber declined to analyze the ability of a Chamber to determine that the characterization of facts may change to include new crimes not contained in the charging document. The Appeals Chamber reasoned that, in this particular case, the Trial Chamber did not provide details about the elements of offenses it would contemplate including or how the facts and circumstances in the charges covered them, which made a review of the defendant’s fair trial rights abstract, hypothetical, and premature.180 Optimistically, the victim’s right to challenge and tender evidence has been confirmed by the Appeals Chamber.181 The Appeals Chamber has also presented provided they abide by a prohibition on divulging information revealing the identity of the defense witness and it is not inconsistent with the rights of the accused to a fair and expeditious trial.). 176 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-2288, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 entitled “Decision on the Modalities of Victim Participationat Trial” ¶¶ 37–41 (July 16, 2010) (indicating that participating victims have a right to bring evidence before the Trial Chamber whenever the Chamber determines it necessary for the determination of the truth); Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-2694, Decision on the Legal Representative’s Application for Leave to Tender into Evidence Material from the “Bar Table” and on the Prosecution’s Application for Admission of Three Documents from the Bar Table pursuant to Article 64(9), ¶¶10–12 (Mar, 2, 2011) (discussing four factors used in a three tiered approach to determine admission of evidence.) 177 Pena, supra note 174. 178 Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2205, Judgment on the Appeals of Mr. Lubanga Dyilo and the Prosecutor Against the Decision of Trial Chamber I of 14 July 2009 Entitled “Decision Giving Notice to the Parties and Participants that the Legal Characterization of the Facts May be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court” (Dec. 8, 2009). 179 Id. at ¶¶ 64–87 (discussing Regulation 55’s general compatibility with the ICC Statute, general principles of international law and the rights of the accused); ¶¶ 89–93 (concluding that Article 74(2) of the ICC Statute limits the scope of Regulation 55 to the facts and circumstances described in the charges or amendments to the charges); ¶¶ 94–95 (discussing the inability of the Chambers to bypass the requirements of Article 61(9) through regulation 55). 180 Id. at ¶¶ 109–11. 181 Pena, supra note 174, at 506,.



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allowed victim participation in an appeal regarding a Trial Chamber’s decision to release a charged defendant.182 Additional sssues regarding victim participation include whether deceased victims may participate, what kind of harm makes one a victim, and what differentiates direct and indirect victims.183 The families of deceased individuals may participate as indirect victims in proceedings based on the mental or material harm they suffered as a result of the harm to the deceased, the direct victim.184 Indirect victims also have the right to participate in proceedings.185 One of the most controversial provisions regarding victim participation is Article 68(3), which allows victims to present their “views and concerns” in “proceedings” when their “personal interests” are affected. However, Article 68(3) failed to define any of these terms.186 Pre-Trial Chambers I and II interpreted “proceedings” to include victim participation in the investigation process.187 As affirmed by the Appeals Chamber, Pre-Trial and Trial Chambers have broadly interpreted “views and concerns” to give victims the right to question witnesses and introduce evidence.188 While the Pre-Trial and Trial Chambers have interpreted “personal interests” broadly to maximize victim participation which would not unduly prejudice the rights of the defendant, the Appeals Chamber has taken a less expansive interpretation.189

182 Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2555, Decision on the Participation of Victims in the Appeal against Trial Chamber I’s Oral Decision of 15 July 2010 to Release Thomas Lubanga Dyilo, ¶¶ 34–36 (Aug. 17, 2010). 183 Pena, supra note 174, at 511. 184 Prosecutor v. Katanga & Ngudjolo Chui, ICC-01/04-01/07-1491-Red-tENG, Motifs de la decision relative aux 345 demands de participation de victimes a la procedure, ¶¶ 50–56 (Sept. 23, 2009) (concluding that a relative of a deceased person can only submit an application for participation in his or her own name by invoking the mental or material harm resulting from the deceased’s death); Situtation in the Democratic Republic of Congo, ICC-01/04-423-Corr-tENG, Decision sur les demands de participation a la procedure deposees dans le cadre de l’enquete en Republique democratique du Congo par a/0004/06 a a/0009/06, a/0016/06 a a/0063/06, a/0071/06 a a/0080/06 et a/0105/06 a a/0105/06 a a/0110/06, a/0188/06, a/0128/06 a a/0162/06, a/0199/06, a/203/06, a/209/06, a/214/06, a/0220/06 a a/0222/06, a/0224/06, a/0230/06 a a/0230/06, a/0234/06 a a/0236/06, a/0240/06, a/0225/06, a/0231/06 a a/0233/06, a/0237/06 a a/0239/06 et a/0241/06 a a/0250/06, P 23–25 (Jan 31, 2008) (concluding that close relations of deceased persons may be considered victims under the Statute); Bemba Fourth Decision, ICC-01/05-01/08-320 PP 44, 47 (successors of deceased victims can be victims who can participate). 185 Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1432, Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ¶¶ 1, 32, 38 (July 11, 2008) (indirect victims may participate in proceedings as victims if they have suffered personal harm related to the direct victim); Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1813, Public Redacted Version of “Decision on Indirect Victims” (Apr. 8, 2009). 186 Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Itn’l L. 777, 793–94 (2008). 187 Id. at 794–95. 188 Id. at 795–96. 189 Id. at 797–801.

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The international justice theory of reparation as a punishment against individuals was first included in the ICC Statute.190 The creation of the Trust Fund for Victims by the ASP in 2002 resulted in many unresolved issues surrounding the function of fund and the fund’s funding, administration and distribution.191 Fines and forfeitures against individual defendants are likely to be inadequate to provide sufficient or substantial monetary reparations to numerous victims. Generally, individual defendants have likely spent, as a general matter or on their defense specifically, or hidden most of their money and assets.192 Because states cannot be fined for the actions of their officials or personnel, state funding is unavailable as a source of revenue for the fund.193 The position of secretariat of the Trust Fund for Victims was created in 2004 to administer the fund, which had received nearly EUR 8.5 million as of Winter 2011.194 By 2010, the Board of the Trust Fund for Victims sponsored thirty four projects designed to assist victimized populations and provided some aid to more than 200,000 victims and family members in Uganda and the Democratic Republic of the Congo.195 As funds grew, issues arose as to the possibility of contributors influencing or controlling the distribution of the funds in contravention to the principle of independence of the Trust Fund for Victims.196 The structure of the fund divides victims into two separate classes for the purposes of reparations: (1) victims of defendants prosecuted by the Court potentially who may receive direct awards of reparations and (2) victims of the same conflict but not of the defendant prosecuted by the Court who may only be compensated by “other resources” that amount to voluntary contributions in the fund.197 Thus, it is possible that there will be a lack of uniformity in victim reparations among victims of the same dispute, even if they suffered the same harm. Even so, questions regarding identification of victims who can recover from the voluntary contributions of the victim’s trust fund and proper distribution from the victim’s trust fund remained, with answers to these questions requiring a synthesis of multiple sources in the

190 Peter G. Fischer, The Victims’s Trust Fund of the International Criminal Court—Formation of a Functional Reparations Scheme, 17 Emory Int’l L. Rev. 187, 200 (2003). 191 Id. at 205–27. 192 Linda M. Keller, Proceedings of the Scholarly Conference Taking Reparations Seriously: Seeking Justice at the International Criminal Court: Victims’ Reparations, 29 T. Jefferson L. Rev. 189, 195–96 (2007). 193 Id. at 197. 194  Trust Fund for Victims, Earmarked Support at the Trust Fund for Victims (Winter 2011), p. 33. 195 Frederic Megret, Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons Learned from Domestic Compensation Schemes, 36 Brooklyn J. Int’l L. 123, 141–42 (2010). 196 Keller, supra note 192, at 201–02. According to regulations, the victim’s trust fund board must refuse a contribution that would affect the independence of the victim’s trust fund. 197 Id. at 203.



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absence of drafted regulations on the subject.198 Questions still remain regarding how to compensate wealthy victims who still live above the national standard even after being victimized or how to deal with victims who were also perpetrators, such as child soldiers.199 With the hundreds of thousands, if not millions, of victims in any given conflict, it may be more useful for the Trust Fund for Victims to engage in collective awards which may be more effective in aiding the reconstitution of the affected society as a whole by giving a benefit to victims who may not have submitted claims and reducing the administrative burden of seeking to provide reparations to every affected individual.200 Reparations should mirror the collectivity of victimization, as well as allow for the creation of various memorials and public historical records of the atrocities.201 However, memorials are not without controversy; although memorials can provide a forward-looking mechanism that memorializes the past to prevent repetition of atrocities in the future and meets a non-monetary interest of victims in making their suffering known, it can raise issues of deindividualization of victims, the existence, use, and preservation of collective memory, and the ability or possibility that ICC funds can create a monument.202 A justification for including victim reparations within the context of the ICC’s prosecution of high-ranking individuals accused of systematic or widespread criminal activity resulting in mass victimization is that it can help in the transitional period that follows a given conflict.203 Reparations can rebuild a victim’s and community’s trust in national and international justice institutions because these people will have received some form of recognition of their status as victims, thus reducing the possibility of vigilantism to achieve justice.204 Whether the victim reparations system established by the ICC Statute will provide effective direct compensation remains to be seen because no trials have been completed at the time of this writing. Article 75, which discusses the awarding of victim reparations against convicted individuals, makes reparations only payable after a defendant is convicted of crimes. The ability of the Board of the Trust Fund for Victims to act independently of the ICC remains controversial despite having been upheld by an ICC decision.205 Victim 198 Id. at 204–05. As of 2007, the regulations dealt only with direct reparations from a convicted defendant. 199 Id. at 209–10. 200 Id. at 212–15. 201 Id. 202 Frederic Megret, Of Shrines, Memorials and Museums: Using the International Criminal Courts Victim Reparation and Assistance Regime to Promote Transitional Justice, 16 Buff. Hum. Rts. L. Rev. 1, 11, 17, 19, 23, 31, 34, 50–56 (2010). 203 Megret, supra note 195, at 156–63. 204 Id. 205 For a discussion of the controversy surrounding the question of whether the Board of the victim’s trust fund should be able to use voluntary funds to pursue projects independent of the ICC’s direct involvement, see generally Tom Dannenbaum, The International Criminal Court, Aricle

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participation in trials before the ICC is limited, as only about 2,337 persons have been granted victim status in all ongoing cases before the ICC, with one case, The Prosecutor v. Jean-Pierre Bemba Gombo, accounting for over half of the total victim participation.206 Section 10. Enforcement Modalities, Surrender, and Judicial Assistance207 10.1. Enforcement Modalities Enforcement modalities must go through national legal systems which enforce ICC orders and judgments [Parts 9–10]. This approach further evidences the

79, and Transitional Justice: the Case for an Independent Trust Fund for Victims, 28 Wis. Int’l L. J. 234, 242–48, 292–98 (2010). 206 The following case information sheets are produced by the ICC: Case Information Sheet: Situation in the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04–01/06, available at http://www.icc-cpi.int/iccdocs/PIDS/publications/LubangaENG.pdf (118 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in the Democratic Republic of the Congo, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, available at http://www.icc-cpi.int/iccdocs/PIDS/ publications/KatangaChuiEng.pdf (365 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, available at http://www.icc-cpi.int/iccdocs/ PIDS/publications/BembaEng.pdf (1619 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in Uganda, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen, Case No. ICC-02/04–01/05, available at http:// www.icc-cpi.int/NR/rdonlyres/E7F674DF-C2D8-4A86-98C1-4C9621050D4B/282225/KonyEtAllENG. pdf (41 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in Darfur, Sudan, The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Case No. ICC-02/05-01/07, available at http://www.icc-cpi.int/iccdocs/PIDS/publications/HarunKushaybEng.pdf (6 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in Darfur, Sudan, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, available at http://www.icc-cpi.int/iccdocs/PIDS/publications/AlBashirEng.pdf (12 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in Darfur, Sudan, The Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, available at http://www.icc-cpi.int/iccdocs/PIDS/publications/AbuGardaEng.pdf (87 persons granted victim status and allowed to participate in the proceedings); Case Information Sheet: Situation in Darfur, Sudan, The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02/05-03/09, available at http://www.icc-cpi.int/iccdocs/PIDS/publications/BandaAndJerboEng.pdf (89 persons granted victim status and allowed to participate in the proceedings). 207 See generally Trevor Pascal Chimimba, Establishing an Enforcement Regime, in Making of the Rome Statute, supra note 16, at 345–56; Frederik Harhoff & Phakiso Mochochoko, International Cooperation and Judicial Assistance, in Lee, ICC Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 637; Phakiso Mochochoko, International Cooperation and Judicial Assistance, in Making of the Rome Statute, supra note 16, at 305–18; Franco Mosconi & Nicoletta Parisi, Co-operation Between International Criminal Court and States Parties, in Lattanzi, ICC Commentary, supra note 16, at 311. See generally 2 International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL].



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ICC’s “complementary” (rather than supra-national) character.208 The ICC is not to be deemed a foreign legal system such as the legal system of another sovereign state. Thus, the ICC should be viewed as an extension of a state party’s national criminal jurisdiction. This is not to say that the ICC is an extension of national criminal justice systems. The ICC is neither part of national criminal justice systems nor an extension thereof. It is an extension of national criminal jurisdiction established by treaty and implemented by national legislation. The closest analogy is that of a transfer of criminal proceedings.209 This is why an individual is “surrendered” to the ICC and not extradited, as in the case of relations between states on a bilateral basis.210 A consequence of the concept that the ICC is an extension of national criminal jurisdiction is that states parties could not invoke, in opposition to surrender, their domestic laws that prohibit extradition of nationals, or other defenses applicable in bilateral state relations.211 Enforcement modalities and cooperation between states parties will be channeled through their national legal systems, as well as cooperating non-states parties. Thus, they do not infringe upon national sovereignty nor have a supranational character. The ICC may, however, benefit from accelerated procedures and processes not necessarily available to other states within the context of bilateral relations [Articles 86–99]. Even if the ICC has some priority in national processes, this priority does not alter the nature of the process. The obligation of state parties to cooperate under Article 86 implies the possibility of having representatives of the ICC’s Prosecutor’s office to conduct investigations and securing evidence in the territory of a state party. Obviously, if this is done with the consent of the state party, it poses no problems. If on the other hand, a state party does not wish to allow for such practices, can the ICC order it? In this author’s opinion, the statute does not contemplate that. However, if a state party does not diligently carry out its obligations to investigate, then the Prosecutor can bring this lack of cooperation to the attention of the ASP. The latter can then bring pressure on this non-complying state party. 10.2. Surrender of Individuals and Judicial Assistance In general, states parties have a general obligation to cooperate with the ICC’s Investigation and Prosecution [Article 86] and ensure that there are procedures available under national law for all forms of cooperation which are specified

208 See supra section 2.2; supra Chapter I, section 1.4. 209 See supra note 36. 210 See Bassiouni, International Extradition, supra note 31, at chapters I, II. 211 Id. at 588–95.

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under Part 9 [Article 88].212 However, states parties may deny the request for judicial assistance with regard to the disclosure of documents, which in the opinion of the state, would compromise national security interests [Article 72, 93(4)]. In such an instance the Prosecutor will take necessary measures to cooperate with the state’s interests and the state shall then provide the Prosecutor with specific reasons for its denial of assistance [Article 72 (5), (6)].213 Upon ratification, acceptance, approval, or accession, states designate the channel and the language by which the ICC will make requests for assistance [Article 87(1)]. Non-states parties have no obligation to cooperate with a request of the court. However, the ICC may enter into ad hoc arrangements with these states [Article 87(5)]. A failure to comply with a request of the Court by either a state party or a non-state party that has entered into an ad hoc agreement with the Court may be referred to the Assembly of states parties or to the Security Council, if the matter had been referred by it [Article 87(7)].214 A request for the arrest and surrender of an individual must be accompanied by an arrest warrant and supporting material [Articles 89(1)]. The supporting material should include the arrest warrant and describe the person sought and his or her probable location [Article 91(2)(a)-(b)]. In addition, it should include any documents, statements, or information that is required by the laws of the requested state [Article 91(2)(c)]. However, these additional requirements should not be more burdensome than those that accompany other requests pursuant to treaty or arrangement among states. Indeed, if possible, they should be less burdensome [Article 91(2)(c)].215 Individuals may challenge the ICC’s request before their national courts on the basis of ne bis in idem [Article 89(2)].216 In addition, a state need not surrender an individual who is currently serving a sentence in that state for a different crime [Article 89(4)].217 Moreover, a state need not surrender an individual to the Court when there is a competing extradition request for the individual 212 For additional commentary on cooperation, see Claus Kress, Article 86: General obligations to cooperate, in Commentary on Rome Statute, supra note 16, at 1051–55. For additional commentary on National Procedures, see Kimberly Prost, Article 88: Availability of procedures under national law, in Commentary on Rome Statute, supra note 16, at 1069–71. 213 See generally Donald K. Piragoff, Protection of National Security Interests, in Making of the Rome Statute, supra note 16, at 270–93. For additional commentary on national security protections, see Dixon & Duffy, Article 72, supra note 156. 214 For additional commentary on Cooperation, see Claus Kress & Kimberly Prost, Article 87: Requests for Cooperation: General Provisions, in Commentary on Rome Statute, supra note 16, at 1055–69. 215 For additional commentary on Requests for Arrest and Surrender, see Kimberly Prost, Article 91: Contents of Request for Arrest and Surrender, in Commentary on Rome Statute, supra note 16, at 1091–97. 216 There are many issues pertaining to ne bis in idem that are not addressed by the Statute. 217 For additional commentary on Surrender, see Claus Kress & Kimberly Prost, Article 89: Surrender of Persons to the Court, in Commentary on Rome Statute, supra note 16, at 1071–81.



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[Article 90]. The Court’s request shall take priority if the Court has already made a determination of admissibility pursuant to Article 18 and 19 [Article 90(2)]. However, if the Court has not made a ruling on admissibility, the requested state may, in its discretion and pending the determination of admissibility, deal with the competing request [Article 90(3)]. If the competing request comes from a non-state party and the requested state is under an existing international obligation to extradite the person to the competing state, then the requested state should make its decision to extradite after considering all the relevant factors, such as: (a) dates of the competing requests; (b) interests of the requesting state, including where the crime was committed and the nationality of the person sought and the victims; and (c) possible subsequent surrender [Article 90(6)]. Where the competing request from the non-state party is for conduct that is different than that for which the Court seeks surrender, then the requested state shall also consider the relative nature and gravity of the conduct of the individual [Article 90(7)(b)].218 The Court may request other forms of cooperation pursuant to Article 93(1), including the following assistance: (a) identification and whereabouts of persons or the locations of items; (b) the taking of testimony, production of evidence such as reports and expert opinions; (c) question of persons being investigated or prosecuted; (d) service of documents; (e) facilitation of the voluntary appearance of persons before the court; (f) temporary transfer of persons; (g) examination of sites, including the exhumation of graves; (h) execution of searches and seizures; (i) the provision of records and documents; ( j) the protection of victims and witness; (k) the identification, tracing, and freezing or seizure of proceeds, property and assets and instrumentalities of crime; and (l) any other type of assistance not prohibited by the law of the requested state.219 Requests for assistance may be denied based on the existence of a fundamental legal principle of general application in the requested state [Article 93(3)]. Moreover, requests may be denied to protect national security pursuant to Article 72 [Articles 93(4), 93(5)]. Also, a state may deny assistance that requires it

218 For additional commentary on Competing Requests, see Kimberly Prost, Article 90: Competing Requests, in Commentary on Rome Statute, supra note 16, at 1081–91. 219 See generally M. Cherif Bassiouni, Introduction to Transfer of Criminal Proceedings, in 2 Bassiouni, ICL, supra note 207, at 519; M. Cherif Bassiouni, The Duty to Prosecute and/or Extradite: Aut Dedere Aut Judicare, in 2 Bassiouni, ICL, supra note 207, at 35; Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in 2 Bassiouni, ICL, supra note 207, at 457; Bruce Zagaris, United States Treaties on Mutual Assistance in Criminal Matters, in 2 Bassiouni, ICL, supra note 207, at 385; Mohamed Abdul-Aziz, International Perspective on Transfer of Prisoners and Execution of Foreign Penal Judgments, in 2 Bassiouni, ICL, supra note 207, at 533; M. Cherif Bassiouni, United States Policies and Practices on the Execution of Foreign Penal Sentences, in 2 Bassiouni, ICL, supra note 207, at 555; Michael P. Scharf, The Lockerbie Model of Transfer of Proceedings, in 2 Bassiouni, ICL, supra note 207, at 525; Kimberly Prost & Angelika Schlunk, Article 93: Other forms of cooperation, in Commentary on Rome Statute, supra note 16, at 1101–18.

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to violate obligations under international law concerning the diplomatic immunity of a person or property of a third state, unless the Court first ascertains the waiver of that immunity from the third state [Article 98(1)].220 Requests may also be postponed when they would interfere with an ongoing investigation or prosecution of a different case [Article 94(1)]. The Prosecutor may still seek measures to preserve evidence in the event of a postponement [Article 94(2)]. States may postpone execution of requests when the Court is considering the admissibility of a case, unless the Prosecutor has received a special order pursuant to Articles 18 and 19 to preserve certain evidence [Article 95]. Section 11. Exceptions to the Obligation to Cooperate There are four exceptions to the obligation to cooperate. The first is where a state party is acting pursuant to its general obligations to investigate and prosecute. In that case, the ICC Prosecutor would have to prove to a chamber of the Court that the state party in question is “unable” or “unwilling” to carry out its obligations. This presupposes showing ineffectiveness and bad faith. The Statute does not set forth the factors that the Court should consider in reaching the conclusion that a state party is “unable” or “unwilling” to carry out their obligations under the Statute. The second is where the state party can show that the person in question has been investigated, prosecuted, and acquitted or convicted–in other words, ne bis in idem [Articles 17 and 20]. The third is where the Security Council requests the withholding of investigation and prosecution [Article 16], which is discussed below. The fourth is what is called the Article 98 exception. Article 98(2) sets forth an exception to the general duty to cooperate with the ICC under Article 86. Accordingly, a requested state party cannot be compelled to act inconsistently with its obligations under an international agreement necessitating its consent for the surrender of a national of another state, unless the Court can obtain such consent. Certain agreements may also be allowed to take priority over requests from the ICC such that an individual is returned to the state of nationality instead of the ICC. A compromise was reached in order to obtain a consensus, resulting in an “understanding” to Rule 9.19, which states that the Court may not proceed under Article 98(2) for a request of surrender if such request is inconsistent with international obligations set forth in an agreement mandating the consent of the sending state, and presumably of the state of nationality of a non-state party.

220 For additional commentary on Immunity, see Kimberly Prost & Angelika Schlunk, Article 98: Cooperation with Respect to Waiver of Immunity and Consent to Surrender, in Commentary on Rome Statute, supra note 16, at 1131–34.



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The U.S., which is a non-state party, has expressed its concern with the ICC having jurisdiction over its citizens, and as a result, communicated to the Secretary-General on 6 May 2002 that is does not intend to ratify, which is tantamount to a withdrawal of its signature. Since then, it has embarked upon a worldwide effort to obtain immunity for U.S. citizens from the ICC’s jurisdiction, and to some extent, to undermine the ICC. To placate U.S. concerns, the Security Council adopted Resolution 1422,221 requesting the ICC to defer investigation or prosecution for a twelve-month period that began July 1, 2002. Investigations were not to be performed unless the Council decided otherwise (under Article 16) in cases involving current or former officials or personnel from a contributing State to a U.N. operation when such a state is not a Party to the Rome Statute. Resolution 1422 was renewed in 2003 by Resolution 1487. However, the Security Council refused to extend the resolution again in 2004 after photos of U.S. abuse of Iraqi prisoners at Abu Ghraib became public. Chapter VII of the United Nations Charter gives the Security Council exclusive authority over matters involving the preservation, restoration and maintenance of peace. In recognition of the S.C.’s power under Chapter VII of the United Nations Charter, the ICC recognizes in Article 16 that the S.C. may ask for a suspension of proceedings before the ICC for twelve months if the S.C. deems that the situation under which the prosecution arises constitutes a threat to peace and security. Resolution 1422, however, grants a blanket immunity to nationals of non-states parties involved in fifteen U.N. peacekeeping operations around the world without a finding that such action is deemed by the Council to have any bearing on “peace and security.” The Resolution is therefore inconsistent with Article 16 of the ICC Statute, which provides for S.C. deferrals only on a temporary, case-by-case basis. Its approval by the U.S., however, attests to that government’s recognition of the ICC. Further evidencing its opposition to the ICC, President George W. Bush on August 2, 2002 signed the supplemental appropriations bill, which includes the American Service Members’ Protection Act (ASPA). The Act includes provisions prohibiting any U.S. agency from cooperation with the ICC, restrictions on U.S. participation in certain U.N. peacekeeping operations, prohibition of U.S. military assistance to parties to the ICC and authority to free any citizen of the U.S. detained or imprisoned by or on behalf of the ICC.222 After enacting the ASPA, the U.S. has been actively seeking bilateral agreements with as many states as possible, invoking Article 98 of the Rome Statute, in order to prohibit all transfers of its citizens to the Court, and to ensure that

221 S.C. Res. 1422 (July 12, 2002). 222 The legislation is euphemistically referred to as the “Hague Invasion Act,” since it authorizes a “rescue” military operation in The Hague to “free” U.S. citizens held there.

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American courts have a priority of jurisdiction for the crimes under the jurisdiction of the ICC.223 U.S. reliance on Article 98 is misplaced, as that article was intended to apply to such agreements as Status of Forces Agreements (SOFA).224 Any other interpretation would be tantamount to establishing a significant loophole in the jurisdiction of the ICC, allowing both state and non-state parties to work out bilateral agreements which are contrary to both the spirit and the letter of the statute. Article 98 and other provisions of the statute must be interpreted in accordance to the Vienna Convention on the Law of Treaties.225 The plain meaning of the words, as well as the intent of the parties, does not justify a bilateral agreement between a state party and a non-state party which would provide impunity for the perpetrators of the crimes within the jurisdiction of the court. To allow that would be an obvious contradiction of the purposes of the treaty. If the purpose of the U.S. requested bilateral treaties is for that state to exercise its national criminal jurisdiction, then it is valid in accordance with the ICC’s principle of complementarity. A bilateral agreement based on complementarity would be valid, but it would obligate the U.S. to investigate and to prosecute, if the investigation showed that there are grounds to believe that a crime has been committed. However, the U.S. does not want to be bound by any obligation to investigate or prosecute, even though such is required by U.S. law. The worldwide support for the ICC and the increasing demands of international civil society for accountability and justice will leave the U.S. isolated and

223 Eighty-five states as of April 2008, have signed such bilaterals. They are: Afghanistan, Albania, Algeria, Angola, Antigua and Barbuda, Armenia, Azerbaijan, Bangladesh, Bahrain, Belize, Benin, Bhutan, Bosnia-Herzegovina, Botswana, Brunei, Burkina Faso, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Colombia, Comoros, Congo, Cote D’Ivoire, Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, Equatorial Guinea, Eritrea, Fiji, Gabon, Gambia, Georgia, Ghana, Grenada, Guinea, Guinea Bissau, Guyana, Haiti, Honduras, India, Israel, Kazakhstan, Kiribati, Laos, Mongolia, Montenegro, Morocco, Mozambique, Nauru, Nepal, Nicaragua, Nigeria, Oman, Pakistan, Palau, Panama, Papua New Guinea, Philippines, Rwanda, Saint Kitts and Nevis, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Singapore, Solomon Islands, Sri Lanka, Swaziland, Tajikistan, Thailand, Togo, Tonga, Tunisia, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, Uzbekistan, Yemen, and Zambia. The European Parliament on September 25, 2002 opposed the U.S.’s proposed bilateral ICC immunity agreements with European states which have ratified the Rome treaty as inconsistent with the purposes of the treaty. The European Union on September 30, 2002 confirmed its support for the ICC and its opposition to the U.S. proposed bilateral treaties. It has adopted guidelines for EU countries to follow in dealing with the U.S., and is considering a compromise formula that would exempt U.S. military personnel and diplomats from being surrendered to the ICC on the basis of the presumed rationale of Security Council 1422. These guidelines can be found online at EU Efforts to Combat Impunity, European External Action Service, http://ec.europa .eu/external_relations/human_rights/icc/index.htm (last visited Nov. 17, 2011). 224 See James R. Coker, The Status of Visiting Military Forces in Europe: NATO-SOFA, A Comparison, in 2 A Treatise on International Criminal Law 115 (M. Cherif Bassiouni & Ved. P. Nanda, eds., 1973). 225 See supra note 24.



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visibly opposed to these aspirations. Regrettably, this U.S. position will neither serve its interests, nor those of the international community. But in time, it will change. Section 12. The Organization and Operation of the Court The ICC is composed of four principal organs [Article 34]: (a) the Presidency; (b) an Appeals, Trial, and Pre-Trial Division; (c) the Office of the Prosecutor; and (d) the Registry. Important oversight and policy functions are carried out by the ASP. In addition, while the Court is not an organ of the United Nations, it will maintain a special relationship with that body.226 12.1. The Presidency227 The President and the First and Second Vice-Presidents will be elected by an absolute majority of the judges and will serve for a three year term [Article 38(1)]. The three together will constitute the Presidency and will be responsible for: (a) the proper administration of the Court, with the exception of the Office of the Prosecutor; and (b) other functions conferred upon it in accordance with the Statute [Article 38(3)]. 12.2. The Appeals, Trial, and Pre-Trial Division228 The Court will have eighteen judges, elected by the ASP, with carefully articulated qualifications, meeting the highest standards of the world’s major legal systems. The eighteen judges will represent the world’s major legal systems and represent an equitable geographic distribution [Article 36]. One division consisting of not less than six judges will deal exclusively with indictments and pre-trial matters; another division consisting of not less than six judges will compose the trial chambers; and another division consisting of four judges and the President will deal with appeals [Article 39]. To maintain a distinction between trial and

226 For additional commentary on the Organs of the Court, see Karim A.A. Khan, Article 34: Organs of the Court, in Commentary on Rome Statute, supra note 16, at 589–94. 227 See generally Medard R. Rwelamira, Composition and Administration of the Court, in Making of the Rome Statute, supra note 16, at 153–74; Giuseppe Nesi, The ICC: Its Composition, Administration and Financing, in Lattanzi, ICC Commentary, supra note 16, at 188. For additional commentary on The Presidency, see Jules Deschenes, Article 38: The Presidency, in Commentary on Rome Statute, supra note 16, at 611–15. 228 See generally Rwelamira, supra note 227. For additional commentary on The Judges, see Zhu Wen-qi, Article 36: Qualifications, nomination and election of judges, in Commentary on Rome Statute, supra note 16, at 599–08.

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appellate chambers, neither the five appellate judges nor their colleagues in the trial chambers can rotate between two chambers [Article 39]. The judges and all officers of the Court shall enjoy privileges and immunities as are necessary for the fulfillment of their purposes [Article 48(1)]. The Statute provides guarantees for the impartiality and independence of ICC judges [Article 40]. In instances in which this impartiality might be doubted, a judge may request recusal or may be disqualified from participation upon request by the Prosecutor or the investigated party [Article 41].229 Additionally, the Statute sets forth the process for removal of an officer of the Court, for instances of misconduct or inability to meet necessary functions [Article 46]. 12.3. The Prosecutor and the Office of the Prosecutor230 The Office of the Prosecutor will act as an independent and separate organ of the ICC [Article 42(1)]. The Office will be headed by a Prosecutor who will have full authority over the management and administration of the office [Article 42(2)]. The Prosecutor will be assisted by Deputy Prosecutors, all of whom will be of different nationalities [Article 42(2)]. The Prosecutor and Deputy Prosecutors must be of high moral character, be highly competent, have extensive practical experience, and be fluent in at least one of the working languages of the ICC [Article 42(3)]. The Prosecutor will be elected by secret ballot by an absolute majority of the ASP [Article 42(4)]. The Deputy Prosecutors are elected in the same manner by a list of candidates proposed by the Prosecutor [Article 42(4)]. The Prosecutor and Deputy Prosecutor will serve nine-year terms and are not eligible for re-election [Article 42(4)]. In addition, the Prosecutor may appoint legal advisors on specific issues [Article 42(9)]. The Statute also provides protections to ensure impartiality and allows for the disqualification of a Prosecutor or Deputy Prosecutor at their request or at the request of an accused in situations where their “impartiality might reasonably be doubted on any ground” [Article 42(8)].

229 For additional commentary regarding the immunity of judges, see Jules Deschenes, Article 40: Independence of the judges, in Commentary on Rome Statute, supra note 16, at 619–24; Jules Deschenes, Article 41: Excusing and disqualification of judges, in Commentary on Rome Statute, supra note 16, at 625–27. 230 See generally Rwelamira, supra note 227. For additional commentary on The Prosecutor, see Morten Bergsmo & Frederik Harhoff, Article 42: The Office of the Prosecutor, in Commentary on Rome Statute, supra note 16, at 627–36.



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12.4. The Registry231 The Registry will be responsible for the non-judicial aspects of the administration and servicing of the Court, including setting up a Victims and Witnesses Unit [Article 43(1),(6)]. The Registry will be headed by a Registrar who will exercise his or her functions under the authority of the President of the Court [Article 43(2)]. The Registrar will be elected by an absolute majority of the judges by secret ballot, taking into account any recommendation of the ASP [Article 43(4)]. The Registrar will hold office for a term of five years and may be re-elected [Article 43(5)]. If needed and upon the recommendation of the Registrar, the judges will also elect a Deputy Registrar [Article 43(4)]. 12.5. The Assembly of States Parties232 An Assembly of States Parties shall be constituted with certain specific prerogatives, including the electing of judges, the Prosecutor, and the Registrar [Article 112]. Moreover, it reviews and approves the budget and provides support for the institution, including the ability to deal with states parties who fail to carry out their treaty obligations. The ASP also has the power to enunciate rules for the internal functioning of the Court, and to adopt rules of procedure and evidence in conformity with the Statute. Every state party has one vote and consensus will be attempted, except in matters pertaining to issues of substance or procedure where a two-thirds majority and simple majority are necessary, respectively [Article 112 (7)(a), (7)(b)]. Many treaty-based bodies provide for such a system of governance (e.g., the World Trade Organization). This system ensures that the bureaucracy of the body acts in conformity with the expectations of the states parties in fulfillment of the treaty.

231 See generally Rwelamira, supra note 227. For additional commentary on The Registry, see David Tolbert, Article 43: The Registry, in Commentary on Rome Statute, supra note 16, at 637–46. 232 See generally Rwelamira, supra note 227. For additional commentary on the Assembly of States Parties, see S. Rama Rao, Article 112: Assembly of States Parties, in Commentary on Rome Statute, supra note 16, at 1201–14. See also infra section 16.

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The ICC is to be brought into a relationship with the U.N. through an agreement234 to be approved by the ASP [Article 2].235 The draft agreement is so far similar to that of other treaty bodies whose purposes are related to those of the U.N., but with several distinguishing characteristics.236 13.1. Relationship to the Security Council237 The relationship between the ICC and the Security Council is a consequence of the S.C.’s power as established in the United Nations Charter, particularly Chapter VII, which gives the S.C. exclusive political authority over matters involving the preservation, restoration, and maintenance of peace. Chapter VII, Article 39 also gives the S.C. the power to devise sanctions to preserve and maintain peace achieved by these results. Consequently, the S.C. has the right to refer a situation to the ICC for investigation and eventual prosecution. The S.C. established respectively in 1993 and 1994 the ICTY and ICTR as judicial sub-organs.238 In recognition of the Council’s powers under Chapter VII of the United Nations Charter, the ICC recognizes in Article 16 that the S.C. may ask for a suspension of proceedings before the ICC for twelve months, subject to renewal based on explicit reasons, if the Security Council deems that the situation under which the prosecution arises constitutes a threat to “peace and security” as provided for in the United Nations Charter. Under its Charter powers, the S.C. can, by resolution, take measures that are binding upon all U.N. member states. Thus, the S.C.’s

233 See generally Rwelamira, supra note 227; Daryl A. Mundis, The Assembly of States Parties and the Institutional Framework of the International Criminal Court, 97 Am. J. Int’l. L. 132, 133 (2003). For additional commentary on The United Nations, see Antonio Marchesi, Article 2: Relationship of the Court with the United Nations, in Commentary on Rome Statute, supra note 16, at 65–71. 234 A Relationship Agreement was concluded October 4, 2004 maintaining the independence of the ICC, available at http://untreaty.un.org/unts/144078_158780/7/5/14358.pdf. 235 See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, ICC-ASP/1/3, Corr. 1, Part II, Instruments Adopted by the Assembly of States Parties, section G, Draft Relationship Agreement between the Court and the United Nations, at 244 (2002). 236 Other treaty based organizations that have a relationship with the United Nations are: Committee against Torture; Committee on Economic, Social and Cultural Rights; Committee on the Elimination of All Forms of Racial Discrimination; Committee on the Elimination of Discrimination against Women; Committee on the Elimination of Racial Discrimination; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families; Committee on the Rights of the Child. These treaty-bodies have operationally become part of the U.N. system. The ICC, however, is operated independently, and not funded by the U.N. 237 See generally Yee, supra note 136. For additional commentary on the Security Council, see Morten Bergsmo & Jelena Pejic, Article 16: Deferral of investigation or prosecution, in Commentary on Rome Statute, supra note 16, at 373–82. 238 See supra Chapter VI, section 3.



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suspension prerogatives in the Statute are within its Charter powers if it makes a finding that prosecution could have a detrimental effect on the preservation and maintenance of peace. Understandably, this is a condition limited in time. The Statute, therefore, does no more than recognize the S.C.’s powers; in fact, it regulates these powers in Article 16. To placate U.S. concerns, the S.C. adopted Resolution 1422239 on July 12, 2002, shortly after the treaty entered into force July 1, 2002, requesting the ICC to defer investigation or prosecution for a twelve-month period starting July 1, 2002, unless the Council decides otherwise (under Article 16) in cases involving current or former officials or personnel from a contributing State to a U.N. operation when such a state is not a party to the Rome Statute. Resolution 1422, however, grants a blanket immunity to nationals of non-states parties involved in fifteen U.N. peacekeeping operations around the world240 without a finding that such action is deemed by the Council to have any bearing on “peace and security.” The Resolution is therefore somewhat inconsistent with Article 16 of the ICC Statute, which provides for S.C. deferrals only on a temporary, case-by-case basis. Its approval by the U.S., however, attests to that government’s recognition of the ICC. Nonetheless, this may be simply a procedural flaw, since the U.S. withdrawal from peacekeeping activities (as threatened by the U.S. at the time of the resolution) undoubtedly did present a threat to “peace and security.” Section 14. Amending the Statute Under Article 121, an amendment cannot be proposed until seven years after the entry into force of the Statute. After an amendment has been proposed and “no sooner than three months from the date of notification” of the amendment to the states, the ASP must decide by a majority present and voting whether to take up the proposal [Article 121(2)]. However, Article 122 presents an opportunity for states parties to amend provisions of the Statute exclusively pertaining to institutional matters [Articles 35–39, 42–44, 46, 47, 49], such as the service of judges, the President, the Prosecutor, the Staff, and the instance of their dismissal, at any time [Article 121(1)]. Such amendments will be adopted by consensus or, with a lack thereof, by the ASP with a two-thirds majority vote [Article 121(2)].241

239 S.C. Res. 1422, U.N. Doc. S/Res/1422 (July 12, 2002). 240 Id. 241 See generally Tuiloma Neroni Slade & Roger S. Clark, Preamble and Final Clauses, in Making of the Rome Statute, supra note 16, at 421–50. For additional commentary on Amendments, see Roger Clark, Article 121, Commentary on Rome Statute supra note 16; Roger S. Clark, Article 122: Amendments to provisions of an institutional nature, in Commentary on Rome Statute, supra note 16, at 1273–77.

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The Statute does not permit the states parties to ratify the Treaty with any reservations or declarations and understandings [Article 120].242 Section 15. The Operation of The Court243 The seat of the ICC is at The Hague in the Netherlands, but it can also have its seat elsewhere, or whenever it considers it desirable [Article 3]. The ICC has international legal personality and has the legal capacity necessary to exercise its functions and fulfill its purposes [Article 4]. The official languages of the ICC are Arabic, Chinese, English, French, Russian, and Spanish [Article 50(1)]. The judgments of the Court as well as other decisions resolving fundamental issues will be published in the six official languages [Article 50(1)]. The working languages of the ICC are English and French [Article 50(2)]. However, at the request of any party to a proceeding or a state allowed to intervene in a proceeding, the ICC may authorize the use of a language other than one of the working languages if the use is adequately justified. [Article 50(3)].244 Section 16. Assembly of States Parties The first meeting of the Assembly of States Parties (“ASP”) was held at U.N. headquarters in New York from September 3–10, 2002.245 At this first meeting, the ASP undertook a number of important steps to lay the foundation of the ICC; it elected its Bureau,246 adopted the draft budget for the first financial period 242 See generally Slade & Clark, supra note 241, at 431–32. For additional commentary on Reservations, see Gerhard Hafner, Article 120: Reservations, in Commentary on Rome Statute, supra note 16, at 1251–64. 243 See generally Rwelamira, supra note 227. For additional commentary on the Operation of the Court, see Gerhard A.M. Strijards, Article 3: Seat of the Court, in Commentary on Rome Statute, supra note 16, at 71–88; Wiebke Ruckert, Article 4: Legal status and powers of the Court, in Commentary on Rome Statute, supra note 16, at 89–96. 244 For additional commentary on the Languages of the Court, see David Tolbert, Article 50: Official and working languages, in Commentary on Rome Statute, supra note 16, at 675–79. 245 The ASP decided to convene two additional “resumed sessions” to continue the work of the first meeting. The first resumed session was held from February 3–7, 2003, in which judges were elected, and the second resumed session took place April 21–23, 2003 in which Luis Moreno Ocampo was elected as the ICC’s Prosecutor. The Seventh Session of the ASP took place June 2–6, 2008, in New York. See Mundis, supra note 233. 246 The ASP elected as its President H.R.H. Prince Zeid Ra’ad Zeid Al-Hussein (Jordan), and as Vice-Presidents, Mr. Allieu Ibrahim Kanu (Sierra Leone) and Mr. Felipe Paolillo (Uruguay). Other members of the Bureau included Austria, Croatia, Cyprus, Democratic Republic of the Congo, Ecuador, Gabon, Germany, Mongolia, Namibia, Netherlands, New Zealand, Nigeria, Norway, Peru, Romania, Trinidad and Tobago, United Kingdom of Great Britain and Northern Ireland, and



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of the Court, as well as several resolutions and decisions related to the budget,247 established basic principles governing a headquarters agreement to be negotiated between the Court and the host country,248 adopted a draft relationship agreement between the Court and the U.N.,249 and established a Common Services Division to work on the establishment efforts of setting up the Court. The ASP also addressed a number of substantive legal issues at its first meeting, adopting by consensus the report of the Preparatory Commission, namely: the Rules of Procedure and Evidence;250 Elements of Crimes;251 Financial Regulations and Rules;252 Draft Agreement on the Privileges and Immunities of the International Criminal Court;253 continuity of work in respect of the crime of aggression;254 a procedure for the nomination and election of Judges, the Prosecutor and Deputy Prosecutors of the International Criminal Court;255 establishment of a fund for the benefit of victims and the families of victims of crimes within the jurisdiction of the Court;256 and a procedure for the nomination and Yugoslavia. At the same meeting, it was decided that Mr. Alexander Marschik (Austria) would act as Rapporteur, and the Director of the Codification Division of the Office of Legal Affairs of the United Nations Secretariat, Mr. Václav Mikulka, would act as Secretary of the Assembly. Also, the ASP elected the following States to serve on the Credentials Committee: Benin, Fiji, France, Honduras, Ireland, Paraguay, Slovenia, Uganda and Yugoslavia. 247 Budget appropriations for the first financial period and financing of appropriations for the first financial period (PCNICC/2002/2, annex III) (ICC-ASP/1/Res.12); Scales of assessments for the apportionment of the expenses of the International Criminal Court (PCNICC2002/2, annex V) (ICC-ASP/1/Res.14); Crediting contributions to the United Nations Trust Fund to Support the Establishment of the International Criminal Court (PCNICC/2002/1, annex II) (ICC-ASP/1/Res.15); Working Capital Fund for the first financial period (PCNICC/2002/2, annex IV) (ICC-ASP/1/Res.13); Provision of funds for the Court (PCNICC/2002/2, annex VI) (ICC-ASP/1/Decision 1); Criteria for voluntary contributions to the International Criminal Court (PCNICC/2001/1, annex II) (ICC-ASP/1/ Res.11); and Interim arrangements for the exercise of authority pending the assumption of office by the Registrar (PCNICC/2002/2, annex VII) (ICC-ASP/1/Decision 2). 248 See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC-ASP/1/3 and Corr. 1), Part II, Instruments Adopted by the Assembly of States Parties, section F, Basic Principles governing a headquarters agreement to be negotiated between the Court and the host country, at 234. 249 Draft relationship agreement between the Court and the United Nations. (PCNICC/2001/1/ Add.1) (ICC-ASP/1/3). 250 Rules of Procedure and Evidence, PCNICC/2000/1/Add.1; ICC-ASP/1/3. 251 Elements of Crimes, PCNICC/2000/1/Add.2; ICC-ASP/1/3. 252 Financial Regulations and Rules, PCNICC/2001/1/Add.2 and Corr.1 and PCNICC/2002/1/ Add.2; ICC-ASP/1/3. 253 Agreement on the Privileges and Immunities of the International Criminal Court, PCNICC/2001/1/Add.3; ICC-ASP/1/3. The agreement was opened for signature by all States at United Nations Headquarters in New York on September 10, 2002, and remained open for signature until June 30, 2004. 254 Continuity of Work with Respect to the Crime of Aggression, PCNICC/2002/2/Add.2; ICCASP/1/Res.1. 255 A Procedure for the Nomination and Election of Judges and the Prosecutor and Deputy Prosecutors of the International Criminal Court, PCNICC/2002/2, annex XII; ICC-ASP/1/Res.2. 256 Establishment of a Fund for the Benefit of Victims of Crimes within the Jurisdiction of the Court, and of the Families of such Victims, PCNICC/2002/2, annex XIII; ICC-ASP/1/Res.6.

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election of members of the Board of Directors of the Trust Fund for the benefit of victims.257 A number of other administrative matters were also dealt with during the first session of the ASP.258 The first resumed session of the ASP took place February 3–7, 2003, in New York. The most important work of this session was the election of the Court’s judges. After thirty-three rounds of voting, eighteen judges were elected from an original slate of forty-three.259 Nominations for the Prosecutor were extended. State Parties at this resumed session extended nominations for the Prosecutor, who was finally elected at the ASP’s session of April 21–23, 2003 in New York.260 There have been a total of ten sessions of the ASP to date, not including the Review Conference held in Kampala, Uganda from May to June of 2010.261 At the Second Session took place in New York in September 2003, and resulted in the establishment of the Secretariat, the election of a Deputy Prosecutor for Investigations, and the election of a Board of Directors of the Victim’s Trust Fund.262 The Third Session took place in the Hague from September 6–10, 2004, and resulted in an approved Negotiated Draft Relationship Agreement between the International Criminal Court and the United Nations, which recognized the independence of both international bodies and need for reciprocity and cooperation

257 Procedure for the Nomination and Election of Members of the Board of Directors of the Trust Fund for the Benefit of Victims, PCNICC/2002/2, annex XIV; ICC-ASP/1/Res.7. 258 Provisional Arrangements for the Secretariat of the Assembly of States Parties, PCNICC/2002/1, annex II; ICC-ASP/1/Res.8; Permanent Secretariat of the Assembly of States Parties, PCNICC/2002/2, annex X; ICC- ASP/1/Res.9; Selection of the Staff of the International Criminal Court, PCNICC/2002/2, annex IX; ICC-ASP/1/Res.10; Participation of the International Criminal Court in the United Nations Joint Staff Pension Fund, PCNICC/2002/2, annex VIII; ICC-ASP/1/Decision 3; Procedure for the Election of the Judges for the International Criminal Court, ICC-ASP/1/ Res.3.; Establishment of the Committee on Budget and Finance, ICC-ASP/1/Res.4.; Procedure for the Nomination and Election of Members of the Committee on Budget and Finance, ICC-ASP/1/ Res.5; Seating Arrangements for States Parties, ICC-ASP/1/Decision 4. 259 The first judges elected to the ICC were: René Blattmann (Bolivia), Maureen Harding Clark (Ireland), Fatoumata Dembele Diarra (Mali), Adrian Fulford (United Kingdom), Karl T. HudsonPhillips (Trinidad and Tobago), Claude Jorda (France), Hans-Peter Kaul (Germany), Philippe Kirsch (Canada), Erkki Kourula (Finland), Akua Kuenyehia (Ghana), Elizabeth Odio Benito (Costa Rica), Gheorghios M. Pikis (Cyprus), Navanethem Pillay (South Africa), Mauro Politi (Italy), Tuiloma Neroni Slade (Samoa), Sang-hyun Song (Republic of Korea), Sylvia H. de Figueiredo Steiner (Brazil), and Anita Usacka (Latvia). At the ICC’s inaugural ceremony in The Hague on March 11, 2003, the judges took the oath of office and elected Philippe Kirsch President, and Elizabeth Odio Benito and Fatoumata Dembele Diarra as Vice Presidents. See Mundis, supra note 233, at 141. 260 At that session, Mr. Luis Moreno Ocampo of Argentina was elected Prosecutor. 261 Official Records of the Assembly of State Parties, available at http://www.icc-cpi.int/Menus/ ASP/Sessions/Official+Records/ (last visited March 22, 2012). The most significant development of the first Review Conference was the adoption of a definition of the Crime of Aggression and its subsequent insertion into the ICC Statute, as discussed supra in section 4.5. 262 Summary of the Second Session of the Assembly of States Parties, available at http://www .coalitionfortheicc.org/?mod=asp2 (last visited July 20, 2011).



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between them.263 The Fourth Session took place in the Hague from November 28 to December 3, 2005, and resulted in an adopted Code of Professional Conduct for Counsel and regulations of the trust fund for victims, as well as the election of judges during a resumed session which took place from January 26–27, 2006.264 The Fifth Session took place in the Hague from November 23 to December 1, 2006, and focused on gathering consistent support for the ICC and entering into a concrete headquarters agreement between the ICC and host state.265 The Special Working Group on the Crime of Aggression produced a discussion paper in 2007, which was used as a basis for the negotiations among states at the resumed Fifth Session.266 The Sixth (which took place in New York from November 30 to December 14, 2007), Seventh (which took place in the Hague from November 14 to 22, 2008) and Eighth Sessions, in part, focused on planning a permanent premises and determining the operating budget of the ICC.267 These Sessions also set the venue for the first Review Conference in Kampala, Uganda and resulted in the election of six ICC judges.268 The Eighth Session, which took place in the Hague from November 18 to 26, 2009, set the first Review Conference for May 31 to June 11, 2010, established the Working Groups of the Assembly of States Parties, included a draft resolution on the Crime of Aggression, and outlined various stocktaking exercises that were to take place at the Review Conference.269 The Ninth Session took place in New York from December 6 to 10, 2010, and resulted 263 Resolution ICC-ASP/3/Res.1 (Adopted 7 September 2004), available at http://www.icc-cpi .int/NR/rdonlyres/EEF8F8E2-6AF9-47F7-859E-1C1AE1359ED3/140543/ICCASP325III_English.pdf (last visited July 19, 2011); http://www.coalitionfortheicc.org/?mod=asp4 (last visited July 20, 2011). 264 Resolution ICC-ASP/4/Res.1 (adopted Dec. 2, 2005) (Code of Professional Conduct for Counsel), available at http://www.icc-cpi.int/NR/rdonlyres/B222AFAC-48C2-4390-BFB1-618CA7821B55/0/ PartIII__Resolutions.pdf; Resolution ICC-ASP/4/Res.3 (adopted Dec. 3, 2005) (Regulations of the Trust Fund For Victims), available at http://www.icc-cpi.int/NR/rdonlyres/B222AFAC-48C2-4390BFB1-618CA7821B55/0/PartIII__Resolutions.pdf. 265 Resolution ICC-ASP/5/Res.3 (Adopted 1 December 2006), available at http://www.icc-cpi .int/iccdocs/asp_docs/library/asp/ICC-ASP-5-32_Part_III_Resolutions_pages_337-384_English.pdf (strengthening the International Criminal Court and Assembly of States Parties). 266 Summary of the Fifth Session of the Assembly of States Parties, available at http://www .coalitionfortheicc.org/?mod=asp5 (last visited Nov. 17, 2011). 267 Resolution ICC-ASP/6/Res.1 (adopted Dec. 14, 2007), available at http://www.icc-cpi.int/NR/ rdonlyres/9A9CD715-1651-4A5E-B0E6-9201EC07EF07/277078/ICCASP620_VolI_Part_III_English.pdf; Resolution ICC-ASP/7/Res.1 (adopted Nov. 21, 2008), available at http://www.icc-cpi.int/iccdocs/ asp_docs/III.pdf; Resolution ICC-ASP/8/Res.1 (adopted Nov. 26, 2009) (oversight mechanism), Resolution ICC-ASP/8/Res.2 (adopted Nov. 26, 2009) (cooperation), ICC-ASP/8/Res.5 (adopted Nov. 26, 2009) (permanent premises), available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/OR/ OR-ASP8-Vol.I-ENG.Part.II.pdf. 268 Resolution ICC-ASP/7/Res.2 (adopted Nov. 21, 2008), available at http://www.icc-cpi.int/ iccdocs/asp_docs/III.pdf; ICC-ASP/7/20/Add.1, available at http://www.icc-cpi.int/iccdocs/asp_ docs/ICC-ASP-7-20-Add.1%20English.pdf. 269 Resolution ICC-ASP/8/Res.6 (adopted Nov. 26, 2009), available at http://www.icc-cpi.int/ iccdocs/asp_docs/ASP8/OR/OR-ASP8-Vol.I-ENG.Part.II.pdf; Resolution ICC-ASP/8/Res.9, ICCASP/8/20/Add.1 (adopted Mar. 25, 2010), available at http://www.icc-cpi.int/iccdocs/asp_docs/ ASP8/OR/OR-ASPR8-ENG.PART.II.pdf.

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in the further development of operational planning for the ICC and the oversight mechanisms to be employed.270 The 10th Session was held in New York City and addressed, among other things, procedural matters, state party cooperation with the court and the permanent premises of the ICC. Section 17. National Implementing Legislation The ICC requires states who have ratified or acceded to the Statute to implement national legislation that enforces the Statutes on a domestic level. This is particularly required by states that follow the “dualist” theory of international law, but it is also required by states following the “monist” theory, because a treaty of that complexity can hardly be deemed to be “self-executing.” As of November 2011, 119 states are parties to the ICC treaty.271 A number of states have ratified the treaty, deferring national implementing legislation to a subsequent stage. The absence of national legislation does not, however, affect the jurisdiction of the ICC, but it may affect a state party’s ability to carry out its domestic obligations pursuant to the provisions of the ICC Statute. Many states request technical legal assistance to implement the ICC treaty. Currently, 65 countries have enacted legislation regarding complementarity, cooperation or both and 35 countries have some advanced draft implementing legislation.272 As of April 2010, the following states have enacted legislation regarding complementarity and cooperation, or have specific provisions in national legislation in this regard: Argentina, Trinidad and Tobago, Uruguay, Bulgaria, Croatia, Denmark, Estonia, Finland, Georgia, Germany, Iceland, Ireland, Latvia, Lithuania, Macedonia, Malta, Montenegro, The Netherlands, Norway, Poland, Romania, Serbia, Slovakia, Slovenia, Spain, United Kingdom, Australia, Japan, New Zealand, Republic of Korea, Samoa, Burkina Faso, Kenya, Senegal, South Africa, and Uganda.273 The following states are in the process of enacting legislation regarding complementarity and cooperation: Barbados, Bolivia, Brazil, Dominica, Ecuador, Honduras, Mexico, Paraguay, Iran, Jordan, Morocco, Greece, Hungary, Luxembourg, Moldova, Mongolia, Benin, Central African Republic, Comoros, Congo (Brazzaville), Democratic Republic of the Congo, Gabon,

270 Resolution ICC-ASP/9/Res.5 (adopted Dec. 10, 2010) (independent oversight mechanism), Resolution ICC-ASP/9/Res.1 (adopted Dec. 10, 2010) (permanent premises), available at http:// www.icc-cpi.int/iccdocs/asp_docs/ASP9/OR/ICC-ASP-9-20-Vol.I-Part.III-ENG.pdf. 271 The States Parties to the Rome Statute, ICC, available at http://www.icc-cpi.int/Menus/ASP/ states+parties/ (last visited November 17, 2011). 272 Implementation of the Rome Statute, Coalition for the International Criminal Court, available at http://www.iccnow.org/?mod=romeimplementation (last visited Nov. 17, 2011). 273 Coalition for the International Criminal Court, Global Advocacy Campaign for the International Criminal Court: Chart on the Status of Ratification and Implementation of the Rome Statute and the Agreement on Privileges and Immunities (APIC) (April 2010).



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Ghana, Nigeria and Sierra Leone.274 The following states either have enacted legislation or specific provisions in national legislation regarding complementarity and are in the process of enacting legislation regarding cooperation: Colombia, Costa Rica, Nicaragua, Panama, the Philippines and Burundi.275 The following states either have enacted legislation or specific provisions in national legislation regarding complementarity but have not enacted legislation regarding cooperation or have not made any substantive progress regarding cooperation: Chile, Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Cyprus, Portugal, Bangladesh, Cambodia, Indonesia, Timor-Leste, Cape Verde, Ethiopia, Mali, Niger and Rwanda.276 The following states either have enacted legislation or specific provisions in national legislation regarding cooperation but are only in the process of enacting legislation regarding complementarity or have not made any substantive progress regarding complementarity: Switzerland, Sweden, Leichtenstein, France, Austria, and Peru.277 Various other countries are in the process of enacting legislation on complementarity or cooperation, but have not made any substantive progress on one of the two. Still other countries have not enacted legislation on either cooperation or complementarity or have not made substantive progress on either. Although not all countries mentioned above have ratified, signed or acceded to the Rome Statute, the fact that the named countries have some form of national legislation on complementarity or cooperation indicates the growing international support for the ICC. Section 18. Summary of the ICC’s Work The ICC is involved in investigation or has initiated proceedings with regard to seven situations in the following countries: Democratic Republic of the Congo, the Central African Republic, Uganda, Sudan (Darfur), the Republic of Kenya, the Libyan Arab Jamhiriya and the Republic of the Cote d’Ivoire.278 The situation in Uganda was referred to the ICC by Uganda on January 29, 2004, the situation in the Democratic Republic of the Congo was referred to the ICC by the Democratic Republic of the Congo on January 7, 2005, and the situation in Darfur, Sudan was referred to the ICC by the U. N. Security Council’s resolution 1593 in 2005.279 The Prosecutor, acting under Article 15 of the Rome Statute, requested permission to initiate investigations into Kenya, which was granted by Pre-Trial Chamber II on 274 Id. 275 Id. 276 Id. 277 Id. 278 All Situations Before the ICC, ICC, available at http://www.icc-cpi.int/Menus/ICC/ Situations+and+Cases/Situations/ (last visited Nov. 17, 2011). 279 Report of the International Criminal Court 2009/2010, 7, U.N. Doc. GA A/65/313 (Aug. 19, 2010).

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March 31, 2010.280 The situation in the Libyan Arab Jamahiriya was referred to the ICC by the U. N. Security Council’s resolution 1970 in 2011.281 The situation in the Republic of the Cote d’Ivoire was referred to the ICC by the Cote d’Ivoire on December 14, 2010, pursuant to the procedure set forth regarding acceptance of the ICC’s jurisdiction by a non-state party.282 Though the defendants in the Uganda situation remain at large, the Appeals Chamber upheld the Pre-Trial Chamber II decision ruling that the case against the situation’s four defendants is admissible before the ICC.283 All of the cases in the Darfur, Sudan situation remain at the pretrial stage.284 Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman remain at large due to the lack of cooperation by the Sudan.285 Two arrest warrants have been issued for Omar Hassan Ahmad Al Bashir, the President of the Sudan, in connection with the situation in Darfur, but he remains at large.286 Pre-Trial Chamber I declined to confirm the charges against Abu Garda in connection with the situation in Darfur, Sudan, but the Prosecutor may submit additional evidence in the future in connection with a subsequent confirmation proceeding.287 The charges against Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus were confirmed by Pre-Trial Chamber I on March 7, 2011.288 There is one ongoing case in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba Gombo, which is at the trial stage.289 There are three ongoing cases in the situation of the Democratic Republic of the Congo; one in the pretrial stage, with the arrest warrant for Bosco Ntaganda remaining outstanding and the named defendant remaining at large, and two in the trial stage.290 The Trial Chamber issued its first verdict on March 14, 2012 in the case of The Prosecutor v. Thomas Lubanga Dyilo, finding Lubanga guilty of War Crimes for enlisting and conscripting child soldiers and sentenced him to 14 years imprisonment in June.291 Arrest warrants have been issued for Muammar Gaddafi, Saif Al-Islam 280 Id. at 8. 281 S/Res/1970 (Feb. 26, 2011). 282 Letter to the ICC President from Alassane Ouattara, NR 0039-PR-du 14/12/2010, available at http://www.icc-cpi.int/NR/rdonlyres/498E8FEB-7A72-4005-A209-C14BA374804F/0/ReconCPI.pdf. 283 Report of the International Criminal Court 2009/2010, 8, U.N. Doc. GA A/65/313 (Aug. 19, 2010). 284 Id. at 3. 285 Id. at 11. 286 Id. at 12. 287 Id. 288 Order to the Registrar to transmit the decision on confirmation of charges and the record of the proceedings to the Presidency, ICC-02/05-03/09 (Mar. 15, 2011), available at http://www.icc-cpi .int/iccdocs/doc/doc1039457.pdf. 289 Report of the International Criminal Court, supra note 279, at 3. 290 Id. 291  Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (Case No. ICC-01/04-01/06), Judgment pursuant to Article 74 of the Statute (March 14, 2012). ICC Press Release, Thomas Lubanga Dyilo sentenced to 14 years of imprisonment (July 10, 2012), available at: http://www.icc-cpi.int/NR/exeres/3EABAD63-FC6B-448A-9614-5BA2AECF10CF.htm.



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Gaddafi and Abdullah Al-Senussi in regards to the situation in the Libyan Arab Jamahiriya.292 On October 20, 2011, Gaddafi was killed in a fight with revolutionary fighters; at present Saif Al-Islam Gaddafi is in custody in Liby and Al-Senussi in custody in Mauritania.293 The prosecution has conducted extensive investigation into the cases before it. From August 1, 2009 to June 30, 2010, the prosecution conducted twenty-two missions to six countries to respond to claims made by the defense in the two cases at trial involving the Democratic Republic of the Congo.294 During the same period, the Office of the Prosecutor conducted forty-two missions in eleven countries for its third investigation focusing on the Kivu provinces.295 The Office of the Prosecutor conducted five missions to four countries in relation to the situation in Uganda involving ongoing alleged killings and abductions.296 The Office of the Prosecutor conducted twenty-two missions to four countries related to the situation in the Central African Republic, and twenty-five missions in eleven countries related to the situation in Darfur, Sudan.297 After requesting authorization from the Pre-Trial Chamber II to open investigations into the situation in Kenya, and conducted twenty-seven missions to eleven countries with regard to the situation in Kenya after receiving authorization on March 31, 2010.298 The Office of the Prosecutor continued monitoring all information received regarding crimes potentially within its jurisdiction. Through the end of 2011, the Office of the Prosecutor received 9,332 communications related to Article 15 of the Rome Statute,299 and, initiated preliminary investigations into Afghanistan, Colombia, Cote d’Ivoire, Georgia and Palestine, as well as made public its preliminary examination in Guinea.300 At present the Office of the Prosecutor is conducting preliminary examinations in Afghanistan, Honduras, South Korea, Nigeria and Ivory Coast for subject matter jurisdiction; and Colombia, Georgia and Guinea to ensure complementarity.301 The ICC continues to cooperate with

292 See generally Situation in Libya, ICC, http://www.icc-cpi.int/menus/icc/situations%20 and%20cases/situations/icc0111/ (last visited Nov. 17, 2011). 293 Muammar Gaddafi Killed in Libya, BBC News, Oct. 20, 2011, http://www.bbc.co.uk/news/ world-africa-15389550. 294 Report of the International Criminal Court, supra note 279, at 13. 295 Id. at 14. 296 Id. 297 Id. at 15. 298 Id. 299 The Office of the Prosecutor, Report on Preliminary Examination activities, 13 December 2011, available at: http://www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-F310A4F3AEC2/ 284116/OTPReportonPreliminaryExaminations13December2011.pdf.  300 Id. at 16–18. 301 The Office of the Prosecutor, Report on Preliminary Examination activities, 13 December 2011, available at: http://www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-F310A4F3AEC2/ 284116/OTPReportonPreliminaryExaminations13December2011.pdf.

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the United Nations, states, other international organizations and civil society to accomplish its mandate.302 The Palestinian National Authority attempted to invoke the jurisdiction of the court in January 2009 when it lodged a letter with the court under Article 12(3) of the Rome Statute, which permits a non-State party to accept jurisdiction. This raised the question of whether Palestine is a State for the purposes of Article 12(3), and the OTP proceeded to analyze this question as a “precondition[s] for jurisdiction” prior to considering the merits of alleged violations within the jurisdiction of the court. On 3 April 2012 the OTP released a two page “Update on Situation in Palestine”, in which it closed its preliminary examination into alleged crimes in Gaza in 2008–2009 on the basis that Palestine is not a state for the purposes of Article 12(3).303 In support of this conclusion, the OTP argued that, “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1).” The OTP indicated that within the UN system in situations where a State’s status is “controversial or unclear” the matter is to be resolved by the Secretary General on the direction of the General Assembly. Accordingly, the OTD determined that it lacked the competence to determine this matter. It is unclear why it took three years for the OTP to make this determination, but surely political considerations had something to do with it. The existence of a Palestinian state is surely “controversial or unclear” as the OTP stated. But that does not extend to the unquestionable existence of a Palestinian Nation and a Palestinian People. Article 12(3) however, refers to a “State” and therefore the conclusion of the OTP is legally correct. By inviting the submission of “amicus briefs” on the question and publishing an analysis in May 2010, the OTP implicitly acknowledged its competence to make a determination of the status of Palestine vis-à-vis the Rome Statute and ICC.304 By April 2012, however, the OTP explicitly stated that it lacks such competence, which begs the question of why it took three years to make a determination which the OTP now finds to be self-evident. The OTP makes no finding concerning whether Palestine is or is not a State, but rather that the OTP lacks the fundamental competence to make such a determination in the first place. 302 Id. at 18–20. 303 Office of the Prosecutor, Update on Situation in Palestine (3 April 2012), available at: http:// www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf  304 The OTP published more than 500 pages of Amicus briefs in May 2010, not including the submission by the Palestinian Authority.



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From January 1 to March 31, 2011, the ICC held sixty-five hearings for a total of 217 hours and issued 357 orders, decisions or judgments; in 2010, the ICC held 265 hearings for a total of 794 hours and issued 1,059 orders, decisions or judgments.305 Durign trials and case hearings, sixty witnesses appeared before the Court in 2010 and eighteen witnesses appeared in the first three months of 2011.306 Since investigations began, 4,773 victims applied to participate in proceedings pertaining to the various situations, 2,317 of whom were authorized to participate in the proceedings.307 As of January 1, 2011, the ICC functions with the aid of 402 external List Counsel attorneys from forty-nine countries, 103 assistants to counsel, and twenty-eight investigators.308 The ICC has engaged in extensive outreach, including issuing press releases and advisory material; creating meetings, workshops and seminars; producing radio and television programs; and providing field operations support in Uganda, the Central African Republic and the Democratic Republic of the Congo.309 Section 19. Conclusion As of May 2012, the ICC Prosecutor’s office has decided to open investigations into seven situations, namely: The Democratic Republic of Congo, Uganda, the Central African Republic, Darfur, Sudan, the Republic of Kenya, Libya and Côte d’Ivoire. The investigations in Kenya and Côte d’Ivoire were initiated by the Office of the Prosecutor; in Congo, Uganda and the Central African Republic the referral was made by the respective states; and in Darfur, Sudan and Libya the referral was made by the Security Council. With the commencement of the case against Thomas Lubanga Dyilo, the reality of a functioning International Criminal Court, which had been anticipated since the end of World War I, finally came into fruition, and his conviction and sentencing only cemented that reality. No longer is the international community forced to rely on ad hoc tribunals for justice against international crimes. The consistent application of the established norms found in the Rome Statute will aid in avoiding the pitfalls of ad hoc justice, at it has been applied over the course of the last century. The impartial, fair, and effective administration of justice as practiced in the ICC is sure to further the goals of international criminal justice. Thanks to the establishment of the ICC, accountability and justice are no longer bargained-for political compromises. 305 Registry Facts and Figures as of March 31, 2011, available at http://www.icc-cpi.int/NR/ rdonlyres/9B984A20-08A9-4127-87F9-2FDF7A4F0E53/283201/RegistryFactsandFiguresEN2.pdf. 306 Id. 307 Id. 308 Id. 309 Id.

Chapter Eight

Mixed Models of International Criminal Justice Section 1. Introduction The Security Council’s establishment of the Commission of Experts to Investigate Violations of International Humanitarian Law in the former Yugoslavia in October 19921 broke the silence of the international community on major issues of international criminal justice (ICJ) that began after the completion of the postWorld War II prosecutions. In the short period of time between 1993 and 1994, the Security Council established both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). ICJ was now not only recognized, but officially sanctioned by the Security Council. Some officials in governments and international civil society saw these developments as a sign that the international community was finally moving toward a permanent system of ICJ, whose pillar would be the International Criminal Court (ICC).2 Others, however, were hoping to continue the practice of ad hoc institutions, either as a way of supplementing the work of the ICC, or as a way for the Security Council to maintain control of ICJ.3 The United Nations, in particular the Security Council, has been confronted with several choices in addressing post-conflict justice (PCJ) issues, especially with respect to a number of conflicts that caused a high level of victimization.4 This includes considerations on which PCJ modalities to use and how.5 For a 1 See Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780, U.N. Doc. S/1994/674 (May 27, 1994); Annexes to U.N. Final Report, U.N. Doc. S/1994/674/ Add.2 (Dec. 28, 1994); see also M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of the International Criminal Tribunal for the Former Yugoslavia (1996) [hereinafter law of the icty]; M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigation of Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279 (1994); M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L. 784–805 (1994) (translated into French and reprinted with modifications in 66 Revue Internationale de Droit Penal 1–2 (1995)); M. Cherif Bassiouni, Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 25 Security Dialogue 409 (1994) [hereinafter Establishing the ICTY ]. 2 See M. Cherif Bassiouni, The Making of the International Criminal Court, in 3 International Criminal Law 117 (M. Cherif Bassiouni ed., 3d ed. 2008) [hereinafter 3 Bassiouni, ICL]. 3 Which is another manifestation of complementarity. Id. 4 See, e.g., Post-Conflict Justice (M. Cherif Bassiouni ed., 2002). 5 See International Human Rights Law Institute, The Chicago Principles on PostConflict Justice (2008).

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variety of reasons, the Security Council has been selective in addressing only a certain number of PCJ situations. Chief among the Security Council’s concerns is that it did not want to become the UN body entrusted with PCJ. This concern derived from the fact that the Security Council sees itself as a collective security body and that function does not seem, at least so far, to include PCJ. The other two reasons arose from the Security Council’s experience with the two tribunals it did establish, namely the ICTY and ICTR. The first of these is the unexpected high costs of these tribunals, and the second is the amount of time the Council has to devote to their administration. All of these reasons led the Council to consider other options, such as the mixed-model tribunals discussed herein. The Security Council’s selectivity of which PCJ situations to address has also been marked by its inconsistent approach to these situations. Admittedly, each conflict is sui generis, but the ad hoc approach taken by the Council has reflected political expediency and a lack of planning that is completely heterogeneous. For example, while the Security Council addressed PCJ issues in Sierra Leone,6 it only dealt with the restoration of peace with respect to Liberia.7 In Cambodia, the Security Council addressed the issue of restoration of peace and established a tribunal to attempt to address some accountability issues arising out of that conflict.8 In the conflict in Kosovo, however, the Security Council addressed both peacekeeping and PCJ issues, as it did in Timor-Leste.9 By addressing a

6 See David Crane, The Special Court for Sierra Leone, in 3 Bassiouni, ICL, supra note 2, at 195; David Cohen, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future, 43 Stan. J. Int’l L. 1 (2007); Vincent O. Nmehielle & Charles Chernor Jalloh, The Legacy of the Special Court for Sierra Leone, 30 Fletcher F. World Aff. 107 (2006); Jennifer L. Poole, Post-Conflict Justice in Sierra Leone, in Post-Conflict Justice, supra note 4, at 563; Neil J. Kritz, Progress and Humility: The Ongoing Search for Post-Conflict Justice, in Post-Conflict Justice, supra note 4, at 55. 7 See Rebuilding Liberia: Prospects and Perils, Africa Report No. 75 (International Crisis Group, Jan. 30, 2004) (observing that following the establishment of the United Nations Mission in Liberia that the state Liberia is a “collapsed state that has become in effect a UN protectorate”); Liberia and Sierra Leone: Rebuilding Failed States, Africa Report No. 87 (International Crisis Group, Dec. 8, 2004); Kathleen M. Jennings, The Struggle to Satisfy: DDR Through the Eyes of Ex-Combatants in Libers, 14 Int’l Peacekeeping 204 (April 2007). 8 See David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 Bassiouni, ICL, supra note 2, at 219; Suzannah Linton, Putting Cambodia’s Extraordinary Chambers into Context, 11 Singapore Y.B. Int’l Law 195 (2007); Steven R. Ratner, Accountability for the Khmer Rouge: A (Lack of ) Progress Report, in Post-Conflict Justice, supra note 4, at 613; Aaron J. Buckley, The Conflict in Cambodia and Post-Conflict Justice, in Post-Conflict Justice, supra note 4, at 637; Kritz, supra note 6, at 55. 9 See Suzannah Linton, Indonesia and Accountability for Serious Crimes in East Timor, in 3 Bassiouni, ICL, supra note 2, at 399; David Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (2006); Michael J. Matheson, United Nations Governance of Post-Conflict Societies: East Timor and Kosovo, in PostConflict Justice, supra note 4, at 523; Kosovo and the Challenge of Humanitarian Intervention (Albrecht Schnabel & Ramesh Thakur eds., 2000).



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very specific attack within the context of an essentially internal conflict, the Security Council used PCJ as a political instrument to address an internal situation in Lebanon. It has not, however, addressed many other conflicts. However, “mixed” systems of law are pervasive in national jurisdictions and therefore may not seem inherently unusual to those countries in which mixed tribunals have appeared.10 This inconsistent approach can only be explained from a political perspective. It is this very perspective that also explains the lack of consistency in applying PCJ mechanisms established by the UN in connection with conflicts arising from 1948 to 2011. For example, in the case of Cambodia, while initial efforts to develop a national tribunal with international participants were frustrated for many years and delayed by difficult negotiations between the UN and the Cambodian government,11 these issues have largely been settled and selective prosecutions of five persons began nearly four years after the formal establishment of the tribunal.12 In the case of Sierra Leone, in spite of an initial peace accord providing the perpetrators of atrocities and crimes committed during the civil war with amnesty,13 the UN insisted on some prosecutions through a national justice mechanism with international participation, adding to it a truth and reconciliation commission also of mixed composition.14 In Timor-Leste, the UN Transitional Administration established hybrid “special panels for serious crimes” situated within the local justice system, as well as a “serious crimes investigation unit” to prosecute persons charged with genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture.15 In Kosovo, the UN, which

10 Vernon Valentine Palmer, Mixed Legal Systems . . . and the Myth of Pure Laws, 67 La. L. Rev. 1205, 1207 (2007). 11 See Craig Etcheson, A “Fair and Public Trial”: A Political History of the Extraordinary Chambers, in Just. Initiative, 7 (Open Society Justice Initiative, 2006) (recounting tortured history of negotiations with the Cambodian government); see also Daryl A. Mundis, New Mechanisms for the Enforcement of International Humanitarian Law, 95 Am. J. Int’l L. 934 (2001); Jaya Ramji, Reclaiming Cambodian History: The Case for a Truth Commission, 24 Fletcher F. World Aff. 137 (2000); David Stoelting, Enforcement of International Criminal Law, 34 Int’l Law 669 (2000). 12 Excerpts from Remarks to the Ninth Meeting of the Friends of the ECCC by Sean Visoth, Director of the Office of Administration (Nov. 30, 2007), available at http://www.eccc.gov.kh/en/ articles/ninth-meeting-friends-eccc [hereinafter Excerpts]. 13 Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL), U.N. Doc. S/1999/777 (July 7, 1999) [hereinafter Lomé Agreement]. 14 See supra note 5; see also Diane Marie Amann, Message as Medium in Sierra Leone, 7 ILSA J. Int’l & Comp. L. 237 (2001); Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 Crim. L.F. 185 (2001); The Legacy of Abuse: Confronting the Past, Facing the Future (Alice H. Henkin ed., 2002); Crane, supra note 6. 15 The Serious Crimes Panel is the first court to apply substantive provisions of the Rome Statute of the ICC. The Judicial System Monitoring Programme provides an extensive source of information on Timor-Leste (available at http://www.jsmp.minihub.org (last visited Nov. 17, 2011)). See

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placed the region under its administration, activated a domestic judicial system (with the option of a hybrid panel if approved by the Special Representative of the Secretary-General), supported by UN personnel and resources to administer civil and criminal justice.16 This approach led to the detachment of Kosovo from Serbia, the successor state of the former Republic of Yugoslavia, and ultimately to its declaration of independence in February 2008. With respect to Afghanistan, the Bonn Agreement in December 2001 provided for a justice component, but no PCJ mechanism has been established in that country in connection with the crimes committed during that country’s civil war from 1989 to 2001. The UN Commission on Human Rights appointed an Independent Expert on Human Rights in Afghanistan in 2004, who submitted two reports to the General Assembly and to the Commission, respectively in 2004 and 2005,17 but the Independent Expert’s mandate was not renewed, and no PCJ mechanism was established.18 Modest steps have been made towards establishing a mixed tribunal to “prosecute those bearing the greatest responsibility for genocide, crimes against humanity and war crimes” committed since the independence of Burundi in 1962, but its prospects are dim.19 Although endorsed by the UN in 2005, the tribunal, to be established in connection with a truth commission, has made little headway until after the UN Operations withdrew in 2006/2007. Momentum since then has Kai Ambos & Steffen Wirth, The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000, 13 Crim. L.F. 1 (2002). 16 See Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor, 95 Am. J. Int’l L. 46 (2001); Michael Steiner, For Example Kosovo: Seven Principles for Building Peace, Address at the London School of Economics (Jan. 27, 2003), available at http://eprints.lse.ac.uk/23456/; Finding the Balance: The Scales of Justice in Kosovo, Europe Report No. 134 (International Crisis Group, Sept. 12, 2002); Kosovo: Contending Voices on Balkan Interventions (William Joseph Buckley ed., 2000); Wesley K. Clark, Waging Modern War (2001); Kosovo and the Challenge of Humanitarian Intervention, supra note 9. 17 Report of the Independent Expert on Human Rights in Afghanistan, M. Cherif Bassiouni, to the General Assembly, U.N. Doc. A/59/370 (Sept. 21, 2004); Report of the Independent Expert on Human Rights in Afghanistan, M. Cherif Bassiouni, to the Commission on Human Rights, U.N. Doc. E/CN.4/2005/122 (Mar. 11, 2005). 18 See Afghanistan: Judicial Reform and Transitional Justice, Asia Report No. 45 (International Crisis Group, Jan. 28, 2003); see also Neil Kritz, Reluctant Nation Building: Securing the Rule of Law in Post-Taliban Afghanistan: Questions, Answers & Comments, 17 Conn. J. Int’l L. 261 (2002); M. Cherif Bassiouni & Daniel Rothenberg, An Assessment of Justice Sector and Rule of Law Reform in Afghanistan and the Need for a Comprehensive Plan (Istituto Superiore Internazionale di Scienze Criminali, Siracusa, Italy, 2005), available at http://www.law.depaul.edu/centers_institutes/ihrli/ pdf/rome_conference.pdf. 19 S.C. Res. 1606, U.N. Doc. S/RES/1606 (June 20, 2005). As part of the Arusha Accords in 2000, the parties requested a UN conducted investigation into crimes committed in Burundi. Since 1962, control of Burundi has passed from one military dictator to another. The assassination of nine leaders and the 1972 massacre of 100,000 Hutu and moderate Tutsi were the worst violence the country saw until the 1993 assassination of the Hutu President Melchior Ndadaye. This assassination sparked violence, and over the following years 50,000 to 100,000 people died as a result.



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dissipated.20 Although the Burundi President set the truth commissions for 2012 and 2013, whether the criminal tribunal will ever become a reality remains to be seen, as to date it still remains theoretical.21 The case of Israel’s conduct in its incursions into Lebanon in 2006 and Gaza in 2008–2009, not withstanding the harm it produced, is not likely to get the attention of the Security Council.22 As in most conflict situations, political considerations will likely prevail over justice considerations.23 The following is a brief description of these UN-initiated efforts at PCJ in selected conflicts since the establishment of the ICTY and ICTR. They are: the Kosovo War and Ethnic Crimes Court,24 the War Crimes Chamber in Bosnia and Herzegovina,25 the Special Court for Sierra Leone,26 the Special Panel for

20 Coinciding with the most recent cease-fire agreement, the UN and the Government of Burundi established a Steering Committee to determine the composition of the impending special tribunal and truth commission. The area of most contention is the independence of the prosecutor. The UN feels that the internationally supervised tribunal’s prosecutor should have complete independence from the truth commission, whereas, the Government of Burundi feels that the prosecutor should be limited to only those cases referred to it by the truth commission. Additionally, parties within the Government of Burundi differ on the international-domestic composition of the judiciary for the tribunal and the role immunity will play in the tribunal. See Differences on the Composition of a Special Tribunal for Burundi, Hirondelle News Agency (Arusha), Nov. 26, 2007. Recently, The Office of the Prosecutor General in Rwanda has made implied that Burundian nationals may face genocide charges in Rwandan courts. Felly Kimenyi, Talks to Try Burundian Genocide Suspects Begin, The New Times, Apr. 18, 2008. 21 International Justice Desk, Negotiations for Reconciliation Commission & Special Tribunal to Resume in Burundi, Radio Netherlands Worldwide (June 20, 2011), available at http://www.rnw .nl/international-justice/article/negotiations-reconciliation-commission-special-tribunal-resumeburundi. For a general description of the conflict in Burundi and various post conflict mechanisms that were or were not used, see Romana Schweiger, Late Justice for Burundi, 55 Int’l & Comp. L.Q. 6531 (2006). 22 See Report of the United Nations Fact Finding Mission on the Gaza Conflict, United Nations Human Rights Council, A/HRC/12/48 (Sept. 15, 2009) (otherwise known as the Goldstone Report). 23 See M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000); M. Cherif Bassiouni, The Perennial Conflict between International Criminal Justice and Realpolitik, 22 Ga. St. U.L. Rev. 541 (2006). 24 UNMIK Regulation 1999/1, on the Authority of the Interim Administration in Kosovo (July 25, 1999). Security Council Resolution 1244 (1999) of June 10, 1999 authorized the Secretary-General to establish the United Nations Interim Administration in Kosovo (UNMIK). 25 See S.C. Res 808, U.N. Doc. S/RES/808 (Feb. 22, 1993) (establishing the ICTY). Letter from Fausto Pocar, President of 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 1991 to the President of the Security Council, U.N. Doc. S/2006/898 (Nov. 16, 2006) (formal endorsement from the War Crimes Chamber in BiH). The Court is subject to the 1977 Criminal Code of the Socialist Federal Republic of Yugoslavia rather than the new criminal and procedural codes of BiH. The court also applies the European Charter on Human Rights, ratified by BiH in 2002. 26 Security Council Resolution, U.N. Doc. S/RES/1270 (Oct. 22, 1999). Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, available at http://www.sc-sl.org/Documents/scsl-agreement.html. The Statute was endorsed through S.C. Res. 1400, U.N. Doc. S/RES/1400, ¶ 9 (Mar. 28, 2002).

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Serious Crimes in Timor Leste,27 the Extraordinary Chambers in the Courts of Cambodia,28 and the Special Tribunal for Lebanon.29 Section 2. Kosovo The 1999 conflict in Kosovo was the first to involve the North Atlantic Treaty Organization (NATO). On March 24, 1999, NATO began a bombing campaign in Yugoslavia and Operation Allied Force was underway.30 In seventy-eight days, with exclusive reliance on air power, NATO forces significantly damaged Serbia’s military forces and infrastructure; NATO forces suffered virtually no damage.31 On June 10, 1999, the conflict was over, and the UN Security Council placed Kosovo under international civil administration and military protection.32 This marked the end of a humanitarian tragedy, during which allegedly an estimated 10,000 Kosovar Albanians were killed. Tens of thousands more were subjected to 27 S.C. Res. 1272, 54 U.N. SCOR (4057th mtg), U.N. Doc. S/RES/1272 (1999), 39 I.L.M. 240 (2000). Regulation 2000/11 on the Organization of Courts in East Timor, UNTAET/REG/2000/11 (entered into force March 6, 2000) as amended by Regulation 2000/14 UNTAET/REG/2000/11 (entered into force May 10, 2000). 28 Draft Agreement Between UN, Cambodia on Khmer Rouge Trials, G.A. Res. 10135, U.N. Doc. GA/RES/10135 (May 13, 2003). Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, NS/RKM/1004/006 (with inclusion of amendments as promulgated on Oct. 27, 2004). 29 The Secretary-General, Report of the Secretary-General on the establishment of a special tribunal for Lebanon, U.N. Doc. S/2006/893 (Nov. 15, 2006); Security Council Resolution, Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, U.N. Doc. S/RES/1757 (May 30, 2007). 30 NATO later argued it was relying on S.C. Resolutions 1199 and 1203, which both speak of “impending humanitarian catastrophe” and assert that the situation in Kosovo “constitutes a threat to peace and security in the region.” The Security Council adopted resolutions (1160, 1199, and 1203) in 1998 that legally bound the Federal Republic of Yugoslavia to cease all action by its security forces affecting the civilian population of Kosovo, to withdraw all security units used for civilian repression, and to implement, in full, all agreements with NATO and the OSCE. These resolutions, analyzed together with statements following the Racak massacre in January 1999, show that Milosevic’s government in Belgrade had created a humanitarian emergency in Kosovo that constituted a threat to peace and security in the Balkans. See Kosovo and the Challenge of Humanitarian Intervention, supra note 9, at 417; Kosovo: Contending Voices on Balkan Interventions, supra note 16. 31 General Wesley K. Clark, the former Supreme Allied Commander, Europe, stated that Allied Command Europe’s mission was to halt, disrupt, and ultimately reverse a systematic campaign of ethnic cleansing. See Kosovo and the Challenge of Humanitarian Intervention, supra note 9, at 261. 32 Security Council Resolution 1244 (1999) of June 10, 1999 authorized the Secretary-General to establish the United Nations Interim Administration in Kosovo (UNMIK). As of December 2010, the UNMIK has a strength of:146 international staff; twenty-eight Untied National Volunteers; 236 local staff; 1,637 international civilians; 1,187 local civilians; eight military observers; eight police observers; and an approved budget for 2011 of $45 million. Peacekeeping Factsheet, United Nations Peacekeeping (July 31, 2011), available at http://www.un.org/en/peacekeeping/resources/statistics/ factsheet.shtml (last visited Nov. 17, 2011).



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arbitrary arrest, torture, and rape. Out of a total population of approximately 1.7 million persons, more than 800,000 Kosovars were expelled as part of an ethnic cleansing campaign, and as many as 500,000 more were internally displaced within Kosovo.33 Security Council Resolution 1244 (1999) established “international, civil and security presences” in Kosovo by creating the United Nations Interim Administration Mission in Kosovo (UNMIK).34 UNMIK, similar to UNTAET in Timor-Leste,35 was empowered to exercise all legislative, executive and judicial authority in Kosovo.36 When UNMIK began operations in Pristina, it found that the previous law enforcement and judicial structure had collapsed.37 Essentially, the mission in Kosovo was a nation-building mission. Following Serbia’s revocation of Kosovo’s autonomy in 1989, ethnic Albanians were for the most part excluded from serving in the justice system, the sole exception being those employed as advocates.38 The Serbian government-sanctioned discrimination had crystallized a profound public distrust for the judicial system. Kosovo was left with a handful of experienced legal professionals and a general climate of hostility towards the judicial system. The Special Representative of the Secretary-General in Kosovo, under the mandate of Resolution 1244, sought to establish an inclusive, multiethnic administration.39 In addition to administrative authority, the Special Representative was granted the executive and legislative power to run the territory.40 In particular, this was the first time that a UN official had full legal authority to establish and run a government.

33 After the conclusion of the NATO bombardment, the withdrawal of Yugoslav forces, and the installation of UNMIK, there was a mass return of Kosovar refugees at a scale and speed that is historically unprecedented. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/1999/779, para. 8 (July 12, 1999). See Human Rights Watch, Under Orders: War Crimes in Kosovo (2001). 34 S.C. Res. 1244, U.N. SCOR, 54th Sess. 4011th mtg., U.N. Doc. S/RES/1244, para. 5 (1999), reprinted in 38 I.L.M. 1451 (1999). For further analysis, see Strohmeyer, supra note 16; Finding the Balance, supra note 16. 35 See Linton, supra note 9. 36 UNMIK Regulation 1999/1, On the Authority of the Interim Administration in Kosovo (July 25, 1999). 37 Both law enforcement and the judiciary lacked the physical infrastructure (buildings, libraries, equipment, etc.) to function. Moreover, what little justice system did exist failed to function independently or effectively. See Wendy S. Betts, Scott N. Carlson & Gregory Grisvold, The PostConflict Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int’l L. 371 (2001). 38 The university did not allow Albanian students to attend law school in their own language. The bar examination site in Pristina was closed, and Albanians were required to travel to Belgrade to take the exam. Thus, the justice system in Kosovo had 756 judges and prosecutors, and only thirty of them were Albanian. See Strohmeyer, supra note 16, at 49–50. 39 The SRSG, under the Constitutional Framework, was given all authority over the justice sector, with the exception of the administration of the courts. 40 Frederick M. Lorenz, Civil-Military Cooperation in Restoring the Rule of Law: Case Studies from Mogadishu to Mitrovica, in Post-Conflict Justice, supra note 4, at 840.

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On June 28, 1999, the Special Representative promulgated UNMIK Emergency Decree No. 1999/1. This decree established an Emergency Judicial System to conduct pretrial hearings of detained defendants that were arrested by the NATO-led Kosovo Force. The Joint Advisory Judicial Council on Provisional Judicial Appointments,41 later succeeded by the Advisory Judicial Commission,42 was set up two weeks after the arrival of the first UNMIK staff members. It recommended jurists to the Special Representative of the Secretary-General, and through this procedure, nine judges and prosecutors (five Albanians, three Serbs, and one ethnic Turk) were appointed to serve as a mobile justice unit, hearing cases throughout the five districts of Kosovo.43 As a former province of the former Yugoslavia, Kosovo needed a legislative basis for establishing an independent and effective judiciary.44 Nevertheless, UNMIK Regulation No. 1999/24 provided that the law in effect in Kosovo prior to March 22, 1989, would serve as the applicable law for the duration of the UN administration.45 In addition, to counter the perceived and actual bias of the judiciary and the inexperience of judicial officials, a series of regulations were passed dealing with: legal institutions, including the judiciary and prosecution services; the appointment of international judges and prosecutors; the law applicable to Kosovo; procedural and 41 The Advisory Judicial Council included seven lawyers, two Kosovar Albanians, one Bosniak (Muslim Slav), one Serb, all with expertise in the administration of justice in Kosovo, and three internationals from different international organizations. 42 See UNMIK Regulation 1999/7 (Sept. 7, 1999). According to § 2.1, the composition of the commission was changed to eight local and three international lawyers, of different ethnicity and reflecting varied legal expertise. 43 See Finding the Balance, supra note 16, at 4. However, these early appointments were contentious as some of the members of the unit were accused of collaborating with the old regime. Id. 44 On February 17, 2008, Kosovo’s parliament endorsed a declaration of independence from Serbia. Both the Prime Minister and the parliament confirmed that the new state would be established in accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement; Hashim Thaçi, Prime Minister of Kosovo, Independence Day Speech (Feb. 17, 2008). See Kosovo: No Good Alternatives to the Ahtisaari Plan, Europe Report No. 182 (International Crisis Group, May 14, 2007). For further background on the broader issues, see also Kosovo Final Status: Options and Cross-Border Requirements, Special Report 91 (United States Institute of Peace, July 2002) (encouraging the commencement of negotiations and discussion about Kosovo’s final status as well as addressing cross-border arrangements); Kosovo’s First Month, Europe Briefing No. 47 (International Crisis Group, March 18, 2008) (regarding the implementation of the Ahtisaari plan, the role of the UN, NATO and the EU, and the international response to Kosovo’s independence). 45 According to § 1.1, UNMIK Regulation No. 1999/24 (Dec. 12, 1999), “[t]he law applicable in Kosovo shall be: a) The regulations promulgated by the Special Representative of the SecretaryGeneral and subsidiary instruments issued thereunder; and b) The law in force in Kosovo on 22 March 1989.” According to section 3, “[t]he present regulation shall be deemed to have entered into force as of 10 June 1999.” Initially, UNMIK, with little local consultation, agreed upon a Regulation setting the date of March 24, 1999, when Kosovo was under Slobodan Milosevic rule, as the applicable law. This decision was met with condemnation by Kosovar Albanians including judges who refused to apply the law. This led to the adoption of UNMIK Regulation No. 1999/24. See Laura A. Dickinson, The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059, 1063 (2003).



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sentencing matters; and the creation of new criminal offenses.46 Moreover, new criminal codes were added to substantively expand Kosovo law, making it more efficient and up to date with international norms.47 UNMIK also established a Technical Advisory Commission on Judiciary and Prosecution Service by Regulation No. 1999/6. This Commission, in its final report to the Special Representative of the Secretary-General, urged the establishment of a special court, to be known as the Kosovo War and Ethnic Crimes Court (KWECC), to hear cases involving breaches of international humanitarian law or ethnically related crimes.48 The KWECC would have functioned as an intermediary between local courts and the ICTY, which by virtue of Security Council Resolution 827 (1993)49 would have given the tribunal jurisdiction over all territories that were once part of the former Yugoslavia.50 But due to political conflicts, the project was officially abandoned on September 11, 2000.51 This left the domestic courts in Kosovo to hear those cases that would have been brought before the proposed special court, pursuant to the applicable UNMIK regulations. Thus, two bodies were given responsibility for the investigation and prosecution of war crimes in Kosovo: the ICTY52 and UNMIK (including both the Department of Justice and the UNMIK police). 46 See UNMIK Regulations 1999/1, 1999/2 (Aug. 12, 1999); 1999/5 On the Establishment of an Ad Hoc Court of Final Appeal and an Ad Hoc Office of the Public Prosecutor (Sept. 4, 1999); 1999/6 On Recommendations for Structure and Administration of the Judiciary and Prosecution Service (Sept. 7, 1999); 1999/7 (Sept. 7, 1999) (replacing UNMIK Emergency Decree 1999/1); 2000/6 On the Appointment and Removal from Office of International Judges and International Prosecutors (Feb. 15, 1999); 2000/15, On the Establishment of the Administrative Department of Justice (June 6, 1999). 47 See Jean-Christian Cady & Nicholad Booth, Internationalized Courts in Kosovo: An UNMIK Perspective, in Internationalized Criminal Courts and Tribunals: Sierre Leone, East Timor, Kosovo and Cambodia 59, 70 (Cesare P.R. Romana et al. eds., 2004) (adding new sexual offences and international crimes). 48 See Organization for Security and Co-operation in Europe (OSCE), Department of Human Rights and Rule of Law Legal Systems Monitoring Section of UNMIK Pillar III, Review of the Criminal Justice System, February 1, 2000 to July 31, 2000 71 (2000); Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/2000/538, para. 60 (2000); Advisory Committee on the Administrative and Budgetary Questions, Financing of the United Nations Interim Administration Mission in Kosovo, U.N. Doc. A/55/624, paras. 32–33 (2000). 49 S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993). 50 See Bassiouni, Law of the ICTY, supra note 1; The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigation of Violations of International Humanitarian Law in the Former Yugoslavia, supra note 1, at 279–340; Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), supra note 1, at 784–805; Establishing an ICTY, supra note 1, at 409. 51 UNMIK had budgetary concerns because the KWECC was viewed as being a smaller version of the ICTY and would have had many international salaries and high start-up with administrative costs. Also, the KWECC was seen as redundant because, beginning in February 2000, international judges and attorneys were incorporated into the judicial system. 52 To date, while ICTY has focused primarily on the crimes and atrocities committed in connection with the disintegration of Yugoslavia in the early to mid 1990s, the Tribunal has also prosecuted crimes committed during the war in Kosovo. The first such indictment was made public in

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In December 2000, UNMIK responded to the initial ineffectiveness of the international judges by adopting a hybrid approach within Kosovo’s criminal justice system. Accordingly, any party to a prosecution, at any stage in the proceedings, may petition the newly created Department of Justice for appointment of an international prosecutor or investigating judge or assignment of the case to a special panel of judges. The Special Representative of the Secretary-General in Kosovo, the supreme civilian authority in the territory, makes the final decision as to whether or not the case warrants such special treatment after a recommendation by the Department of Justice. The special panel would consist of one local and two international judges, with one of the international judges designated as presiding judge for the case.53 While the appointment of a number of unqualified international judges proved problematic during the early stages,54 the establishment of the panels helped enhance the perception of the independence and legitimacy of the judiciary.55 The legitimacy and validity of the tribunal has increased significantly amongst the Serb population who now view the mixed judiciary with more approval and are more accepting of its decisions.56 May of 1999 at the height of the NATO campaign and included President Slobodan Milosevic (Prosecutor v. Milosevic, Case No. IT-99-37, Indictment and Decision on Review of Indictment and Application for Consequential Orders (May 24,1999)), and four other high-ranking Serb government and military officials: Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, and Vlajko Stojiljkovic. Milosevic was later indicted for other crimes and atrocities committed in Bosnia and Croatia. While Milosevic died in March 2006 prior to a judgment being rendered in his case, his trial began with prosecution of the crimes committed in Kosovo. See Human Rights Watch, Weighing the Evidence: Lessons from the Slobodan Milosevic Trial (2006). While Stojiljkovic committed suicide prior to trial, Milsoevic’s other three co-defendants are currently on trial. While the ICTY has also prosecuted members of the Kosovo Liberation Army (see Prosecutor v. Limaj et al., Case No. IT-.03-66), the most controversial such prosecution resulted in the acquittal of Ramush Haradinaj, a former prime minister of Kosovo who was a KLA commander during the war, on April 3, 2008. Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment (Apr. 3, 2008). Haradinaj is seen by many diplomats from the UN and Western nations as a pivotal figure in Kosovo who has promoted reconciliation. His indictment indicated a sharp divide among the prosecutors at the ICTY and the many in the diplomatic community. Haradinaj’s acquittal was met with such contempt in Serbia that Serbian officials have stated that “[u]nfortunately, after this, Radovan Karadzic and Ratko Mladic will never end up in the Hague.” Serb Outrage at Kosovo War Crimes Ruling, CNN, Apr. 4, 2008 (quoting Oliver Ivanovic, moderate Serb leader from Kosovo); see also Nicholas Wood, Kosovo War Crimes Trial Splits West and Prosecutors, Int. Herald Trib., Apr. 8, 2007. 53 See UNMIK Regulation 2000/64 on Assignment of International Judges/Prosecutors and/or Change in Venue (Dec. 15, 2000). 54 The tribunal had difficulty in hiring qualified international judges in terms of international law knowledge. Moreover, not only did the judges lack legal qualifications, but many were lacking English skills, were culturally insensitive, and failed to show a requisite amount of respect for their Kosovar colleagues. See Finding the Balance, supra note 16, at 8–10. 55 See Organization for Security and Co-operation in Europe (OSCE), Department of Human Rights and Rule of Law, Legal Systems Monitoring Section of UNMIK Pillar III, Kosovo’s War Crimes Trials: A Review 12 (2002), available at http://www.osce.org/kosovo/68569; Laura Dickinson, The ICTY at Ten: A Critical Assessment of the Major rulings of the International Criminal Tribunal Over the Past Decade: The Relationship between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003). 56 See Dickinson, supra note 45, at 1066.



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On February 17, 2008, the Assembly of Kosovo, by Speaker Jakup Krasniqi, Prime Minister Hashim Thaci, and President Fatmir Sejdiu, adopted a declaration of independence from the Republic of Serbia.57 The legitimacy of Kosovo’s independence remains controversial. While sixty-two UN member states recognize the Republic of Kosovo, the General Assembly requested an advisory opinion from the International Court of Justice, at Serbia’s request, regarding the legality of Kosovo’s declaration of independence.58 Despite the independence of Kosovo, Resolution 1244 remains in force and UNMIK’s Special Representative retains administrative control over Kosovo. However, a reconfiguration of UNMIK has led to the handing over of many functions to the European Union Rule of Law Mission in Kosovo (EULEX).59 EULEX assumed the responsibility for strengthening rule of law institutions within Kosovo as well as the support through monitoring, mentoring, and advising local police, judiciary, and customs.60 In furtherance of EULEX’s mission, UNMIK has delivered active criminal case files and full responsibility for criminal cases to EULEX.61 Within the EULEX mission responsibility for investigating and prosecuting crimes under international law rests with the Special Prosecution Office (SPO). EULEX judges and prosecutors assumed responsibility for the investigations and indictments brought under the UNMIK administration in December 2008. In total, 179 open investigations were transferred to EULEX and further prosecuted by the Special Prosecution Office.62 Of the 179 UNMIK cases, 111 have been disposed of by the SPO.63 Investigations and prosecutions continue, and for the

57 See supra note 36. Kosovo Declaration of Independence (Feb. 17, 2008). This marked the second declaration for independence by Kosovo, the first in 1990. Kosovo’s declaration was a little less than one year following UN Special Envoy Martti Ahtisaari’s delivery of his proposal recommending the independence of Kosovo following an undefined period of international supervision and a “new period of engagement in Kosovo” as declared by UN Secretary General Ban Ki-moon. Press Release, Secretary General, Secretary General Welcomes Agreement on New Kosovo Initiative, U.N. Doc. SG/SM/11111 ( Aug. 1, 2007). 58 G.A. Res. 63/3, 63rd Sess., U.N. Doc. A/Res/63/3 (Oct. 8, 2008). The UNGA sent the direct question of “Is the unilateral declaration of independence by the Provisional Institutions of SelfGovernment of Kosovo in accordance with international law?” to the ICJ and the case is currently pending. Hearings in the matter are currently scheduled for December 2009. 59 Secretary-General, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/2009/300 (June 10, 2009) [hereinafter SG Report on Kosovo]. 60 See EULEX Programme Report 2011: Bolstering The Rule Of Law In Kosovo: A Stock Take (2011) available at http://www.eulex-kosovo.eu/docs/tracking/EULEX%20ProgrammeReport %202011.pdf. 61 All case files have been transferred except for four proceedings and one on-going case whose transfer would have adversely affected the proceedings. See SG Report on Kosovo, supra note 59, at para. 21. 62 The Secretary-General, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/2009/893 (March 17, 2009), at paras. 17–9. 63 EULEX Special Prosecution Office, Statistical Booklet (28 June 2011), at p. 9, available at: http://www.eulex-kosovo.eu/docs/justice/SPRK-booklet-28-06-2011.pdf. 

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2010–2011 period 26% of the SPO’s investigations (67 cases) and 30% of prosecutions (3 cases) dealt with crimes under international law.64 While EULEX continues to assist Kosovo in strengthening the rule of law and maintaining a functioning judiciary, it remains frail,65 although there is evidence of the emerging capacity among Kosovar prosecutors to handle increasingly complex cases independently.66 Concerns are numerous, including: the institutional independence of the judiciary, the role of international judges and prosecutors, the integration of Serb and other minority judges into the system,67 witness protection, modern case management systems,68 and a general shortage of judicial personnel and judicial training programs.69 The Kosovo intervention by NATO has strengthened the protection of human rights.70 The Security Council has wisely addressed both peacekeeping and post-conflict justice issues surrounding the Kosovo conflict in an integrated approach. Accordingly, in addition to maintaining peace and security in the region, the Security Council fostered an independent, effective and transparent justice system which is needed in any stable and democratic society. However, this does not eliminate the 64 EULEX Special Prosecution Office, supra note 63 at p. 6. 65 The current judicial system has a Supreme Court, a Commercial Court, Five District Courts, 22 municipal courts, and twenty-two municipal courts of minor offences. The High Court of Minor Offences hears appeals from these minor offence courts. However, as of September 2006, the backlog of civil cases had increased to 45,053 cases. See Secretary-General, Report of the Secretary General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/2006/707 (Sept. 1, 2006). 66 EULEX Special Prosecution Office, supra note 63 at p. 3. 67 As of September 2006, minority community members accounted for 9.6 percent of judges and 8.1 percent of prosecutors, figures below their proportionate representation in the greater population of Kosovo. See id. Active recruitment campaigns are ongoing to address the underrepresentation of certain communities in the judicial system in the hope of creating a more inclusive multiethnic administration and bolstering the confidence of minorities in the judicial system. 68 Human Rights Watch, World Report 2011: Kosovo (2011), available at http://www.hrw.org/ world-report-2011/serbia. 69 See Finding the Balance, supra note 16, at 11 (noting that such shortages could be the result of “poor salaries and working conditions, combined with the previous reluctance of Serb judges to participate in the system. . . .”) (footnotes omitted). See generally, OSCE, Department of Human Rights and Communities, Kosovo’s War Crimes Trials: An Assessment Ten Years on 1999–2009 (2010), available at http://www.osce.org/kosovo/68569 (noting problems with delayed proceedings, lack of continuity of and competence among judicial personnel, insufficient witness protection, and other shortcomings that should be addressed to effect local confidence in the system of justice). 70 See Kofi Annan, The Effectiveness of the International Rule of Law, in Kosovo and the Challenge of Humanitarian Intervention, supra note 9, at 222–23. Annan states: This is the core challenge of the Security Council and the UN as a whole in the next century: to unite behind the principle that massive and systematic violations of human rights conducted against an entire people cannot be allowed to stand . . . The choice, in other words, must not be between Council unity and inaction in the face of genocide—as in the case in Rwanda, on the one hand, or Council division and regional action, as in the case of Kosovo, on the other. In both cases, the member states of the UN should have been able to find common ground in upholding the principles of the Charter, and to find unity in defense of our common humanity. Id. at 223.



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challenges facing the domestic criminal justice system in prosecuting the vast majority of war crimes committed nearly a decade earlier in Kosovo during the 1998 to 1999 conflict between the Kosovo Liberation Army (KLA) and Yugoslav and Serb forces, and those crimes committed against the minority Serb population between 1999 and 2008.71 In February 2009, the ICTY announced that five former high-ranking Yugoslav and Serbian officials were convicted for crimes against humanity committed in Kosovo in 1999. Former Yugoslav Deputy Prime Minister Nikola Sainovic, Yugoslav Army General Nebojsa Pavkovic, and Serbian police General Sreten Lukic were each sentenced to twenty-two years’ imprisonment for violations of IHL and crimes against humanity, while Yugoslav Army General Vladimir Lazarevic and Chief of the General Staff Dragoljub Ojdanic were each sentenced to fifteen years’ imprisonment for aiding and abetting in the commission of a number of charges of deportation and forcible transfer of the ethnic Albanian population of Kosovo. Former President of Serbia Milan Milutinovic was acquitted of all charges. This judgment was the Tribunal’s first judgment for crimes perpetrated against Yugoslav and Serbian forces against Kosovo Albanians during the 1999 conflict in Kosovo. Each of the accused was alleged to have participated in a joint criminal enterprise with the purpose of modifying the ethnic balance in Kosovo to ensure that Serbian authorities maintained control of the area. The accused allegedly used criminal means such as deportation, murder, forcible transfers, and persecution of Kosovo Albanians to achieve this end. In total, the ICTY has indicted nine senior Yugoslav and Serbian officials, including former Yugoslav leader Slobodan Milosevic, for crimes that Serb forces carried out in Kosovo in 1999.72 Section 3. Bosnia and Herzegovina After the breakup of the former Yugoslavia beginning in 1991, what is now called the Republic of Bosnia and Herzegovina (BiH) found itself engulfed in an armed

71 See Human Rights Watch, A Human Rights Agenda for a New Kosovo (2008); Human Rights Watch, Under Orders: War Crimes in Kosovo (2001). Human Rights Watch has documented abuses by KLA as well as by Serb forces. Compare, e.g., Human Rights Watch, Humanitarian Law Violations in Kosovo (1998), with Human Rights Watch, Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo (1999). Additionally, widespread ethnic violence targeting Serbs and other minority communities broke out throughout Kosovo in March 2004, and the criminal justice system has come under criticism for its inability to deal with a significant number of these cases, see Human Rights Watch, Kosovo Criminal Justice Scorecard (2008); Human Rights Watch, Not on the Agenda: The Continuing Failure to Address Accountability in Kosovo Post-March 2004 (2006). 72 ICTY Press Release, Five Senior Serb Officials Convicted of Kosovo Crimes, One Acquitted, International Criminal Tribunal for the Former Yugoslavia (Feb. 26, 2009), available at http://www .icty.org/sid/10070.

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conflict involving the three main ethnic groups, the Serbs, Croats, and Muslims, resulting in the deaths of an estimated 150,000 to 250,000 individuals, in addition to widespread sexual violence and mass population displacement.73 By 1992, the war in Croatia and Bosnia was in full swing; Bosnian Serbs had besieged Sarajevo and had conquered nearly 60 percent of Bosnia. Bosnian Serbian nationalists and the Yugoslav Nationalist Army, operating under Slobodan Milošević, marched through Bosnia exercising ethnic cleansing in an effort to create a Greater Serbia.74 The UN, operating as a protection force in Bosnia, felt that presence alone would act as a deterrent for such crimes as genocide, crimes against humanity, and war crimes. However, security concerns lead to the ineffectiveness of UN forces as peacekeepers.75 The war did not slow down until NATO began bombing key Serb positions in 1995. Unfortunately, the bombing raids forced Serb nationalists into UN guarded “safe areas” where the murdering and sexual violence continued not only against the displaced population but also against UN peacekeepers.76 In 1995, the US brokered peace talks in Dayton, Ohio between the three warring parties calling for the partitioning of Bosnia into a Muslim-Croat Federation and a Bosnian Serb Republic. In December 1995, Presidents Milošević, Tuđman and Izetbegović ended the war by signing the final peace agreement in Paris.77 In 1996, more than 60,000 NATO soldiers would be deployed to help preserve the cease-fire and enforce the treaty provisions. The UN was never able to provide protection for civilians nor perform any semblance of its peacekeeping functions. It was seriously committed to its obligation of investigating the serious crimes committed during what US Assistant Secretary of State Richard Holbrooke described as “the greatest failure of the West since the 1930s.”78 The first step taken by the international community was the establishment of a Commission of Experts to investigate and collect evidence

73 See Final Report and Annexes of the Commission of Experts, supra note 1; see also Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (1992) (for a detailed description of the wars surrounding the breakup of Yugoslavia). Compare After Milosevic: A Practical Agenda for Lasting Balkans Peace, Balkans Report No. 108, at 3 (International Crisis Group, Apr. 2, 2001) (stating more than 200,000 casualties), with Research shows estimates of Bosnian war death toll were inflated, Associated Press, June 21, 2007 (claiming that casualty estimates are severely inflated). 74 See Final Report and Annexes of the Commission of Experts, supra note 1. 75 The UN was only allowed to use the Sarajevo airport with express Serbian approval. The UN not only failed to provide protection for its employees and aid workers at the airport, but also for VIPs for which the UN was responsible for transporting. Such was the case when the Bosnian Deputy Prime Minister was shot by Serb nationalists while in a UN armored personnel car. 76 Prosecutor v. Radislav Krstić, Case No. ICTY 98-33-T, Judgment (Aug. 2, 2001). 77 Dayton Peace Accords, Bosn. & Herz.-Croat.-Yugo., Dec. 14, 1995, 35 I.L.M. 75. 78 Roger Cohen, Taming the Bullies of Bosnia, N.Y. Times Mag., Dec. 17, 1995. See also Paul R. Williams & Michael Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia 63–87 (2002) (international response and political motivating factors of that response).



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pertaining to “grave breaches of the Geneva Conventions and other violations of international humanitarian law.”79 The Commission performed investigations resulting in three reports that ultimately lead to the adoption of Security Council Resolution 808 in February 1993 that affirmed the Commission’s suggestion that an international tribunal be established.80 The ICTY began operations in mid-November of 1993 and became the first war crimes court since the Nuremberg trials following World War II. The ICTY’s mandate necessarily was accompanied by limited existence.81 The ad hoc tribunal was intended to exist only for a short period of time and to prosecute only those most responsible for grave crimes. The war and atrocities in the former Yugoslavia continued for more than two years after the ICTY was established, and since its inception, actual charges remained few. To prevent impunity, the parliament of Bosnia and Herzegovina, with the endorsement of the ICTY, adopted the Law on the Court of Bosnia and Herzegovina in July 2002.82 The establishment of a permanent judicial body in Bosnia created a mechanism to provide judicial protection for the rights of Bosnian citizens. The Court of BiH is composed of three Divisions: Criminal, Administrative and Appellate. Within the Criminal Division there are four sections: the War Crimes Chamber (WCC); a chamber devoted to Organized Crime; Economic Crime and Corruption; and a General Crime Chamber. Unlike the ICTY mandate, the WCC of the Court of BiH (Section I) is limited neither to a fixed completion date or prosecution of the most serious violations. Moreover, for better or for worse, the WCC is not subject to the oversight of the UN Security Council. The establishment of the WCC followed several years of discussion and planning including a clear exit strategy for the international personnel.83 The court was created to be a national court with roots in local law but with a strong international presence. The court itself is carved out of the domestic national court 79 S.C. Res 780, ¶2, U.N. Doc. S/Res/780 (Oct. 6, 1992). 80 See S.C. Res 808, ¶1, U.N. Doc. S/Inf/49 (Feb. 22, 1993) (stating “an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.”). See Bassiouni, Law of the ICTY, supra note 1. 81 This is the result of the financial and logistical realities of operating such a tribunal indefinitely. Thus, the UN Security Council has stated that the ICTY must close its doors and cease functioning by 2010. 82 Letter from Fausto Pocar, President of 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 1991 to the President of the Security Council, U.N. Doc. S/2006/898 (Nov. 16, 2006) (formal endorsement from the War Crimes Chamber in BiH); see also Param-Preet Singh, Human Rights Watch, Narrowing the Impunity Gap: Trials before Bosnia’s War Crimes Chamber (2007). 83 The WCC’s creation began in 2003 at the Peace Implementation Council Steering Board Meeting, and underwent extensive negotiations until being adopted on January 6, 2005. The initial plan called for international staff to leave after five years, although this plan was soon abandoned as too ambitious.

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system, located in Sarajevo and operates in accordance to the laws of BiH.84 The WCC is composed of various panels each containing two international judges and one Bosnian Presiding Judge.85 As part of the transition strategy, the configuration of the panels changed to two Bosnian judges and one international judge from 2006 through 2007. The international personnel was completely phased out, and the court began operating solely on a national basis in 2010.86 The international judges no longer have any scheduled trials in the WCC.87 International Judges still sit on the bench of the Appeals Chamber. As part of the initiative to assist in the completion strategy of the ICTY as well as to further justice and accountability in Bosnia, the Office of the Prosecutor of the State Court of BiH includes a Special Department for War Crimes. Within the Special Department for War Crimes, five regional prosecution teams, and a sixth prosecution team for the Srebrenica massacre, will conduct investigations. All teams are based in Sarajevo. In addition, the Registry of the Court was established by an international agreement in 2004 by the Presidency of Bosnia and Herzegovina and the Office of the High Representative. The objectives of the Registry are to support and strengthen the capacities of the WCC and the Organized Crime Chamber (Section II), as well as the Special Department for War Crimes. The Registry’s mandate, among others, is to provide support to international judges and prosecutors in their work, as well as to strengthen the capacity of the state judicial system in trying cases of war crimes and organized crime. The Registry’s staff is being integrated gradually into the respective national justice institutions of the country, including the Ministry of Justice, the Court of BiH, and the Office of the Prosecutor. As stated, the WCC has tried perpetrators using original jurisdiction and simultaneously assisted the ICTY by overseeing “Rules of the Road” cases. The Court may hear new war crimes cases that were initiated locally. A coordinating committee was established to prioritize cases that arise locally, however, there are nowhere near enough resources to try all of these cases expeditiously. The WCC’s current record stands up in contrast to the ICTY for taking more trials to verdict with far fewer resources.

84 The Court is subject to the 1977 Criminal Code of the Socialist Federal Republic of Yugoslavia rather than the new criminal and procedural codes of BiH. The court also applies the European Charter on Human Rights, ratified by BiH in 2002. 85 There are thirty-six national and seventeen international judges in the Court of BiH. 86 See Human Rights Watch, Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina (2006); see also Alejandro Chehtman, Developing Bosnia and Herzegovina’s Capacity to Process War Crimes, 9 J. Int’l. Crim. Justice 547 (2011). 87 See generally Court of Bosnia & Herzegovina, http://www.sudbih.gov.ba/?opcija=bio &jezik=e (last visited Nov. 11, 2011).



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The WCC has prosecuted ICTY cases referred to it through the judicially created Rule 11bis.88 This rule allowed ICTY judges to refer or “transfer lower or mid-level accused to national jurisdictions”89 prior to the commencement of trial. Rule 11bis was first invoked September 7, 2004 in the Ademi and Norac case.90 After a motion by the Prosecutor, former ICTY President Meron established a separate trial chamber to determine the legality of this new use of Rule 11bis.91 Without hesitation, the Rule became a legitimate and widely used tool to achieve the completion strategy goals of transferring cases to national courts. Radovan Stanković became the first accused to substantially question the newly amended rule. Stanković argued that the ICTY judges had exceeded their power in adopting Rule 11bis without an explicit UNSC amendment to the Statute.92 The ICTY Appellate Chamber dismissed this argument and held that “the tribunal Judges amended Rule 11bis to allow for the transfer of lower or mid-level accused to national jurisdictions pursuant to the Security Council’s recognition that the tribunal has implicit authority to do so under the Statute.”93 Thus, the ICTY confirmed that the WCC was capable of conducting fair trials and solidified the national court’s role in domestic and international law. The WCC completed its first referred case when the Appellate Panel sentenced Stanković to twenty years’ imprisonment on March 28, 2007. The Stanković case also decided that the WCC had jurisdiction to try defendants for acts committed before the establishment of the WCC due to crimes against humanity status as a general principle of law recognized by civilized nations.94 The Appeals Chamber has referred to the case law of the ICTY as binding precedent.95 The WCC also relies on evidence

88 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (ICTY), 2d Sess., Rules of Procedure and Evidence Adopted on 11 February 1994, U.N. Doc. IT/32 (1994); updated version, IT/32/Rev.46 (2011) at Rule 11bis. Michael Bohlander, Referring an Indictment from the ICTY and ICTR to Another Court—Rule 11bis and the Consequences for the Law of Extradition, 55 Int’l & Comp. L. Q. 219 at 220 (2006). The original ICTY Rule 11bis of November 1997 provided for “the suspension of an indictment.” It was re-drafted with the current title “Referral of the Indictment to Another Court” on September 30, 2002 and has been modified several times since; see also Olympia Bekou, Rule 11BIS:An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence, 33 Fordham Int’l L. J. 723 (2010). 89 Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis, Decision on Rule11bis Referral, at ¶ 16 (Sept. 1, 2005). 90 Prosecutor v. Ademi and Norac, Case No. IT-04-78-PT, Motion by the Prosecutor Under Rule 11bis (Sept. 2, 2004). This case questioned whether the case met the seniority criterion of the Rule and whether states were eligible to receive cases. In this case, both were answered in the affirmative thus granting authority to Rule 11bis. 91 Id. 92 Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis, Decision on Rule 11bis Referral, ¶ 26 (Sept. 1, 2005). 93 Id. 94 Radovan Stanković, Case No. X-KR-05/10/70, Appellate Panel Verdict (Mar. 28, 2007). 95 Abdouladhim Maktouf, Case No. KPZ-32/05, Appellate Panel Verdict (Apr. 4, 2006).

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collected by the ICTY as well as issues of fact decided by the ICTY. In total 10 cases were referred by the ICTY to BiH under the Rule 11bis procedure.96 Additionally, the WCC also has jurisdiction over “Rules of the Road” cases. These cases arise out of a unique policy wherein every war crimes investigation was submitted to the ICTY’s Prosecutor for a determination regarding whether the evidence met international standards justifying an arrest.97 These cases are dealt with by the Prosecutor in the Special Department for War Crimes who, after finding sufficient evidence for prosecution, will either return the case to a district court or retain the highly sensitive cases for prosecution in the WCC. Thus, the operation of not only the WCC but the effective functioning of district courts will prove vital in assessing the success of domestic prosecutions.98 Since its inception, the WCC and the Organized Crime Chamber has completed more than 3,300 cases, with 407 cases pending and six cases that had been transferred from the ICTY as of 2009.99 As of March 2012, Section I of the WCC has delivered verdicts in 87 single and multiple accused cases and 54 appeals.100 All told, the WCC has dealt with more than 200 cases involving crimes under international law.101 Witness protection is a key concern to the successful prosecution of war crimes cases before the Court.102 The Court of BiH’s unique international and domestic composition and jurisdiction place this hybrid tribunal, more so than any other, in an excellent position to enhance local judicial capacity. Capacity-building continues to occur as the international staff helps prepare national prosecutors and judges for future functioning of the War Crimes Chamber, though more work remains to be done and more emphasis needs to be placed on involving local personnel at all levels.103 The inclusion of a transition strategy from international to purely domestic prosecutions make the Court of BiH the only mixed tribunal to be established with a clear plan wherein international actors are removed and domestic personnel have been adequately trained for ongoing prosecutions. Intermediate reports suggest that the WCC 96 ICTY, Key Figures of ICTY Cases (Jan. 11, 2012), available at: http://www.icty.org/x/file/Cases/ keyfigures/key_figures_120302_en.pdf. 97 Book of Rules on the Review of War Crimes Cases, KTA-RZ 47/04-1, art 2. (Dec. 28, 2004). 98 See OSCE, Mission to Bosnia and Herzegovina, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina, Progress and Obstacles 10 (2005); Etelle Higonnet, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l & Comp. L. 347, 409 (2006). 99 Number of Cases before the Sections I & II of the Criminal Division of the Court of Bosnia and Herzegovina as of 31 August 2011, available at http://www.sudbih.gov.ba/files/docs/statistika/2011-08-31/ (last visited Sept. 26, 2011). 100 Court of Bosnia and Herzegovina, Verdicts of Section I, available at: http://www.sudbih.gov .ba/?opcija=sve_presude&odjel=1&jezik=e.  101 Human Rights Watch, Justice for Atrocity Crimes 20 (2012). 102 Id. at 413. 103 For an analysis of the efficacy of past training methods and the efficiency and reception of the tribunal by the local population, see Chehtman, supra note 86.



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has made great strides towards issues ranging from witness protection to local capacity building. While there is room for improvement the WCC has been quite successful.104 On February 28, 2008, the Court of Bosnia and Herzegovina found Mitar Rasevic and Savo Todovic, who were indicted by the ICTY and transferred to the national judiciary for trial, guilty of crimes committed during the 1992–1995 conflict and sentenced them to eight and a half years and twelve and a half years imprisonment respectively. This was the third case that concerned war crimes committed in the Bosnian town of Foca that was referred by the ICTY to the Sarajevo-based court. The ICTY refers cases to assist in the strengthening of rule of law in Bosnia and Herzegovina and further enhance its partnership with judiciaries in the former Yugoslavia. Most senior leaders are tried before the ICTY directly, but the Tribunal refers some intermediate and low-ranking accused to national jurisdictions. The ICTY has referred six such cases, involving ten accused, to Bosnia and Herzegovina. While this referral process has resulted in the conviction of two additional accused for crimes in Foca, a major setback in this system occurred in May 2007 when Radovan Stankovic, who was sentenced to twenty years’ imprisonment by the Court of Bosnia and Herzegovina in April 2007, escaped from the Foca prison. Stankovic was captured nearly five years later, in January 2012.105 In the later part of 2009, the ICTY also found Momčilo Krajišnik, former President of the Bosnian Serb Assembly, guilty for crimes committed against non-Serb civilians and handed down its second life sentence against Lukić, a Bosnian Serb guilty of the murder of more than 130 Bosnian Muslim civilians in Višegrad in 1992. Sentenced to twenty years’ imprisonment, Krajišnik is the highest ranking Bosnian Serb political figure to be found guilty by the ICTY.106 Section 4. Sierra Leone On March 23, 1991, a devastating ten-year civil war began in Sierra Leone.107 The conflict was replete with extreme brutality and widespread human rights abuses against civilians as rebel forces primarily of the Revolutionary United Front 104 See Human Rights Watch, Justice for Atrocity Crimes (2012).  105 ICTY, Statement of the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia on the arrest of Radovan Stanković (Jan. 21, 2012), available at: http://www .icty.org/sid/10892.  106 Press Release, ICTY, Rasevic and Todovic Judgment Delivered by Bosnian Court in Case Referred by ICTY (Feb. 29, 2008), available at http://www.icty.org/sid/8920; Judgment List, International Criminal Tribunal for the Former Yugoslavia, available at http://www.icty.org/ sections/TheCases/JudgementList#2011 (last visited Nov. 17, 2011). 107 See Poole, supra note 6, at 563; see also International Crisis Group, Africa Report No. 28, Sierra Leone: Time for a New Military and Political Strategy (2001); International Crisis Group, Africa Report No. 35, Sierra Leone: Managing Uncertainty (2001); Sylvia de

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(RUF) sought control over Sierra Leone’s diamond mines. These diamonds were seized by the rebels and smuggled to Western Europe, where major diamond companies bought them illegally. The funds were then recycled illegally; the proceeds were used to buy armory from the Russian and Ukrainian mafias, including weapons illegally smuggled into Sierra Leone through Liberia and other African countries. The latter went through the same brutal experience, and its rebels became the country’s leaders through US support.108 More than 75,000 people are estimated to have been killed.109 Thousands more were defenseless victims of “terror tactics,” including, kidnapping, rape, and amputation of hands and feet. An estimated two-thirds of Sierra Leone’s population, more than 60 percent of them children, were internally displaced or forced to take refuge in neighboring Guinea. On July 7, 1999, President Ahmed Tejan Kabbah signed the Lomé Peace Accord.110 It established an untenable power-sharing arrangement with RUF leader Foday Sankoh, but the fighting was only temporarily suspended. Sankoh was put in charge of the diamond mines and, “in order to bring lasting peace to Sierra Leone,” a sweeping general amnesty granted “absolute and free pardon to all combatants and collaborators in respect of anything done by them in pursuit of their objectives.”111

Bertodano, Current Developments in Internationalized Courts, 1 J. Int’l Crim. Just. 226, 242 (2003); Higonnet, supra note 98, at 384. 108 See Douglas Farah, Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible (2007); see also Greg Campbell, Blood Diamonds: Tracing The Deadly Path of the World’s Most Precious Stones (2002); John L. Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy (2001); Ian Smillie, Lansana Gbere & Ralph Hazleton, The Heart of the Matter: Sierra Leone, Diamonds & Human Security (Partnership Africa Canada, Jan. 2000) (discussing the significance of the conflict and its connection to the broader context of other countries, namely diamond importing countries outside the African continent); Lucinda Saunders, Rich & Rare are the Gems They War: Holding DeBeers Accountable for Trading Conflict Diamonds, 24 Fordham Int’l L.J. 1402 (2001) (arguing that the DeBeers group of companies, which participates in mining the majority of the world’s diamonds, should be held accountable for its part in the conflict diamond trade under the Alien Tort Claims Act, 28 U.S.C. §1350). In the wake of September 11, it has also come to light that the illegal diamond trade funds terrorist organizations such as Al Qaeda. See Douglas Farah, Blood from Stones: The Secret Financial Network of Terror (2004); see also Douglas Farah, Al Qaeda Cash Tied to Diamond Trade; Sale of Gems From Sierra Leone Rebels Raised Millions, Sources Say, Wash. Post, Nov. 2, 2001, at 25; Sell Diamonds for Love, Not War, Chi. Trib, Dec. 15, 2001, at Z6. 109 See The Special Court for Sierra Leone: The First Eighteen Months 1 (International Center for Transitional Justice, March 2004); see also Paul B. Spiegel et al., Prevalence of HIV Infection in Conflict-Affected and Displaced People in Seven Sub-Saharan African Countries: A Systematic Review, 369 Lancet 2187 (2007) (dispelling the belief that conflicts lead to the spread of HIV/AIDS in areas of conflict); Will Dunham, Wars Don’t Fuel African HIV Crisis—Study, Reuters, June 28, 2007. 110 Lomé Agreement, supra note 13. 111  Id. at art. IX, para 2. The government of Sierra Leone granted “absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing” of the agreement.



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In October 1999, the Security Council established the United Nations Mission in Sierra Leone (UNAMSIL).112 Initially established with a maximum force of 6,000 military personnel, its size swelled to 17,500.113 UNAMSIL established two complementary PCJ mechanisms: the Truth and Reconciliation Commission and the Special Court for Sierra Leone.114 On January 16, 2002, the UN and Sierra Leone signed an agreement creating the legal framework for the Special Court,115 which is based in Freetown. It is technically not a UN body or a court within the judicial system of Sierra Leone, but has a status that sets it somewhat apart from both.116 Unlike the ICTY and the ICTR, which were established under Security Council resolutions pursuant to Chapter VII of the United Nations Charter and hold jurisdiction only over international offenses, the Special Court is a “treaty-based sui generis court of mixed jurisdiction and composition.”117

112 U.N. Doc. S/Res/1270 (Oct. 22, 1999). UNAMSIL was initially established with 6,000 military personnel. As the peace accord fell apart, peacekeepers were being killed or captured by the RUF causing the UN to commit more military personnel to the Mission. See Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analysis of the Peace Process and Human Rights Enforcement in a Civil War Situation, 30 Denv. J. Intl’l L. & Pol’y, 325, 358 (2002); J. Peter Pham, A Viable Model for International Criminal Justice: The Special Court of Sierra Leone, 19 N.Y. Int’l L. Rev. 37, 60 (2006). When the UNAMSIL closed in 2005 it had a maximum deployment strength of: military, 17,368; UN Police, 87; international civilian, 322; local civilian, 552; and total expenditures amounting to $2.8 billion. 113 The Security Council revised UNAMSIL’s mandate to allow for the increase in personnel, making it, at the time of writing, its largest mission. See U.N. Doc. S/Res/1346 (Mar. 30, 2001); The Secretary-General, Twelfth Report of the Secretary-General on the United Nations Mission in Sierra Leone, U.N. Doc. S/2001/1195, at para. 11 (Dec. 13, 2001). 114 The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915 (Oct. 4, 2000) [hereinafter Establishment Report]. The annex contains the Agreement between the UN and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone and the draft Statute for the Special Court for Sierra Leone. There is an informative web site run by the UC Berkeley War Crimes Studies Center covering all aspects of the Sierra Leone Special Court including copies of the Sierra Leone Statute, the Sierra Leone Special Court Agreement, and weekly monitoring reports at http://socrates.berkeley .edu/~warcrime/SL.htm (last visited Nov. 17, 2011). For jurisprudence of the Special Court, see Annotated Leading Cases of International Criminal Tribunals: The Special Court for Sierra Leone 2003–04 (André Klip & Göran Sluiter eds., 2006). 115 In contrast to the Commission, which was contemplated during negotiations for the Lomé Agreement, the creation of the Special Court was contemplated later, following RUF breaches of the Lomé Agreement. See Letter dated April 25, 2002 from Allieu I. Kanu, Ambassador, Deputy Permanent Representative (Legal Affairs) of Sierra Leone to M. Cherif Bassiouni (on file with author). 116 See Kritz, supra note 6, at 72. Kritz states: “The Sierra Leone hybrid model is similar to the hybrid court proposal which was considered for Cambodia; both were negotiated by the United Nations Office of Legal Affairs.” Additionally, this would set the stage for the later Lebanon tribunal to be established by bilateral agreement between the United Nations and the Government of Lebanon. 117 The Special Court was authorized by the Security Council and then elaborated in a formal agreement between the UN and the government of Sierra Leone. The court has an international prosecutor, and the government of Sierra Leone has designated the deputy prosecutor. The trial

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The Special Court’s much negotiated mandate is “to prosecute those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.”118 Although the Lomé Peace Accord granted amnesty to all participants in the civil war, the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone stripped the legal effect of the amnesty provision by stating that the “United Nations has consistently maintained the position that amnesty cannot be granted in respect to international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.”119 Consequently, Article 10 of the Sierra Leone Statute states that a grant of amnesty is not a bar to Special Court prosecution of international crimes.120 International law, with increasing clarity, adopts the position that a blanket amnesty for these types of crimes is impermissible.121 The Appeals Chamber has reiterated that the Lomé Agreement does not preclude prosecution of international crimes.122 Because the Lomé Agreement was not an international treaty, the Appeals Chamber found it had no effect on an international tribunal and did not create obligations in international law. The Appeals Chamber

chamber consists of two international judges and one local judge, and the appeals chamber has three internationals and two locals. 118 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (Jan. 16, 2002) [hereinafter Statute of the Special Court]. The Statute was endorsed through S.C. Res. 1400, U.N. Doc. S/Res/1400, ¶ 9 (Mar. 28, 2002). 119 Establishment Report, supra note 114, at para. 22. cf. Craig Timberg, Sierra Leone Special Court’s Narrow Focus, Wash. Post, Mar. 26, 2008 (noting that some Sierra Leoneans believe that massive funds spent on the Special Court would have been better spent on education, health care or developing a national functioning judicial system); The Jury Is Still Out: A Human Rights Watch Briefing Paper on Sierra Leone (Human Rights Watch, July 11, 2002) (urging Sierra Leone to repeal the Lomé Peace Agreement amnesty for national courts, so that the domestic judicial system can also try offenders of war crimes and crimes against humanity). One of the largest criticisms of the Special Court from Sierra Leoneans is that the lower level offenders are living in the same neighborhoods as their victims with impunity, causing some to regard the court as having too ‘narrow’ of a focus. The court has responded with an extensive outreach program that aims to explain command responsibility. Meanwhile, the lead prosecutor, Stephen Rapp, has encouraged Sierra Leoneans to urge local judicial prosecution of lower level offenders. However, there has been little effort by local governments to push prosecutions. See Jane Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l L. 251, 302 (2007). 120 Statute of the Special Court, supra note 118, at art. 10 (stating that “[a]n amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.”). 121 See M. Cherif Bassiouni, Proposed Guiding Principles for Combating Impunity for International Crimes, in Post-Conflict Justice, supra note 4, at 255. 122 Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Case No. SCSL-04-16-A, Appeals Chamber Decision on Challenge to Jurisdiction, ¶¶ 86–90 (Mar. 13, 2004).



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further found that where universal jurisdiction exists for a crime, one state cannot deprive other states of jurisdiction by way of a grant of amnesty.123 According to Resolution 1315, the Special Court has subject matter jurisdiction over crimes against humanity, violations of common Article 3 to the 1949 Geneva Conventions on the Protection of Victims of War and the Additional Protocol II of those Conventions, other serious violations of international humanitarian law, and certain enumerated offenses under Sierra Leonean law. The provisions in the Statute of the Special Court relating to crimes against humanity, offenses under common Article 3, and other serious violations of international humanitarian law, are generally consistent with similar statutory provisions for the ICTY, ICTR, and ICC.124 According to Resolution 1315, the Court is supposed to be funded from voluntary contributions, which has led to uncertainty in the budget process from year to year for the Court. First, the Special Court may prosecute persons who, “as part of a widespread or systematic attack against any civilian population,” have committed: murder; extermination; enslavement; deportation; imprisonment; torture; rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence; persecution on political, racial, ethnic or religious grounds; and other inhuman acts.125 The Statute of the Special Court, in contrast to the statutes of the ICTY and ICTR, does not include the crime of genocide.126 Second, the Special Court may prosecute persons for commission of serious violations of common Article 3 of the August 12, 1949 Geneva Conventions on the Protection of Victims of War and the Additional Protocol II of June 8, 1977.127 Included in these violations are: violence to life, health and physical or mental well-being of persons; collective punishment; taking of hostages; acts of terrorism; outrages upon personal dignity; pillage; the passing of sentences and 123 Id. at ¶¶ 49–53. 124 Mundis, supra note 11, at 3. Mundis has an informative footnote that reports the following: With respect to crimes against humanity, compare Sierra Leone Statute, [supra note 118], Art. 2, with ICTY Statute, [infra note 148], Art. 5, ICTR Statute, [infra note 141], Art. 3, & ICC Statute, [infra note 148], Art. 7. Concerning common Article 3 offenses, compare Sierra Leone Statute, [supra note 118], Art. 3, with ICTY Statute, [infra note 148], Art. 3, as interpreted by the appeals chamber in Prosecutor v. Tadic, Appeal on Jurisdiction, No. IT-94-1-AR72, para. 94 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996), ICTR Statute, [infra note 148], Art. 4 & ICC Statute, [infra note 148], Art. 8(2)(c). Concerning the three enunciated offenses under Sierra Leone Statute, [supra note 118], Art. 4, compare ICC Statute, [infra note 148], Art. 8(2)(b)(i) («intentionally directing attacks against the civilian population»), ICC Statute, [infra note 148], Art. 8(2)(b)(iii) (attacks against humanitarian workers), & ICC Statute, [infra note 148], Art. 8(2)(b)(xxvi) (making it unlawful to conscript or enlist children under the age of fifteen years or to use them to participate actively in hostilities). Id. at 3, n.25. 125 Statute of the Special Court, supra note 118, at art. 2. 126 See Establishment Report, supra note 107, at para. 13 (including the crime of genocide was viewed by both the Security Council and Secretary-General as inappropriate). 127 Statute of the Special Court, supra note 118, at art. 3.

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carrying out of executions absent judgment by a regularly constituted court; and threats to commit any of the forgoing.128 Third, the Special Court may prosecute persons for other serious violations of international humanitarian law, such as intentional attacks against civilian populations; intentional attacks against personnel, installations, materials or equipment of peacekeeping or humanitarian missions; and conscription or enlistment of children under age fifteen.129 Finally, the Special Court may prosecute persons for various offenses under Sierra Leonean law. These offenses include: abuse of girls; abduction of a girl for immoral purposes; wanton destruction of property; and setting fire to a dwelling.130 The Special Court has concurrent jurisdiction with the courts of Sierra Leone when prosecuting crimes under either international or national law.131 However, like the ICTY and the ICTR, the Special Court has primacy over the domestic courts of Sierra Leone and may issue binding orders to the government of Sierra Leone. Similar to the UN-sponsored courts in Timor-Leste, and unlike the ICTY and the ICTR, the Special Court cannot assert primacy over the national courts of other states or order the surrender of an accused located in another state. Fortunately, this restraint has not compromised the Court’s operation because most suspects are in custody within Sierra Leone. A person may be retried by the Special Court after trial for violations of international law (but not national law)132 at the national level, if the crime for which he/she was tried in the national court was characterized as an ordinary crime, or if the national court proceedings were not impartial or independent.133 Accordingly, trial by the national courts has not been a means of manipulating justice and ensuring impunity for violations of international law. Article 6 of the Sierra Leone Statute governs individual criminal responsibility. It is consistent with similar provisions found in the ad hoc Tribunals and the ICC. The official position of an accused, even if a governmental official, will neither relieve the person of criminal responsibility nor mitigate punishment.134 Acts committed by a subordinate will not relieve the superior of criminal responsibility when the superior knew or had reason to know that the subordinate was about to commit the acts or had done so, yet the superior failed to implement appropriate punishment or means for preventing repetition of the acts.135 The Special Court has the discretion to mitigate the punishment of perpetrators 128 Id. at art. 3. 129 Id. at art. 4. 130 Id. at art. 5. 131 Id. at art. 8. 132 Thus, for crimes under arts. 2–4, but not art. 5 of the Statute of the Special Court. 133 Statute of the Special Court, supra note 118, at art. 9, § 3. 134 Id. at art. 6, § 2. 135 Id. at art. 6, § 3.



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who acted pursuant to an order of the government or a superior.136 Article 6(5) states that Sierra Leonean law will still govern violations of the domestic offenses found in Article 5. Perhaps the most controversial article of the Sierra Leone Statue was Article 7, which governs the jurisdiction over persons as young as fifteen years of age. Over 5,000 children under the age of eighteen participated in the war.137 They were recruited by the RUF, the Sierra Leone Army, and government allied forces.138 The government of Sierra Leone was adamant about the need to hold child combatants, many of whom were the most brutal perpetrators during the conflict, accountable for their crimes. Nonetheless, several nongovernmental organizations and human rights groups stressed the importance of rehabilitation for these children and opposed trial. Thus, a compromise was agreed upon. The Special Court does not have jurisdiction over combatants who were under the age of fifteen when they allegedly committed crimes.139 However, the Special Court has jurisdiction over combatants between the ages of fifteen and eighteen but must ensure that the accused is treated in accordance with international human rights standards, and in particular, with the rights of the child.140 Upon conviction, the Special Court may not sentence juvenile offenders to prison terms.141 Accordingly, the Special Court may pursue special remedies against child combatants, including: care guidance and supervision orders; community service orders; counseling; foster care; correctional, educational, and vocational

136 Id. at art. 6, § 4. 137 See International Center for Transitional Justice, Post-Conflict Reintegration Initiative for Development & Empowerment, Ex-Combatant Views of the Truth and Reconciliation Commission and the Special Court for Sierra Leone 13 (2002) (international and local NGO perform a study estimating that up to 70 percent of the combatants were children). A Human Rights Watch report cited child recruitment by the RUF who were forced to commit crimes under the threat of death or caused by drug inducement. The report notes that most child soldiers were either injected with drugs at gunpoint or ingested drugs in their food which sent them into a haze facilitation the commission of killings, massacres, rapes and beatings. See Human Rights Watch, Coercion and Intimidation of Child Soldiers to Participate in Violence (2008). 138 Id.; see also Amnesty International, AFR 51/075/2000, Sierra Leone: Action Needed to End Use of Child Combatants (2000); Sierra Leone Human Rights Developments, in Human Rights Watch, World Report 2002 (2002); see also Children’s Rights: Child Soldiers, in World Report 2002, supra (stating that between May and November 2001, over 2,903 children under the age of eighteen, including 1,506 from the RUF and 1,303 from pro-government militias were released and/or disarmed in Sierra Leone at various demobilization centers); J. Peter Pahm, Child Soldiers, Adult Interests: The Global Dimensions of the Sierra Leonean Tragedy (2005). 139 Statute of the Special Court, supra note 118, at para. 35. 140 Id. at art. 7, § 1, states: Should any person who was at the time of the alleged commission of the crime below 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with the international human rights standards, in particular the rights of the child. 141 Id. at arts. 7, § 2; 19, § 1.

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training programs; and, where necessary, any programs of disarmament, demobilization, and reintegration or programs of child protection agencies.142 Structurally, the Special Court consists of three organs: the trial and appellate chambers; the office of the prosecutor; and the registry.143 The Special Court’s two trial chambers consist of a three-judge panel, one of whom is appointed by the government of Sierra Leone144 and two appointed by the Secretary-General upon nominations by states, particularly the members of the Economic Community of West African States (ECOWAS) and the Commonwealth of Nations.145 The appeals chamber consists of five judges, two appointed by the government and three appointed by the Secretary-General upon nominations by states, particularly members of the ECOWAS and the Commonwealth. The prosecutors are all international, however, the defense teams are mixed and the Office of the Registrar is mostly composed of Sierra Leoneans.146 An accused person appearing before the Special Court, in accordance with established international human rights norms, has a variety of due process rights, including: a fair and public hearing (subject to measures ordered to protect victims and witnesses, as with the ad hoc Tribunals); the presumption of innocence; prompt and full information about charges in his/her language; adequate time and facilities for preparing his/her case; speedy trial; right to counsel; right to examine witnesses; assistance of an interpreter; privilege against self-incrimination; and right to be present at trial (thus no trial in absentia).147 The Special Court follows the rules of procedure and evidence of the ICTR, mutatis mutandis, which were taken from the rules of procedure and evidence 142 Id. at art. 7, § 2. 143 For provisions concerning the trial and appellate chambers, see id. at Art. 2, § 1. For provisions concerning the prosecutor, see id. at Art. 14. For provisions concerning the registry, see id. at Art. 15. 144 The judge appointed by the government of Sierra Leone is not required to be a Sierra Leonean. In fact, there is only one Sierra Leonean serving in the trial chambers, Justice Rosolu John Bankole Thompson, and one serving in the Appeals Chamber, Justice King. See Cohen, supra note 6, at 12. 145 Statute of the Special Court, supra note 118, at art. 13. 146 See Cohen, supra note 6, at 12. On April 19, 2002, UN Secretary-General Kofi Annan appointed a senior attorney of the US Department of Defense, David Crane, as the Chief Prosecutor of the SCSL, and Briton Robin Vincent, as the tribunal’s Registrar. Crane was succeeded by Desmond de Silva, QC, a British criminal lawyer who previously served as the Deputy Prosecutor. He served as Prosecutor until June 2006, and was succeeded by Stephen J. Rapp, a former US Attorney, who was appointed to the post in December 2006, and who had also previously served as Chief of Prosecutions at the ICTR from May 2005. Deputy Prosecutor Joseph Kamara, a national of Sierra Leone, has been Acting Prosecutor since September 8, 2009. Vincent was succeeded in October 2005 by Lovemore G. Munlo, SC who was succeeded by Herman von Hebel, SC, in July 2006. Mr. von Hebel has taken up the position of Deputy Register with the Special Tribunal for Lebanon but a replacement within the Special Court of Sierra Leone has not been announced. See Press Release, Special Tribunal for Lebanon, Registrar and Deputy Registrar of the Special Tribunal for Lebanon Sworn in Today (Sept. 15, 2009) available at http://www.stl-tsl.org/sid/134 (last visited Nov. 17, 2011). 147 Statute of the Special Court, supra note 118, at art. 17.



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of the ICTY, mutatis mutandis.148 Special Court judges are empowered to amend any ICTR rules that do not adequately address a specific situation during the Sierra Leone trials. This is to be done by relying on the 1965 Sierra Leonean Criminal Procedure Act for guidance.149 The judgments of both the trial chamber and the appeals chamber are delivered in public and accompanied by a written opinion.150 Upon conviction, the Special Court may impose imprisonment for a specified number of years.151 In addition, the Special Court may also order the “forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct,” and return them to their rightful owners or the State of Sierra Leone.152 In order to determine an appropriate sentence, the Special Court has recourse to the sentencing practices of the ICTY, ICTR, and the Sierra Leone domestic courts.153 The Special Court’s three-year mandate was technically completed in June 2005; however, due to the fact that trials were ongoing at that time, the mandate was necessarily extended.154 The Special Court was dealt a series of setbacks in the deaths of Foday Sankoh, the leader of the RUF who died while in custody in Freetown, Sam Bokarie, a top RUF general who was killed in Liberia, and Johnny Paul Koroma, a military commander who successfully led a coup d’etat in 1997 who was reportedly killed in Liberia. However, the Special Court received a major boost in March 2006,155 when Nigerian authorities captured Charles G. Taylor, the warlord who later became Liberia’s president, and turned him over to the government of Sierra Leone to face eleven counts of crimes against humanity, war crimes and other serious violations of international humanitarian law.156 It was well known during the Sierra 148 Id. art. 14; Statute of the International Criminal Tribunal for Rwanda, art. 14, S.C. Res. 955, U.N. Doc. S/RES955 (Nov. 8, 1994) [hereinafter ICTR Statute]; Statute of the International Criminal Tribunal for the former Yugoslavia, Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 827, art. 15, U.N. Doc. S/25704 (May 3, 1993) [hereinafter ICTY Statute]; Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]. 149 Statute of the Special Court, supra note 118, at art. 14(2). 150 Id. at art. 18 (a majority is required to reach a judgment). 151 Id. at art. 19, § 1; see id. at art. 22 (stating that imprisonment may be served in Sierra Leone or another state); id. at art. 23 (regarding pardon or commutation of sentences). 152 Statute of the Special Court, supra note 118, at art. 19, § 3. 153 Id. at art. 19 § 1. 154 Cohen, supra note 6, at 12. 155 Press Release, Special Court for Sierra Leone Office of the Prosecutor, Chief Prosecutor Announces the Arrival of Charles Taylor at the Special Court (Mar. 29, 2006). 156 Prosecutor v. Charles Taylor, Case No. SC SL-2003-01-PT, Second Amended Indictment (May 29, 2007). Charles Taylor has been accused of terrorizing the civilian population, committing unlawful killings, sexual violence, physical violence, use child soldiers, abductions and forced labor, and looting under the doctrines of superior responsibility. The trial centers not on whether these crimes were committed, as the defense agrees that serious crimes did occur in Sierra Leone, but rather, whether Charles Taylor was responsible for them. According to Chief Prosecutor Stephen Rapp, Taylor was in effective control of the RUF in Sierra Leone by enabling them to

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Leonean civil war that the Liberian President Charles Taylor actively directed and supported the RUF, the notorious rebel group of Foday Sankoh. Upon the establishment of the SCSL the prosecution issued an indictment against Taylor, alleging in the alternative his membership in a JCE with the RUF, his command superiority over the group, or his involvement in aiding and abetting their activities, for war crimes and crimes against humanity for acts including murder, rape, sexual slavery, acts of terrorism, conscription of child soldiers, enslavement, and pillage. Taylor fled Liberia after the indictment was issued and was granted asylum by Nigeria and remained in the country despite widespread demands that Nigeria surrender Taylor to the Special Court. Following his eventual transfer to the custody of Sierra Leone, the government requested that the ICC provide a venue for the trial of Taylor due to concerns that his presence would jeopardize the fragile peace in Sierra Leone. The Security Council unanimously approved a resolution authorizing a chamber of the Special Court to sit outside its jurisdiction in The Hague.157 The Appeals Chamber found that head of state immunity was not relevant to an international tribunal, which derived its authority from the international community, which overcame a presumption of head of state immunity which has its source in the sovereign equality of states.158 Taylor’s trial commenced in June 2007 with Taylor himself boycotting the proceedings after firing his first defense attorney.159 The trial resumed hearings on January 7, 2008 opening with the prosecution’s case.160 The prosecution rested on 27 February 2009 having called 91 witnesses, including experts, crime-base, and linkage witnesses,161 while also presenting written testimony from an additional seventy crime-based witnesses.162 Throughout the trial prosecution witnesses showed particularly violent and horrific video clips from a documentary regarding blood diamonds,163 testified that they assisted in the transportation march to Freetown committing atrocities along the way. Barrett Sheridan, Trials Without Borders, Newsweek, Jan. 10, 2008. 157 S.C. Res. 1688, U.N. Doc. S/RES/1688 (June 16, 2006). 158 Prosecutor v. Charles Taylor, Case No. SCSL-2003-01-PT, Decision on Immunity From Jurisdiction, SCSL, ¶¶ 6–8, 11, 15 (May 31, 2004). 159 Through a letter read by his attorney, Charles Taylor expressed that he “[a]t one time [he] had hoped and had confidence in the court’s ability to dispense justice in a fair and impartial manner . . . [but that] at this time it has become clear that such confidence was misplaced.” Alexandra Hudson, Taylor Absent as Trial Gets Under Way, Reuters, June 4, 2007; see also Jason McClurg, New Defense Counsel Appointed for Charles Taylor, 23 Int’l Enforcement L. Rep. 366 (2007). 160 Jason McClurg, Witnesses Begin Testifying as Charles Taylor’s War Crimes Trial Resumes, 24 Int’l Enforcement L. Rep. (Mar. 2008). 161 Special Court for Sierra Leone, The Prosecutor vs. Charles Ghankay Taylor, available at: http://www.sc-sl.org/CASES/ProsecutorvsCharlesTaylor/tabid/107/Default.aspx. 162 Revised from the original total of around 150 witnesses. Some of the decline in prosecution witnesses is due to death threats some individuals testifying have received based on their appearance at the trial. See Alexandra Hudson, “Death Threats” to Witnesses Against Liberia’s Taylor, Reuters, Mar. 20, 2008. 163 Shocking Footage at Taylor Trial, BBC News, Jan. 7, 2008. The video included images of a woman who had been sexually assaulted by a stick who then watched her husband stumble out



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of weapons from Liberia to RUF soldiers in Sierra Leone,164 and that Charles Taylor ordered acts of cannibalism and ate human hearts himself.165 The trial of Charles Taylor has been plagued with numerous complications, particularly regarding witnesses. For example, on May 24, 2011, the Independent Counsel for the Special Court for Sierra Leone found sufficient grounds to prosecute Eric Senessie, a resident of Kailahun Town, for contempt of court based on allegations that he offered bribes to numerous witnesses who gave testimony before the Special Court in the proceedings of Prosecutor v. Taylor. However, final trial briefs have been filed by the Prosecution and Defense in this fourth, and anticipated last, case before the Special Court.166 Taylor’s trial concluded on March 11, 2011 and the Trial Chamber delivered its judgment on April 26, 2012; a fifty year sentence was handed down on May 30.167 The Chamber found that while the prosecution had proven the underlying acts against Sierra Leonean victims, it had failed to substantiate the existence of a JCE or a superior-subordinate relationship between various RUF leaders and Taylor. According to the Trial Chamber, the prosecution neither proved beyond a reasonable doubt the existence of meetings at which the alleged criminal enterprise was planned nor that Taylor was more than an adviser to the RUF on strategy and planning. Instead, the Trial Chamber found that Taylor had actively aided and abetted the RUF (and later the RUF/AFRC junta) by supplying it with arms and ammunition, satellite phones, an operations base in Monrovia, technical assistance, medical care, military trainers and occasionally troops, by facilitating the sale of the high quality Sierra Leonean diamonds that fueled the war, and perhaps most importantly be assisting with the planning of some operations.

of the jungle after having his arms cut off, a handless man who stated rebels had burned down his house with his family inside, and a child who had been kidnapped to work as forced labor in the diamond mines. Charles Taylor War Crimes Trial Resumes with Blood Diamond Expert’s Testimony, Associated Press, Jan. 7, 2008. 164 This included testimony from Alex Tamba Teh, a Sierra Leonean pastor. See Transcript of Record at 680–791, Prosecutor v. Charles Taylor, Case No. SC SL-2003-01-T (2007). Varmuyan Sherif, a former member of Charles Taylor’s personal security force also testified that he was one of the RUF’s leaders and observed weapons being transported through Sam Bockarie from Liberia to Sierra Leone. See Transcript of Record at 792–973, Prosecutor v. Charles Taylor, Case No. SC SL2003-01-T (2007). Dennis Koker testified regarding an incident where stolen money and diamonds were being transferred from the RUF to Charles Taylor in Liberia. See Prosecutor v. Charles Taylor, Case No. SC SL-2003-01-T, Transcript of Record, 1210–97 (2007). 165 See Prosecutor v. Charles Taylor, Case No. SC SL-2003-01-T, Transcript of Record at 5489–6087, (2007); see also Top Aide Testifies Taylor Ordered Soldiers to Eat Victims, CNN, Mar. 13, 2008. 166 See generally Taylor Trial Chamber Decisions, The Special Court for Sierra Leone, available at http://www.sc-sl.org/CASES/ProsecutorvsCharlesTaylor/TrialChamberDecisions/tabid/159/Default .aspx (last visited Nov. 17, 2011); Charles Chernor Jalloh, Special Court for Sierra Leone: Achieving Justice?, 32 Mich. J. Int’l L. 395, 412 (2011). 167 The Trial Chamber did not publish its full judgment on the 26th, rather instead releasing its official summary, available at: http://www.sc-sl.org/LinkClick.aspx?fileticket=.86r0nQUtK08%3d& tabid=53. Owen Bowcott, Charles Taylor sentenced to 50 years in prison for war crimes, GUARDIAN, May 30, 2012.

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The Trial Chamber’s findings are disappointing and point to serious shortcomings on the part of the Prosecution. It is overwhelmingly evident and clear to observers of the Sierra Leonean civil war that Taylor not only played a role in aiding the RUF in Sierra Leone, but actively commanded them and participated in a criminal enterprise that brutalized the Sierra Leonean population and stole its mineral wealth. It is not clear how the Trial Chamber could with any seriousness make this finding unless the Prosecution failed radically in its presentation of widely known facts and available evidence. The Trial Chamber’s finding is shocking and certainly an outlier in ICL caselaw establishing a precedent that will not be followed. While it is certainly good that Taylor was convicted for aiding and abetting, his acquittal on the more serious forms of liability for command responsibility and JCE fails to give a complete picture of his criminality. In the end, Taylor received a 50 year sentence, which is the second longest sentence the Court has handed down and longer than a number of individuals convicted of commission. One of the important aspects of the judgment will be whether it includes an order for the forfeiture of his assets. It is widely believed that Taylor enriched himself greatly throughout the course of the Sierra Leonean civil war and hid the money in banks throughout the world. The prosecution’s investigators were unable to track down the majority of the money he made through the sale of diamonds. It is imperative for the Trial Chamber to issue a standing order for the recovery of the money when it is eventually discovered because these ill begotten funds will certainly help Sierra Leone in its ongoing struggle to rebuild the country Taylor helped destroy. Other than the Charles Taylor trial, the Special Court began slowly but in June 2007 delivered its first verdicts by convicting the former AFRC rebel leaders Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu of war crimes and crimes against humanity.168 Subsequently, in August 2007, the two surviving CDF defendants, Moinina Fofana and Allieu Kondewa were convicted of war crimes, crimes against humanity and other violations of international law.169 In February 2009, three RUF defendants were convicted of war crimes as well as forced marriage, the first conviction of its kind for an international tribunal.170 Additionally, Sierra Leone’s Truth and Reconciliation Commission began public hearings in Freetown on April 14, 2003. The public hearings phase of the 168 Prosecutor v. Alex Tambe Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No. SC SL-04-16-T, Judgment (June 20, 2007). Each of the defendants was found guilty of 11 counts of war crimes and crimes against humanity. The judgment marked the first time that an international or hybrid tribunal had ruled on the charge of recruitment of child soldiers into an armed force or the crime of forced marriage in an armed conflict. 169 Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SC SL-04-14-T, Judgment (Aug. 2, 2007). 170 Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augstine Gbao, Case No. SC SL-04-15-T, Judgment (Mar. 2, 2009).



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Commission’s work follows the collection of over 7,100 statements from victims, perpetrators, and witnesses to atrocities committed during the war. Efforts to establish the Truth and Reconciliation Commission were spearheaded by UNAMSIL and the Office of the United Nations High Commissioner for Human Rights.171 On July 5, 2002, President Kabbah formally swore in the three international and four Sierra Leonean commissioners.172 The Commission was mandated to produce a report on human rights violations since the beginning of the conflict in 1991 and issue recommendations to facilitate reconciliation and to prevent repetition of past violence. The Commission was also asked to “address impunity” and provide a forum for both victims and perpetrators of past abuses. Unlike the Special Court, which only has jurisdiction over crimes committed after November 30, 1996, the Commission was tasked with investigating violations from the “beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement.”173 The Commission was authorized to issue subpoenas, however, it did not have the power to enforce these provisions and accusations of contempt had to be referred to the Sierra Leone High Court.174 The Commission began its public hearings in April 2003 and issued its final report in October 2004.175 Notable among the Commission’s recommendations was its call for the government to pay reparations to victims of the civil war.176 The Special Court and the Truth and Reconciliation Commission strive to achieve justice, reconciliation, and peace by strengthening the rule of law.177 By

171 On February 22, 2000, the Sierra Leone legislature established the Commission according to the Truth and Reconciliation Commission Act. 172 The commissioners were: Rt. Rev. Dr. Joseph Christian Humper, Hon. Justice Laura Augusta Ebunolorum Marcus-Jones, Professor John A. Kamara, Mr. Sylvanus Torto, Ms. Yasmin Louise Sooka, Madam Ajaaratou Satang Jow, and Professor William Schabas. 173 Truth and Reconciliation Commission Act § 6(1) (Feb. 10, 2000). 174 See Office of the Attorney General and Ministry of Justice Special Court Task Force, Briefing Paper on the Relationship Between the Special Court and the Truth And Reconciliation Commission (Jan. 7–18, 2002). 175 Following a three-month preparatory phase, the TRC operated for an initial period of one year with a possible six-month extension, winding up administratively on December 31, 2003. It had a budget of $9.9 million, but faced difficulties finding donors forcing the Commission to realign their budget as less than half of the funds pledged were dispersed to the Commission. 176 The Commission recommended that the government focus on the needs of victims in “health, housing, pensions, education, skills training and micro-credit, community reparations and symbolic reparations.” See Sierra Leone Truth And Reconciliation Commission Calls for Reparations, UN News Service, Oct. 28, 2004. 177 See The Jury is Still Out, supra note 119 (highlighting the importance of the two transitional justice mechanisms established with international assistance, the Special Court for Sierra Leone and the Truth and Reconciliation Commission). Using the traditional justice system, dozens of ex-combatants gathered in early April 2008 for “healing ceremonies” wherein perpetrators are surrounded before village elders asking for forgiveness. A US-based foundation, Catalyst for Peace, is funding similar ceremonies to take place until 2013 to help victims make peace after the civil war. See Sierra Leone Ex-Combatants Make Peace with Victims, Agence France-Presse, Apr. 5, 2008.

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operating in a mutually supportive way, the limited resources available to each can be maximized, while respecting each institution’s own mandate. If the use of complementary mechanisms employing both traditional judicial accountability methods and truth commissions prove to be a success in Sierra Leone, it undoubtedly has already been and will continue to be a valuable lesson for future UN post-conflict justice missions.178 Some lessons that can be learned thus far are that grants of personal jurisdiction should not be excessively narrowed, prosecutions should expand to reach those both directly involved in the commission of atrocities and those whose support aids the commission of atrocities, and that stable funding must be provided to such tribunals for their work to be effectively carried out.179 The grant of jurisdiction to try those bearing the “greatest responsibility” for serious humanitarian violations resulted in indictments against thirteen individuals, resulting in four trials against nine accused (one indictee died during trial, one died in custody, one died in combat, and the fourth is at large but presumed dead).180 Since this standard was not clearly defined, the various trial chambers interpreted the concept differently.181 This led to different understandings of jurisdictional limitations and prosecutorial discretion between the two chambers. Much of the conflict was fueled by the sale and purchase of so called “blood diamonds,” but the corporations funneling money into Sierra Leone went untouched, which might affect whether local populations feel that true justice against those who potentially bore responsibility for fueling the conflict went unpunished.182 The Special Court was funded by a donations-based system, which hampered the prosecution by impacting the number of people the prosecution may have felt could have been punished, the extent of outreach to local populations, limited the efficacy of the defense and opened the potential for claims to be made that judges are biased in favor of the views of the donors who pay their checks.183 The gap in funds available for the defense as compared to the prosecution created an inequality in arms between the two which led to an inequality in arms arguably reducing the efficacy of the defense by requiring them to undertake actions of necessity rather than preference, such as relying on less experienced local counsel if funds were unavailable for the lead counsel to travel from Europe or North America to Sierra Leone.184 For local populations to feel that justice has been effected by the operation of these mixed model tribunals, especially as in this case the cost of one year’s 178 For a detailed analysis of the various areas of success and failure of the Special Tribunal for Sierra Leone, see Jalloh, Special Court for Sierra Leone, supra note 166, at 412. 179 Id. 180 Id. at 413, 421.   181 Id. at 414. 182 Id. at 424. 183 Id. at 428. 184 Id. at 440–44.



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operation of the Special Tribunal for Sierra Leone is equivalent to the cost of operating the entire national legal system for twenty-three years, the court must bring as many high level criminal actors to justice as possible rather than a handful of individuals in various command strata.185 In a situation like Sierra Leone, in which a tribunal is established in a war torn region, it is important to consider the way in which funds are spent and people are prosecuted, as the local population’s perspective on the political situation and responsibility of certain former officials must be understood by the prosecution in order for the selection of individuals to be tried to serve a reconciliatory purpose within the affected region.186 Although the SCSL did not accomplish all that it could have and was not as efficient as it was intended to be, the SCSL served the purpose of deterring the continuation of the war and was more effective at involving the local population in the proceedings which would likely give them a sense of justice as it was located in the affected area.187 Section 5. Timor-Leste On May 20, 2002, East Timor, now known as Timor-Leste, became the first new country of the millennium.188 The UN took an unprecedented role in Timor-Leste’s rise to statehood by stopping the violence in Timor-Leste and transitioning the region into independence from Indonesia.189 On August 30, 1999, in an UN-sponsored referendum, some ninety-eight percent of East Timorese voters went to the polls and seventy-eight percent rejected limited autonomy in favor of a transition to independence. In retaliation, the 185 Id. at 449–50 (discussing operating costs and local expectations). At its height the Special Court had a budget of more than $36 million a year. Special Court for Sierra Leone, Fifth Annual Report, available at: http://www.sc-sl.org/LinkClick.aspx?fileticket=hopZSuXjicg%3d&tabid=176. 186 Id. at 459. 187 Id. at 452–55. 188 Timor-Leste is located in the eastern part of Timor. Timor is an island in the Indonesian archipelago between the South China Sea and the Indian Ocean. Australia is 400 miles to the south. Timor-Leste is one of the world’s poorest countries. Its citizens survive mainly through subsistence farming and fishing. However, there are hopes of off-shore gas and oil reserves in the Timor Gap. This could be a marvelous bolster to the Timor-Leste economy. Currently, the country continues to rebuild its meager infrastructure. A parliament was elected in 2001, and a constitution assembled. Charismatic rebel leader José Alexandre Gusmão, who was imprisoned by Indonesia between 1992 and 1999, was overwhelmingly elected as the nation’s first president on April 14, 2002. The president has a largely symbolic role and real power rests with the parliament. In April–May 2006, Timor-Leste was badly shaken by civil unrest resulting from internal political disputes. However, successful presidential elections were held in May 2007, and José Ramos-Horta, Nobel peace prize laureate, former Foreign Minister and, since July 2006, Prime Minister, was elected president in a run-off. He sustained injuries in a February 2008 attempted assassination but remains in power. 189 See Matheson, supra note 9, at 523; Linton, supra note 9.

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Indonesian National Army and East Timorese militias pillaged the country. Approximately two thousand East Timorese were killed.190 Eighty percent of the country’s infrastructure was burned and looted, and as many as 500,000 people out of a population of 800,000 were displaced by Indonesian armed forces. The Timor-Leste judicial system was virtually non-existent when the United Nations Transitional Administration in East Timor (UNTAET) was established in 1999.191 There were fewer than ten lawyers in the country, the court buildings were burned and looted, and prospects were dismal. Yet UNTAET was authorized to exercise all legislative and executive authority, including the administration of justice, and it eagerly began rebuilding. A UN investigative group of human rights experts recommended the convening of an international tribunal.192 But an ad hoc tribunal in Timor-Leste, like those for the former Yugoslavia and Rwanda, was opposed by Indonesia with US support, and it was agreed that the investigation and prosecution of the 1999 crimes would occur in two domestic jurisdictions. Indonesia would prosecute its own security forces before a specially constituted human rights court in Jakarta, even though there was much doubt that this would occur. Meanwhile, in Timor-Leste, the UN would operate hybrid tribunals with both international and domestic judges, situated within the local justice system, and partially funded and staffed by the national government. On March 6, 2000, UNTAET Regulation No. 2000/11 was promulgated in order to regulate the functioning and organization of courts in Timor-Leste during the transitional administration.193 Part II of this regulation established four District

190 More than 120,000 East Timorese out of a population of 650,000 were killed between 1975 and 1999 during Indonesia’s invasion and occupation of the country. Food and medical shortages led to starvation and disease resulting in the additional deaths of thousands. See Caitlin Reiger & Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, in Prosecution Case Studies Series (International Center for Transitional Justice, 2006); see also Ben Kiernan, CoverUp and Denial of Genocide: Australia, the USA, East Timor, and the Aborigines, 34 Critical Asian Studies 2, 163–92 (2002). Kiernan argues that the East Timorese perished in crimes against humanity that meet most definitions of genocide, “and, arguably, the United Nations legal definition of genocide of a ‘national group’.” Id. at 164; see also Ben Saul, Was the Conflict in East Timor ‘Genocide’ and Why Does It Matter?, 2 Melb. J. Int’l L. 477–522 (2001). 191 The Security Council established the UNTAET as a peacekeeping mission in Resolution 1272 54 U.N. SCOR (4057th mtg), U.N. Doc. S/Res/1272 (1999) 39 I.L.M. 240 (2000) It is the successor to the United Nations Mission to East Timor (‘UNAMET’), which organized and oversaw the August 30,1999 referendum which paved the way for Timor-Leste’s independence. See Ian Martin, SelfDetermination in East Timor: The United Nations, the Ballot, and International Intervention (2001) (background details regarding consultation and involvement of the UN). 192 Report on the Joint Mission to East Timor Undertaken by the Special Rapporteur of the Commission on Human Rights on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur of the Commission on the Question of Torture and the Special Rapporteur of the Commission on Violence against Women, Its Causes, Consequences, in Accordance with Commission Resolution 1999/S-4-1 of September 1999, ¶ 73, U.N. Doc. A/54/660 (Dec. 10, 1999). 193 Regulation 2000/11 on the Organization of Courts in East Timor, UNTAET/REG/2000/11 (entered into force Mar. 6, 2000) as amended by Regulation 2000/14 UNTAET/REG/2000/11 (entered into force May 10, 2000). For the jurisprudence of these Courts, see Annotated Leading Cases, supra note 114, at 2001–03.



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Courts spread throughout Timor-Leste,194 and part III created an appellate court in Dili.195 A Transitional Judicial Service Commission composed of three East Timorese and two international experts was established to screen judicial and prosecutorial candidates prior to appointment.196 UNTAET established Special Panels in the District Court in Dili, which held exclusive jurisdiction over murder and sexual offenses committed in TimorLeste between January 1, 1999 and October 25, 1999, and universal jurisdiction over genocide, war crimes, crimes against humanity,197 and torture.198 Pursuant to UNTAET Regulation 1272 (1999), a “Serious Crimes Unit” was established under the Office of the Prosecutor of Timor-Leste to investigate and prosecute these six categories of crimes. An international deputy general prosecutor with a mixed international and local staff ran this unit. In an effort to ensure that all basic elements of justice and fairness were being adhered to a Defence Lawyers Unit was established in September 2002 within the United Nations Mission of Support in East Timor (UNMISET).199 The Special Panel for Serious Crimes, made up of three judges, heard cases at the Dili District Court.200 Unlike the regular three judge panels that heard other offences in Timor-Leste,201 the Special Panel had two international judges and one East Timorese judge.202 Appeals were heard by the Timorese Court of

194 Originally, UNTAET Regulation 2000/11 designated the location and territorial jurisdiction of eight district courts. However, UNTAET Regulation 2000/14, amended 2000/11, and called for only four district courts. See UNTAET Regulation 2000/14, § 2. 195 Part III of UNTAET Regulation 2000/11, supra note 193, at subsections 14–15. 196 UNTAET Regulation 1999/3, arts. 1–2. 197 For an analysis of Regulation 15/2000 and its substantive parts dealing with crimes against humanity see Ambos, supra note 15 (noting that Section 5 of Regulation 15/2000 dealing with crimes against humanity are adopted almost literally from the ICC’s Rome Statute and, therefore, the Serious Crimes Panel was the first court to apply substantive provisions of the Rome Statute and its case law may serve as precedent for future prosecutions in the ICC). 198 UNTAET Regulation 2000/11, supra note 193, at § 10. It is noteworthy that section 10.4 of UNTAET Regulation 2000/11, promulgated on March 6, 2000, explicitly stated that the establishment of these special panels with exclusive jurisdiction over Serious Crimes “shall not preclude the jurisdiction of an international tribunal for East Timor over these offences, once such a tribunal is established.” However, on June 6, 2000, UNTAET Regulation 2000/15 was promulgated and it deals in great detail with the Special Panels for Serious Crimes, but it makes no reference to an international tribunal for Timor-Leste. 199 See Cohen, supra note 6, at 9. 200 UNTAET Regulation 2000/15, On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses (June 6, 2000). UN officials intended to establish two Special Panels for Serious Crimes. However, because of delays in recruitment, only one Special Panel was convened. 201 In section 9.2 of UNTAET Regulation 2000/11, it states that trials were to be held by a panel of three judges, but in certain circumstances, cases could have been heard by a single judge. See UNTAET Regulation 2000/11, supra note 193, at § 11; UNTAET Regulation 2000/14, supra note 186, at § 3. 202 UNTAET Regulation 2000/15, supra note 198, at § 22.1; see also UNTAET Regulation 2000/11, supra note 193, at §§ 9, 10.3. Like the East Timorese judges, the international judges were required to successfully pass through the Transitional Judicial Service Commission. Id. at § 10.3.

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Appeal, which was also composed of two international judges and one Timorese judge; however, in cases of special importance or gravity, a panel of five judges (three international and two Timorese) could be created.203 Regarding jurisdictional issues, Regulation No. 2000/15 is structurally quite similar to the statutes for the ad hoc Tribunals for Rwanda and Yugoslavia. It provides for “universal jurisdiction,”204 temporal jurisdiction,205 and territorial jurisdiction.206 The panels are required to apply the law of Timor-Leste, as set out by UNTAET, and “where appropriate,” to apply the recognized laws and principles of international law.207 With respect to its articles on genocide, war crimes, and crimes against humanity, the provisions in Regulation No. 2000/15 are substantially similar to what is contained in articles 6, 7, and 8 of the ICC Statute. Essential to UNTAET’s efforts to effectively prosecute suspected perpetrators was the Memorandum of Understanding (MOU) between Indonesia and UNTAET.208 The MOU sets forth a number of provisions that were designed to encourage cooperation between UNTAET and Indonesia in order to expedite the investigation, prosecution, and trial of suspects within their jurisdictions.209 Indonesia subsequently declared that the provisions of the MOU were not binding because they violate Indonesia’s sovereignty and refused to “transfer” any suspects for whom the Special Panel issued arrest warrants. The prosecution of serious crimes in Timor-Leste proceeded slowly. Since the Serious Crimes Unit commenced operations from 2000 until 2005, the Special Panel for Serious Crimes at the Dili District Court completed fifty-five trials involving eighty-seven defendants. The Special Panel convicted eighty-four and acquitted three, although one of the individuals acquitted was later convicted by the Court of Appeal.210 The first trial including charges of crimes against humanity, the Los Palos case, began on July 9, 2001, and a verdict of guilty was pronounced against ten defendants on December 11, 2001. The second major crimes

203 UNTAET Regulation 2000/15, supra note 198, at § 22.2. 204 Id. at § 2.1. Section 2.2 of UNTAET Regulation 2000/15 defines “universal jurisdiction” to include cases where a) the offense was committed within the territory of East Timor; b) the offense was committed by and East Timorese citizen; or c) the victim of the crime was an East Timorese citizen. 205 Id. at § 2.3. The panels had jurisdiction over crimes committed between January 1, 1999, and October 25, 1999. 206 Id. at § 2.5. The special panels had jurisdiction throughout the territory of Timor-Leste. 207 Id. at § 3.1. 208 See Memorandum of Understanding Between the Republic of Indonesia and the United Nations Transitional Administration in East Timor Regarding Cooperation in Legal, Judicial, and Human Rights Related Matters, (April 6, 2000) [hereinafter MOU]. 209 The MOU contains provisions for Mutual Assistance between Indonesia and Timor-Leste regarding: judicial matters; forensic matters; participation in the proceedings; notification of arrest, indictment, and verdict; access to information; cross-border crime; witness protection; transfer of persons and relevant procedures; requests, practical arrangements; costs of legal assistance; and enforcement. 210 See Cohen, supra note 6, at 9.



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against humanity case to be tried at the Special Panel for Serious Crimes was the Lolotoe trial. It began on February 8, 2001, and on April 5, 2003, the Special Panel sentenced former KMMP militia commander Jose Cardoso Fereira (alias Mousinho) the third and final defendant of those accused who was present in Timor-Leste.211 Cardoso was sentenced to twelve years imprisonment for crimes against humanity, including murder and rape.212 The work of the Special Panel was prematurely ended when the Security Council resolved in 2004 to complete the work of the United Nations Mission of Support in East Timor, the successor mission to UNTAET, by May 20, 2005.213 The Mission closed with 514 investigated cases and fifty non-investigated cases outstanding.214 In light of the high number of outstanding cases, the UN was advised that international judges and personnel would remain in Dili to continue to operate albeit without UN funding.215 Moreover, the UNTAET Regulations allow for the hiring of future international judges to assist the court without further amendments.216 The Special Panel was plagued throughout its existence by a lack of support from the UN and the Timorese government.217 Indicative of this neglect was the fate of the arrest warrant issued for Indonesian General Wiranto, the Commanderin-Chief of the Indonesian Armed Forces during the widespread violence of 1999. Once the arrest warrant was issued following an extended delay, neither the UN nor the Timorese government took any discernible action to attempt to enforce the warrant.218 This unwillingness on the part of the UN and the Timorese government to fully support the efforts of the Special Panel resulted in the Special Panel’s inability to prosecute “high level perpetrators located in Indonesia,” and

211 See Press Release, Judicial System Monitoring Programme, Special Panel Judges In East Timor Sentence Lolotoe Militia Commander to 12 Years For Crimes Against Humanity (Apr. 6, 2003). 212 According to the JSMP this is the first time rape was tried and convicted as a crime against humanity by the Special Panel. Cardoso was convicted of seven counts of crimes against humanity. The counts included two counts of murder, one count of rape, one count of torture, three counts of imprisonment/severe depravation of physical liberty and one count of inhumane treatment. The conviction was a result of a number of incidents including the murder of two pro-independence supporters and the rape of three Lolotoe women, which occurred in a widespread or systematic attack against the civilian population in Lolotoe between April and September 1999. 213 S.C. Res. 1543, U.N. Doc. S/RES/1543 (May 14, 2004). UNMISET began its operations on May 20, 2002, and assisted Timor-Leste until all operational responsibilities were transferred to the Timor-Leste authorities. UNMISET is provided government advisers, several hundred policemen, and about 2,500 peacekeeping troops to Timor-Leste. 214 Within these un-indicted cases there are 828 cases of alleged murder, sixty cases of alleged rape or gender-based crimes, and hundreds of cases of torture or other acts of violence. See Summary of the Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, at 38, para. 107, U.N. Doc. S/2005/458 (July 15, 2005). 215 Id at 43, para. 136. 216 Id. 217 See Cohen, supra note 6, at 10; see also Suzanne Katzenstein, Hybrid Tribunals: Searching for Justice in East Timor, 16 Harv. Hum. Rts. J. 245, 272 (1993); Stromseth, supra note 119, at 290. 218 See Cohen, supra note 6, at 10.

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ensured that the convictions it did obtain were for low-level East Timorese soldiers in the Indonesian military and militia commanders. The lack of serious attention on the part of both the UN and the Timorese government also manifested itself in the severe personnel issues faced by the Special Panel. The most acute example was the inability of the UN and the Timorese government to staff the Court of Appeal; as a result, beginning in December 2001 and continuing for twenty-one months thereafter, the Special Panels functioned without appellate review, denying suspects the ability to challenge their verdicts and sentences.219 Meanwhile, in the Jakarta trials the Indonesian government reluctantly indicted and tried a limited number of Indonesian military and police officials and political leaders. The indictments portrayed the 1999 violence in TimorLeste as a civil disturbance that Indonesian officials failed to prevent, rather than a systematic and widespread terror campaign. This twist of historical facts ignores the conclusions of numerous groups of experts, including the Indonesian Human Rights Commission, which have all categorically stated that the Indonesian authorities orchestrated the 1999 violence in Timor-Leste. As many commentators have pointed out, the Jakarta court was “patently biased in favor of the defense,” and by August 2004, had “acquitted or overturned the convictions of all Indonesians for crimes against humanity in Timor-Leste, and cut in half the ten-year sentence of Eurico Guterres, the East Timorese former leader of the notorious Aitarak militia in Timor-Leste.”220 Eurico Guterres was released on April 7, 2008 after serving less than half of his sentence.221 On July 13, 2001, UNTAET established the Commission for Reception, Truth and Reconciliation, known by its Portuguese acronym CAVR to promote national reconciliation and healing following the “years of political conflict,”222 and the atrocities committed during the twenty-five years of occupation by Indonesian forces.223 The Commission was created by Regulation 2001/10 pursuant to 219 See United Nations High Commissioner for Human Rights, Situation of Human Rights in Timor-Leste, E/CN.4/2003/37 (Mar. 4, 2003). 220 See Higonnet, supra note 98, at 25, note 50. See also Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor (International Center for Transitional Justice, June 2005); Indonesia: Courts Sanction Impunity for East Timor Abuses (Human Rights Watch, Aug. 7, 2004); Indonesia’s Court for East Timor a “Whitewash” (Human Rights Watch, Dec. 20, 2002); David Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (International Center for Transitional Justice, Aug. 2003). 221 Impunity Reigns, The Economist, Apr. 10, 2008. 222 The phrase “political conflicts in East Timor” refers to “armed and non-armed struggles and discord related to the sovereignty and political status of East Timor, the organization or governance of East Timor, the illegal Indonesian invasion and occupation of East Timor, or any combination of the foregoing.” See UNTAET Regulation 2001/10, On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor § 1 (j) (July 13, 2001). 223 For an astute analysis of the CAVR see Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l.



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Security Council Resolution 1272.224 The Commission started work on January 21, 2002 when the National Commissioners were sworn in.225 The objectives of the Commission were to establish the truth about the human rights violations committed when Timor-Leste was under Indonesian rule226 and facilitate the acceptance and reintegration into East Timorese society of persons accused of having committed less serious crimes in the context of the political conflicts in the territory between April 25, 1974, and October 25, 1999.227 The Commission presented its final report to the national parliament on November 28, 2005.228 The 2,500-page report documents widespread and systematic violations of human rights perpetrated by all parties in Timor-Leste between 1974 and 1999. During its mandate, the CAVR conducted confidential inquires and research as well as public hearings, and enjoyed powers of subpoena and search and seizure. Unlike the commission in South Africa, the CAVR did not offer an amnesty to those who admitted committing serious crimes like murder or rape.229 Those cases were to be passed on for prosecution in the normal court system. Consequently, the greatest weakness of the CAVR was the fact that perpetrators of serious crimes did not voluntarily participate in the CAVR due to the threat of future prosecution. In addition, the CAVR had no legal authority to order Indonesia to L. 952 (2001). See also Hansjoerg Strohmeyer, Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor, 2001 U. New South Wales L.J. 16 (2001). Strohmmeyer states: Ultimately, however, the challenge for UNTAET and the East Timorese in this area will be to find the right balance between justice and reconciliation in a society that holds the principle of forgiveness at the core of its culture. The prosecution and trial of serious violations of international humanitarian and human rights law must be accompanied by a comprehensive discussion on truth and reconciliation, and even amnesty for the perpetrators of less serious offences. The current efforts of UNTAET and East Timorese civil society to establish an East Timorese Return and Reconciliation Commission is an important step in this direction. Id. at para. 26. 224 UNTAET Regulation 2001/10, supra note 222, at § 1(j). 225 There were seven national commissioners and twenty-eight regional commissioners. See President Xanana Gusmão, Speech at Reconciliation Commission Office Opening (Feb. 17, 2003). Gusmão stated: This is the first time that there is such a Commission in the whole Asia Region—this shows that Timor-Leste is making a contribution to development of human rights in the world. The Commission is an East Timorese institution, with a staff of 240, and staffed mainly by East Timorese with a small amount of foreign support. The Commission is working in each district, in all sub-districts and in the villages. So far 2,500 statements have been given by East Timorese people. More than 200 people who have harmed their communities have come forward voluntarily to participate in reconciliation hearings to make peace with their communities. 226 See UNTAET Regulation 2001/10, supra note 222, at pt. III. 227 See id. at pt. IV. 228 Commission for Reception, Truth and Reconciliation in East Timor, Chega! Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (2005). 229 The statutes of the two international criminal tribunals also provide for the discretionary use of pardons “on the basis of the interests of justice and the general principles of the law.” ICTR Statute, supra note 148, at art 27; ICTY Statute, supra note 148, at art. 28.

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extradite suspects to Timor-Leste. While such cooperation with the Indonesian government would have greatly enhanced the success of the Commission, such cooperation was not forthcoming. In spite of these challenges, the work of the CAVR has been positively received and has been deemed a success by many observers.230 Alternatively, some critics claim that the CAVR sought to quash attempts at justice in favor of creating a “friendship” between Indonesia and Timor-Leste.231 While the combination of criminal prosecution and community-based reconciliation procedures reflects a sophisticated approach to addressing past human rights tragedies while meeting the practical realities of a transitional process, the disappointing results of the criminal justice component have undermined the success of these efforts, as the government of Timor-Leste has not pursued additional trials after having the benefit of the CAVR report.232 President Jose Ramos-Horta, President of TimorLeste, told Amnesty International that he would support the establishment of an international criminal tribunal for crimes committed during the Indonesian occupation. Furthermore, he accused the UN of hypocrisy for using his government’s stance on justice as a pretext for not establishing such a tribunal, claiming that key countries on the UN Security Council opposed setting up a tribunal to prosecute alleged perpetrators of crimes against humanity in Timor-Leste.233 Section 6. Cambodia The UN’s first major involvement in the governance of a post-conflict society was in Cambodia. It was concerned with the restoration of peace in Cambodia, but 230 See Human Rights Watch, Country Summary: East Timor (2006). Unfortunately, the CAVR final report has yet to be disseminated amongst the East Timorese population despite efforts by the UN and Secretary-General to make the report available on various websites after its submission to President Gusmao in 2006. See Stromseth, supra note 119, at 296. 231 These critics claim the truth commission acted as a soapbox to help mend the public perception of the accused rather than help the victims. Compare id. with International Center for Transitional Justice, Too Much Friendship, Too Little Truth: Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste (2008) (arguing the truth commission did not focus on victim restoration). 232 The inaction of the Timor-Leste government has been noted in the US State Department’s 2009 Human Rights Report for Timor-Leste, available at http://www.state.gov/g/drl/rls/hrrpt/2009/ eap/136011.htm (last visited Nov. 17, 2011). For further analysis of the interplay between accountability and political pressure see M. Cherif Bassiouni, Searching for Justice in the World of Realpolitik, 12 Pace Int’l L. Rev. 213 (2000); M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000); M. Cherif Bassiouni, Accountability for International Crime and Serious Violations of Fundamental Human Rights: Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9 (1996); Buckley, supra note 8, at 637. 233 Timor-Leste President Would Support International Tribunal, Amnesty International, Mar. 8, 2010, available at http://www.amnesty.org/en/news-and-updates/timor-leste-presidentwould-support-international-tribunal.



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for three decades remained unable to address the PCJ issues arising out of the atrocities committed by the Khmer Rouge.234 Finally, in November of 2007, the tribunal held its first public hearings.235 The most serious violations in Cambodia took place between April 17, 1975 and January 7, 1979, while the Khmer Rouge was in power. It was primarily an internal conflict led by a Maoist government popularly known as the Khmer Rouge and led by Pol Pot after having supplanted the US-supported Lon Nol government after a nearly seven year civil war.236 Under the Khmer Rouge regime, policies of slave labor, torture, and forced evacuations were forcefully put into practice.237 During their first week in power, 2.5 million citizens of the capital, Phnom Penh, were displaced into nearby countryside in the Khmer Rouge’s pursuit of a perfect Maoist society.238 Additionally, more than 1.5 million persons were killed by their regime. However, because the Khmer Rouge and its victims shared the same ethnicity, these atrocities were not technically deemed genocide,239 although attacks against the Cham can be labeled as genocide due to their religious and ethnic differences from the Khmer Rouge. Vietnam ousted the Khmer Rouge in late December 1978 and early 1979. The Khmer Rouge continued fighting a guerilla war with significant foreign support including from China and major Western powers, including the US, against the new government for more than a decade. The 1991 Paris Accords ended Cambodia’s civil war although some factions continued to fight until the end of the 1990’s.240 Yet over three decades later, only one single member of the Khmer Rouge has been prosecuted for their acts 234 See Ratner, supra note 8, at 613; see also Nema Milaninia, Appeasing the International Conscience or Providing Post-Conflict Justice: Expanding the Khmer Rouge Tribunal’s Restorative Role, Working Paper 1274 (bepress Legal Repository, Apr. 18, 2006); Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges, 113 (2005); Tessa V. Capeloto, Reconciliation in the Wake of Tragedy: Cambodia’s Extraordinary Chambers Undermines the Cambodian Constitution, 17 Pac. Rim L. & Pol’y J. 103, 103 (2008). 235 See Excerpts, supra note 12. 236 Capeloto, supra note 234, at 106. 237 Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, U.N. Doc. A/53/851, S/1999/231, 19–45 (1999) [hereinafter Group Experts Report]. 238 Id. at 19. 239 The 1948 Genocide Convention in Article II refers only to ethnic, religious or national groups, thus excluding same groups from the scope of the prohibition. Also, the Convention excludes social and political groups. See William A. Schabas, Genocide in International Law (2000); Matthew Lippman, Genocide, in 1 International Criminal Law 403 (M. Cherif Bassiouni ed., 3d ed. 2008); Patricia M. Wald, Challenges Judging Genocide, in Just. Initiatives 85 (Open Society Initiative, 2006). The ICC’s Article 6 follows Article II of the 1948 Genocide Convention, and therefore retains its weaknesses. This writer tried several times to have the ICC correct these deficiencies at the 1995 Ad Hoc Committee and the 1996–98 Preparatory Committee, but was unsuccessful in obtaining state support for such amendments. 240 It should be noted that the Khmer Rouge resumed fighting in 1992. Cambodia continued to experience political strife until 1999, when the surviving leaders of the Khmer Rouge surrendered and the party dissolved itself.

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in the 1970s. It was not until the 1990s, twenty years or so after the atrocities, that the UN became actively engaged in PCJ activities within Cambodia.241 During their years as a guerrilla movement, the Khmer Rouge made accountability impossible because China and the US saw potential opportunities for the use of the Khmer Rouge as an instrument to pressure Vietnam and the Soviet Union.242 After eleven rounds of negotiations, the Paris Agreements, signed on October 23, 1991, enacted a peace plan with the involvement and assistance of Vietnam, the People’s Republic of Kampuchea, and Cambodia’s rival factions, including the dominant Khmer Rouge. The Khmer Rouge’s participation in these negotiations was considered so valuable that no outside state was willing to demand of it any form of accountability. The Paris Agreements called for the creation of the United Nations Transitional Authority in Cambodia (UNTAC).243 Its mission was to organize and conduct elections while maintaining peace and political neutrality. Even after Cambodia’s 1993 UN-administered elections had occurred, the new government refused to proceed with any Khmer Rouge prosecutions.244 It was not until 1997 that the United Nation’s Special Representative for Human Rights in Cambodia, Thomas Hammarberg, brought the question of impunity to the forefront of Cambodia-UN interactions.245 The result was that in the spring of 1998, UN former Secretary-General Kofi Annan appointed a Group of Experts to investigate and critique the potential for a Cambodian tribunal.246 In March 1999, after nine months of work, the

241 The UN was previously unable to act effectively in Cambodia because of Cold War politics and the Security Council veto. A United Nations Resolution in 1997 expressed support for holding the Khmer Rouge leaders accountable for their crimes. G.A. Res. 52/135, U.N. Doc. A/RES/52/135 (Dec. 12, 1997). 242 Ratner, supra note 8, at 613. 243 See Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Oct. 23, 1991, art. 6 & Annex 1, 31 ILM 183, 184 (1992); S.C. Res. 745, U.N. Doc. S/RES/745 (Feb. 28, 1992). 244 The new government was a coalition between Norodom Ranariddh, the son of King Sihanouk, as First Prime Minister, and Hun Sen, the prime minister from the Vietnamese installed regime, as Second Prime Minister. In reality, Hun Sen dominated the government and became sole prime minister after a coup in 1997. 245 See Thomas Hammarberg, Efforts to Establish a Tribunal Against the Khmer Rouge Leaders: Discussions Between the Cambodian Government and the UN (May 29, 2001) (paper presented at a seminar organized by the Swedish Institute of International Affairs and the Swedish Committee for Vietnam, Laos, and Cambodia, Stockholm). The appointment of the group of experts was prompted by a letter from then Second Prime Minister Hun Sen to the UN asking for assistance in preventing impunity. See Beigbeder, supra note 234, at 132; Capeloto, supra note 234, at 107. 246 The Group of Experts for Cambodia was established pursuant to General Assembly Resolution 52/135 in 1998–99. The Group’s report is found in identical letters dated March 15, 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, U.N. Doc. A/53/850-S/1999/231 (Mar. 16, 1999). The Group of Experts Report is found in the Annex. Steven R. Ratner was a member of the Group of Experts and gives a comprehensive account in Steven R. Ratner, The United Nations Group of Experts for Cambodia, 93 Am. J. Int’l L. 948 (1999).



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Group of Experts issued a report detailing the evidence of the crimes committed, evaluating that evidence under existing international and Cambodian criminal law, assessing the prospects of bringing the Khmer Rouge to justice, and most importantly, evaluating the options for accountability.247 The Group of Experts concluded that existing evidence justified investigations and prosecutions for crimes against humanity, genocide, war crimes, forced labor, crimes against internationally protected persons, and violations of pre-1975 Cambodian criminal law.248 Furthermore, the Group of Experts believed that with the help of neighboring Thailand, all suspects could be apprehended. The Group of Experts considered five options for an accountability mechanism, including fully domestic trials under Cambodian law, a tribunal established by the UN, a mixed tribunal under UN administration, an international tribunal established by treaty, and trials in states other than Cambodia under their domestic laws.249 The Group of Experts steadfastly advised the UN that the tribunal should be international in nature because Cambodia’s courts lack the capacity and the independence to try the remaining Khmer Rouge leaders.250 The Group of Experts also felt that Cambodians would perceive purely domestic courts as biased since few Cambodians had faith in their judiciary.251 The Cambodian government rejected the Group’s findings and opposed the establishment of a wholly international tribunal modeled on the ICTY and ICTR.252 In August 1999, however, Secretary-General Kofi Annan dispatched a team under the direction of Hans Corell, the UN’s Legal Counsel, to Phnom Penh to negotiate a mixed UN-Cambodian tribunal, even though as already noted,

247 The Group of Experts concluded that the existing evidence justified investigations and prosecutions for crimes against humanity, genocide, war crimes, forced labor, torture, crimes against internationally protected persons, and violations of pre-1975 Cambodian criminal law. It also found that the Cambodian government, with possible help from Thailand, could apprehend any suspects. See Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2d ed. 2001). It should be noted that the documentation of the Khmer Rouge’s crimes was carried out by a Yale University project first directed by Craig Etcheson. See Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea 1976–1977 (David P. Chandler et al. trans. & eds. 1988); Genocide and Democracy in Cambodia (Ben Kiernan ed. 1993); The U.N. and Cambodia 1991–1995 (U.N. Blue Book Series, Volume II, 1995); Genocide in Cambodia: Documents From the Trial of Pol Pot & Ieng Sary (Howard J. DeNike et al. eds., 2000); Craig Etcheson, Accountability Beckons During a Year of Worries for the Khmer Rouge Leadership, 6 ILSA J. Int’l & Comp. L. 507 (2000); Ben Kiernan, Bringing the Khmer Rouge to Justice, 1 Hum. Rts. Rev. 3 (2000); Ramji, supra note 11; Scheffer, supra note 8. 248 See Group Experts Report, supra note 237, at para. 150. 249 See Ratner, supra note 8, at 613, 614. 250 Group Experts Report, supra note 237, at paras. 139, 178–84. 251 Id. at 134. 252 Then Second Prime Minister Hun Sen felt that the Khmer Rouge should face prosecution, however, he noted that should an international tribunal be mishandled in the slightest, former Khmer Rouge officers would resume guerilla warfare in the Cambodian jungle.

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the Group of Experts had categorically and unequivocally rejected this option.253 In January 2001, after years of frustrating negotiations, and despite continued disagreements on key points, the Cambodian government pushed through its National Assembly a weak law setting up the proposed tribunal.254 In February 2002, the UN ended five years of negotiations with the Cambodian government.255 It believed that the trials as planned would not guarantee the independence, objectivity, and impartiality that a court established with the support of the UN must inherently possess and that the Cambodian position—that any agreement between the UN and Cambodia would not regulate the operation of the tribunal—was unacceptable.256 These problems arose due to the fact that the Cambodian government presented the law to its National Assembly before reaching an agreement with the UN. In August 2002, after months of silence, a UN spokesman for Secretary General Kofi Annan said the world body was “prepared to engage in further talks” with Cambodia to establish a mixed national and international tribunal to try the Khmer Rouge leadership.257 On March 14, 2003, representatives from the UN and Cambodia resumed intensive talks in Phnom Penh on a draft agreement for a special court. On March 18, 2003, the UN and Cambodia concluded a draft framework258 concerning the prosecution of Khmer Rouge leaders.259 The agreement was approved by the Cambodian

253 See Group Experts Report, supra note 237, at para. 190 (“The disadvantages of such a proposal . . . seem to the Group to outweigh any advantages.”). 254 The law entitled the “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea,” was adopted in January 2001 and amended in October 2004. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, NS/RKM/1004/006 (with inclusion of amendments as promulgated on 27 October 2004). [hereinafter ECCC Law]. 255 See Etcheson, supra note 11, at 16–18; William Orme, UN Ends Efforts To Try Khmer Rouge, Chi. Trib., Feb. 9, 2001; see also Seth Mydans, Khmer Rouge Trials Won’t Be Fair, Critics Say, N.Y. Times, Feb. 10, 2001. Perhaps the Secretary-General took this action as a bargaining tool in order to promote future negotiations between the United Nations and the Cambodian government. 256 UN Legal Counsel Hans Corell stated that the UN “is especially concerned at the lack of urgency” shown by the Cambodian government during the negotiations and that the UN feared that “this lack of urgency could continue and affect the work” of the Tribunal. See Negotiations between the U.N. and Cambodia regarding the establishment of the court to try Khmer Rouge Leaders, Statement by U.N. Legal Counsel Hans Corell at a Press Briefing at UN Headquarters in New York, Feb. 8, 2002; see also Mundis, supra note 11, at 934. 257 See Bill Myers, Impasse Thaws on Khmer Rouge, Chi. Trib., Aug. 23, 2002. 258 General Assembly Approves Draft Agreement Between UN, Cambodia on Khmer Rouge Trials, G.A. Res. 10135, U.N. Doc. GA/RES/10135 (May 13, 2003). UN Legal Counsel Hans Corell, elaborating on the differences between the draft agreement and the situation in February 2002, stated that an important difference was that the parties had agreed that the provisions in the agreement would govern the assistance operation. Also, the structure of the tribunal was altered so that the court would only consist of two chambers, the Trial Chamber and the Supreme Court Chamber. See Press Release, Hans Corell, Press Briefing on Cambodia by UN Legal Counsel, Mar. 18, 2003. 259 Asked how the question of the judges and the prosecutor had been resolved, Mr. Corell said the solution was the same as in February 2002. Thus, there will be three Cambodian and two



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Parliament later that same month and was subsequently approved by the UN on May 2, 2003.260 The Cambodian domestic law was strengthened in October 2004 with several amendments concerning personal and substantive jurisdiction, the composition and appointment of judges, investigative and prosecutorial procedures, and logistics such as location of the tribunal, expenses and working languages as agreed upon by the UN.261 However, the Extraordinary Chambers in the Courts of Cambodia (ECCC) would face both compositional and procedural legal challenges as well as significant substantive limitations that would decrease the effectiveness of the court in holding the Khmer Rouge accountable.262 The judicial composition of the court as stated in the amended Cambodian domestic law does not ensure judicial independence nor establish impartiality of the ECCC. A compromise was negotiated between the UN Representative and the Cambodian Government for the judicial independence of a majority of the UN-appointed judges and an UN-appointed prosecutor. Rather than follow the suggestions of the UN Group of Experts and establish a tribunal with a majority of international judges, the National Assembly created a mixed tribunal within the domestic court system of Cambodia where the court would have a majority of Cambodian judges. While three out of five judges at the trial court level would be Cambodian, all trial court decisions are to be decided by a supermajority (four out of five, in effect requiring the agreement of one international judge). Where there is no supermajority the action continues, as was evident during the fight over whether to open an investigation into Cases 003 and 004 (which the International prosecutor and judges supported and the Cambodian prosecutor and judges rejected).263 Moreover, the accused will be tried by two prosecutors, one Cambodian and one appointed by the UN, who are assisted by a staff of both foreign and Cambodian officials.264 If the two prosecutors disagree, the prosecution is to proceed unless one prosecutor requests that the differences be resolved international judges. The second Chamber will be composed of four Cambodian and three international judges. Decisions in the two Chambers would be taken by a “super majority”—at least one international would have to concur with local judges. See Press Release, supra note 258. 260 G.A. Res. 10135, supra note 258; Etcheson, supra note 11, at 13. 261 See Etcheson, supra note 11, at 13; see also ECCC Law, supra note 254, at amendments to arts. 2, 3, 9–11, 14, 17, 18, 20–24, 27, 29, 31, 33–37, 39, 40, 42–47 of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. 262 A strange but serious legal flaw in the Statute of the ECCC is the incorrect phrasing of the crime of Genocide. The Genocide Convention and the other tribunals with jurisdiction over the crime all use the recognized language “as such”, which requires proof of the specific intent of the accused to commit the crime. The ECCC statute, however, inverts this requirement, phrasing it as “such as”, thereby conceivably negating the special intent requirement that is at the heart of the genocide convention. 263 ECCC Law, supra note 254, at art. 9; see Disagreement No. 001/18-11-2008-ECCC/PTC, Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71 (Aug. 18, 2009). 264 Id. at art. 16.

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by a special chamber of five judges (three Cambodian, two UN appointed). This chamber is also to rule on any inter-prosecutorial disputes by supermajority.265 The majority of Cambodian judges in both the trial and appellate courts undermine the legitimacy of the courts, while the existence of two prosecutors and the unclear supermajority concept further complicate the already muddy procedural waters of the ECCC.266 The difficulties with the existence of co-equal officials was apparent at the conclusion of the Case 001, when the international and national defense attorneys made seemingly incompatible legal arguments during closing arguments, revealing an apparent lack of communication and agreement on the fundamental theory of the case.267 Additionally, the inclusion of victims in the proceedings as civil parties without clearly defining their status or role creates further problems.268 Without a clearly defined role and multiple, independent civil party lawyers questions were asked that had already been posed by the judges, prosecution or defense, thereby causing delay to the proceedings. Moreover, the tribunal’s procedural challenges are exacerbated by Cambodia’s history of noncompliance with international legal standards and norms.269 Even more difficult considering the court itself is located within the domestic legal system of Cambodia where the judiciary has long since been criticized as being weak and highly susceptible to political and institutional biases.270 Following the establishment of the administrative organs of the tribunal and the appointment of judges and staff, progress toward the establishment of the tribunal’s procedural framework continued to delay the start of judicial proceedings.

265 As Ratner notes, “[o]f course, the idea of a double-headed prosecutor is bizarre, if not a recipe for disaster.” The chances are that the Cambodian judges and prosecutors will not be insulated from political pressure and act accordingly. The law also provides for two investigatory judges, one Cambodian and one foreign, whose disagreements would be decided by a chamber of five judges. This adds yet another layer of bureaucracy.” Ratner, supra note 8, at 613. 266 See Sylvia de Bartodano, Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers, 4 J. Int’l Crim. Just. 285, 290 (2006). See also Cohen, supra note 6, at 28. 267 During the closing argument the international defense attorney argued that Duch had accepted responsibility and apologized, which indicates recognition of the tribunal’s jurisdiction, while the national defense attorney disputed that the accused was a senior leader or most responsible and therefore argued that the court had no jurisdiction. 268 Extraordinary Chambers in the Courts of Cambodia, Internal Rules, R.12 and 23 (June 12, 2007). See Kathleen Claussen, Up To The Bar? Designing the Hybrid Khmer Rouge Tribunal in Cambodia, 33 Yale J. Int’l L. 253, 256 (2008). 269 See Katheryn Klein, Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the Joint Tribunal in Cambodia, 4 Nw. U. J. Int’l Hum. Rts. 549 (2006). 270 An Sok, The Khmer Rouge Tribunal: What It Means for Cambodia, in Just. Initiatives, 25 (Open Society Justice Initiative, 2006); see also Barbara Crossette, A Tortuous Road to Nation-building, Int’l Herald Trib., Mar. 20, 2008 (regarding the corrupt Cambodian judicial system mixing with distinguished international lawyers).



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The national and international judicial officers of the tribunal finally reached an agreement on the tribunal’s procedural framework on June 13, 2007.271 The delays in the process of establishing the tribunal have foreclosed the possibility of bringing some of the most senior Khmer Rouge leaders to trial. In 1997, Pol Pot surfaced, but the US and the UN lacked the political will to bring him to justice. Eventually, Pol Pot returned to the jungle without being prosecuted and died in a Khmer Rouge zone on the Thai border on April 15, 1998. The Khmer Rouge General Ke Pauk, who was allegedly involved in large-scale killing also evaded prosecution and has died. Ta Mok, also known as the “Butcher,” the Khmer Rouge army chief, died in July 2006 while in detention pending trial by the Cambodian tribunal. While the most senior and culpable leaders escaped with impunity, in July 2007 the Prosecutors of the tribunal, with assistance of the Cambodian national police, filed the first Introductory Submission of the Extraordinary Chambers in the Courts of Cambodia.272 The Co-Prosecutors’ preliminary investigations identified five suspects and twenty-five situations concerning possible violations of international humanitarian law and Cambodian law.273 Over the next four months, all of those identified were apprehended. Those in custody include Nuon Chea, the movement’s chief ideologue; Ieng Sary, the former foreign minister and deputy prime minister; Ieng Thirith, Ieng Sary’s wife and former Minister of Social Affairs; Khieu Samphan, the former head of state; and Kaing Guek Eav, alias “Duch,” who ran the notorious Tuol Sleng prison.274 Kaing Guek Eav’s trial hearings began in February 2009. A judgment was delivered in the Kaing Guek Eav case on July 26, 2010, sentencing him to thirty-five years’ imprisonment, less a reduction for time spent in detention and a reduction based on his illegal detention.275 On appeal the Supreme Court Chamber increased Kaing’s sentence to life imprisonment.276 The trial for case 002 commenced with the initial hearing for Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan onon June 27, 271 See Excerpts, supra note 12. One of the serious complications to the operation of the ECCC is the mandate that all documents be delivered simultaneously in all three official languages of the court: Khmer, English and French. 272 Id.; see also Statement of the Co-Prosecutors of the ECCC, July 18, 2007 available at http:// www.eccc.gov.kh/english/cabinet/press/33/Statement_of_Co-Prosecutors_18-July-2007_.pdf. 273 Statement of the Co-Prosecutors of the ECCC, supra note 272. 274 See Wynne Cougill, Documentation Center Cambodia, 2007 Annual Report 1 (2007); Ker Munthit, Genocide Trial Rules Agreed in Cambodia, Associated Press, June 13, 2007; see also Bill Myers, Impasse Thaws on Khmer Rouge, Chi. Trib., August 23, 2002; Seth Mydans, As Cambodia Prepares to Try Khmer Rouge Leaders for Massacres, They Deny Guilt, N.Y. Times, Aug. 21, 2001, at A9; Chris Decherd, Cambodia’s King Signs Law Paving the Way for Tribunal to Put Khmer Rouge on Trial, Associated Press, Aug. 10, 2001. 275 Case No. 001/18-07-2007/ECCC/TC, Judgment, (July 26, 2010), available at http://www.eccc .gov.kh/sites/default/files/documents/courtdoc/20100726_Judgement_Case_001_ENG_PUBLIC.pdf. 276 The full judgment was not made public in February 2012. The summary of the judgment is available at: http://www.eccc.gov.kh/sites/default/files/articles/03022012Summary-Eng.pdf. 

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2011.277 The trial commenced on November 21, 2011, but only against Nuon Chea, Ieng Sary and Khieu Samphan. Ieng Thirith was found unfit to stand trial by the Trial Chamber in November 2011, a decision the Supreme Court Chamber reversed in the following month; she is now undergoing evaluation to determine her mental state.278 For Cambodia, the road to justice remains little more than a foot-worn forest path in need of substantial and immediate paving.279 Given its small budget and the difficulties identified above, it is likely that the tribunal will produce only a few symbolic trials. Indeed, the fate of cases 003 and 004 of senior Khmer Rouge military leaders and regional leaders, respectively, remains unclear, and has caused significant disagreements within the Office of the CoInvestigating Judges. When the rule of law falls prey to a country’s political strife, the interests of justice are far better served through the use of an international prosecutorial model rather than inadequate domestic courts.280 The uncertain progression of Case 002, and the summary treatment of Cases 003/004 serve to undermine Cambodian confidence in the impartiality and efficacy of the ECCC. After initially cooperating with the ECCC, Kaing Guek Eav appealed the ECCC’s sentence, arguing that he was not an individual in a position “most responsible” for the crimes within the ECCC’s jurisdiction.281 In October, 2010, Cambodian Prime Minister Hun Sen told U.N. Secretary General Ban Ki-Moon that Case 003 would not proceed.282 A Cambodian government official claims that the country is at risk of entering a civil war should cases 003 and 004 proceed.283 This political interference was followed by a failure of Cambodian staff to conduct investigations into case 003, and the refusal of the U.N. or supporting states to speak out against this political involvement has decreased the confidence of Cambodians in the ECCC as a mechanism that will provide relief.284

277 See Case No. 002, Case Scheduling of Initial Trial Hearing, available at, http://www.eccc.gov .kh/sites/default/files/documents/courtdoc/E86_EN.PDF. 278 Rober Carmichael, Khmer Rouge—November Trial Date, Radio Netherlands Worldwide, http://www.rnw.nl/international-justice/article/khmer-rouge-%E2%80%93-november-trial-date. 279 While the establishment of the tribunal has been greeted by many observers as an important step in establishing the rule of law in Cambodia, some commentators have criticized the tribunal and pointed to its perceived weaknesses, such as the inadequacy of the judiciary in Cambodia, potential government interference with investigations and judicial proceedings, the lack of respect for the rule of law and objections to the substantive provisions and coherence of Cambodian law. See Higonnet, supra note 98, at 395–397 (outlining various critiques of the Cambodian tribunal). Additionally, one of the attorneys representing Khieu Samphan is Jacques Vergès, infamous for his representation of Klaus Barbie and President Slobodan Milošević to name a few. Jacques Vergès is known for his unique defense techniques and extravagant style may prove to delay the trials even further. See Former Khmer Rouge leader in court, Associated Press, Apr. 23, 2008; Ker Munhit, French Lawyer’s Outburst at Cambodia Tribunal Triggers Delay, Associated Press, Apr. 23, 2008. 280 Linton, supra note 9, at 204, 234. 281 Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia June 2011 Update 23 (2011). 282 Cambodia Rebuffs UN Chief on Khmer Rouge Trials, N.Y. Times, Oct. 27, 2010. 283 Carmichael, supra note 278. 284 Open Society Justice Initiative, supra note 281, at 3.



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It also may cloud the image of impartiality which is necessary of any U.N. backed tribunal. Investigations into case 003 closed on April 29, 2011 without any formal notification of or involvement by the individuals being indicted, and case 004 is on track for the same fate.285 As of September 2011, investigations are pending in case 004, but no individuals have been charged. The situation surrounding the treatment of cases 003/004 has resulted in “rapidly deteriorating loss of public confidence” in the tribunal, as stated by a prominent victims’ advocate to Co-Prosecutor Andrew Cayley.286 The ineffective nature of civil party participation may add to victim frustration with the ECCC,287 although it is clear that in come important respects the participation of victims in ICC proceedings has been a success.288 In a development perhaps representative of the problems with the ECCC, the international co-investigating judge resigned in October 2011, citing interference by the Cambodian government regarding cases 003 and 004.289 With funding issues likely playing a role in the investigative process, if the U.N. and other donors would voice their concerns and support the judiciary and Cambodian staff in their efforts, such invovlement may have a positive effect on the process and result in somewhat of a restoration of public confidence. Otherwise, if violators are perceived to have impunity from prosecution, the ECCC’s legacy may be less meaningful than its advocates may have desired. Section 7. Lebanon The former Prime Minister of Lebanon, Rafik Hariri, was killed as a result of a car bomb explosion on February 14, 2005. The former Minister of the Economy, Bassel Fleihan and nineteen other people were also killed in the explosion while hundreds more were wounded. Following the assassination, Lebanese protestors took to the streets en masse accusing the Syrian Government of orchestrating the attack. The protests led to the resignation of Lebanon’s pro-Syrian cabinet.290 285 Id. at 2–3. 286 AKRVC President Theary Seng’s Open Letter to UN Co-Prosecutor Andrew Cayley, June 9, 2011, available at, http://www.cambodiatribunal.org/images/CTM/akrvcopenletterandrew cayley9june2011.pdf. 287 Richard L. Kilpatrick, Jr., Recent Development: Prosecutor v. Kaing Guek Eav alias Duch: In First Round of Proceedings, the Extraordinary Chambers in the Courts of Cambodia Convicts Former Chairman of Khmer Rouge Interrogation Center of Atrocity Crimes, 19 Tul. J. Int’l & Comp. L. 669, 688–89 (2011). 288 Eric Stover, Mychelle Balthazard and K. Alexa Koenig, Confronting Duch: Civil party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia, 93 INT’L Rev. Red Cross 1 (2011).   289 As Judge Resigns, UN Reiterates Need for Non-Interference in Cambodian Tribunal, UN News Centre, Oct. 10, 2011, available at http://www.un.org/apps/news/story.asp?NewsID=39997&Cr =Cambodia&Cr1=. 290 The ‘Cedar Revolution,’ so-named because of Lebanon’s national emblem, sought the withdrawal of Syrian troops from Lebanon and the reestablishment of a wholly Lebanese government.

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After a series of further bombings and demands from Lebanese protestors, the UN Security Council adopted Resolution 1595, launching an international investigation commission to investigate the bombings of February 14 as well as subsequent bombings.291 This marked the first time that the UN had become involved in a purely internal situation based primarily on the death of one individual. There is hardly a perceptible international legal element affecting international peace and security pursuant to Chapter VII of the UN Charter that justifies the Security Council’s establishment of this pseudo-tribunal. The international crimes which the Security Council invoked in establishing the ICTY and ICTR, and which were present in situations leading to other mixed-model tribunals discussed herein, were simply absent from this situation. First, the UN appointed Patrick Fitzgerald, an Irish Deputy Police Commissioner, to lead the investigation. Fitzgerald and his team arrived in Beirut on February 25, 2005. After a month-long investigation, Fitzgerald submitted his report to the Security Council, wherein he noted that the intense polarization of the Lebanese government coupled with a strong Syrian influence in Lebanese affairs provided the context for the assassination.292 Specifically, the report noted, that Syria “clearly exerted influence that went beyond the reasonable exercise of cooperative or neighborly relations.”293 The Fitzgerald Report moves beyond the accusations of the Syrian government to accuse Lebanon of failing to “provide adequate protection for its citizens.”294 Moreover, the Report reviewed the Lebanese investigation noting that the investigation “was not carried out in accordance with international standards.”295 As the revolution was sparked by the assassination of former Prime Minister Hariri, the demonstrators also called for an international investigation into the bombings of February 14, 2005. Syrian troop withdrawal from Lebanon coincided with the disbanding of the Pro-Syrian Lebanese government. See Kim Ghattas, Lebanon Finds Unity in Street Rallies, BBC News, March 3, 2005; Beirut Protestors Denounce Syria, BBC News, Feb. 21, 2005; Orla Guerin, Syria Sidesteps Lebanon Demands, BBC News, Mar. 6, 2005. 291 S.C. Res. 1595, ¶1, U.N. Doc. S/Res/1595 (Apr. 7, 2005). 292 Patrick Fitzgerald, Report of the Fact-finding Mission to Lebanon Inquiring into the Causes, Circumstances and Consequences of the Assassination of Former Prime Minister Hariri, U.N. Doc. S/2005/203 (Mar. 24, 2005). 293 Id. at ¶ 61. 294 Id. at ¶ 5. Fitzgerald was succeeded by Detlev Mehlis of Germany and subsequently by Serge Brammertz of Belgium. Serge Brammertz has been widely criticized for completing his work in near total secrecy, thus losing the political momentum of using the Lebanese and Syrian governments to help unveil suspects. Rather than continuing the investigation, Brammertz began preparing evidence for trial, a task not in his mandate, focusing solely on non-Lebanese suspects. See Raghida Dergham, Daniel Bellemare in a Race with the Culprits, Dar al Hayat, Apr. 4, 2008. 295 Fitzgerald, supra note 292, at ¶ 49. The Lebanese investigation was further complicated by a marked lack of distrust amongst the Lebanese population and corrupt investigation techniques (fabricating, falsifying, manipulating and destroying evidence). Additionally, automobile parts were transported to the scene of the crime after the fact and labeled by the investigators as evidence. Moreover, the crime scene was not secure allowing not authorized personnel and civilians to wander around the scene at will during the Lebanese investigation.



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Syria denied any direct involvement in the assassination and the government failed to cooperate with the international investigation.296 Subsequently, the Security Council in its Resolution 1636 demanded Syrian cooperation with the investigation by detaining those Syrian individuals believed to have played a role in the attack.297 Moreover, Resolution 1636 requires all states to sanction those individuals designated by the Commission as being involved in the terrorist bombing.298 A second resolution by the UN Security Council extended the mandate of the international investigation Commission while simultaneously endorsing the Prime Minister of Lebanon, Fouad Siniora’s request for a tribunal to prosecute those responsible for the attacks.299 Lebanon and the UN then entered into negotiations regarding the structure and set up for a hybrid tribunal based on those in Cambodia and Sierra Leone. Several rounds of discussion lead to a treaty between the UN and Lebanon agreeing on the establishment of a tribunal. In May of 2007, Resolution 1757 marked the first time that the Security Council used its Chapter VII powers to adopt a treaty-based tribunal.300 The Tribunal itself is based on a bilateral agreement between Lebanon and the UN, but was created using the Security Council’s Chapter VII powers, which leaves the question open regarding whether member states will be required to cooperate with the tribunal. Thus, there is an initial issue regarding the legitimacy and legal basis of the tribunal’s creation. That is, was there any conduct affecting international peace and security associated with the bombings such that the Security Council’s Chapter VII power could have been properly invoked to establish the tribunal? The Security Council sought to establish the tribunal after a request from the Lebanese government, without any conclusive findings of the official inquiries that the bombings in Lebanon involved activity which constituted a threat to

296 “Several Syrian officials have tried to mislead the investigation by giving false or inaccurate statements.” S.C. Res. 1636, ¶ 5, U.N. Doc. S/Res/1636 (Oct. 31, 2005). 297 Id. at ¶ 11. 298 Id. at ¶ 3. 299 S.C. Res. 1644, U.N. Doc. S/Res/1644 (Dec. 15, 2005). This resolution also extended the mandate of the Commission to other terrorist attacks occurring after the assassination of former Prime Minister Hariri. 300 S.C. Res. 1757, U.N. Doc. S/Res/1757 (May 30, 2007); see The Secretary-General, Report of the Secretary-General on the establishment of a special tribunal for Lebanon, U.N. Doc. S/2006/893 (Nov. 15, 2006) [hereinafter Leb. Establishment Report]. The tribunal was formally created by the UN Security Council after the Lebanese-UN treaty was lost in a dormant Lebanese Parliament. The UN negotiated with the Netherlands and ultimately decided that the tribunal would be seated at a building in the urban area of The Hague. The decision to host the Tribunal outside of Lebanon was done so for the security of judges and their families. See The Secretary-General, Second Report of the Secretary-General submitted pursuant to the Security Council resolution 1757 (2007), U.N. Doc. S/2008/173 (Mar. 12, 2008) [hereinafter Second Report]. It should be noted that several countries, including China and Russia, did not believe Chapter VII powers should have been invoked by the Security Council.

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international peace and security.301 The Security Council viewed the attacks as “terrorist” in nature, as can be inferred from the texts of prior resolutions, and stated that those who commit “terrorist” acts should not escape liability for their actions, but did not discuss that the definition of “terrorism” and its status as an international crime remain unsettled as a matter of international law.302 There is also a question as to the ratification of the Security Council’s Chapter VII resolution by the Lebanese parliament because, although supported by the majority, the resolution was effectively blocked by only a minority of the Lebanese parliament.303 As such, the Security Council’s action taken in regards to the tribunal were ultra vires and the tribunal’s legitimacy, based on Chapter VII of the United Nations Charter as relied on by the Security Council, was suspect. Although some may have wanted to challenge the legitimacy of the tribunal before the International Court of Justice, the decision in Questions of the Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America),304 for all practical matters, foreclosed this possibility. In that case, the International Court of Justice, when presented with the opportunity to review Security Council resolutions, declined. This decision had a preclusive effect of the Montreal Convention’s application and rendered Libya’s claims.305 As such, the Security Council likely felt at ease acting on its own initiative and interpretation of its abilities under the United Nations Charter in the ultra vires establishment of the tribunal, without concern for the review of its decision. The legitimacy of the tribunal was buttressed obliquely by the Appeals Chamber in 2011. The Pre-Trial Judge submitted fifteen questions to the Appeals Chamber, the resolution of which would aid in determining whether to confirm an indictment before him.306 In response, the Appeals Chamber issued its Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, and Cumulative Charging on February 16, 2011.307 This decision concerned, among other things, whether the tribunal could look to international law in defining the crimes of terrorism and conspiracy, and regarding the vari301 Security Council Resolution 1757, Annex, Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, 30 May 2007, S/Res/1757 (2007), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N07/363/57/PDF/N0736357. pdf?OpenElement. 302 See generally Security Council Resolution 1595, S/Res/1595, (Apr. 7, 2005), available at http:// daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/299/98/PDF/N0529998.pdf?OpenElement; Security Council Resolution 1636, S/Res/1636, (Oct. 31, 2005), available at http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N05/579/61/PDF/N0557961.pdf?OpenElement. 303 See Security Council Resolution S/Res/1757 (May 30, 2007). 304 Preliminary Objections, Judgment, I.C.J. Reports 1998, at 115. 305 See generally Kelly Razzouk, The Special Tribunal for Lebanon: Implications for International Law, 1 Global Community: Y.B. Int’l L. & Jurisprudence, 219–54, (2008). 306 Case No. STL-11-01/1, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (Feb. 16, 2011). 307 Id.



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ous modes of liability, and if so, how to reconcile any differences that may arise between international and Lebanese law.308 The Appeals Chamber found no need to interpret the crimes of conspiracy or homicide in light of international customary or conventional law as there is no equivalent crime in international criminal law.309 Article 314 of the Lebanese Criminal Code defines terrorist acts as, “all acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.”310 The Prosecutor and the Defense Office both view international law as immaterial to the interpretation or application of the Lebanese law on terrorism, as Lebanese law is clear on the matter.311 The Appeals Chamber concluded that the tribunal was to apply Lebanese domestic law “interpreted in consonance with international conventional and customary law that is binding on Lebanon.”312 In regards to terrorism, the Appeals Chamber considered the Arab Convention for the Suppression of Terrorism, UN Resolutions and the practice of States to find that “there is convincing evidence that a customary rule of international law has evolved on terrorism in time of peace,” noting the gravity of the crime of terrorism justified the Security Council’s establishment of the tribunal.313 However, the Appeals Chamber stated that this customary rule could not be directly applied by the tribunal to the crimes of terrorism, based on Article 2 of the tribunal’s statute making it clear that codified Lebanese law, not customary international law, should be applied to substantive crimes.314 However, the Appeals Chamber found, given that the tribunal was established by the Security Council as a response to terrorism, with the international implications of terrorism, that the tribunal is justified in interpreting and applying Lebanese law on terrorism in light of international legal standards on terrorism.315 The Appeals Chamber also reasoned that as Lebanon does not apply the principle of stare decisis, there would be no expectation by individuals that they could rely on prior Lebanese national court decisions interpreting Article 314.316 This decision is significant because it seeks to provide support for the legitimacy of the tribunal by finding a role for international law in the substantive proceedings and finding an international crime against

308 Id. at 1. 309 Id. at ¶ 192. 310 Selected Articles of the Lebanese Criminal Code, Special Tribunal for Lebanon, available at http://www.stl-tsl.org/en/documents/relevant-law-and-case-law/applicable-law/selected-articleslebanese-criminal-code (last visited Nov. 17, 2011). 311 Case No. STL-11-01/1, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, ¶ 61 (Feb. 16, 2011). 312 Id. at 2, 30. 313 Id. at 3, 37–77 (discussing terrorism related crimes in the context of the Security Council’s Chapter VII function at pages 56–7). 314 Id. at ¶ 123. 315 Id. at ¶ 124. 316 Id. at ¶ 142.

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peace at issue, i.e. terrorism in time of peace as noted above.317 This ruling is also significant because it sets up the Tribunal as a vehicle through which the Security Council may push for a more cohesive international criminal standard for “terrorism.” The Tribunal is composed of mixed chambers (pre-trial judge, a trial chamber, and an appellate chamber), an international prosecutor, registry and defense office.318 In following the modern trend in international tribunals to economize, the Special Tribunal for Lebanon is operated under the auspices of a Management Committee.319 Another vehicle utilized by the tribunal to be cost effective is the generation of resources to fund the tribunal. According to the bilateral agreement between Lebanon and the UN, fourty-nine percent of the cost of the tribunal will be borne by the Lebanese Government while fifty-one percent will be made up of third party independent contributions.320 Thus, not only is there a strong international presence in terms of the judicial composition of the tribunal but also in its oversight, management, cost efficiency, and recruitment and hiring practices. The Special Tribunal for Lebanon has personal jurisdiction over those individuals responsible for not only the attacks of February 14, 2005, but also any other relevant attacks provided that the other attacks in terms of nature and gravity resemble that of February 2005.321 Moreover, the Prosecutor’s March 2008 317 The Appeals Chamber also considered the role of international law in modes of responsibility, and concluded that if, on a case by case basis, there is a conflict between Lebanese law and international law, the Tribunal should apply the law most favorable to the rights of the accused. Id. at ¶ 210. This is an attempt to harmonize Article 2 of the Tribunal Statute calling for the application of domestic Lebanese law with Article 3 which was intended to incorporate international criminal law based modes of responsibility. As such, there is no preference for or special role of international criminal law in this regard. The Appeals Chamber also considered questions posed regarding cumulative charging and plurality of offenses, and found that these are dealt in a similar fashion by Lebanese law and international law, so Lebanese law should be applied. Id. at ¶ 270. 318 See Leb. Establishment Report, supra note 300, at ¶ 27. The chambers will contain a majority of international judges. See Security Council Resolution, Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, U.N. Doc. S/RES/1757 (May 30, 2007), at Statute Attachment, art. 7 [hereinafter Leb. Trib. Statute]. The UN Secretary-General has chosen these judges but will make the formal appointments only after their security is secured. David Bellemare has been named the tribunal’s Prosecutor. See Second Report, supra note 300, at ¶ 13–14. Judge Antonio Cassese has been named as the first President of the Special Tribunal for Lebanon with David Tolbert succeeding Robin Vincent as the second Registrar of the court. Press Release, supra note 146. 319 Second Report, supra note 300, at ¶¶ 25–29. 320 S.C. Res. 1757, supra note 300, at art. 5(1). The Secretary-General is confident that received and pledged funding will meet the needs of the first twelve months of operation for the tribunal. See Press Release, Secretary-General, Secretary-General Establishes Management Committee for Lebanon’s Special Tribunal; Says Expected Contributions Will Meet Operational Needs for the First year, U.N. Doc. SG/SM/11412 (Feb. 13, 2008). 321 In addition to the Hariri investigation, the Commission has investigations into eleven ‘targeted attacks’ towards individuals of high profile and nine ‘non-targeted’ attacks or bombings of public places. The targeted attacks include those targeting Major General François Al-Hajj and



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report noted the existence of a “criminal network” regarding Hariri’s assassination expanding the personal jurisdiction of the tribunal to all those involved in the “Hariri network” prior to and after the assassination.322 The tribunal officially opened in March 2009 and is proceeding with investigations, establishing rules of evidence, creating an outreach program and appointing further judges.323 On January 17, 2011, Prosecutor Daniel Bellemare filed a confidential indictment in connection with the Hariri case, making the beginning of the judicial phase of the Tribunal’s work.324 Prosecutor Bellemare amended the indictment on March 11, 2011,325 May 6, 2011,326 and June 10, 2011327 after discovering substantive new elements and further evidence that were previously unavailable. Although the suspects in the Hariri case were indicted, the Hezbollah militia has refused to arrest the suspects and send them for trial.328 Judges for the Special Tribunal are considering whether to hold the trial in absentia of the suspects; under the tribunal’s rules, judges can consider calling a trial in absentia if the suspects are not arrested within thirty days of the names of the at-large suspects being advertised.329 Substantively, the Timor-Leste, Bosnia and Herzegovina, and Cambodia tribunals all allow for jurisdiction over both international and national crimes. The Special Tribunal for Lebanon is the first international tribunal to apply solely domestic law. While the tribunal itself is international in character, the crimes committed are domestic and thus not of international concern. The Lebanon tribunal exercises jurisdiction based solely on the Lebanese Criminal Code with regards to acts of terrorism, crimes against life and personal freedom, illicit associations, failure to report crimes, and conspiracy.330 Efforts to incorporate jurisdiction for crimes against humanity into the statute failed because the facts Major Wassim Eid. See David Bellemare, Tenth Report of the International Independent Investigation Commission Established Pursuant to Security Council Resolutions 1595(2000), 1636 (2005), 1644, (2005), 1686 (2006), and 1748 (2007), U.N. Doc. S/2008/210 (Mar. 28, 2008). 322 Second Report, supra note 300, at ¶¶ 25–29. The existence of such a network had been theorized under Fitzgerald and Mehlis’ initial investigation and was fleshed out further under Serge Brammertz but did not have concrete evidence until Bellemare confirmed the that a network had planned, organized and executed the assassination. See Dergham, supra note 294. 323 Secretary-General, Fourth Report of the Secretary-General submitted pursuant to Security Council resolution 1757 (2007), U.N. Doc. S/2009/106 (Feb. 24, 2009). 324 Special Tribunal for Lebanon, Prosecutor Daniel A. Bellemare Files Indictment in the Hariri Case, Jan. 17, 2011,  available at http://www.stl-tsl.org/sid/240. 325 Special Tribunal for Lebanon, Prosecutor Daniel A. Bellemare Files an Amended Indictment, May 6, 2011, available at http://www.stl-tsl.org/sid/255. 326 Id. 327 Case No. STL-II-Ol/I/PTJ/F0007, Indictment (Public Redacted Version) (June 10, 2011), available at http://www.stl-tsl.org/en/the-cases/stl-11-01/main/filings/indictments/indictment-publicredacted-version. 328 Court Mulls Trial in Absentia for Hariri Case, CBS News, Oct. 17, 2011. 329 Id. 330 See Leb. Trib. Statute, supra note 318, at art 2.

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did not support such a crime, thus limiting subject matter jurisdiction to those crimes in the Lebanese Criminal Code.331 The Code defines terrorism as “all acts that are intended to cause a state of alarm and have been committed by means such as explosive devices, inflammable substances, toxic or corrosive products or infectious or microbial agents that are liable to pose a public threat,”332 leaving open numerous legal questions regarding both the material and mental elements. As the tribunal will be relying solely upon this domestic definition rather than a terrorism definition resulting from international or regional documents, it is possible that the Special Tribunal for Lebanon may set the precedent in international criminal law for the definition of terrorism to be used in international tribunals.333 Lebanon’s volatile political situation will no doubt play a role in the Tribunal’s functioning. The court has already seen difficulties in securing witnesses when a member of Syria’s security services, Mohammed Zuheir al-Saddiq, who identified Syrian President Bashir al-Assad and former Lebanese President Emile Lahoud as ordering Hariri’s assassination, disappeared while under house arrest in France in March 2008.334 More importantly, some fear that the Special Tribunal may be used for political purposes against Syria, and the Tribunal has been seen as a vehicle for UN and Western manipulation of Lebanese politics for their own ends.335 The interplay of politics and prosecution can be seen in the progression of investigations into persons believed to have played a role in the assassination of Rafiq Hariri. The first four individuals held for possible indictment pending 331 See Leb. Establishment Report, supra note 300, at ¶¶ 22–25. 332 Lebanon Criminal Code [L. Crim.] art 314 (Leb.). As the Lebanese Criminal Code is subject to the Special Tribunal for Lebanon Statute under article 2, the punishments provided in domestic law pertaining to capital punishment will not be applicable for the international tribunal. 333 See Nidal Nabil Jurdi, The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon, 5 J. Int’l Crim. Just. 1125, 1129 (2007). 334 Peter Goodspeed, Assassination Probe Witness Disappears, National Post, Apr. 15, 2008. Mr. Saddiq has been under house arrest near Paris after previously being held, but not extradited, under a 2005 Lebanese issued international arrest warrant. Mr. Saddiq’s family in April 2008 accused France of being involved with his disappearance in an effort to frame Syria. Recent rumors state that Mr. Saddiq has gone into hiding somewhere in Europe after the UN failed to provide for his security, evidenced by three assassination attempts, but that he intends to still appear before the Special Tribunal for Lebanon and testify. Id. 335 On April 9, 2008, before the US Senate Appropriations Committee, Senator Alan Specter questioned US Secretary of State Condoleeza Rice regarding the possibility of offering Syrian President Bashar al-Assad immunity from prosecutions in return for an end to his support of Hezbollah and Hamas. Senator Specter considered this “the most astounding plea bargain of all time” while Secretary Rice mildly concurred noting, “[I] know that has been on their minds, but I think that would be a very bad step.” David Kenner, Who’s the Boss? The Myth of Grand Bargaining Over the Tribunal Returns, Now Lebanon, Apr. 12, 2008. For a discussion of the perceptions of the Special Tribunal for Lebanon as a political tool rather than a means for effecting justice, see Melia Amal Bouhabib, Power and Perception: The Special Tribunal for Lebanon, 3 Berkley J. Mid. East & Islamic L. 173, 200–05 (2010).



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further investigation were Lebanese generals with suspected Syrian ties.336 One of these men, Jamil El Sayed, applied to the Special Tribunal for Lebanon for release of document implicating him in the assassination attempt so that he could pursue a claim in domestic Lebanese courts for libel or slander against those responsible for making those statements which resulted in his arbitrary detention of about four years.337 While Mr. Sayed’s right to access his file was recognized by the Pre-Trial Judge on May 12, 2011 and confirmed by the Appeals Chamber in October 2011, proceedings remain ongoing regarding the limitations of rights to access certain categories of documents.338 As domestic Lebanese courts have refused to hear Mr. Sayed’s libel and slander claims on the basis that they lack jurisdiction, his ability to seek recourse for four years in which he was deprived of his liberty depends on the resolution of these arguments. While the President of the Special Tribunal for Lebanon, Antonio Cassese, has noted that the issues involved are important and various treaties recognize the right to pursue redress in a court of law, it remains to be seen whether this Syrian detainee will be able to pursue redress in a Lebanese court.339 The political climate has shifted again, with Najib Mikati, a Hezbollah backed businessman, rising to power in Lebanon on January 25, 2011, and displacing the coalition government led by former Prime Minister Saad Hariri (Rafiq Hariri’s son).340 The Special Tribunal for Lebanon has indicted members of the Lebanese Shia Hezbollah group, which is likely to inflame tensions existing for decades between the Iran-Syria influences in Lebanon and Saudi-US influences in Lebanon.341 The Pre-Trial Judge Daniel Fransen confirmed the three-times amended and confidential indictment on June 28, 2011 and authorized the transmission of the indictment and accompanying arrest warrants to the Lebanese government 336 Bruce Zagaris, U.N. Special Tribunal Releases Suspects in Hariri’s Death Due to Lack of Evidence, 25 Int’l Enforcement L. Rep. 284 (2009). 337 Case No. CH/PTJ/2010/01, Scheduling Order for Determination of the Application of MR Jamil El Sayed Dated 17 March 2010, (Apr. 21, 2010), available at, http://www.stl-tsl.org/x/file/ TheRegistry/Library/CaseFiles/PreTrialChamber/ord-100421e.pdf. 338 Case No. CH/PTJ/2011/08, Decision on the Disclosure of Materials from the Criminal File of Mr. El Sayed (May 12, 2011), available at, http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/ PreTrialChamber/20110512_F0084_CH-PTJ-2011-08_PTJ_Decision_Remise_des_Pieces_filed_FR-EN .pdf; Case No. CH/AC/2011/02, Order Allowing in Part and Dismissing in Part the Appeal by the Prosecutor Against the Pre-Trial Judge’s Decision of 2 September 2011 and Ordering the Disclosure of Documents (Oct. 7, 2011), available at http://www.stl-tsl.org/en/the-cases/in-the-matter-of-el -sayed/main-interlocutory-appeal-03/filings/orders-and-decisions/appeals-chamber/in-the -matter-of-el-sayed-f0011-20111007. 339 Case No. CH/PRES/2010/01, Order Assigning Matter to Pre-Trial Judge, ¶¶ 20–36 (Apr. 15, 2010), available at, http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/President/Order%20 Assigning%20Matter%20to%20Pre-Trial%20Judge%20%28EN%29.pdf. 340 Q&A Hariri Tribunal, BBC News, Jan. 25, 2011, http://www.bbc.co.uk/news/world-middleeast-12182326. 341 Id.

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and authorities on June 30, 2011 for the following four named senior Hezbollah leaders, two known Hezbollah affiliates connected to this case: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra.342 On July 3, 2011, current Hezbollah leader Hassan Nasrallah rejected the indictment and denounced the arrest warrants issued by the tribunal. Because Lebanese authorities did not arrest the named individuals within thirty days of the warrants’ issue date, the tribunal president made a public advertisement in the media for the individuals’ arrest and work remains ongoing regarding bringing the accused to trial.343 The Special Tribunal for Lebanon is as special as it gets. The Security Council simply used a judicial tool for a political purpose, and that will have an impact on ICJ as a whole. More significantly, the Lebanese parliament was to pass a law ratifying the establishment of the Tribunal and approving its statute, but it never did. For this and other reasons, the Tribunal lacks legitimacy under the Lebanese constitution, and one of the Security Council’s bases for the Tribunal’s legitimacy, namely, parliamentary approval, is also lacking. Section 8. Conclusion As is evident from the above, the UN, which has undertaken sixty-six peacekeeping operations since 1948,344 has not generally been engaged in nation-build342 Case No. STL-II-Ol/I/PTJ/F0012, Warrant to Arrest Mr Hussein Hassan Oneissi Including Transfer and Detention Order (June 28, 2011); Case No. STL-II-Ol/I/PTJ/F0014 Warrant to Arrest Mr Mustafa Amine Badreddine Including Transfer and Detention Order (June 28, 2011); Case No. STL-II-Ol/I/PTJ/F0013,Warrant to Arrest Mr Salim Jamil Ayyash Including Transfer and Detention Order, Special Tribunal for Lebanon, (June 28, 2011); Case No. STL-II-Ol/I/PTJ/F0016, Warrant to Arrest Mr Assad Hassan Sabra Including Transfer and Detention Order, Special Tribunal for Lebanon (June 28, 2011); Press Release, Special Tribunal for Lebanon, Confirmed Indictment Submitted to Lebanese Suthorities (June 30, 2011), available at http://www.stl-tsl.org/en/media/press-releases/ confirmed-indictment-submitted-to-the-lebanese-authorities; The individuals indicted are Moustapha Badreddine, Salim Ayyash, Hassan Anaissy, and Assad Sabra. The first two are affiliated with Hezbollah, while the affiliation of the latter two is unknown. Nada Bakri, 4 Indicted in Killing of a Leader of Lebanon, N.Y. Times, July 1, 2011, at A7. 343 Press Release, Special Tribunal for Lebanon, Media advisory—International Arrest Warrants, (July 11, 2011), available at http://www.stl-tsl.org/en/media/press-releases/media-advisory-international-arrest-warrants. The international arrest warrants of the four named individuals were issued by the Pre-Trial Judge on August 29, 2011. Press Release, Special Tribunal for Lebanon, Indictment and Its Confirmation Decision Made Public (Aug. 17, 2011), available at http://www.stl-tsl.org/en/ media/press-releases/17-08-2011-indictment-and-its-confirmation-decision-made-public. On April 9, 2008, before the US Senate Appropriations Committee, Senator Alan Specter questioned US Secretary of State Condoleeza Rice regarding the possibility of offering Syrian President Bashar al-Assad immunity from prosecutions in return for an end to his support of Hezbollah and Hamas. Senator Specter considered this “the most astounding plea bargain of all time” while Secretary Rice mildly concurred noting, “[I] know that has been on their minds, but I think that would be a very bad step.” Kenner, supra note 335. 344 United Nations, UN Peacekeeping Fact Sheet (Aug. 2011), available at http://www .un.org/en/peacekeeping/documents/bnote010101.pdf. The Security Council has created over thirty



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ing operations that involve post-conflict capacity-building, and in even fewer instances has the UN been involved in PCJ accountability endeavors. The efforts that it did make, however, were not the product of a planned strategy, but the result of hastily set-up operations, because this is how the UN works in part. Post-conflict justice has two separate but related meanings. The first refers to retributive and restorative justice with respect to human depredations that occur during violent conflicts. Consequently, that meaning deals with the past with a view to paving the road to peace and reconciliation for the future. The second meaning refers to restoring and enhancing justice systems that have failed or become weakened as a result of internal conflicts. It therefore deals with the future, namely, to restore normalcy to societies torn apart by conflicts. In the end, both meanings converge, though the international community deals with them independently. Providing retributive and restorative justice in the aftermath of violent conflicts has received more attention by the international community than rebuilding and enhancing failed or weakened national justice systems because of higher justice imperatives. Regrettably, however, these imperatives have resulted in a small number of prosecutions of major perpetrators of genocide, crimes against humanity, and war crimes. Since 1948 there have been some 313 conflicts in almost every region of the world that have caused, at the low end, an estimated 92 to 101 million casualties.345 Yet only a few of those responsible for such atrocities have been prosecuted. Most of the perpetrators have benefited from impunity, in part due to the absence of PCJ mechanisms. The world community has absorbed the enormity of this tragedy without much outcry for accountability except from human rights activists. This may be attributed to the fact that these conflicts have taken place in different parts of the world, and at different times. Smaller tragedies created higher levels of social tolerance for larger ones, and indifference was allowed to set in. The pursuit of post-conflict retributive justice has been tendentiously advanced by realpolitik proponents as contradictory to the pursuit of peace—a term used as a euphemism for political settlements. Thus, political realists have deemed justice to be an impediment to peace. Conversely, advocates of justice have argued that there can be no peace without justice. The struggle between of those peacekeeping operations since 1990. United Nations, List of Peacekeeping Operations 1948–2011 (2011), available at http://www.un.org/en/peacekeeping/documents/operationslist. pdf. As of August 2011, there are fifteen UN peacekeeping operations in the field and sixteen operations directed and supported by the Department of Peacekeeping Operations. United Nations, UN Peacekeeping Fact Sheet, supra. 345 See Christopher Mullins, Conflict Victimization and Post-Conflict Justice 1948–2008, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 67 (M. Cherif Bassiouni ed., 2010); see also International Institute of Strategic Studies, The Chart of Conflict 2011 (2011); Jennifer L. Balint, An Empirical Study of Conflict, Conflict Victimization and Legal Redress, 14 Nouvelles Etudes Penales 101 (Christopher C. Joyner special ed. & M. Cherif Bassiouni general ed., 1998).

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those who call themselves political realists and those who advocate the elimination of impunity for jus cogens international crimes continues.346 To some extent, this situation was exacerbated by the Cold War, but in addition to its impact on the pursuit of post-conflict retributive justice, the world community has not, until recently, reached a level of commonly shared values with respect to international criminal justice. Many governments resisted the notion that the values of international criminal justice were an intrinsic part of the international legal order. To have accepted these values would have necessarily limited the scope of realpolitik and become a bar to the impunity that could be offered to the perpetrators of jus cogens international crimes in exchange for their agreement to bring about an end to a given conflict. In 1992, a breakthrough occurred when the Security Council, forty-seven years after Nuremberg, established the Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia.347 What may now appear as a small step was then a great leap forward in the direction of international criminal justice. Indeed, for almost half a century, notwithstanding numerous conflicts that produced high levels of victimization derived from the commission of such jus cogens crimes as genocide, crimes against humanity, war crimes, torture and mass rape, the world community was unable to agree on establishing, in whole or in part, an international criminal justice system. Thus, when the Security Council took that first bold step in 1992, it tore down part of the iron curtain that existed between the world community’s expectations of international criminal justice and its actual realization. The Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia was the first step that later led to the Security Council’s establishment in 1993 of the ICTY, and then in 1994 of the ICTR. After that, the path was open to pursue the establishment of a permanent international criminal court, which the world community has sought to achieve since the end of WWI. While lingering opposition to the ICC remains, notably by the US, the ICC treaty, which was opened for signature in Rome July 18, 1998, entered into effect July 1, 2002, after sixty-six states deposited their instruments of ratification with the UN Secretary-General on April 11, 2002 (only sixty were required).348 In the years between 1992 and 2009, the values of international criminal justice have taken hold as an essential component of the international legal order. 346 See Post-Conflict Justice, supra note 4; Ruti G. Teitel, Transitional Justice (2002); Jane Stromseth, Accountability for Atrocities: National and International Responses (2003). 347 See Final Report and Annexes of the Commission of Experts, supra note 1; Bassiouni, Law of the ICTY, supra note 1; Bassiouni, The UN Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), supra note 1. 348 Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90; See 1–3 The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text (M. Cherif Bassiouni ed., 2005) [hereinafter Legislative History].



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Impunity for jus cogens international crimes is at least held up as legally impermissible. Accountability for such crimes as genocide, crimes against humanity, war crimes, torture and mass rape is demanded by international civil society and by many governments, and amnesties for such crimes are rejected. However, the effective implementation of these expectations remains to be achieved.349 Realpolitik proponents have not, however, abandoned their opposition to international criminal justice, and they offer arguments that accountability can take different forms than that of criminal prosecution for all perpetrators of such crimes. They also argue that every conflict is sui generis, and that establishing and maintaining peace requires different strategies which are needed to achieve reconciliation. This has given rise to the examination of alternative modalities of accountability to the exclusivity of criminal prosecution, whether before international or national judicial bodies. Nevertheless, so far there are no internationally agreed upon guidelines for determining which modalities of accountability should apply to different situations. In its experimentation with accountability mechanisms the international community has tried several models: the international judicial model, as represented by the ICTY and the ICTR; the mixed judicial model, including the ECCC, the Special Court, and the Special Tribunal of Lebanon; the national judicial model, including Iraq; the quasi-judicial model of truth and reconciliation commissions, such as that of South Africa; the non-judicial model, which is reflected by the experiences of Haiti, El Salvador, and Guatemala; and the universal model, which is embodied by the ICC. Admittedly, this does not include all of the models with which the international community has experimented with since World War II, nor does it include additional dimensions to these models, such as various forms of capacity building or capacity-enhancement of national judicial systems. Some PCJ models tend to be retributive, and therefore, by definition, deal with past violations. They are not models of PCJ that enhance those national judicial systems that can also be expected to deal with future justice-related issues. Perhaps the most glaring weakness of these PCJ models is their failure to contribute to the enhancement of national judicial systems. Thus, for example, the total costs of the ICTY and ICTR, which so far have exceeded $1.7 billion, have hardly benefited the judicial systems of the countries involved. This has led some observers to question whether such an international judicial model serves the best interests of post-conflict justice in its more comprehensive meaning of addressing both past and future justice-related issues. Similarly, questions are raised as to whether these institutions, whose seats are removed from the societal environment where the crimes they adjudicate have taken place are the best

349 See Legislative History, supra note 348.

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way to provide future deterrence, establish the facts, provide satisfaction to the victims, and educate future generations. The combination of these factors has led the UN and the major powers in the Security Council to opt for the mixed judicial model, which has both an international and national dimension. This is what is being attempted in Cambodia, and what is now well underway in Sierra Leone. Most PCJ situations have, however, been left unaddressed, while a few have been addressed through such mechanisms as truth commissions, as in the case of South Africa, and through other similar devices, such as in El Salvador, Guatemala, and Haiti. One of the most glaring examples of the international community’s neglect of post-conflict justice was its failure to assist an impoverished Ethiopia in dealing with the consequences of the Mengitsu regime, which caused an estimated one million casualties. There were also other conflicts that generated casualties, each estimated at over one million deaths, and for which no PCJ mechanisms were established by the international community. They include the Biafra massacres in Nigeria of the 1960s, and the Bangladesh massacres by Pakistan in 1971.350 In spite of the massive number of casualties resulting from these conflicts, none of the responsible leaders has been prosecuted. Some perpetrators have benefited from asylum, including Mengitsu in Zimbabwe, Amin in Saudi Arabia, Habré in Senegal (although this may be about to change, as discussed in Chapter II), and Cedras in Panama. Other major perpetrators of jus cogens international crimes live in the very countries in which they committed these terrible crimes. This is the case with respect to Liberia, Burundi, Argentina, Congo, Guatemala, El Salvador, and Chile, to name but a few. The goals, methods, and costs of re-establishing or enhancing sustainable justice are far more difficult to achieve than those of retributive justice, particularly when it is selective. In other words, to rebuild a system of justice in post-conflict situations like Cambodia, Somalia, Ethiopia, and Afghanistan is far more difficult, yet less costly, than to establish the ICTY and ICTR, whose mandates are to try relatively few albeit important perpetrators, such as former heads of state and senior military commanders. Furthermore, major Western powers find it politically congruent with their interests to establish ad hoc PCJ systems that are essentially focused on the past and with little regard for justice capacity-building of national systems. Even so, the retributive PCJ mechanisms established since 350 Bangladesh recently established an International Crimes Tribunal (ICT) to prosecute the crimes committed in 1971. The rules and procedures of the ICT will require significant amendment to achieve any true legitimacy. See Human Rights Watch, “Letter to the Bangladesh Prime Minister regarding the International Crimes (Tribunals) Act” Letter to the Bangladesh Prime Minister regarding the International Crimes (Tribunals) Act (May 18, 2011), available at: http://www.hrw. org/sites/default/files/related_material/Letter%20-%20to%20Prime%20Minister%20re%20International%20Crimes%20(Tribunals)%20Act%20-%2018-May-11.pdf. 



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the 1990s appear to be reflective of the major Western powers’ sense of guilt for failing to intervene to prevent mass victimization, or for intervening too late; the cases of Cambodia, Ethiopia, Rwanda, Liberia, and Sierra Leone evidence the tragic consequences of the failure to intervene. International recognition of the need for PCJ evolved contemporaneously with a new era of the UN’s peacekeeping role. However, there was also a tension between the goals and strategies of military peacekeeping operations and civilian PCJ. In particular, various governments who contribute military personnel to peacekeeping operations do not feel that their military should undertake a law and order mission that might place them in what they perceive as being unnecessarily in harm’s way. These governments also feel that military personnel are inappropriately called upon to fulfill civilian missions for which they are not suitably trained. The UN and the governments who most contribute forces to peacekeeping operations find themselves trying to achieve different missions, which sometimes do not produce the best results for achieving post-conflict justice. Nevertheless, the demands for post-conflict justice are increasing and that reality imposes itself as an element of peacekeeping in the context of the preservation and maintenance of peace. Thus, UN peacekeeping operations developed alternative approaches to provide civil government and civil police to operate contemporaneously and in a parallel fashion to the military peacekeeping side of the operations. These efforts were tentative at the beginning because of the many attendant difficulties and complications. In addition to the high costs of these operations, they require trained personnel who have to be recruited from different legal systems and law enforcement traditions, and who must work together in different legal and cultural contexts. Logistical problems, cost factors, and the lack of foresight by major governments with respect to the need to establish sustainable justice systems in post-conflict situations have led to disappointing results. The UN’s efforts to develop different models of post-conflict justice to suit different situations reveal the exigency of accommodating whatever major governments want to achieve in a particular post-conflict justice situation. While it is easy to place the blame on the UN under whose auspices these operations are carried out, it should nonetheless be noted that the UN is controlled by the willingness of interested governments to pursue the goals of post-conflict justice. Chief among the many considerations affecting the pursuit of post-conflict justice are financial ones. The UN may be able to devise the best possible models, but if interested governments are not willing to provide the necessary resources, such models cannot be implemented. It must be noted however that the UN has not proven itself to be an effective administrator of PCJ programs. The organization’s bureaucracy is largely to blame for ineffective, costly, and poorly executed operations. In large part this is due to lack of planning, failure to maintain an early warning system, inability to keep experienced personnel, and the ­inevitable

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effect of the different political interests of involved governments. Thus, cost factors led the US in 2002 to ask the UN to wind down the activities of the ICTY and ICTR, and to bring these institutions to a close in 2010. The ICTR and ICTY have yet to close despite repeated Security Council mandates, the most resent calling for the conclusion of all work by December 2012 and December 2013, respectively. The mixed models described herein are essentially national models with an international component. They are a new hybrid system of internationalized national criminal justice. These operations remain essentially of ‘national’ in character and cannot be deemed to fall within the “direct enforcement system.”351 The pursuit of international criminal justice requires the cooperation of international and national legal systems.352 Complementarity is the basis of this cooperation, but systems that complement each other depend on a high degree of international cooperation in penal matters,353 and that, so far, is lacking. Furthermore, the assumption that national legal systems will assume the larger part of the task of prosecuting perpetrators of international crimes is questionable in light of contemporary experience. The international criminal justice system of the future must be viewed as a constellation of national legal systems complemented by international institutions and the ICC. Nevertheless, what binds them together are certain modalities of international cooperation, particularly, jurisdictional mechanisms that have not proven effective in the absence of the political will of governments to work in an internationally cooperative mode. The question, however, is whether that will exist in 2014 when the ICTY, ICTR and most of the mixed-model tribunals described above will come to an end, by decision of the Security Council. The ICC will be the only institution remaining, and it is unlikely to meet the growing world demand for ICJ. In fact, it is unlikely that it will be able to address more than four to five cases simultaneously. The mixed-model tribunals served their purpose, and perhaps these experiences should be continued. For sure, the Bosnia, Sierra Leone, and Timor-Leste courts achieved the most with the fewest resources. The Kosovo court is a mixed record of accomplishment. The Cambodia court is simply too little too late, and Lebanon should never have been established.

351 See M. Cherif Bassiouni, Introduction to International Criminal Law 387–494 (2003). See generally Sarah M.H. Nouwen, Combining Ownership and Neutrality in the Prosecution of International Crimes: Theory and Realty of Mixed Tribunals, 25 Netherlands Q. Hum. Rts. 225 (2007). 352 See Bassiouni, supra note 2. 353 See 2 International Criminal Law (M. Cherif Bassiouni ed., 3d ed. 2008), at chapter 4.

Chapter nine

The “ProcedurAL Part” of ICL: Procedural and Evidentiary Norms Applicable to International Criminal Proceedings Section 1. Introduction Since the end of World War II, international criminal tribunals have been established: the International Military Tribunal for Nuremberg (IMT),1 the International Military Tribunal for the Far East (IMTFE),2 International Criminal Tribunal for the former Yugoslavia (ICTY),3 the International Criminal Tribunal for Rwanda (ICTR)4 and the International Criminal Court (ICC),5 as well as mixed national/international legal institutions6 such as the Kosovo War and Ethnic Crimes Court,7 the War Crimes Chamber in Bosnia and Herzegovina,8 the Special Court for Sierra Leone,9 the Special Panel for Serious Crimes in Timor 1 United Nations, Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, U.N.T.S. 280. 2 Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter]. 3 S.C. Res. 808, U.N. Doc. S/RES/827 (May 25, 1993), and Statute of the International Criminal Tribunal for the former Yugoslavia, Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 827, U.N. Doc. S/25704 (May 3, 1993) [hereinafter ICTY Statute]. 4 S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) and Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. Doc. S/RES955 (Nov. 8, 1994) [hereinafter ICTR Statute]. 5 Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]. 6 See M. Cherif Bassiouni, Mixed Models of International Criminal Justice, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and PostConflict Justice (2 vols., M. Cherif Bassiouni ed., 2010). 7 UNMIK Regulation 1999/1, on the Authority of the Interim Administration in Kosovo ( July 25, 1999). Security Council Resolution 1244 (1999) of June 10, 1999 authorized the Secretary-General to establish the United Nations Interim Administration in Kosovo (UNMIK). 8 See S.C. Res 808, U.N. Doc. S/RES/808 (Feb. 22, 1993) (establishing ICTY). Letter from Fausto Pocar, President of 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 1991 to the President of the Security Council, U.N. Doc. S/2006/898 (Nov. 16, 2006) (formal endorsement from the War Crimes Chamber in BiH). The Court is subject to the 1977 Criminal Code of the Socialist Federal Republic of Yugoslavia rather than the new criminal and procedural codes of BiH. The Court also applies the European Charter on Human Rights, ratified by BiH in 2002. 9 Security Council Resolution, U.N. Doc. S/RES/1270 (Oct. 22, 1999). Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, available at http://www.sc-sl.org/Documents/scsl-agreement.html. The Statute was endorsed through S.C. Res. 1400, U.N. Doc. S/RES/1400, ¶ 9 (Mar. 28, 2002).

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Leste,10 the Extraordinary Chambers in the Courts of Cambodia,11 and the Special Tribunal for Lebanon.12 These institutions have been set up to investigate and adjudicate individual cases of international criminal responsibility, namely, war crimes, crimes against humanity, and genocide, as well as crimes against peace, war crimes and crimes against humanity for the IMT and IMTFE. These institutions reflect the growing interest of the international community in preventing impunity and enhancing accountability for the commission of major international crimes.13 In the words of Mark Drumbl, the establishment of these institutions “constitutes one of the more extensive waves of institution-building in modern international relations.”14 The evolution of these and other international criminal accountability mechanisms has not, however, been the product of a deliberate legal policy, nor has it benefited from the expertise of those who are knowledgeable in international and comparative criminal law and procedure. Rather, these institutions have emerged as a consequence of particularly atrocious events that occurred in various parts of the world, and the pressures of world public opinion and certain concerned governments. More significantly, however, political leaders and diplomats have shaped these institutions more than jurists with expertise in international and comparative criminal law and procedure.15 More particularly, little attention has been paid to rules of procedure and evidence by the drafters of these statutes, save for the ICC. Instead, they were left to the judges of these tribunals.16 Indeed, institutions of justice that are, in whole or in part, conditioned by political considerations are usually characterized by the absence of

10 S.C. Res. 1272, 54 U.N. SCOR (4057th mtg), U.N. Doc. S/RES/1272 (1999) [1], 39 I.L.M. 240 (2000). Regulation 2000/11 on the Organization of Courts in East Timor, UNTAET/REG/2000/11 (entered into force Mar. 6, 2000) as amended by Regulation 2000/14 UNTAET/REG/2000/11 (entered into force May 10, 2000). 11 Draft Agreement Between U.N., Cambodia on Khmer Rouge Trials, G.A. Res. 10135, U.N. Doc. GA/RES/10135 (May 13, 2003). Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, NS/RKM/1004/006 (with inclusion of amendments as promulgated on 27 October 2004). 12 The Secretary-General, Report of the Secretary-General on the establishment of a special tribunal for Lebanon, U.N. Doc. S/2006/893 (Nov. 15, 2006); Security Council Resolution, Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, U.N. Doc. S/RES/1757 (30 May 2007). 13 See M. Cherif Bassiouni, The Need for International Accountability, in 3 International Criminal Law: International Enforcement 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL]. But see M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in 1 The Pursuit of International Criminal Justice, supra note 6, at 3. 14 See Mark A. Drumbl, Atrocity, Punishment, and International Law 10 (2007). 15 See Chapter 1. 16 Cf. ICC Statute, supra note 5; see also 1–3 The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text (M. Cherif Bassiouni ed., 2005).



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established rules of procedure and evidence.17 The absence of such rules favors more directed outcomes, as the history of criminal law in various legal systems appears to attest. In contrast, the genius of the common law was the development of such rules as a guarantee against the abuses of the monarchy. Other legal systems, such as the civil law, also reveal how the development of procedural and evidentiary rules has been hard-fought. These rules guarantee the fairness of a trial, “equality of arms,” impartiality of the judges, and avoidance of abuses of power. Ultimately, they contribute to the higher quality of justice that is so necessary to any social order. International criminal justice institutions have also gone through an evolutionary process as those characterizing the evolution of the world’s major legal systems, though not necessarily for the same reasons or by the same processes. The two first international criminal tribunals, the IMT with its seat at Nuremberg, and the IMTFE with its seat at Tokyo, contained very few rules of procedure and no rules of evidence in their respective statutes. In 1992, the Security Council’s mandate in Resolution 780 (1992) established the Commission of Experts to Investigate Violations of International Humanitarian Law in the Former Yugoslavia.18 This Commission, which was the first international investigating body established since the end of World War II, was designed to gather evidence to help the Security Council determine whether it should establish an international criminal tribunal for the former Yugoslavia and, presumably, to have some of that evidence gathered by the Commission used by such a tribunal. However, when the Security Council established the ICTY and the ICTR, it provided very few procedural norms and, for all practical purposes, no evidentiary ones.19 Instead, the Security Council left these tasks to the judges through their rule-making power.20 Unlike the IMT and IMTFE in which the judges created the rules of procedure and evidence as they went along, the judges of the ICTY and ICTR needed to promulgate these rules in advance 17 See Nancy A. Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2009); Nancy A. Combs, Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials, 14 UCLA J. Int’l L. & Foreign Aff. 235 (2009). 18 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, Annex, U.N. Doc. S/1994/674 (May 27, 1994) [hereinafter Final Report]; M. Cherif Bassiouni (with Peter Manikas) [hereinafter Law of the ICTY], The Law of the International Criminal Tribunal for the Former Yugoslavia (1996); M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279 (1994). 19 As to articles on procedure and evidence for the ICTY, see Bassiouni, Law of the ICTY, supra note 18, at 946–71; Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Tribunal for the Former Yugoslavia ch. 10 (1995). As to articles on procedure and evidence for the ICTR, see Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for Rwanda (1997). See also Combs, supra note 17. 20 ICTY Statute, supra note 3; ICTR Statute, supra note 4.

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of their application. This was a convenient solution for the Security Council to unburden itself of that task. However, it gave the judges of the two tribunals a quasi-legislative power that was, for all practical purposes, unmatched in the world’s major legal systems, where distinctions between legislative and judicial powers are carefully observed. The practices of the IMT and IMTFE left much to be desired with respect to their lack of procedural and evidentiary rules, but more so because of the inconsistency of judicial rulings on these questions.21 The process as a whole was in contravention to the principles of legality, which require that rules of procedure and evidence, which are outcome-determinative, should be established in advance so that prosecution and defense know what to expect, know how to meet these expectations, and so the judges are restricted in their discretionary powers over the course of the trials.22 Unlike national judicial systems, international ones have grown out of a vacuum and operated, essentially, within a vacuum. They do not rely on existing institutions, nor do they benefit from the support of those already existing. Even their personnel, at all levels, have had to be constituted from persons hailing from different legal systems and with varying degrees of experience in criminal matters. Most of them, however qualified, do not have the necessary background or expertise in international and comparative criminal law and procedure. Thus, everything about such international institutions has had to be developed almost ex novo.23 Since very little in law is invented and nearly everything is borrowed, those who have worked in these institutions brought with them their prior experiences. This, too, has presented problems. Experiences in national legal systems are not easily transferable to international legal institutions. More particularly, they cannot readily be merged with other national experiences. Rules of procedure and evidence are the product of particular experiences in a given national legal system and they fit into a coherent whole within that system, reflecting certain values, and producing certain

21 For the IMT, see Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 58 Stat. 1544, 82 UNTS 280. For the IMTFE, see Charter of the International Tribunal for the Far East, Jan. 19, 1946, (General Orders. No. 1) as amended Apr. 26, 1946, (General Orders No. 20), T.I.A.S. 1589, 1946 U.S.T. LEXIS 378; 4 Bevans 20. See also Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did they Provide an Outline for International Legal Procedure, 37 Colum. J. Transnat’l L. 851 (1999). Walach notes that the rules of evidence and procedure at the IMT and IMTFE (essentially devised by Americans and based on American law) were flexible beyond not just the norms of criminal trials in democratic systems, but beyond the bounds of fairness as well. Id. at 869. 22 See supra Chapter III, section 9; see also M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 296–307 (2011). 23 Marieke Wierda & Richard May, International Criminal Evidence (2002); Procédure pénale compare dans les systèmes modernes, 15 Nouvelles Études Pénales 93 et. seq ( Jean Pradel ed., 1998) [hereinafter Pradel].



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equilibrium in the overall process.24 One cannot easily cut bits and pieces of such rules and try to match them together with bits and pieces of rules from other legal systems to produce a new coherent whole. The art of diplomacy is different from the techniques of comparative legal analysis.25 Necessity, as the saying goes, is the mother of all invention. The ICTY and ICTR were forced by necessity to develop rules of procedure and evidence that brought together, as well as could be expected under the circumstances, that which derived from common law and civil law experiences. The former system prevailed, however, because there were more judges and prosecutors in these institutions trained in the common law than in the civil law system. However, this was not the only reason for the tendency towards the adversary/accusatorial model of the common law. The judges, in their legislative rule-making role, as well as in the exercise of their judicial discretion in the conduct of trials, relied on international and regional norms applicable to what is commonly referred to as “international due process.”26 Such UN norms are embodied in treaties, as are those contained in regional treaties such as the European Convention on the Protection of Human Rights,27 and the Inter-American Convention on Human Rights.28 The latter two are also supplemented by the jurisprudence of their respective courts. Most of these norms reflect the adversary/accusatorial model of criminal justice. As a result, this model inevitably became dominant in the law and practice of the ICTY, ICTR and ICC.29 These international and regional norms of “international due process” also found their way in the constitutions and the laws of many countries, as evidenced below.30 Thus, a process of accretive uniformity developed at the international

24 Pradel, supra note 23. See also La phase préparatoire du process pénal en droit comparé, 56 Revue Internationale de Droit Pénal (1985); La Phase décisoire du process pénal en droit comparé, 57 Revue Internationale de Droit Pénal (1986); La Phase exécutoire du process pénal en droit pénal compare, 61 Revue Internationale de Droit Pénal (1990). 25 See, e.g., M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell Int’l L.J. 443 (1999). 26 See The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (M. Cherif Bassiouni ed., 1994); GeertJan A. Knoops, A New Concept of International Due Process, in Defenses in Contemporary International Criminal Law ch. 9 (Geert-Jan A. Knoop ed., 2d ed. 2008). 27 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 218 U.N.T.S. 221, E.T.S. No. 5; see P. Van Dijk, A.W. Heringa & G.J. Van Hoof, Theory and Practice of the European Convention on Human Rights (3d ed. 1998). 28 Inter-American Convention on Human Rights, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; see Dinah Shelton & Thomas Buergenthal, Protecting Human Rights in the Americas (4th ed. 1995). 29 ICC Statute, supra note 5; see also Bassiouni, The Legislative History of the ICC, supra note 16. For a commentary on the Rome Statute, see Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 2d ed. 2009); The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 1–40 (Roy S. Lee ed., 1999). 30 See infra, section 2.

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and regional levels. Contemporaneously, another process of harmonization, or at least of rapprochement in the standards of “due process,” developed at the national levels as evidenced by the laws and jurisprudence of the world’s criminal justice systems and by the judges who interpreted and commanded respect for the norms shared by various states.31 The convergence of these developments gave rise to “general principles of law”32 on the subject of “international due process,” which the ICTY, ICTR, and ICC have recognized and applied in their statutes and jurisprudence. The ICTY and ICTR have also benefited from the unifying factor of having the same Appellate Chamber, which has helped to harmonize their practices. The ICTY, ICTR, and ICC reflect these “international due process” norms, but they were not arrived at through a process of comparative legal analysis of international and regional “due process” norms. With respect to the ICTY and ICTR, the process was more experiential, whereby the judges, in their collective wisdom and based on their collective experiences, reached certain conclusions. With respect to the ICC, the process was similar but with the added dimension of political compromises made by government delegates in the course of negotiating the Rome Statute.33 Thus, experts in comparative criminal procedure may find that this process leaves something to be desired. Nevertheless, it can be concluded that the end result is much more functional than what some may be willing to credit. Predicting the problems identified herein, the drafters of the Rome Statute provided for the elaboration of “Rules of Procedure and Evidence.”34 A Preparatory Commission worked on the rules for two years and they were adopted in 2000.35 Subsequently, the First Meeting of the Assembly of States Parties adopted the elaborate and detailed rules in September 2002.36 With these “Rules of Evidence and Procedure,” the ICC completed the most elaborate task of codifying international rules of evidence.37 The judges, prosecutors, and defense counsels of the ICC are giving content to these rules as the court deals with the every day challenges of running criminal trials. Rules of evidence are more crucial to the outcomes of criminal proceedings than rules of procedure. This debate is more an exercise in academics than 31 See Pradel, supra note 23, at 135 et. seq. 32 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990) [hereinafter Bassiouni, General Principles]. 33 See Bassiouni, The Legislative History of the ICC, supra note 16; Bassiouni, Negotiating the Treaty of Rome, supra note 25. 34 ICC Statute, supra note 5, at art. 51. 35 Report of the Preparatory Commission for the International Criminal Court, Part I: Finalized draft text of the Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (Nov. 2, 2000). 36 International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3 (entered into force Sept. 9, 2002) [hereinafter ICC Rules]. 37 Id.



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practical application, as both interact in order to produce a particular valueoriented outcome. However, rules of evidence and procedure cannot be assessed outside the context of the value-oriented goals of a given criminal justice system in which certain balances are achieved. For example, is the manner in which evidence is obtained more important or less important than its objective truth and veracity? The answer to that question will determine what sanctions or remedies are available when evidence is obtained through means that are deemed improper, even though the facts to which they attest are true. Another question is whether the judges should be given the discretionary power to admit truthful, yet improperly obtained evidence, as opposed to being bound by rigid rules of admissibility which would exclude such evidence? Yet, can there be a legal regime of admissibility of evidence without a set of rules concerning evidence, such as hearsay, relevance and materiality? Almost every legal system has confronted these and many other questions. Their outcomes have varied depending on the overall balance that each system sought to achieve. All of this makes it difficult to transpose certain national rules of procedure and evidence to an international criminal justice process without having a juridical method to guide the choices. Such a method, however, has been lacking with respect to all international criminal institutions established thus far. International criminal adjudication presents different and sometimes unique problems, than those that face national legal systems. Consider, for example, the possibility that the Prosecutor of the ICC could conduct mass grave exhumations and postmortem examinations in such different locations as the Great Lakes area of Africa, the Amazon in South America, and in the mountain ranges between Afghanistan and Pakistan. The logistics alone would be daunting, and they would significantly condition the manner in which these three mass grave exhumations would be conducted. If rigid rules were applied none of these three locations could be adequately investigated in order to produce evidence admissible in court. If different protocols for each region were established, there were different standards of admissibility of evidence in each case, and such an outcome may be legally unacceptable. In all these cases, the defense would never have the same available means and resources as the prosecution, or even the capability of verifying the prosecution’s compliance with the protocol of investigation. Thus, “equality of arms” would not be achieved between prosecution and defense. The unique problems are part of the unique goals of international criminal adjudication, which are inherently broader in their global implications than those of national jurisdictions.38

38 See Mirjan Damaska, Problematic Features of International Criminal Procedure, in The Oxford Companion to International Criminal Justice 176 (Antonio Cassese ed. 2009).

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In such situations, the adversary-accusatorial model is not the best suited for investigation and fact-finding. Instead, the inquisitorial model of the juge d’instruction would best afford “equality of arms.” In that model, a judge would be charged with the impartial investigation in which he/she would be dutybound to disclose evidence that is both exculpatory and inculpatory. To do otherwise would leave the defense in a position of disadvantage with respect to the prosecution. To remedy this, as in the Rome Statute, the prosecutor may be required to search for exculpatory evidence. However, this provision is not likely to offer the same benefits as having a juge d’instruction. Nevertheless, the future practice of the ICC may be such that the appropriate trial chamber would exercise effective judicial control over the prosecutor’s investigations and thus redress the scales in order to produce “equality of arms.” Another major problem in international adjudication is the availability of witnesses and their willingness to testify at trials and be subject to the rigors of cross-examination. This is particularly the case with respect to rape victims. The protection of such witnesses and the record of their testimony were among the major evidentiary issues that faced the ICTY and ICTR, and will surely continue to present problems to future tribunals. Moreover, these tribunals also must confront problems of testimonial deficiencies that pose obstacles to fully informed decision making.39 The range of evidentiary questions is extensive as is the combination of variables that are unique to each and every case. Some of these issues will turn on the rule applicable to the testimony of a single person or the admissibility of a single item of tangible evidence, while in other cases the issues may be more complex. One such example is in respect of command responsibility, where the question of what legal standards to apply is outcome-determinative. Proof of subjective intent is much more difficult than that of the objective intent under the test of the “ordinary reasonable person in the like circumstances.” Another set of issues arises with defenses. For example, whether the defendant must conclusively prove an affirmative defense or whether merely raising the defense shifts the burden of negating it to the prosecution is outcome-determinative. These and other similar issues are crucial in national as well as international trials. International adjudication also presents unique problems that are unknown to national legal systems in that the former relies on the voluntary cooperation of states, while the latter benefits from the vertical authoritative process that exists in domestic legal orders. Procedural acceleration rationalized by the need for expediency presents another challenge. The increase in litigation, on a national level, has lead 39 See Combs, supra note 17, at 239 (concluding that much eyewitness testimony at international tribunals, including the ICTY, ICTR, Special Court of Sierra Leone, and Special Panels for Serious Crimes in East Timor, is “of highly questionable reliability.”).



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to a procedural acceleration reducing each step to the simplest expression performed at the lowest cost. The ICC recognizes the need to facilitate expeditious proceedings while bearing in mind the rights of the defense and the victims. The Rome Statute mandates a streamlined procedure in cases in which guilt is not contested.40 However, the Trial Chamber must ensure the admission is supported by the facts of the case and retains the power to hear additional evidence before accepting an admission of guilt.41 Within national legal systems the percentage of lawyers who practice criminal law is small, and at the international level the number of persons with such experience is even more limited. Thus, while in the last decade an increasing number of international criminal law experts have invested themselves in the study of certain aspects of this new discipline, few of them come from the practice of domestic criminal law. Thus, experts in international criminal procedure and evidence are few and far between. In the Yamashita case, Justice Murphy of the Supreme Court of the United States, in a most befitting dissenting opinion, highlighted the purposes and values of international criminal trials.42 He states: An uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. The people’s faith in the fairness and objectiveness of the law can be seriously undercut by that spirit. . . . 43  The immutable rights of the individual . . . belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color, or beliefs . . . No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights. . . .44

Section 2. International Criminal Procedure 2.1. Introduction International protections of human rights have increased dramatically in the last century,45 due in part to the increased recognition that a number of nations 40 ICC Statute, supra note 5, at art. 65 (“Proceedings on an admission of guilt”). 41 Id. 42 In re Yamashita, 327 U.S. 1 (1946). 43 Id. at 41. 44 Id. at 26. 45 For example, the U.N. has implemented a number of instruments protecting human rights. See Human Rights: A Compilation of International Instruments, U.N. Doc ST/HR/1/Rev. 3,

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share many fundamental legal values and expectations.46 One crucial commonality is the acknowledgement that individuals must be protected from certain depredations against their person, and that international laws are needed to protect people from policies that ultimately affect the global community.47 The present discussion will focus on the protections afforded persons in the context of the administration of criminal justice. These safeguards are important protections against abuses of power that affect the life, liberty, and physical integrity of individuals.48 Without these protections and limitations on the potential abusive exercise of power by states, democracy could not exist. Thus, there is an inseparable link between the protection of individual and collective human rights and democracy. The field of battle in which democracy and human rights are tested is the administration of criminal justice, which encompasses all processes and practices by which a state affects, curtails, or removes basic rights.49 The present discussion will analyze the level of international protections given to a person within the criminal process with respect to various types of U.N. Sales No. E.88.XIV.1 passim (1988); Council of Europe, Human Rights in International Law: Basic Texts passim (1985); Basic Documents of Human Rights (Ian Brownlie ed., 2d ed. 1980). 46 See generally Jack Donnelly & Rhoda E. Howard, International Handbook of Human Rights 4–6 (1987) (asserting the universality of human rights); Myres S. Mcdougal et al., Human Rights and World Public Order 6 (1980) (noting that the world public order can tolerate differences as long as they are “accommodated in terms of common interest”); A.H. Robertson & J.G. Merrills, Human Rights in the World 1 (1989) (noting increased international concern about the protection of human rights); Karen Parker & Lyn B. Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l Comp. L. Rev. 411, 414–16 (1989) (explaining jus cogens, which are generally recognized peremptory norms, as the basis for international human rights); Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 Am. U. L. Rev. 1, 1–17 (1982) (noting the historical overview of the rise in human rights awareness and enforcement since World War II). But see Etienne-Richard Mbaya, The Compatibility of Regional Human Rights Systems with International Standards, in Human Rights in Perspective 66 (Asbjorn Eide & Bernt Hagtvet eds., 1992) (arguing that there has been a decrease in the recognition and observance of human rights around the world). 47 See Lung-Chu Chen, An Introduction to Contemporary International Law 204–05 (1989); Yoram Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, reprinted in 2 Theodor Meron, Human Rights in International Law 356–57 (1984); Imre Szabo, Historical Foundations of Human Rights and Subsequent Developments, in International Dimensions of Human Rights 11, 21 (Karel Vasak ed., 1982); see generally Humanitarian Intervention and the United Nations (Richard B. Lillich ed., 1973) (discussing humanitarian intervention as the imposition of international human rights standards by one nation on the citizens of another); see also, Christoph Safferling, Towards an International Criminal Procedure (2001). 48 See International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966) [hereinafter ICCPR]; Universal Declaration on Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration]; see, e.g., Haji N.A. Noor Muhammad, Due Process of Law for Person Accused of Crime, in The International Bill of Rights: The Covenant on Civil and Political Rights 138, 140 (Louis Henkin ed., 1981) [hereinafter Henkin] (explaining that protection against arbitrary arrest forms the central feature of any system of guarantees of the liberty of the individual). 49 It should be noted that the state’s policies and practices are conducted and carried out by individuals. See generally Bassiouni, Crimes Against Humanity, supra note 22, at 14–19, 34–40.



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rights that have been delineated in Appendix II.50 The methodology used in this study is empirically based and rather straightforward. It has grown out of the recognition that traditional sovereignty-based arguments against the recognition or application of internationally protected human rights are no longer valid because of the vast array of applicable treaties, the customary practices of states and the legally binding nature of general principles of international law. These protections represent the convergence of treaties, customs, national legislation,51 and jus cogens norms.52 Due to this convergence, international human rights law penetrates into areas that in the past have been deemed to be wholly within the realm of domestic law.53 This study uses an inductive method of inquiry to identify internationally protected human rights and the existence of their counterparts in national constitutions. Both international instruments54 and domestic constitutions55 provide the data for comparison. The rights found in the instruments evidence their international recognition, while their counterparts in the national constitutions 50 Those rights include the right to life, liberty, and security of the person; the right to recognition before the law and equal protection of the law; the right to be free from arbitrary arrest and detention; the right to freedom from torture and cruel, inhuman and degrading treatment or punishment; the right to be presumed innocent; the right to a fair trial and corresponding subrights; the right to assistance of counsel and corresponding subrights; the right to a speedy trial; the right to appeal; the right to be protected from double jeopardy; and the right to be protected from ex post facto. See infra Appendix II. 51 See Robertson & Merrills, supra note 46, at 27 (discussing the almost complete international acceptance of the Universal Declaration); Henkin, supra note 48, at 1–2; Bin Cheng, General Principles of Law as Applied By International Courts and Tribunals (1953); Bassiouni, General Principles, supra note 32. 52 See Gordon A. Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, 28 Va. J. Int’l L. 585 (1988). 53 See Henkin, supra note 48, at 2. 54 Eleven international instruments have been surveyed for the current discussion: (1) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/39/46 (1984) [hereinafter Convention Against Torture]; (2) International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter Convention on Racial Discrimination]; (3) ICCPR, supra note 48; (4) Convention for the Protection of Human Rights and Fundamental Freedoms [and Accompanying Protocols], Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter Fundamental Freedoms]; (5) Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43rd Sess., Supp. No. 49, at 297, U.N. Doc. A/43/173 (1988) [hereinafter BOP]; (6) Universal Declaration, supra note 48; (7) United Nations Standard Minimum Rules for the Treatment of Prisoners at 67, U.N. Doc. A/CONF/6/1, Annex I, A, U.N. Sales No. 1956.IV.4 (1956) [hereinafter SMRTP]; (8) European Convention on the Protection of Detainees from Torture and from Cruel, Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, reprinted in 27 I.L.M. 1152 [hereinafter European Convention on Protection of Detainees]; (9) African Charter on Human and Peoples’ Rights, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5 (1981), reprinted in 21 I.L.M. 58 (1982) [hereinafter Banjul]; (10) American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OEA/ Ser. A/16 [hereinafter AMCHR]; (11) ICC Statute, supra note 5. These instruments are also listed infra in Appendix I. 55 See infra Appendix III for a list of the constitutions used in the current survey.

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evidence national legal recognition. The congruence of both indicates the existence of a “general principle.” Clearly, international instruments and national constitutions do not use identical language and drafting styles, if for no other reason than the fact that national constitutions reflect different legal systems and drafting approaches as well as different cultures and languages. Precisely because there are so many reasons to warrant linguistic and theoretical diversity, however, the existence of strong similarities is more convincing evidence that these rights are contained in “general principles” of law. It should be added that the practices of states in applying these commonly recognized rights vary significantly. This study uses a purely empirical model of searching for repetition and similarity among the various rights to prove that similar rights evidence the existence of principles common to international law and national law, and that they are binding “general principles of law.” In the following section each of the enumerated rights will be correlated with eleven selected international instruments, and with more than 190 national constitutions.56 2.2. Rights and Clusters of Rights Appendix II lists eleven different rights, or clusters of rights, that are associated with the protections afforded an individual in the criminal process. Each of these rights has been found to exist in a number of international instruments and national constitutions.57 More importantly, each of these rights has been found to be basic to fairness in the criminal process. Without these rights, the criminal process can be abused and manipulated to curtail individual liberties and thus ultimately to deny democracy. The link between individual human rights, which are most susceptible to abuse during the criminal process, and democracy is beyond question. Neither democracy nor human rights can exist without one 56 The empirical research involved in correlating the rights to the national constitutions was carried out under this writer’s direction and was based on the texts of the constitutions as found in Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1992) (updated through 2009). In addition, the following internet-based databases containing texts of national constitutions were also consulted: Constitution Finder database (offers constitutions, charters, amendments, and other related documents), available at http://confinder. richmond.edu/; Constitutions, Treaties, and Official Declarations Around the World database (includes links to full texts of foreign constitutions, treaties, and declarations, and other resources), available at http://www.psr.keele.ac.uk/const.htm; National Constitutions database (developed by the Constitution Society), available at http://www.constitution.org/cons/natlcons. htm. A study correlating the enumerated rights, the surveyed instruments, and the national constitutions was also carried out under this writer’s direction in 1980. See Sandra Hertzberg & Carmela Zammuto, The Protection Of Human Rights In The Criminal Process Under International Instruments And National Constitutions, 4 Nouvelles Études Pénales (1981). 57 See infra Appendix IV for a comparison of the rights found to exist in the Rome Statute, conventions, constitutions, and countries used in the current survey.



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another—and neither can exist without the individual protection of persons brought in the criminal process, because it is in that arena where most human rights violations occur. 2.2.1. The Right to Life, Liberty, and Security of the Person The inherent and inalienable right to life, liberty, and security of the person is a cornerstone of international human rights law and of civil rights in all countries that recognize the supremacy of the rule of law. This right has its roots in national law and was first articulated in positive law in the English Magna Carta of 1215.58 It was also embodied in the Bill of Rights of the U.S. Constitution in 1791.59 As enunciated in these early definitions, the protection of human life, liberty, and personal security is basic to any system based on the rule of law. The procedural safeguards that make up the bulk of the rights discussed in this chapter can be viewed as strengthening these basic rights of life, liberty, and personal security. The right to life, liberty, and personal security is found in seven of the instruments surveyed.60 Although Article 3 of the Universal Declaration guarantees all 58 Chapter 39 of the Magna Carta sets forth that “[no] free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” A.E. Dick Howard, Magna Carta: Text and Commentary 43 (1964) [hereinafter Magna Carta]. See also Symposium, La phase preparatoire du process penal en droit compare, Revue Int’l de Droit Pénal passim (1985) (discussing pretrial protections in different legal systems). 59 “No person shall . . . be deprived of life, liberty or property without due process of law.” U.S. Const. amend. V. 60 Convention on Racial Discrimination, supra note 54, pt. I, art. 5, 660 U.N.T.S. at 220; ICCPR, supra note 48, pt. III, arts. 6(1), 9(1), at 53, 54; Fundamental Freedoms, supra note 54, § I, arts. 2(1), 5(1), 213 U.N.T.S. at 224, 226; Universal Declaration, supra note 54, art. 3, at 72; SMRTP, supra note 54, pt. II, art. 57, at 71; Banjul, supra note 54, pt. I, ch. I, arts. 4, 6, at 60; AMCHR, supra note 54, pt. I, ch. II, arts. 4(1), 7(1), 7(2), at 2, 3. For the jurisprudence of the European Court of Human Rights (ECHR) regarding the right to life see, e.g., Ocalan v. Turkey, App. No. 46221/99 (Mar. 12, 2003); Kaya v. Turkey, Case No. 158/1996/777/978 (1998); Cicek v. Turkey, Application no. 25704/94 (2001); McCann v. United Kingdom, Case No. 17/1994/464/545 (1995); Androcicou & Constantinou v. Cyprus,  Case No. 86/1996/705/897 (1997); Tekin v. Turkey, Case No. 52/1997/836/1042 (1998); Ergi v. Turkey, Case no. 66/1997/850/1057 (1998); Gulec v. Turkey, Case No. 54/1997/838/1044 (1998); Osman v. United Kingdom, Case No. 87/1997/871/1083 (1998); Timurtas v. Turkey, Application No. 00023531/94 (2000); Tas v. Turkey, Application No. 00024396/94 (2000); Tanli v. Turkey, Application No. 00026129/95 (2001); Hugh Jordan v. United Kingdom, Application no. 24746/94 (2001); Cyprus v. Turkey, Application no. 25781/94 (2001); McShane v. U.K., Application no. 00043290/98 (2002) Vo v. France, Application no. 53924/00 (2004); Shamayev and Others v. Georgia and Russia, Application no. 36378/02 (2005); Soysal v. Turkey, Application no. 50091/99 (2007); Varnava and Others v. Turkey, Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 (2009); Opuz v. Turkey, Application no. 33401/02 (2009); Rantsev v. Cyprus and Russia, Application no. 25965/04 (2010); Mižigárová v. Slovakia, Application no. 74832/01 (2010); Giuliani and Gaggio v. Italy, Application no. 23458/02 (2011); Al-Skeini and Others v. the United Kingdom, Application no. 55721/07 (2011); Reynolds v. the United Kingdom, Application no. 2694/08 (2012). For the jurisprudence of the Inter-American Court of Human Rights (IACHR) regarding the right

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three components of this important right, the right to life is treated separately in the ICCPR, the Fundamental Freedoms, and the AMCHR. The AMCHR makes the exceptional guarantee of the right to life from the time of conception.61 This extension of the right to life is based on natural law principles that assumed fundamental rights to exist from birth.62 Each of the instruments also provides for explicit exceptions to the right to life. In the ICCPR and the AMCHR, the death penalty is allowed for the most serious crimes, if a competent court pronounces the sentence.63 Exceptions in the Fundamental Freedoms are for self-defense and killings in the course of a lawful arrest or the quelling of a riot or insurrection.64 The death penalty was originally allowed in the Fundamental Freedoms as an exception to the right to life, but

to life, see, e.g., Velásquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am. C.H.R. (Ser. C) No. 4 (1988); Fairen Garbi and Solis Corrales Case, Judgment of March 15, 1989, Inter-Am. C.H.R. (Ser. C) No. 6 (1989); Godínez Cruz Case, Judgment of January 20, 1989, Inter-Am. C.H.R. (Ser. C) No. 5 (1989); Aloeboetoe et al. Case, Judgment of December 4, 1991, Inter-Am. C.H.R. (Ser. C) No. 11 (1991); Gangaram Panday Case, Judgment of January 21, 1994, Inter-Am. C.H.R. (Ser. C) No. 16 (1994); El Amparo Case, Judgment of January 18, 1995, Inter-Am. C.H.R. (Ser. C) No. 19 (1995); Neira Alegria et al. Case, Judgment of January 19, 1995, Inter-Am. C.H.R. (Ser. C) No. 21 (1995); Caballero Delgado and Santana Case, Judgment of December 8, 1995, Inter-Am. C.H.R. (Ser. C) No. 22 (1995); Garrido and Baigorria Case, Judgment of February 2, 1996, Inter-Am. C.H.R. (Ser. C) No. 26 (1996); Castillo Páez Case, Judgment of November 3, 1997, Inter-Am. C.H.R. (Ser. C) No. 34 (1997); Blake Case, Judgment of January 24, 1998, Inter-Am. C.H.R. (Ser. C) No. 36 (1998); Villagrán Morales et al. Case (the “Street Children” Case), Judgment of November 19, 1999, Inter-Am. C.H.R. (Ser. C) No. 63 (1999); Trujillo Oroza Case, Judgment of January 26, 2000, Inter-Am. C.H.R. (Ser. C) No. 64 (2000); Las Palmeras Case, Judgment of December 6, 2001, Inter-Am. C.H.R. (Ser. C) No. 90 (2001). Hilaire, Constantine and Benjamin et al. Case, Judgment of June 21, 2002, Inter-Am. C.H.R. (Ser. C) No. 94 (2002); Yakye Axa Indigenous Community Case, Judgment of June 17, 2005, Inter-Am. C.H.R. (Ser. C) No. 125 (2005); Raxcacó Reyes Case, Judgment of September 15, 2005, Inter-Am. C.H.R. (Ser. C) No. 133 (2005); Sawhoyamaxa Indigenous Community Case, Judgment of March 29, 2006, Inter-Am. C.H.R. (Ser. C) No. 146 (2006); Baldeón-García Case, Judgment of April 6, 2006, Inter-Am. C.H.R. (Ser. C) No. 147 (2006); Boyce et al. Case, Judgment of November 20, 2007, Inter-Am. C.H.R. (Ser. C) No. 169 (2007); DaCosta Cadogan Case, Judgment of September 24, 2009, Inter-Am. C.H.R. (Ser. C) No. 204 (2009); Gelman Case, Judgment of February 24, 2011, Inter-Am. C.H.R. (Ser. C) No. 221 (2011). 61 AMCHR, supra note 54, pt. I, ch. II, art. 4(1), at 2. 62 For example, the American Declaration of Independence states that “all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness . . .” The Declaration of Independence para. 2, reprinted in George Ananstaplo, The Constitution Of 1787: A Commentary 239 (1989). 63 ICCPR, supra note 48, pt. III, art. 6(2), at 53; AMCHR, supra note 54, pt. I, ch. II, art. 4(2), at 2. In neither instrument may the death penalty be imposed upon anyone who was under eighteen years of age at the time of the commission of the crime, or upon pregnant women. ICCPR, supra note 48, pt. III, art. 6(5), at 53; AMCHR, supra note 54, pt. I, ch. II, art. 4(5), at 2. Additionally, under the AMCHR the death penalty may not be imposed on anyone over seventy years of age. AMCHR, supra note 54, pt. I, ch. II, art. 4(5), at 2. In 1990, the U.N. General Assembly passed Optional Protocol 2 to the ICCPR abolishing the death penalty. The Second Optional Protocol entered into force on July 11, 1991. Press Release, U.N. Dept of Pub. Info., Resolutions and Decisions Adopted by the General Assembly During the First Part of Its Forty-Fourth Session 406–09, GA/7977 (1990). 64 Fundamental Freedoms, supra note 54, § I, art. 2(2), 213 U.N.T.S. at 224.



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has been substantially abolished by Protocol 6 to that Convention.65 The right to life is also addressed in the African Charter on Human and Peoples’ Rights (Banjul Charter), where it is coupled with the protection of the inviolability and integrity of the person, but exceptions to the right are merely implied through the proscription of the arbitrary deprivation of this right.66 In the ICCPR, the ICC, the Banjul Charter, the Fundamental Freedoms, and the AMCHR, the right to liberty and security of the person are addressed concurrently with the provisions guaranteeing the freedom from arbitrary arrest and detention.67 The United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRTP) provides for detailed rules to protect the right to liberty only within the context of imprisonment, including protection from torture and other forms of degrading treatment and punishment.68 The right to life, liberty, and security of the person are explicitly embodied, (in whole or in part) sometimes together and sometimes separately, in eighty of the national constitutions surveyed.69 Specifically, the right to life is mentioned in 124 national constitutions; the right to security of the person, which is defined as physical integrity in some documents, also occurs in eighty-three national constitutions. The inviolability of the person is guaranteed in twenty-one constitutions, and it could reasonably be argued that this term includes all three of the designated rights. Finally, in another thirty constitutions the right to liberty or freedom is secured, usually within the context of protections accorded in the right to freedom from arbitrary arrest and detention. 2.2.2. The Right to Recognition before the Law and Equal Protection of the Law By insuring the non-discriminatory protection and application of the laws, this right is another of the cornerstone protections of human rights in the criminal process. It includes the recognition of the individual as a legal personality who enjoys equal protection and application of the law. The right appears in six of the instruments surveyed, as well as in the statutes of the ICC, ICTY, and ICTR.70 65 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, opened for signature Apr. 28, 1983, art. 1, reprinted in 22 I.L.M. 539 (1983). The death penalty is still permitted in time of war, id. art. 2, 22, I.L.M. at 539, and pursuant to the Fundamental Freedoms, supra note 54, § I, art. 2(1), 213 U.N.T.S. at 224, in those countries which have not yet ratified Protocol 6, supra. 66 Banjul, supra note 54, pt. I, ch. I, art. 4, at 60. 67 See infra section 2.2.3. 68 SMRTP, supra note 54, pt. I, arts. 27, 29, 39(1), at 69; id., pt. II, § A, art. 65, at 71. 69 The listing of national constitutions and corresponding provisions protecting this and other rights identified in this publication is omitted due to restrictions in the amount of space available. The complete listing of constitutions containing this, as well as other rights discussed herein, is available with the author. 70 Convention on Racial Discrimination, supra note 54, pt. I, art. 5(a), 660 U.N.T.S. at 220; ICCPR, supra note 48, pt. III, arts. 16, 26, at 55; Universal Declaration, supra note 48, arts. 6, 7, at 73;

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Although the protection against discrimination is implicit, the Fundamental Freedoms include an express nondiscrimination clause with respect to the rights and freedoms it guarantees.71 The right to recognition before the law and/or equal protection of the law is protected in more than 176 national constitutions. There are also a number of specialized international instruments that deal with the prohibition of discrimination, but they are not covered by this survey.72 2.2.3. The Right to Be Free from Arbitrary Arrest and Detention The right to liberty is not absolute and can be lawfully and reasonably curtailed. The right to be free from arbitrary arrest and detention seeks to delineate appropriate exceptions to the right of liberty.73 The protection against the arbitrary deprivation of freedom is expressed in the Magna Carta,74 the Bill of Rights of the U.S. Constitution,75 and the French Declaration of the Right of Man.76 It is an essential element of the due process protections that provide safeguards for any person from abuse of power.77

SMRTP, supra note 54, pt. I, art. 6(1), at 67; Banjul, supra note 54, pt. I, ch. I, arts. 3, 5, at 60; AMCHR, supra note 54, pt. I, ch. II, arts. 3, 24, at 2, 8. See also ICC Statute, supra note 5, pt. II, arts. 21(3) and 67(1), at 94; see also ICTY Statute, supra note 3, art. 21(1); see also ICTR Statute, supra note 4, art. 20(1). For the jurisprudence of the ECHR regarding this right, see, e.g., Rasmussen v. Denmark, App. No. 00008777/79 (1984); Van Realte v. The Netherlands, App. No. 00020060/92 (1997). For the IACHR, see, e.g., El Amparo Case, Judgment of January 18, 1995, Inter-Am. C.H.R. (Ser. C) No. 19 (1995). Bámaca Velásquez Case, Judgment of November 25, 2000, Inter-Am. C.H.R. (Ser. C) No. 70 (2000); Sawhoyamaxa Indigenous Community Case, Judgment of March 29, 2006, Inter-Am. C.H.R. (Ser. C) No. 146 (2006); La Cantuta Case, Judgment of November 29, 2006, Inter-Am. C.H.R. (Ser. C) No. 162 (2006); Saramaka People Case, Judgment of November 28, 2007, Inter-Am. C.H.R. (Ser. C) No. 172 (2007); Anzualdo Castro Case, Judgment of September 22, 2009, Inter-Am. C.H.R. (Ser. C) No. 202 (2009); Xákmok Kásek Indigenous Community Case, Judgment of August 24, 2010, Inter-Am. C.H.R. (Ser. C) No. 214 (2010); Gelman Case, Judgment of February 24, 2011, Inter-Am. C.H.R. (Ser. C) No. 221 (2011); For the ICTY, see Mucic et al. v. The Prosecutor, Case No. IT-96-21-A, Judgment (Feb. 20, 2001). 71 Fundamental Freedoms, supra note 54, § 1, art. 14, 213 U.N.T.S. at 232. 72 For example, see the Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, 34 U.N. GAOR, Supp. No. 46, U.N. Doc. A/34/46 (1979). 73 See Preventive Detention: A Comparative and International Law Perspective (Stanislaw Frankowski & Dinah Shelton eds., 1992). 74 Magna Carta, supra note 58, at ch. 38. 75 U.S. Const. amends. I–X. 76 Article 7 provides that “no individual shall be accused, arrested or detained, except in the cases prescribed by legislation, and according to the procedures it has laid down.” The Declaration Of The Rights Of Man And The Citizen (Aug. 26, 1789) reprinted in Human Rights Sourcebook 744 (Albert P. Blaustein et al. eds., 1987). 77 See supra note 26.



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The right to be free from arbitrary arrest and detention is protected by the Rome Statute78 and in six of the instruments surveyed.79 In some instruments the right is expressed as a general exception to the right to personal liberty, as in the right to be free from arbitrary arrest and detention.80 In other instruments, exceptions to the right itself are specifically noted. For example, Article 5

78 ICC Statute, supra note 5, pt. V, art. 55(1)(d) at 129 (rights of persons during investigation) and arts. 58, 59, 60, at 135–38; see also pt. V, R. 118, 119, at 138–39. For case law see, e.g. Situation in the Democratic Republic of the Congo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled "Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo", Case No. 01/04-01/06 (OA 7), Feb. 13, 2007. 79 ICCPR, supra note 48, pt. III, art. 9(1), at 54; Fundamental Freedoms, supra note 54, § I, art. 5(1), 213 U.N.T.S. at 226; BOP, supra note 54, princ. 2, at 298; Universal Declaration, supra note 48, art. 9, at 73; Banjul, supra note 54, pt. I, ch. I, art. 6, at 60; AMCHR, supra note 54, pt. I, ch. II, art. 7(3), at 3. For the jurisprudence of the ECHR and the IACHR see, e.g., Rozmarynowski v. Poland, App. no. 37149/02 (Jan. 15, 2008); Aleksandra Dmitriyeva v. Russia, App. no. 9390/05 (Nov. 3 2011); Dmitriyev v. Russia, App. no. 13418/03 (Jan. 24, 2012) Ocalan v. Turkey, App. No. 46221/99 (March 12, 2003); Kurt v. Turkey, App. No. 00024276/94 (1998); Cicek v. Turkey, App. No. 00025704/94 (2001); De Jong, Baljet & Van Den Brink v. The Netherlands, App. Nos. 00008805/79; 00008806/ 79; 00009242/81 (1984); Cakici v. Turkey, App. No. 00023657/94 (1999); I. Bilgin v. Turkey, App. No. 00025659/94 (2001); Anguelova v. Bulgaria, App. No. 00038361/97 (2002); Quinn v. France, App. No. 00018580/91 (1995); Manzoni v. Italy, App. No. 00019218/91 (1997); Blume & others v. Spain, App. No. 00037680/97 (1999); Litwa v. Poland, App. No. 00026629/95 (2000); Gangaram Panday Case, Judgment of January 21, 1994, Inter-Am. C.H.R. (Ser. C) No. 16 (1994); Garrido and Baigorria Case, Judgment of February 2, 1996, Inter-Am. C.H.R. (Ser. C) No. 26 (1996); Loayza Tamayo, Judgment of September 17, 1997, Inter-Am. C.H.R. (Ser. C) No. 33 (1997); Castillo Páez Case, Judgment of November 3, 1997, Inter-Am. C.H.R. (Ser. C) No. 34 (1997); Blake Case, Judgment of January 24, 1998, Inter-Am. C.H.R. (Ser. C) No. 36 (1998). “Juvenile Reeducation Institute”, Judgment of September 2, 2004, Inter-Am. C.H.R. (Ser. C) No. 112 (2004); Tibi Case, Judgment of September 07, 2004, Inter-Am. C.H.R. (Ser. C) No. 114 (2004); Acosta Calderon Case, Judgment of June 24, 2005, InterAm. C.H.R. (Ser. C) No. 129 (2005); García-Asto and Ramírez-Rojas Case, Judgment of November 25, 2005, Inter-Am. C.H.R. (Ser. C) No. 137 (2005); Case of Chaparro Álvarez and Lapo Íñiguez, Judgment of November 21, 2007, Inter-Am. C.H.R. (Ser. C) No. 170 (2007); Yvon Neptune Case, Judgment of May 6, 2008, Inter-Am. C.H.R. (Ser. C) No. 180 (2008); Vélez Loor Case, Judgment of November 23, 2010, Inter-Am. C.H.R. (Ser. C) No. 170 (2010). For cases before the ICTY, see Prosecutor v. Simic et al., Case No, IT-95-9-PT, Decision on Simo Zaric’s and Miroslav Tadic’s Application for Provisional Release (Apr. 4, 2000); Prosecutor v. Brdjanin & Talic, Case No. IT-99-36-PT, Decision on Motions by Talic (1) to Dismiss the Indictment, (2) For release, and (3) For Leave to reply to response of Prosecution to Motion for Release (Feb. 1, 2000); Prosecutor v. Plavsic, Case No. IT-00-40-I, Order of the President on the Defense request to Modify the Conditions of Detention of the Accused ( Jan. 18, 2001); Prosecutor v. Hadzihasanovic et al., Case No. IT-01-47-PT, Decisions granting provisional release to Enver Hadzihasanovic, Mehmed Alagic, and Amir Kubura (Dec. 19, 2001); Prosecutor v. Bobetko, Case No. IT-02-62-AR54 bis & IT-02-62-AR108 bis, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge (Nov. 29, 2002). For the ICTR, see Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision (Nov. 2, 1999). See also Safferling, supra note 47, at 133–47 (concerning unjustifiable detention). 80 ICC Statute, supra note 5, pt. V, art. 55(1)(d) at 129; ICCPR, supra note 48, pt. III, art. 9(1), at 54; Fundamental Freedoms, supra note 54, § I, art. 5(1), 213 U.N.T.S. at 226; Universal Declaration, supra note 48, art. 9, at 73; Banjul, supra note 54, pt. I, ch. I, art. 6, at 60; AMCHR, supra note 54, pt. I, ch. II, art. 7(3), at 3.

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of the Fundamental Freedoms lists the following exceptions: (a) detention after conviction by a competent court; (b) lawful arrest for noncompliance with a lawful order of the court; (c) lawful arrest on suspicion of having committed a crime or to prevent the commission of a crime; (d) detention of minors; (e) detention of the mentally ill, vagrants, addicts, or those infected with contagious diseases; and (f ) detention of aliens to prevent illegal entry into a country or for the purposes of deportation or extradition.81 Both Article 5 of the Fundamental Freedoms and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (BOP) also include a list of procedural rights following an arrest that are designed to ensure judicial control over unlawful deprivations of personal liberty. A person has the right to be informed of the reasons for his/her arrest,82 to be granted a speedy trial,83 and to challenge the lawfulness of his/her arrest before a judge.84 The right to be free from arbitrary arrest and detention is protected in at least 169 national constitutions. The right may be expressed negatively, as in the prohibition of arbitrary deprivations of liberty, or it may be expressed as a specific exception to the general right of liberty, which is listed as a procedural protection. This second method is used by the majority of the constitutions of countries that adopted the common law of England, as well as by the Fundamental Freedoms. The ICTR has recognized the rights to be promptly informed of the reasons for arrest and to challenge the lawfulness of detention.85 2.2.4. The Right to Freedom from Torture and Cruel, Inhuman, and Degrading Treatment or Punishment A more concrete interpretation of the right to life, liberty, and the security of the person, the right to freedom from torture and cruel, inhuman and degrading treatment or punishment protects the dignity and physical and psychological integrity of a person. Its roots are found in the prohibition against “cruel and unusual punishments” in the English Bill of Rights of 1688 and in the Eighth Amendment of the U.S. Constitution.86 The modern right extends not only to punishment, but also to other cruel, inhuman, and degrading treatments, and is therefore far broader than its antecedents. The proscription of torture, for exam81 Fundamental Freedoms, supra note 54, art. 5(l)(f ), 213 U.N.T.S. at 226. 82 Fundamental Freedoms, supra note 54, § I, art. 5(2), 213 U.N.T.S. at 226; BOP, supra note 54, princ. 10, at 298. 83 Fundamental Freedoms, supra note 54, § I, art. 5(3), 213 U.N.T.S. at 226. 84 Fundamental Freedoms, supra note 54, § I, art. 5(4), 213 U.N.T.S. at 226; BOP, supra note 54, princ. 11(1), at 298. 85 Kajelijeli v. Prosecutor, Case No. ICTR-98-44-A, Judgment, ¶¶ 224, 230, 246, 323 (May 23, 2005). Semanza v. Prosecutor, Case No. ICTR-97-20-A, Judgment, ¶¶ 325, 327, 328 (May 20, 2005); Prosecutor v. Bagosora et al., Case No. ICTR-96-7-T, Judgment, ¶ 87 (Dec. 18, 2008). 86 See 1 Wm. & M. Sess. 2, c. 2 (1688) (Eng.); U.S. Const. amend. VIII.



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ple, is also aimed at the use of techniques prevalent in some of the inquisitorial systems of Europe well into the nineteenth century that elicited information from detainees and confessions from suspects.87 The right is found in all of the surveyed instruments.88 The Rome Statute guarantees this right amid the rights of persons during an investigation.89 Unlike the Universal Declaration and the Fundamental Freedoms, the ICCPR and the AMCHR explicitly provide protection of the dignity of a detained person.90 The ICCPR further solidifies the right by providing for the segregation of juveniles from adults and convicted prisoners from those awaiting trial to whatever extent possible.91 The AMCHR expands on the concept of personal dignity by protecting

87 See Convention Against Torture, supra note 54, pt. I, art.11, at 198 (“Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for custody . . . with a view to preventing any cases of torture.”). 88 Convention Against Torture, supra note 54, pt. I, art. 1, at 197, pt. I, art. 16, at 198; Convention on Racial Discrimination, supra note 54, pt. I, art. 5(b), 660 U.N.T.S. at 220; ICCPR, supra note 48, pt. III, art. 7, at 53; Fundamental Freedoms, supra note 54, § I, art. 3, 213 U.N.T.S. at 224; BOP, supra note 54, princ. 6, at 298; Universal Declaration, supra note 48, art. 5, at 73; SMRTP, supra note 54, pt. I, arts. 31, 32(1), (2), at 69; European Convention on Protection of Detainees, supra note 54, ch. I, art. 1, at 1154; Banjul, supra note 54, pt. I, ch. I, art. 5, at 60; AMCHR, supra note 54, ch. II, art. 5(2), at 2. For the jurisprudence of the ECHR and the IACHR see, e.g., Othman (Abu Qatada) v. the United Kingdom, App. No. 8139/09 (Jan. 17, 2012); Ilaşcu and Others v. Moldova and Russia, App. no. 48787/99 (July 8, 2004); Ocalan v. Turkey, App. No. 46221/99 (March 12, 2003); Mamatkulov and Abdurasulovic v. Turkey, App. Nos. 46827/99, 46951/99 (Feb. 6, 2003); Orak v. Turkey, App. No. 31889/96 (Feb. 14, 2002); Aksoy v. Turkey, App. No. 00021987/93 (1996); Cakici v. Turkey, Application no. 23657/94 (1999); Selmouni v. France, App. No. 00025803/94 (1999); Aydin v. Turkey, App. No. 00023178/94 (1997); Ilhan v. Turkey, App. No. 00022277/93 (2000); Salman v. Turkey, App. No. 00021986/93 (2000); Dikme v. Turkey, App. No. 00020869/92 (2000); Velásquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am. C.H.R. (Ser. C) No. 4 (1988); Fairen Garbi and Solis Corrales Case, Judgment of March 15, 1989, Inter-Am. C.H.R. (Ser. C) No. 6 (1989); Godínez Cruz Case, Judgment of January 20, 1989, Inter-Am. C.H.R. (Ser. C) No. 5 (1989); Aloeboetoe et al. Case, Judgment of December 4, 1991, Inter-Am. C.H.R. (Ser. C) No. 11 (1991); El Amparo Case, Judgment of January 18, 1995, Inter-Am. C.H.R. (Ser. C) No. 19 (1995); Garrido and Baigorria Case, Judgment of February 2, 1996, Inter-Am. C.H.R. (Ser. C) No. 26 (1996); Castillo Páez Case, Judgment of November 3, 1997, Inter-Am. C.H.R. (Ser. C) No. 34 (1997). Caesar Case Case, Judgment of March 11, 2005, Inter-Am. C.H.R. (Ser. C) No. 123 (2005); GarcíaAsto and Ramírez-Rojas Case, Judgment of Nov. 25, 2005, Inter-Am. C.H.R. (Ser. C) No. 137 (2005); Ituango Massacres Case, Judgment of July 1, 2006, Inter-Am. C.H.R. (Ser. C) No. 148(2006); Miguel Castro Castro Prison Case, Judgment of Nov. 25, 2006, Inter-Am. C.H.R. (Ser. C) No. 123 (2006). For the ICTY, see Prosecutor v. Nikolic, Case No. IT-94-2-PT, Decisions on Defense Motion Challenging the Exercise of Jurisdiction by the Tribunal (Oct. 9, 2002); Prosecutor v. Furundzija, Case No. IT-95-17, Judgment, ¶ 111 ( July 21, 2000). For the ICTR, see, e.g., Prosecutor v. Akayesu, Case No. ICTR 94-4-T, Judgment, ¶ 593 (Sept. 2, 1998). See also Safferling, supra note 47, at 130 (discussing this right in the context of the ICTY). 89 ICC Statute, supra note 5, pt. V, art. 55(1)(b) at 129. For case law see, e.g. Situation in the Democratic Republic of the Congo in the Case of Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006, No.: ICC-01/04-01/06 (OA4), Dec. 14, 2006. 90 ICCPR, supra note 48, pt. II, art. 10(1), at 54, AMCHR, supra note 54, ch. II, art. 5(2), at 2. 91 ICCPR, supra note 48, pt. III, art. 10(2)(a), (b), at 54.

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the “physical, mental and moral integrity” of the person.92 The Banjul Charter entitles an individual to “respect for his life and the integrity of his person” along with the core language of this right.93 It protects against “all forms of exploitation” and “degradation” and specifically mentions slavery and the slave trade as examples.94 A number of international instruments prohibit slavery and slaverelated practices.95 In addition, prohibitions against apartheid and genocide may be included within the ambit of this right, while the ICCPR includes protection against unconventional medical or scientific experimentation on human beings.96 The ICC was specifically created to investigate and prosecute genocide and crimes against humanity.97 The right to be free from torture and cruel and degrading treatment or punishment is provided for in at least 147 national constitutions. The death penalty is not historically considered to constitute “cruel and unusual punishment,”98 and is still in use in 57 countries of the world.99 An increasing number of countries have either abolished it, restricted it to time of war, or have completely refrained from practicing it.100 This trend is evinced by the adoption of Protocol 6 to the Fundamental Freedoms and the passage of Optional Protocol 2 of the ICCPR by the U.N. General Assembly. The protections from torture and similar practices are particularly important during pretrial interrogations,101 and therefore encompass a privilege against 92 AMCHR, supra note 54, pt. I, ch. II, art. 5(1), at 2. 93 Banjul, supra note 54, pt. I, ch. I, art. 4, at 60. 94 Id. pt. I, ch. I, art. 5, at 60. 95 ICCPR, supra note 48, pt. III, art. 8, at 54; Fundamental Freedoms, supra note 54, § I, art. 4(1), 213 U.N.T.S. at 224; Universal Declaration, supra note 48, art. 4, at 73; AMCHR, supra note 54, pt. I, ch. II, art. 6, at 3; see also M. Cherif Bassiouni, Enslavement as an International Crime, 23 N.Y.U. J. Int’l L. & Pol. 445 (1991). 96 ICCPR, supra note 48, pt. III, art. 7, at 53. 97 ICC Statute, supra note 5, at 4 (“Explanatory Note on the ICC Statute”). 98 The death penalty was commonplace at the time of the enactment of the English and American Bill of Rights, see, e.g., James Avery Joyce, Capital Punishment: A World View 119–93 (1961) (tracing the development of the abolitionist movements in England and America), and is still not considered to violate the Eighth Amendment of the United States Constitution, Gregg v. Georgia, 428 U.S. 153, 169 (1976). 99 Amnesty International, Abolitionist and Retentionist Countries, available at: http://www .amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries. 100 The European Court on Human Rights, in interpreting the ECHR, decided that the Death Row Syndrome in the U.S. violated its provision on cruel treatment. In an unprecedented decision, the Soering Case, the Court held that a person sought for extradition from the U.K. to the U.S. could not be so extradited, as it would violate that person’s human rights. 161 Eur. Ct. H.R. (ser. A) at 3945 (1989); see also Stephan Breitenmoser, et al., Human Rights v. Extradition: The Soering Case, 11 Mich. J. Int’l L. 845, 845 (1990); Michael Shea, Expanding Judicial Scrutiny of Human Rights in Extradition Cases After Soering, 17 Yale J. Int’l L. 85, 86 (1992); Matthew Bloom, A Comparative Analysis of the United States’ Response to Extradition Requests From China, 33 Yale J. Int’l L. 177 (2008). 101  Some of the national constitutions surveyed specifically refer to the protections in this context. For example, see Egypt Const. pt. 3, art. 42 (protections apply only after arrest, detainment, or restriction of freedom); Libya Const. ch. II, art. 31(c) (protections apply during incarceration);



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self-incrimination.102 The Rome Statute and two of the instruments examined protect the privilege against self-incrimination, as does the Fifth Amendment of the U.S. Constitution.103 The Rome Statute’s protections extend to the accused and immediate family members the right not to be compelled to testify. It also provides to the accused the right not to confess guilt and to employ silence without the invocation being a “consideration in the determination of guilty or innocence.”104 The ICCPR asserts the right not to be compelled to testify against oneself as well as the right not to confess guilt; the AMCHR includes the same protections, although it uses the term “plead guilty” instead of “confess.”105 The BOP has explicit provisions against the practice of detaining prisoners incommunicado, a crucial element in the practice of coercive interrogations.106 No fewer than seventy-five national constitutions provide for a privilege against selfincrimination, but in over half of these instruments the privilege is explicitly articulated only in relation to the giving of testimony at trial.107 2.2.5. The Right to Be Presumed Innocent The presumption of innocence is inextricably linked to fairness in criminal due process and is intrinsically related to the protection of human dignity. Above all, it guarantees against abuse of power by those in authority and ensures the preservation of the basic concepts of justice and fairness. However, the meaning of the presumption varies as between adversary-accusatorial systems of criminal justice and inquisitorial ones. Furthermore, many legal systems distinguish Nor. Const. art. 96 (no interrogation by torture); Pak. Const. pt. II, ch. 1, § 14(2) (no torture to extract evidence). 102 See M. Cherif Bassiouni, The Privilege Against Self-incrimination: A Historical Analysis and Contemporary Appraisal, in Law In The United States of American and in Social and Technological Revolution 655 ( John N. Hazard & Wenceslas J. Wagner eds., 1974). The right to remain silent and not incriminate oneself has been recognized by the European Court of Human Rights in Saunders v. UK, Judgment, (Dec. 17, 1996), 23 EHRR 313 (1997) and Murray v. UK, 22 EHRR 29 (1996). 103 ICC Statute, supra note 5, pt. V, art. 55(1)(a), at 129, (2)(b), at 131, pt. VI, art. 67(1)(g) at 153; U.S. Const. amend. V; ICCPR, supra note 48, pt. III, art. 14(3)(g), at 54; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(g), at 4. 104 ICC Statute, supra note 5, pt. V, art. 55(1)(a) at 129, (2)(b) at 131, pt. VI, art. 67(1)(g) at 153, pt. VI, R. 74, 75 at 165–67 (Rule 74, for example, provides that “[a] witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate the accused person. However a witness may choose to make such statement”). 105 AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(g), at 4. The Fifth Amendment of the U.S. Constitution has also been interpreted to apply to both aspects of the privilege. See United States v. Jackson, 390 U.S. 570, 581 (1968) (recognizing defendants’ Fifth Amendment right not to plead guilty). 106 BOP, supra note 54, princ. 11(2), at 298. 107 This is the case in many of the former British colonies. Guatemala further restricts the right by providing the privilege at trial in Article 16, but making an exception in Article 8 that a prisoner may be compelled if before a “competent judicial authority.” Guat. Const. tit. II, ch. I, arts. 8, 16.

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between the presumption of innocence and proof of guilt. Finally, the standard of proof of guilt also varies as between adversary-accusatorial models of criminal justice and inquisitorial ones. The former frequently relies on the standard of proof of guilt beyond a reasonable doubt, while the latter relies on the personal conviction of the judge beyond his/her subjective moral doubt. The differences in the rules of evidence are also quite significant.108 The basis of this right lies in the Anglo-Saxon rejection of the inquisitorial mode of criminal procedure in favor of an adversarial mode with the burden of proof placed on the state.109 The right to be presumed innocent is guaranteed in six of the instruments surveyed and the statutes of the ICC, ICTY, and ICTR,110 as well as at least 134 of the 108 See La preuve en procedure pénale comparee/Evidence in Comparative Criminal Procedure, 63 Revue Int’l De Droit Pénal passim (1992). 109 This model is now strongly gaining favor in traditionally inquisitorial-based states such as Italy, which reformed its Code of Criminal Procedure in 1989 and adopted, in part, this approach. William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int’l L. 1 (1992); Ennio Amodia & Eugenio Selvaggi, An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure, 63 Temp. L. Rev. 1211 (1989). For a comparative analysis of the two models, see John H. Langbein & Lloyd L. Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L.J. 1549 (1978); Herbert L. Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964). 110 ICC Statute, supra note 5, at pt. V., arts. 55(2)(b), at 131, pt. VI, art. 66, at 152, art. 67(1)(g), at 153; ICTY Statute, supra note 3, at art. 21(3); ICTR Statute, supra note 4, at art. 20(3); ICCPR, supra note 48, pt. III, art. 14(2), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(2), 213 U.N.T.S. at 228; SMRTP, supra note 54, pt. II, § C, art. 84(2), at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(b), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2), at 4. For cases at the ECHR discussing this right see, e.g. Minelli v. Switzerland, App. No. 00008660/79 (1983); Salabiaku v. France, Case No. 14/1987/137/191 (1988); Schenk v. Switzerland, Case no. 8/1987/131/182 (1988); Kremzow v. Austria, Case No. 29/1992/374/445 (1993); Daktaras v. Lithuania, App. No. 42095/98 (Oct. 10k 2000); Quinn v. Ireland, App. No. 36887/97 (Dec. 21, 2000); Heaney and McGuinness v. Ireland, App. No. 34720/97 (Dec. 21, 2000); Telfner v. Austria, App No. 00033501/96 (2001); Peers v. Greece, App. No. 00028524/95 (2001); Philips v. U.K., App. No. 00041087/98 (2001); Waixelbraun v. Austria, App. No. 00033730/96 (2001); Böhmer v. Germany, App. No. 37568/97 (Oct. 3, 2002); Vostic v. Austria, App. No. 38549/97 (Oct. 17, 2002); Ringvold v. Norway, App. No. 34964/97 (Feb. 11, 2003). Radio France and Others v. France, App. No. 53984/00 (2004); Del Latte and Del Latte v. the Netherlands, App. No. 44760/98 (2005); Capeau v. Belgium, App. No. 42914/98 (2005); Sejdovic v. Italy, App. No. 56581/00 (2006); Matijašević v. Serbia, App. No. 23037/04 (2006); Geerings v. the Netherlands, App. No. 30810/03 (2007); O’Halloran and Francis v. the United Kingdom, App. nos. 15809/02 and 25624/02 (2007); Fatullayev v. Azerbaijan, App. No. 40984/07 (2010). For cases at the AMCHR discussing this right see, e.g. Tibi Case, Judgment of September 07, 2004, Inter-Am. C.H.R. (Ser. C) No. 114 (2004); Lori Berenson Mejía case, Judgment of November 25, 2004, Inter-Am. C.H.R. (Ser. C) No. 119 (2004); López Álvarez Case, Judgment of February 1, 2006, Inter-Am. C.H.R. (Ser. C) No. 141 (2006). Pursuant to Article 20(3) of the ICTY Statute, the accused is entitled to the presumption of innocence. For cases at the ICTY, see, e.g., Kordic & Cerkez v. Prosecutor, Case No. IT-95-14/2-A, Judgment, ¶ 833 (Dec. 17, 2004); Prosecutor v. Halilovic, Case No. IT-01-48-T, Judgment, ¶ 12 (Nov. 16, 2005); Prosecutor v. Limaj et al., Case No. IT-03-66-T, Judgment, ¶ 10 (Nov. 30, 2005); Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment, ¶ 5 ( Jan. 31, 2005); Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-T, Judgment, ¶ 18 ( Jan. 17, 2005); Prosecutor v. Nikolic, Case No. IT-02-60/1-T, Judgment, ¶ 148 (Dec. 2, 2003). Likewise, according to Article 20(3) of the ICTR Statute, the accused is presumed innocent until proven guilty. See, e.g., Prosecutor v. Zigiranyirazo, Case No. ICTR-017-T, Judgment, ¶ 89 (Dec. 18, 2008); Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgment, ¶ 30 (Dec. 2, 2008); Kayishema & Ruzindana v. Prosecutor, Case No. ICTR-95-1-A, Judgment, ¶ 234 (May 21, 1999). For case law see, e.g. Situation in the Democratic Republic of the Congo in the



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surveyed constitutions. Several other constitutions guarantee that an accused will not be presumed guilty; however, this latter guarantee is narrower than the presumption of innocence. 2.2.6. The Right to a Fair Trial The array of safeguards that make up the right to a fair trial serve to protect against the arbitrary deprivation of the right to life, liberty, and the enjoyment of all other civil, political, economic, and cultural rights.111 The specific elements that compose procedural fairness in a criminal trial are discussed infra in parts (a) through ( j) in this section. The right to a fair trial is declared as a general principle of law in five of the instruments surveyed and the statutes of the ICC, ICTY, and ICTR,112 while three Case of Prosecutor v. Thomas Lubanga Dyilo, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, No.: ICC-01704-01/06, June 13, 2006. 111 For a discussion of the development of “fair trial” as a human right, see Safferling, supra note 47, at 21–24 (2001). 112 ICC Statute, supra note 5, pt. VI, arts. 67(1) and 64(2), at 152; ICTY Statute, supra note 3, at art. 21(2); ICTR Statute, supra note 4, at arts. 19(1) and 20(2); ICCPR, supra note 48, pt. III, art. 14(1), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 10, at 73; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4. For ICTY jurisprudence, see Prosecutor v. Kunarac, Kovac, and Vukovic, Case No. IT-96-23 & 23/1-A, A. Ch., Order on Page Limits (Sept. 7, 2001); Prosecutor v. Milosevic, Case No. IT-99-37-T, T. Ch. III, Decision on Prosecution Motion for Permission to Disclose Witness Statements in English, (Sept. 19, 2001); Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T, T. Ch. I, Decision on Defence’s Motion concerning Translation of All Documents, (Oct. 18, 2001); Prosecutor v. Krajisnik, Case No. IT-00-39&40-AR-73.3, A. Ch., Decision on Interlocutory Appeal by Momcilo Krajisnik, (Feb. 14, 2002); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch. III, Order to Registry to Provide Report Concerning Practical Facilities Available to Accused (Mar. 6, 2002); Prosecutor v. Milosevic, Case No. IT-02-54-AR73, A. Ch., Reasons for Refusal of Leave to Appeal from Decision to Impose Time Limit, (May 16, 2002); Prosecutor v. Stakic, Case No. IT-97-24-T, T. Ch. II, Order Pursuant to Rule 98 to Appoint a Forensic Handwriting Examiner ( June 28, 2002); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch. III, Decision on Prosecution Motion for Trial related Protective Measures for Witnesses (Bosnia) ( July 30, 2002). For ICTR jurisprudence, see Prosecutor v. Nyirahasuhuko and Ntahobali, Case No. ICTR-97-21-T, T. Ch. II, Decision on the Defence Motion to Suppress Custodial Statements by the Accused (Rules 73, 47(H) ii), 63, and 92 of the Rules; Article 20 of the Statute) ( June 8, 2001); Prosecutor v. Nyiramasuhuko and Ntabohali, Case No. ICTR-97-21-T, T. Ch. II, Decision on the Motion for Separate Trials (Rules 48, 72(B) iii) and 82(B) of the Rules) ( June 8, 2001); Prosecutor v. Muhimana, Case No. ICTR-95-1-B-1, T. Ch. I, Decision on the Defence Motion for the Translation of Prosecution and Procedural Documents into Kinyarwanda, the Language of the Accused, and into French, the Language of his Counsel, Articles 20 and 31 of the Statute and Rules 3, 19, 31, 33(B), 54, 66(A) and 73 of the Rules (Nov. 6, 2001); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. III, Decision (Motion by Aloys Ntabakuze’s Defence for Execution of the Trial Chamber’s Decision of 23 May 2002 on the Prosecutor’s Pre-Trial Brief, dated 21 January 2002, and Another Motion on a Related Matter) (Nov. 4, 2002); Prosecutor v. Bizimungu, Case No. ICTR-99-50-I, T. Ch. II, Decision on the Defence Motion to Protect the Applicant’s Right to Full Answer and Defence (Nov. 15, 2002); Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, Pres., The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64 (Nov. 25, 2002); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and

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other instruments contain a list of the elements of procedural fairness.113 As noted by the ICTY, “the Tribunal’s Statute makes the rights of the accused the first consideration, and the need to protect victims and witnesses the secondary considerations.”114 Moreover, “judicial economy should never outweigh the right of the Accused to a fair trial.”115 Provisions that explicitly guarantee the right to a fair trial or hearing in criminal cases exist in no fewer than fifty national constitutions. Other constitutions contain language that could be construed to

Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Motion to Compel Accused to Testify Prior to Other Defence Witnesses ( Jan. 11, 2005); Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, T. Ch. II, Decision on the Prosecutor’s Motion Pursuant to Rule 73(B) for Certification to Appeal the Decision Denying Leave to File an Amended Indictment and for Stay of Proceedings (Mar. 16, 2005); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-PT, T. Ch. III, Decision on Joseph Nzirorera’s Motion for Order Finding Prior Decisions to be of “No Effect” (Rules 46(A) and 73 of the Rules of Procedure and Evidence) (May 24, 2005); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-99-44-PT, T. Ch. III, Decision on the Defence Motions for Reconsideration of Protective Measures for Prosecution Witnesses (Rule 73 of the Rules of Procedure and Evidence) (Aug. 29, 2005); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Joseph Nzirorera’s Motion for Reconsideration or Certification to Appeal Decision on Motion for Order Allowing Meeting with Defence Witness (Rule 73(B) of the Rules of Procedure and Evidence) (Oct. 11, 2005); Prosecutor v. Seromba, Case No. ICTR-T2001-66-T, T. Ch. III, Decision on the Defence Motion for Admission of the Defence Investigator to Closed Hearings of Defence Witneses (Nov. 8, 2005); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Continuation of the Proceedings (Rule 15bis of the Rules of Procedure and Evidence) (Mar. 6, 2007); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-AR15bis.3, A. CH., Decision on Appeals Pursuant to Rule 15bis (D) (Apr. 20, 2007); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Scheduling Order for the Resumption of the Trial (Rules 15bis (F) and 54 of the Rules of Procedure and Evidence) (May 2, 2007); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, The Bureau, Decision on Motion for Disqualification of Judges (May 28, 2007); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-AR73.9, A. Ch., Decision on “Joseph Nzirorera’s Interlocutory Appeal of Decision on Obtaining Prior Statements of Prosecution Witnesses After They Have Testified,” (May 21, 2007); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Joseph Nzirorera’s Submission to Substitute Judge ( June 8, 2007); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Motions to Vacate Decisions ( July 17, 2007). For cases at the ECHR, see, e.g., Beckles v. The United Kingdom, App. No. 44652/98 (Oct. 8, 2002); Theraube v. France, App. No. 44565/98 (Oct. 10, 2002); Allan v. The United Kingdom, App. No. 48539/99 (Nov. 5, 2002); Marziano v. Italy, App. No. 45313/99 (Nov. 28, 2002); Mac Gee v. France, App. No. 46802/99 ( Jan. 7, 2003); Chevrol v. France, App. No. 49636/99 (Feb. 13, 2003). For the ICTY, see Prosecutor v. Nikolic, Trial Judgment, supra note 110, ¶ 148; Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgment ( July 5, 2001) and cases cited therein; Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-PT, Decision on Oral Motion to Replace Co-Counsel (Dec. 9, 2002). 113 ICCPR, supra note 48, pt. III, art. 14(3), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3), at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2), at 4. 114 Prosecutor v. Brđanin, Case No. IT-99-36-T, Decision on third motion by Prosecution for Protective Measures, ¶ 13 (Nov. 8, 2000). 115 Prosecutor v. Krajišnik, Case No. IT-00-39-PT, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Admission of Written Statements of Witnesses Pursuant to Rule 92bis, ¶ 20 (Feb. 28, 2003). See also Maximo Langer and Joseph W. Doherty, Managerial Judging Goes International, but Its Promise Remaines Unfulfilled: An Empirical Assessment of the ICTY Reforms, 36 Yale J. Int’l. L. 241 (2011).



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generally guarantee this right.116 The Banjul Charter guarantees every individual the “right to have his cause heard,”117 and includes with this right the “right to defense, including the right to be defended by counsel of his choice.”118 The concept of procedural fairness is otherwise not mentioned, so the language of the Banjul Charter does little to clarify the definition of the right to defense. The emergence of concerns about the rights of victims of crimes and about the abuse of power by the state led the United Nations to adopt the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,119 wherein the victim is given the right to be represented by counsel in proceedings against the accused.120 This is equivalent to the right of the partie civile in civil legal systems, where the victim is represented by counsel in the criminal proceedings against the accused because that record forms the basis for subsequent civil legal actions for compensation of damages. a. The Right to the Inadmissibility of Certain Evidence. In some states, evidence obtained as result of a violation of a person’s protected rights will be admissible against him/her in a criminal trial.121 Indeed, in many jurisdictions the remedy for such illegitimate actions lies in a right to civil damages or in the prosecution of 116 For instance, the guarantee of due process in the Fifth and Fourteenth Amendments of the U.S. Constitution is generally considered to include this concept, U.S. Const. amends. V, XIV. Although due process is interpreted to include a fair trial, it was originally intended to guarantee procedures established by law. See infra discussion of due process and procedures established by law. See also Bulg. Const. ch. 2, art. 31(4) (the rights of the accused may not be restricted beyond what is necessary for the administration of justice). 117 Banjul, supra note 54, pt. I, ch. I, art. 7(1), at 60. 118 Id. pt. I, ch. I, art. 7(1)(c), at 60. 119 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, 40 U.N. GAOR, 40th Sess., Supp. No. 53, at 213, U.N. Doc. A/40/34 (1985) [hereinafter Basic Principles of Justice]. 120 See International Protection of Victims, in Nouvelles Études Pénales passim (M. Cherif Bassiouni ed., 1988). 121 The U.S. Supreme Court created the “exclusionary rules,” which provide for the exclusion of the fruit of illegal searches and seizures in violation of the Fourth Amendment and the fruits of illegal interrogations in violation of the Firth Amendment of the U.S. Constitution. See Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964); Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914). These rules are still the source of considerable controversy in American jurisprudence. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403, U.S. 388, 392 (1971) (Burger, J., dissenting). The European Court of Human Rights has characterized the problem of evidence within the scope of Art. 6 (I) of the European Convention on Human Rights. Since rules of evidence are, in general, within the purview of member states, different standards and approaches to admissibility of evidence may be compatible with international human rights. See Safferling, supra note 47, at 294. For the jurisprudence of the ECHR see Schenk v. Switzerland, Judgment 12 July 1988, Series A No. 140. In addition, Rule 95 (as amended) at the ICTY also provides for the exclusion of certain evidence if “obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.” International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, R. 95, IT/32/Rev.45, Dec. 2010 [hereinafter ICTY Rules]. For a discussion of illegally obtained evidence, see Safferling, supra note 47, at 309–13.

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the officials who violated the person’s rights, while the evidence continues to be admitted in the criminal proceeding against the person.122 In other jurisdictions, the exclusion of evidence obtained in violation of a person’s protected rights is considered necessary to deter the illegal conduct of officials and to protect the integrity of the judicial system.123 The Convention Against Torture and the AMCHR exclude evidence obtained through torture; the AMCHR further provides that a “confession of guilty by the accused shall be valid only if it is made without coercion of any kind.”124 Among the surveyed constitutions, at least fifty-seven national constitutions provide for the exclusion of evidence obtained in violation of one or more of the following rights: the right to be free from torture and/or cruel and unusual punishment; the privilege against self-incrimination; and the right to be free from illegal seizures or illegal violations of the privacy of communications. Similar protections may exist in many other countries, even though their constitutions are silent on the issue. For example, exclusionary rules may exist as the result of court decisions, as in the U.S., or in legislative enactments in codes of criminal procedure.125 b. The Right to an Impartial and Independent Tribunal. The right to a fair trial axiomatically necessitates that the judges are free from bias or prejudice in order to act impartially and also be institutionally and personally independent from political or administrative control and influence.126 The right to an impartial and independent tribunal is protected in six of the instruments surveyed127 and is 122 See, e.g., 42 U.S.C.S. § 1983 (providing a civil cause of action for person deprived of rights by those acting under state law authority); Monroe v. Pape, 365 U.S. 167, 171 (1961) overruled on other grounds Monell v. Dept. of Social Services of City of N.Y., 436 U.S. 658 (1978) (holding that illegal search and seizure by police deprives citizens of constitutional rights). 123 See Terry v. Ohio, 392 U.S. 1, 12–13 (1968). 124 Convention Against Torture, supra note 54, pt. I, art. 15, at 198; AMCHR, supra note 54, pt. I, ch. II, art. 8(3), at 4; see also ICC Statute, supra note 5, pt. VI, arts, 69(4) at 162, 69(7) at 165 and pt. VI, R. 64, 70, 71, 72, 74, 75 at 162–67. 125 See, e.g., Cal. Const. art. 1, § 13 (prohibiting unreasonable seizures and searches); 725 Ill. Comp. Stat. 5/108-1 (1992) (prohibiting search without a warrant, with some exceptions). 126 See Basic Principles on the Independence of the Judiciary (excerpts), U.N. GAOR 40/32 of 29 Nov. 1985 and 40/146 of 13 Dec. 1985 [hereinafter Principles on the Independence of the Judiciary]; Draft Principles on the Independence of the Judiciary and on the Independence of the Legal Profession, Novelles Études Pénales passim (1982). In certain legal systems, as was the case in the pre-perestroika Soviet Union, the independence of the court from local government and the ruling party may be just as much a concern as independence from the traditional arms of law enforcement. See Mark R. Beissinger, The Party and the Rule of Law, 28 Colum. J. Transnat’l L. 41, 50–61 (1989); Fali S. Nariman, Judges and Lawyers in the USSR: Changing Perceptions, Int’l Commission of Jurists 53, 54 (1989); John Quigley, Law Reform and the Soviet Courts, 28 Colum. J. Transnat’l L. 59, 66–69 (1989). 127 ICC Statute, supra note 5, pt. IV, art. 40, at 106; ICCPR, supra note 48, pt. III, art. 14(1), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; Universal Declaration supra note 48, art. 10, at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(d), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4. For examples in the case law of the ECHR, see Beaumartin v. France, Judgment (Nov. 24, 1994), Series No. 296-B, at para. 38; Albert & La Compte v. Belgium, Case No. 1/1982/47/75-76 (1983); Barbera



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part of a cluster of rights relating to the criminal trial in the ICCPR, the Fundamental Freedoms, the AMCHR, and the Banjul Charter. The ICC article and rules on the independence of judges are governed under the composition and administration of the Court.128 The ICCPR, the Fundamental Freedoms, and the AMCHR also specify that the tribunal must be “established by law.”129 This protects against tribunals of exception established ad hoc to try specific cases. The assumption is that tribunals of exception, which are usually military or established by executive decision, tend to be politically motivated and therefore the potential for lack of independence and impartiality is very high. At least forty-two national constitutions provide explicitly that a criminal trial must take place before an independent and impartial tribunal. Another 115 constitutions contain general provisions for an independent judiciary or court system without referring directly to the criminal trial. In some of these countries, et al. v. Spain, Case No. 24/1986/122/171-173 (1988); Belilos v. Switzerland, Case No. 20/1986/118/167 (1988); Benthem v. The Netherlands, Case No. 1/1984/73/111 (1985); De Cubber v. Belgium, Case No. 8/1983/64/99 (1984); Yakis v. Turkey, App. No. 33368/96 (Sept. 25, 2001); Ari v. Turkey, App. No. 29281/95 (Sept. 25, 2001); Yagmurdereli v. Turkey, App. No. 29590/96 ( June 4, 2002); Sovtransavto Holding v. Ukraine, App. No. 48553/99 ( July 25, 2002); Karakoç and others v. Turkey, App. Nos. 27692/95, 28138/95, 28498/95 (Oct. 15, 2002); Algür v. Turkey, App. No. 32574/96 (Oct. 22, 2002); Atça and others v. Turkey, App. No. 41316/98 (Feb. 6, 2003). Taxquet v. Belgium, App. No. 926/05 (Nov. 16, 2010); DMD GROUP, a.s. v. Slovakia, App. No. 19334/03 (Oct. 5, 2010); Coëme and Others v. Belgium, App. Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (June 22, 2006); Gurov v. Moldova, App. No. 36455/02 (July 11, 2006). For an example in the IACHR jurisprudence, see Castillo Petruzzi et al. Case, Judgment of May 30, 1999, Inter-Am C.H.R. (Ser. C) No. 52 (1999); Lori Berenson Mejía Case, Judgment of November 25, 2004, Inter-Am C.H.R. (Ser. C) No. 119 (2004); Palamara-Iribarne Case, Judgement of Nov. 22, 2005, Inter-Am C.H.R. (Ser. C) No. 135 (2005); Escué-Zapata Case, Judgment of July 4, 2007, InterAm C.H.R. (Ser. C) No. 165 (2007); Barreto Leiva Case, Judgment of November 17, 2009, Inter-Am C.H.R. (Ser. C) No. 206 (2009); Usón Ramírez Case, Judgment of November 20, 2009, Inter-Am C.H.R. (Ser. C) No. 207 (2009); Cabrera Garcia and Montiel Flores Case, Judgment of November 26, 2010, Inter-Am C.H.R. (Ser. C) No. 220 (2010). Constitutional Court Case, Judgment of January 31, 2001, Inter-Am. C.H.R. (Ser. C) No. 71 (2001). For cases before the ICTY, see Prosecutor v. Krajisnik, Case No. IT-00-39-PT, Decision on the Defense Motion for Withdrawal of a Judge From the Trial ( Jan. 22, 2003); Prosecutor v. Furundzija, Case No. IT-95-17/1-A, Judgment, ¶¶ 189–90, 197 ( July 21, 2000); Mucic et al. v. Prosecutor, Appeals Judgment, supra note 70, ¶¶ 697–99, 707; Prosecutor v. Brdjanin & Talic, Case No. IT-99-36-PT, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge (May 18, 2000); Prosecutor v. Delacic et al., Case No. IT-96-21, Decision of the Bureau on the Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves (Oct. 25, 1999). For the ICTR, see, e.g., Nahimana et al. v. Prosecutor, Case No. ICTR-96-11-A, Judgment, ¶¶ 19, 28 (Nov. 28, 2007). See also Safferling, supra note 47, at 92–95. For case law from the ICC see, e.g. Situation in the Democratic Republic of the Congo in the Case of Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case, No.: ICC-01/ 04-01/06, Oct. 27, 2006. 128 ICC Statute, supra note 5, pt. IV, art. 40, 41, at 106, pt. VI, art. 67(1) at 152 and pt. IV, R. 35(2) (a), 33, 34, at 107. 129 ICCPR, supra note 48, pt. III, art. 14(1), at 54. Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4; see also Safferling, supra note 47, at 86–88 (concluding that international human rights law considers it necessary for a criminal tribunal and its competence to have been established by a legislative act before a criminal offense occurs).

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where both judges and lay assessors determine questions of law and fact, provision is made for the latter’s independence as well.130 c. The Right to Have Procedures Established by Law. This right ensures that procedures governing the criminal trial are established by law prior to the commission of the acts that are the subject of the adjudication. The rights thus parallel two related concepts, that substantive crimes and punishments must be enacted before the commission of an offense and that the criminal tribunal must be “established by law.” The historic precedent for the right to have procedures established by law is the Magna Carta, which declared that “no freedom shall be taken or imprisoned . . . except . . . by the law of the land.”131 The common law concept of due process of law, as understood in the Courts of Common Pleas up until the 1600s, referred to procedural laws in existence prior to the trial.132 The right serves therefore to protect the accused against the establishment of extraordinary tribunals with summary or expedited procedures. This procedural right is actually a conceptual framework for a given approach to the conduct of legal proceedings and is guaranteed in four of the surveyed instruments. Because of its conceptual nature, it is referred to in different, albeit equivalent, terms. The Universal Declaration, the ICCPR, and the Fundamental Freedoms provide that a person must be found guilty “according to law,”133 whereas the AMCHR used the phrase “with due guarantees.”134 The Banjul Charter provides that “no one may be deprived of his freedom except for reasons and conditions previously laid down by law.”135 Language guaranteeing procedures established by law in the criminal process are found in at least 120 national constitutions. Typically, the right is designed to protect against a crime or conviction and all forms of penal sanctions that are not authorized by law and arrived at in accordance with procedures preestablished by law.

130 See, e.g., Eth. Const. ch. IX, art. 79; Madag. Const. tit. VI, art. 99; Peru Const. ch. VIII, arts. 139(2), 146(1); Vietnam Const. ch. 10, art. 130. The U.S. Constitution guarantees in explicit terms only the impartiality of the jury. U.S. Const. amend. VI. 131 Magna Carta, supra note 58, ch. 39, at 43. 132 On the original meaning of due process of law in the common law of England as it relates to criminal proceedings, see Theodore F.T. Plucknett, A Concise History of the Common Law 338 (1936). 133 ICCPR, supra note 48, pt. III, art. 14(2), at 54; Fundamental Freedoms, supra note 54, art. 6(2), 213 U.N.T.S at 228; Universal Declaration, supra note 48, art. 11(1), at 73. For examples in the jurisprudence of the ECHR, see, e.g., Rekvenyi v. Hungary, App. No. 00025390/94 (1999); Bouamar v. Belgium, Case No. 22/1986/120/169 (1988); Bozano v. France, Case no. 5/1985/91/138 (1986). For the ICTY, see, e.g., Prosecutor v. Brdjanin & Talic, Case No. IT-9936-PT, Decision on Motions by Talic (1) to Dismiss the Indictment, (2) For release, and (3) For Leave to reply to response of Prosecution to Motion for Release (Feb. 1, 2000). 134 AMCHR, supra note 54, pt. I, ch. II, art. 8, at 4. 135 Banjul, supra note 54, pt. I, ch. I, art. 6, at 60. The Banjul Charter provides protection against ex post facto convictions and punishments in pt. I, ch. I, art. 7(2), at 60.



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d. The Right to a Speedy Trial. This right is part of the concept of due process, but it has also been recognized as a separate, identifiable right; therefore, it is discussed separately, infra. e. The Right to a Public Hearing. The right to a public hearing is designed to protect the accused from secret trials, as well as to foster public trust in the administration of justice by opening the courts and legal proceedings to public scrutiny. This right is guaranteed in five of the surveyed instruments.136 Although the right is expressed unconditionally in the Universal Declaration137 and the Sixth Amendment of the U.S. Constitution,138 it is the subject to certain exceptions. The AMCHR provides for a general exception “as may be necessary to protect the interests of justice,”139 whereas the ICC allows for closed sessions to protect victims and witnesses, and confidential or sensitive information.140 On the other hand, the ICCPR and the Fundamental Freedoms, enumerate specific exceptions: [T]he press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life or the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicly would prejudice the interests of justice.141

The right to a public hearing is guaranteed in no fewer than 121 of the national constitutions surveyed, often with the explicit exceptions found in the Fundamental Freedoms and the ICCPR.142 In many constitutions the provision guaranteeing public hearings is not among the list of “citizen’s rights and guarantees,”

136 ICC Statute, supra note 5, pt. VI, art. 64(7), at 149, pt. VI, art. 67(1) at 152. But see pt. VI, art. 68(2) at 157. ICCPR, supra note 48, pt. III, art. 14(1), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 10, at 73; AMCHR, supra note 54, pt. I, ch. II, art. 8(5), at 4. 137 Universal Declaration, supra note 48, art. 10, at 73. 138 U.S. Const. amend. VI. 139 AMCHR, supra note 54, pt. I, ch. II, art. 8(5), at 4. For cases involving the right to a public trial, see Cantoral-Benavides Case, Judgment of August 18, 2000, Inter-Am C.H.R. (Ser. C) No. 69 (2000); Palamara-Iribarne Case, Judgment of November 22, 2005, Inter-Am C.H.R. (Ser. C) No. 135 (2005). 140 ICC Statute, supra note 5, pt. V, art. 64(7), at 149; ICTR Statute, supra note 4, at art. 20(2). 141 Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; see also ICCPR, supra note 48, pt. III, art. 14(1), at 54 (providing for the same exceptions). For cases at the ECHR involving the right to a public trial/hearing, see Axen v. the Federal Republic of Germany, App. No. 8273/78 (May 17, 1982); Diennet v. France, App. No. 18160/91 (Sept. 26, 1995); Entleitner v. Austria, App. No. 29544/95 (Aug. 1, 2000); Karakasis v. Greece, App. NO. 38194/97 (Oct. 17, 2000); Riepan v. Austria, App. No. 35115/97 (Nov. 14, 2000); Lamanna v. Austria, App. No. 28923/95 ( July 10, 2001); Malhous v. The Czech Republic, App. No. 33071/96 ( July 12, 2001); Salomonsson v. Sweden, App. No. 38978/97 (Nov. 12, 2002); Al-Khawaja and Tahery v. the United Kingdom, App. Nos. 26766/05 and 22228/06 (Dec. 15, 2011). See also Prosecutor v. Kunarac et al., Case No. IT-96-23/1-PT, Order on Defense Motion Pursuant to Rule 79 (Mar. 22, 2000). 142 See, e.g., Jordan Const. ch. VI, § 101 (ii); Namib. Const. ch. III, art. 12(1)(A); Nicar. Const. tit. IV, ch. I, art. 34(11); Nig. Const. ch. IV, § 36(4); Rwanda Const. ch. IV, art. 93.

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but is included in the section of the constitution dealing with the judiciary and refers to all court proceedings, not just those involving criminal cases.143 The right to a public hearing, unlike other procedural due process rights, involves more than the interest of the defendant. There are additional components such as the public’s right to know and the integrity of the judicial process. Thus, a careful balancing of these at times competing interests requires specific guidelines for court proceedings that cannot be found in constitutions.144 f. The Right to Be Informed of the Charges. The right to be informed of the charges technically applies to notice of criminal charges already preferred by the accusatory body,145 and is protected in five of the surveyed instruments.146 The Rome Statute, the ICCRP, the Fundamental Freedoms, the AMCHR, and the BOP have further extended the right of notice to the stage of detention, and require notice

143 See, e.g., Alb. Const. pt. IX, art. 146(2); Aus. Const. ch. III, art. 90; Comoros Const. tit. IV, art. 48; Ecuador Const. tit. VIII, § 1, art. 199. 144 See, e.g., American Bar Association, Aba Standards For Criminal Justice, Fair Trial and Free Press (1992) (outlining standards of conduct for legal proceedings during criminal cases). 145 See, e.g., U.S. Const. amend. VI (one must be informed of the “nature and cause of the accusation”). See also Safferling, supra note 47, at 116–7, discussing the right to be informed of charges in the U.S., UK, and German legal systems. 146 ICC Statute, supra note 5, pt. V, arts. 55(2)(a) at 131, 60(1) at 137-38, 61(3)(a) at 144, pt. VI, arts. 64 (8) at 149, pt. VI, art. 67(1)(a), at 152 and pt. V, R. 121(3), at 140, R. 122(1) at 141; ICCPR, supra note 48, pt. III, arts. 9(2), 14(3)(a), at 54; Fundamental Freedoms, supra note 54, § 1, arts. 5(2), 6(3)(a), 213 U.N.T.S. at 226, 228; Banjul, supra note 54, pt. I, ch. I, art. 6, at 60; AMCHR, supra note 54, pt. I, ch. II, arts. 7(4), 8(2)(b), at 3, 4. For examples in the jurisprudence of the ECHR, see, e.g., Kamasinski v. Austria, App. No. 9783/82 (Dec. 19, 1989); Brozicek v. Italy, App. No. 10964/84 (Dec. 19, 1989) (holding that the obligation to inform the suspect is satisfied when the offenses are listed with reference to relevant rules and the information about the victim is provided); Van der Leer v. The Netherlands, App. No. 11509/85 (Feb. 21, 1990); De Salvador Torres v. Spain, App. No. 21525/93 (Oct. 24, 1996); Mattoccia v. Italy, App. No. 23969/94 ( July 25, 2000); Vaudelle v. France, App. No. 35683/97 ( Jan. 30, 2001); Conka v. Belgium, App. No. 51564/99 (Feb. 5, 2002) Hermi v. Italy, App. No. 18114/02 (Oct. 18, 2006). For the IACHR see, e.g., Garrido and Baigorria Case, Judgment of February 2, 1996, Inter-Am. C.H.R. (Ser. C) No. 26 (1996) Juan Humberto Sánchez Case, Judgment of June 7, 2003, Inter-Am. C.H.R. 99 (2003); Case of Chaparro Álvarez and Lapo Íñiguez, Judgment of November 21, 2007, Inter-Am. C.H.R. 170 (2007); Yvon Neptune, Judgment of May 6, 2008, Inter-Am. C.H.R. 180 (2008). For the ICTY, see Kvocka et al. v. Prosecutor, Case No. IT-98-30/1-A, Judgment, ¶ 27 (Feb. 28, 2005); Krnojelac v. Prosecutor, Case No. IT-97-25-A, Judgment, ¶ 139 (Sept. 17, 2003); Prosecutor v. Brdjanin, Case No. IT99-36-PT, Decision on Petition for a Writ of Habeas Corpus on Behalf of the Accused (Dec. 8, 1999); Prosecutor v. Talic, Case No. IT-99-36-PT, Decision on Motion for Release (Dec. 10, 1999); Prosecutor v. Kunarac et al., Case No. IT-96-23-PT, Decision on the Form of the Indictment (Nov. 4, 1999). For the ICTR, see Prosecutor v. Nchamihigo, Case No. ICTR-01-63-T, Judgment, ¶ 32 (Nov. 12, 2008); Prosecutor v. Karera, Case No. ICTR-01-74-T, Judgment, ¶ 12 (Dec. 7, 2007); Prosecutor v. Muvunyi, Case No. ICTR-00-55-T, Judgment, ¶ 24 (Sept. 12, 2006); Prosecutor v. Mpambara, Case No. ICTR01-65-T, Judgment, ¶ 29 (Sept. 11, 2006); Prosecutor v. Simba, Case No. ICTR-01-76-T, Judgment, ¶ 14 (Dec. 13, 2005); Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgment, ¶ 67 (May 20, 2005); Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, ¶ 451 (Apr. 28, 2005); Prosecutor v. Ndindabahizi, Case No. ICTR-01-71-T, Judgment, ¶ 28 ( July 15, 2004); Prosecutor v. Nkatirutimana & Nkatirutimana, Case No. ICTR-96-10-A & ICTR-96-17-A, Judgment, ¶ 58 (Dec. 13, 2004); Barayagwiza v. Prosecutor, Decision, supra note 79.



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of the cause of arrest as well. Thus, the right as articulated in these instruments is designed to protect against arbitrary arrests and prosecutions and to enable the arrested or accused person to prepare a defense to the charge of an argument against his/her detention. This right is essential to the effective preparation of a defense in any criminal case. It is even more important that notice of the charge is made in a timely manner to allow for sufficient preparation of the defense, and that the charges are not substantially altered shortly before trial commences in order to avoid undue surprise and prejudice to the defense. It is equally important that criminal charges are not charged after a trial commences if the change increases the severity of the charge or alters its nature. The severity of the charge can be decreased unless it would be so prejudicial to the defendant that he/she could not conduct an effective defense. These technicalities are not covered by constitutional tests and are usually found in codes of criminal procedure and in judicial decisions. The right to be informed of the charges is protected in at least ninety-three national constitutions. In many of these, the right to notice also applies at the time of detention as to the cause for arrest, although this is not necessarily binding as to subsequent formal charges for which the defendant may stand trial. g. The Right to Equality of Arms. The right to equality of arms is fundamental to the adversarial nature of modern criminal proceedings. In earlier inquisitorial systems, defense counsel often was not allowed to participate in the actual trial. The human rights instruments examined evince a definite move towards adversarial criminal procedures and away from the inquisitorial mode. The right to equality of arms is guaranteed in four of the instruments surveyed, namely the ICC, the ICCPR, the AMCHR, and the Fundamental Freedoms.147 The Rome 147 ICC Statute, supra note 5, pt. VI, art. 67(1)(b) and (e) at 152–53, R. 101, at 153; ICCPR, supra note 48, pt. III, art. 14(3)(e), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(d), 213 U.N.T.S. at 228; AMCHR, supra note 48, pt. I, ch. II, art. 8(2)(f ), at 4. For examples in the jurisprudence of the ECHR which reads the right to equality of arms into the provisions of Article 6 on the right to a fair trial, see Bulut v. Austria, App. No. 17358/90 (Dec. 19, 1994); Miailhe v. France (no. 2), App. No. 18978/91 (Sept. 26, 1996); Ankerl v. Switzerland, App. No. 17748/91 (Oct. 23, 1996); Van Orshoven v. Belgium, App. No. 20122/92 ( June 25, 1997); Zielinski and Pradal and Gonzalez and others v. France, App. Nos. 24846/94, 34165/96, 34166/96, 34167/96, 34168/96, 34169/96, 34170/96, 34171/96, 34172/96, 34173/96 (Oct. 28, 1999); Slimane-Kaid v. France, App. No. 29507/95 ( Jan. 25, 2000); Buchberger v. Austria, App. No. 32899/96 (Dec. 20, 2001); Bertuzzi v. France, App. No. 36378/97 (Feb. 13, 2003). Salduz v. Turkey, App. No. 36391/02 (Nov. 27, 2008); A. and Others v. the United Kingdom, App. No. 3455/05 (Feb. 19, 2009); Georgios Papageorgiou v. Greece, App. No. 21032/08 (Oct. 15, 2009); Hrdalo v. Croatia, App. No. 23272/07 (Sept. 27, 2011); See also the following cases decided by the European Commission on Human Rights: Ofner v. Austria, App. No. 524/59, Report, (Nov. 23,1962), 6 YB, 680; Hopfinger v. Austria, App. No. 617/59, Report, (Nov. 23, 1962), 6 YB, 690; Dunshirn v. Austria, App. No. 789/60, Decision, (Mar. 15, 1961), 6 YB, 714. For cases at the AMCHR, see e.g. 19 Tradesmen Case, Judgment of July 5, 2004, Inter-Am. C.H.R. (Ser. C) No. 109 (2004); Palamara-Iribarne Case, Judgment of November 22, 2005 Inter-Am. C.H.R. (Ser. C) No. 135 (2005); Sawhoyamaxa Indigenous Community Case, Judgment of March 29, 2006, Inter-Am. C.H.R. (Ser. C) No. 146 (2006).

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Statute, the ICCPR, and the Fundamental Freedoms all express the right to equality of arms148 in conjunction with the rights of confrontation and compulsory process.149 Six of the instruments surveyed also require adequate time and facilities for the preparation of the defense.150 The right to equality of arms,151 as expressed in the Rome Statute, the ICCPR, and the Fundamental Freedoms, is also noted in more than fifty-seven national constitutions. In these constitutions, the specific language of the right incorporates the guarantee in a cluster of rights, which also include the right to adequate time and facilities for preparation of the defense.152 In large part, it can be said that this right is the European counterpart to the common law right of due process. In an inquisitorial system, the need to “equalize arms” between defense and prosecution is critical, while the common law’s due process approach inherently presupposes that both sides will be given equality in procedural opportunities to advocate their respective opposing positions. However, if in the due process system the scales of relatively equal procedural opportunities tip too much against the defense, then the right to equality of arms can be invoked to redress such an imbalance. For cases before ICTY, see, e.g., Prosecutor v. Kordic & Cerkez, Appeals Judgment, supra note 110, ¶¶ 175–177; Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, ¶¶ 43-44, 48, 52 ( July 15, 1999) and cases cited therein; Prosecutor v. Brdjanin & Talic, Case No. IT-99-36-PT, Public Version of the Confidential Decision (May 23, 2002) and cases cited therein. For the ICTR, see, e.g., Nahimana et al. v. Prosecutor, Appeals Judgment, supra note 127, ¶¶ 180–181 (recognizing the right to call and cross-examine witnesses and the right to raise objections); Prosecution v. Simba, Trial Judgment, supra note 146, ¶ 46; Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment, ¶ 44 (May 26, 2003). See also Nahimana et al. v. Prosecutor, Appeals Judgment, supra note 127, ¶ 220 (recognizing the right to have adequate time and facilities for the preparation of a defense). For case law from the ICC see, e.g. Situation in the Democratic Republic of the Congo in the Case of Prosecutor v. Thomas Lubanga Dyilo, Decision on defence’s request to obtain simultaneous French transcripts, No.: ICC-01/04-01/06, Dec. 14, 2007. 148 “To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses or his behalf under the same conditions as witnesses against him.” ICC Statute, supra note 5, pt. VI, art. 67(1)(e), at 153; ICCPR, supra note 48, pt. III, art. 14(3)(e), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(d), 213 U.N.T.S. at 228 (using approximately the same language). 149 See infra text accompanying notes 152–54 (discussing the right to compulsory process). 150 ICC Statute, supra note 5, pt. VI, art. 67(1)(b), at 152; ICCPR, supra note 48, pt. III, art. 14(3) (b), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(b), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 18, at 299; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(c), (d), at 4. 151 This phrase itself appears in none of the instruments or national constitutions examined. 152 See, e.g., Ant. & Barb. Const. ch. II, § 15(2)(e); Japan Const. ch. III, art. 37; Liber. Const. ch. III, art. 21(h); Mex. Const. tit. I, ch. I, art. 20(V); Namib. Const. ch. III, art. 12(1)(e); Phil. Const. art. II, § 14(2); U.S. Const. amend. VI; see also Michail Wladimiroff, The Rights of Suspects and Accused, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court Vol. I, 426 (G.K. McDonald & O. Swaak-Goldman eds. 2000), (noting that the lack of official status for defense counsel at the ICTY and ICTR negatively affects the principle of equality of arms as formulated in Article 21 of the ICTY Statute and Article 20 in the ICTR Statute.) Wladimiroff also states that defense counsel “should be accorded such treatment as necessary for the proper functioning of defense.” Id.



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h. The Right to Assistance of Counsel. This right is part of the due process cluster of rights. However, like the right to a speedy trial, it has been recognized as a separate fundamental right. Consequently, it is discussed separately, infra. i. The Right to Compulsory Process. The right to compulsory process guarantees the help of the court in obtaining the testimony of witnesses and the production of other evidence, and, as such, is integrally related to the concept of equality of arms. This right is protected in four of the human rights instruments examined,153 and in at least sixty-four national constitutions. However, this right is largely neglected, even though its importance to a defense is immeasurable. This is particularly true in cases where the evidence may be located in foreign countries. Governments have the benefit of mutual legal assistance treaties, but individuals do not.154 Thus, private citizens are unable to secure evidence needed for their defense and are placed in a position that clearly violates the concept of equality of arms as discussed above.155 j. The Right to Be Tried in One’s Own Presence. The right to be present at one’s own trial is an important element of the right to defend oneself against criminal charges. It is also related to the assumption that the ability of the accused to face his/her judge and accusers adds a dimension of credibility to the proceedings and enhances the ascertainment of the truth. Of the instruments surveyed, only the Rome Statute and the ICCPR guarantee the right.156 Although nearly

153 ICC Statute, supra note 5, pt. VI, art. 67(1)(e), at 153, R. 84, at 154 (granting necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence); ICCPR, supra note 48, pt. III, art. 14(3)(c), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(d), 213 U.N.T.S at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2) (f ), at 4. For the ICTY, see Prosecutor v. Blaskic, Case No. IT-95-14-T, Order for the Production of Documents Used to Prepare for Testimony (Apr. 22, 1999); Prosecutor v. Brdjanin, Case No. IT-9936-T, Decision on Rule 68 (Oct. 30, 2002); Prosecutor v. Krajisnik & Plavsic, Case No. IT-00-39 & 40-PT, Decision With Respect to Application of Rules 65 ter, 66(B) and 67(C) (Aug. 1, 2001) and cases cited therein. 154 See 2 Ekkehart Müller-Rappard & M. Cherif Bassiouni, European Inter-State Cooperation in Criminal Matters 7–149 (1987); M. Cherif Bassiouni, The Modalities of International Cooperation in Penal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL]; M. Cherif Bassiouni, Policy Considerations on Inter-state Cooperation in Criminal Matters, in Principles and Procedures for a New Transnational Criminal Law (Albin Esser & Otto Lagodny eds., 1992). 155 For the European system, see Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in 2 Bassiouni, ICL, supra note 154, at 457. For the U.S. system, see Alan Ellis & Bruce Zagaris, United States Treaties on Mutual Assistance in Criminal Matters, in 2 Bassiouni, ICL, supra note 154, at 385. 156 ICC Statute, supra note 5, pt. VI, arts. 63, at 147, 67(1)(d), at 153, pt. V, R. 123 at 142, R. 124–26 at 143–44; ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54. The jurisprudence of the ECHR takes as a given that the requirements of Article 6 demand the presence of the accused even though the right is not explicitly expressed. For examples in the

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44 national constitutions guarantee the right, there are exceptions for when the accused flees the jurisdiction during trial or after having been given notice of the charge,157 or when the conduct of the accused renders the continuance of the proceedings in his/her presence impossible.158 This right is also designed in part to avoid a trial in absentia, which is, in many respects, inherently unfair because it does not allow a defendant to effectively participate in the trial and present an adequate defense. Trials in absentia are prohibited by the ICCPR,159 and the Rome Statute only removes the accused in exceptional circumstances providing the use of communications technology outside the courtroom.160 Some countries have found a way around the prohibition by making the in absentia conviction subject to a trial de novo on the facts whenever an accused found guilty in absentia has been apprehended. 2.2.7. The Right to Assistance of Counsel Representation by counsel at each important stage of criminal proceedings is a fundamental right of the defense and is paramount to the concept of due process. One of the assumptions on which this right is based is that the presence of effective counsel will deter and prevent abuses against the person arrested, charged, or prosecuted. Furthermore, having counsel present ensures that due process is followed. The general right to assistance of counsel contains several components that are surveyed separately in this section. It is important to note that merely guaranteeing the right to counsel does not ensure that this right will

jurisprudence of the ECHR, see Artico v. Italy, App. No. 6694/74 (Mar. 13, 1980); Goddi v. Italy, App. No. 8966/80 ( Jan. 6, 1983); Colozza v. Italy, App. No. 9024/80 (Feb. 12, 1985); F.C.B. v. Italy, App. No. 12151/86 (Aug. 28, 1991); Pelladoah v. The Netherlands, App. No. 16737/90 (Sept. 22, 1994); Belziuk v. Poland, App. No. 23103/93 (Mar. 25, 1998); Van Geyseghem v. Belgium, App. No. 26103/95 (Jan. 21, 1999; Josef Prinz v. Austria, App. No. 23867/94 (Feb. 8, 2000); Krombach v. France, App. No. 29731/96 (Feb. 13, 2001); Eliazer v. The Netherlands, App. No. 38055/97 (Oct. 16, 2001); Göç v. Turkey, App. No. 36590/97 ( July 11, 2002); Kucera v. Austria, App. No. 40072/98 (Oct. 3, 2002); Lundevall v. Sweden, App. No. 38629/97 (Dec. 11, 2002); Hermi v. Italy, App. No. 18114/02 (Oct. 18, 2006); For examples of cases before the ICTY, see Prosecutor v. Krajisnik, Case Nos. IT-00-39 & 40-AR73.3, Decision on Interlocutory Appeal by Momcilo Krajisnik (Feb. 14, 2002). For the ICTR, see, e.g., Nahimana et al. v. Prosecutor, Appeals Judgment, supra note 127, ¶ 96; Prosecutor v. Bagosora et al., Trial Judgment, supra note 112, ¶ 129. See also Wladimiroff, supra note 152, at 446–47 (discussing the accused’s right to be tried in his/her presence at the ICTY and ICTR); Gabrielle K. McDonald, Trial Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court 554–56 (G.K. McDonald & O. Swaak-Goldman eds. 2000) (noting that one of the most contentious issues considered by the judges of the ICTY while drafting the Rules of Procedure and Evidence was whether trials in absentia should be allowed). 157 See, e.g., Ant. & Barb. Const. ch. II, § 15(2)(f )(i). 158 See, e.g., id. § 15(2)(ii); Bah. Const. ch. III, § 20(2). 159 ICCPR, supra note 48, pt. III, art. 14(d), at 54. 160 ICC Statute, supra note 5, pt. VI, arts. 63(2), at 147.



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be afforded at all stages of the criminal process, from detention through appeal.161 The right to counsel is guaranteed in seven of the instruments examined.162 In addition, the Rome Statute, the statutes of the ICTY and ICTR, the ICCPR and the BOP require that an accused be informed of the right to counsel.163 161  See infra text accompanying notes 163–64. 162 ICC Statute, supra note 5, pt. V, art. 55(2)(c) at 131, R. 21, 22, at 131–32, pt. VI, art. 67(1)(d), at 153; ICCPR, supra note 48, pt. III, art. 14(3)(b), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(c), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 17, at 299; SMRTP, supra note 54, pt. II, art. 93, at 73; Banjul supra note 41, pt. I, ch. I, art. 7(1)(c), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4. For examples of cases at the ECHR, see Averill v. The United Kingdom, App. No. 36408/97 ( June 6, 2000); Dikme v. Turkey, App. No. 20869/92 ( July 11, 2000); Biba v. France, App. No. 33170/96 (Sept. 26, 2000); Stroek v. Belgium, App. Nos. 36449/97, 36467/97 (Mar. 20, 2001); Brennan v. The United Kingdom, App. No. 39846/98 (Oct. 16, 2001); A.B. v. Slovakia, App. No. 41784/98 (Mar. 4, 2003). For the ICTY, see Prosecutor v. Hadzihasanovic et al., Case No. IT-01-47-PT, Decision (Mar. 26, 2002). For the ICTR, see, e.g., Kajelijeli v. Prosecutor, Appeals Judgment, supra note 85, ¶ 243; Nahimana et al. v. Prosecutor, Appeals Judgment, supra note 126, ¶ 130 (concerning the right to effective assistance of counsel). 163 ICC Statute, supra note 5, pt. VI, arts. 55(2)(c) and 61(1)(d), at 153; ICTY Statute, supra note 3, at art. 21(4)(d); ICTR Statute, supra note 4, at arts. 17(3) and 20(4)(d); ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; BOP, supra note 54, princ. 17(1), at 299. For ICC jurisprudence, see Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on the ad hoc Counsel for Defence Request of 18 December 2006 (Feb. 2, 2007); Situation in Darfur, Sudan, Case No. ICC-02/05, P-T. Ch. I, Decision on the Request for Review of the Registry’s Decision of 13 February 2007 (Mar. 15, 2007); Registrar’s Observations in Accordance With Rule 20(1)(d) of the Rules of Procedure and Evidence on the Document Entitled “Clarification,” Filed With the Presidency of the Court on 3 April 2007 by Mr. Thomas Lubanga Dyilo, Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, 5 April 2007. For ICTY jurisprudence, see Prosecutor v. Tadic, Case No. IT-94-A-AR77, A., Ch., Appeal Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin (Feb. 27, 2001); Prosecutor v. Aleksovski, Case No. IT-95-14/1-AR77, A. Ch., Judgment on Appeal by Anto Nobilo against Finding of Contempt (May 30, 2001); Prosecutor v. Milosevic, Case No. IT-99-37-PT, T. Ch. III, Order Inviting Designation of Amicus Curie (Aug. 30, 2001); Prosecutor v. Kubura, Case No. IT-01-47-PT, Registrar, Decision (Nov. 26, 2001); Prosecutor v. Alagic et al., Case No. IT-01-47-PT, Registrar, Decision (Dec. 19, 2001); Prosecutor v. Milosevic, Case No. IT-99-37-PT, T. Ch. III, Order concerning Amici Curiae ( Jan. 11, 2002); Prosecutor v. Milosevic, Case No. IT-99-37-PT, T. Ch. III, Order on Application to File an Amicus Curiae Brief ( Jan. 28, 2002); Prosecutor v. Kvocka, Kos, Radic, Zigic, and Prcac, Case No. IT-98-30/1-A, A. Ch. 7, Decision on Motion by Zoran Zigic for Issuing of a Binding Order to Prosecution (Mar. 7, 2002); Prosecutor v. Kadzihasanovic, Alagic, and Kubura, Case No. IT-01-47-PT, T. Ch. II, Decision on the Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-counsel to the Accused Kubura (Mar. 26, 2002); Prosecutor v. Kvocka and Others, Case No. IT-98-30/1-A, Registrar, Decision ( July 8, 2002); Prosecutor v. Halilovic, Case No. IT-01-48-PT, T. Ch. III, Decision on Sefer Halilovic’s Application to Review the Registrar’s Decision of 19 June 2002 (Aug. 1, 2002); Prosecutor v. Martic, Case No. IT-95-11-PT, T. Ch. I, Decision on Appeal against Decision of Registry (Aug. 2, 2002); Prosecutor v. Kvocka, Radic, Zigic, and Prcac, Case No. IT-98-30/1-A, A. Ch., Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic (Feb. 7, 2003); Prosecutor v. Blagojevic, Case No. IT-02-60-AR73.4, A. Ch., Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace his Defense Team (Nov. 7, 2003); Prosecutor v. Milosevic, Case No. IT-02-54, T. Ch., Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel (Apr. 4, 2003); Prosecutor v. Seselj, Case No. IT-03-67-PT, T. Ch. II, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence (May 9, 2003); Prosecutor v. Brdanin, Case No. IT-99-36/R77, T. Ch. II, Order Instigating Proceedings against Milka Maglov (May 8, 2003); Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, T. Ch. I, Decision on Independent Counsel for Vidoje Blagojevic’s

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Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel ( July 3, 2003); Prosecutor v. Milutinovic, Ojdanic, and Sainovic, Case No. IT-99-37-PT, T. Ch. II, Decision on Motion for Additional Funds ( July 8, 2003); Prosecutor v. Hadzihasanovic and Kubura, Case No. IT-01-47-PT, T. Ch. II, Decision on Joint Defence Oral Motion for Reconsideration of “Decision on Urgent Motion for Ex Parte Oral Hearing on Allocation of Resources to the Defence and Consequences thereof for the Rights of the Accused to a Fair Trial,” ( July 18, 2003); Prosecutor v. Martic, Case No. IT-95-11-PT, T. Ch., Decision on Appeal against Decision of Registry (Aug. 2, 2002); Prosecutor v. Sljivancanin, Case No. IT-95-13/1-PT, Pres., Decision on Assignment of Defence Counsel (Aug. 20, 2003); Prosecutor v. Musliu, Case No. IT-03-66-PT, Registrar, Decision (Sept. 9, 2003); Prosecutor v. Meakic, Gruban, Fustar, and Knezevic, Case No. IT-02-65-PT, T. Ch., Decision on Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Jovan Simic (Sept. 18, 2003); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch., Order of Further Instruction to an Amici Curiae (Oct. 6, 2003); Prosecutor v. Blagojevic, Case No. IT-02-60-AR73.4, A. Ch., Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team (Nov. 7, 2003); Prosecutor v. Krajisnik, Case No. IT-00-39-PT, T. Ch. I, Decision on the Defence’s Motion for an Order Setting Aside the Registrar’s Decision Declaring Momcilo Krajisnik Partially Indigent for Legal Aid Purposes ( Jan. 20, 2004); Prosecutor v. Krajisnik, Case No. IT-00-39-T, T. Ch. I, Decision on the Defence’s Request for an Order Setting Aside, in Part, the Deputy Registrar’s Decision of 3 February 2004 (May 14, 2004); Prosecutor v. Simatovic, Case No. IT-03-69-PT, Registrar, Decision of the Registry to Assignment of Counsel and the Extent to Which the Accused is Able to Remunerate Counsel (May 17, 2004); Prosecutor v. Mejakic, Gruban, Fustar, and Knezevic, Case No. IT-02-65-T, T. Ch. III, Decision on Prosecution’s Second Motion to Resolve Conflict of Interest Regarding Attorney Jovan Simic ( June 17, 2004); Prosecutor v. Oric, Case No. IT-03-68-PT, Registrar, Decision of the Registry on Assignment of Counsel and the Extent to Which the Accused is Able to Remunerate Counsel ( June 18, 2004); Prosecutor v. Milutinovic, Ojdanic, and Sainovic, Case No. IT-99-37-PT, Registrar, Final Assessment of the Accused Ability to Remunerate Counsel ( June 23, 2004); Prosecutor v. Martic, Case No. IT-95-11-PT, T. Ch. I, Decision on Defence’s Motion for Review of Registrar’s Decision not to Rank the Case to Level III Complexity ( July 1, 2004); Prosecutor v. Krajisnik, Case No. IT-00-39-T, T. Ch. I, Decision on Defence Motion for Adjournment (Written Reasons) (Sept. 21, 2004); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch. III, Reasons for Decision on Assignment of Defence Counsel (Sept. 22, 2004); Prosecutor v. Mejakic, Gruban, Fustar, Knezevic, Case No. IT-02-65-AR73.1, A. Ch., Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simic, (Oct. 6, 2004); Prosecutor v. Milosevic, Case No. IT-02-54-AR73.7, A. Ch., Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel (Nov. 1, 2004); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch. III, Decision on Assigned Counsel’s Motion for Withdrawal (Dec. 7, 2004). For ICTR jurisprudence, see Prosecutor v. Barayagwiza, Case No. ICTR-97-19-I, President ICTR, Decision on Review in Terms of Article 19(E) of the Directive on Assignment of Defence Counsel ( Jan. 19, 2000); Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, A. Ch., Decision (Request for Withdrawal of Defence Counsel) ( Jan. 31, 2000); Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, President ICTR, President’s Review of the Decision of the Registrar in Terms of Article 12 of the Directive on the Assignment of Defence Counsel ( July 7, 2000); Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, President ICTR, Decision on Registry’s Request for Reconsideration of Ruling dated 7 July 2000 ( July 13, 2000); Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, T. Ch. I, Decision on Defence Counsel Motion to Withdraw (Nov. 2, 2000); Prosecutor v. Ngeze, Case No. ICTR-97-27-I, T. Ch. I, Decision on the Accused’s Request for Withdrawal of his Counsel (Mar. 29, 2001); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, T. Ch. II, Decision on Ntahobali’s Motion for Withdrawal of Counsel ( June 22, 2001); Prosecutor v. Nzirorera, Case No. ICTR-98-44-T, T. Ch. II, Decision on Nzirorera’s Motion for Withdrawal of Counsel (Oct. 3, 2001); Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Case No. ICTR-99-46-T, T. Ch. III, Decision on the Application to File an Amicus Curiae Brief According to Rule 74 of the Rules of Procedure and Evidence filed on Behalf of the NGO Coalition for Women’s Human Rights in Conflict Situations (May 24, 2001); Prosecutor v. Kanyabashi, Ndayambaje, Nsabimana, Ntezirayayo, Nyiramasuhuko and Ntahobali, Case No. ICTR-98-42-T, T. Ch. II, Decision on the Motion of Tharcisse Muvunyi for Leave to Make Submissions as Amicus Curiae in the Butare Trial ( June 8, 2001); Prosecutor v. Nyiramasuhuko and



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More than 115 national constitutions guarantee the right to counsel in criminal proceedings. In some, the right only exists with respect to trial proceedings, while in other constitutions the right to counsel exists at both detention and trial. As stated above, the general right to a defense, when enunciated in a given constitution, may not explicitly guarantee the assistance of counsel at all stages of the trial and to all persons, particularly indigents, although in some constitutions the right to assistance of counsel is implicit in the right to a defense.164 Indeed, the wording of Article 7(1)(c) of the Banjul Charter, which provides for “the right to defense, including the right to be defended by counsel . . .” exemplifies just such an interpretation.165

Ntahobali, Case No. ICTR-97-21-T, Pres., The President’s Decision on the Application by Arsene Shalom Ntahobali for Review of the Registrar’s Decisions Pertaining to the Assignment of an Investigator (Nov. 13, 2002); Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-97-21-T, T. Ch. II, Decision on the Defence Motion for Access for Investigators and Assistants to the Accused in the Absence of Counsel (Nov. 20, 2002); Prosecutor v. Nahimana, Case No. ICTR-96-11-T, Pres., The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on him by the UNDF (Feb. 10, 2003); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Pres., The President’s Decision on an Application by Pauline Nyiramasuhuko for Review of the Registrar’s Decision Declining the Reappointment of her two Investigators (Apr. 9, 2003); Prosecutor v. Joseph Nzirorera et al., Case No. ICTR-98-44-I, T. Ch. III, Decision on the Defence Request for Leave to Interview Potential Prosecution Witnesses Jean Mr. Kambanda, Georges Riggiu, and Omar Serushago (Sept. 29, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Defence Request for an Investigation into Alleged False Testimony of Witness DO (Oct. 3, 2003); Prosecutor v. Nzirorera et al., Case No. ICTR-98-44-I, T. Ch. III, Decision on Defense Third Motion for Return of Property and Sanctions for Violation of Court Order (Oct. 13, 2003); Prosecutor v. Nuvunyi et al., Case No. ICtR-2000-55-I, T. Ch. III, Decision on the Accused’s Request to Instruct the Registrar to Replace Assigned Lead Counsel (Article 20(4)(d) of the Statute and Rules 45 and 73 of the Rules of Procedure and Evidence) (Nov. 18, 2003); Prosecutor v. Nuvunyi, Nizeyimana and Hategekimana, Case No. ICTR-2000-55-I, T. Ch. III, Order to Duty Counsel Regarding the Deposition of Prosecution Witness QX (Rule 54 of the Rules of procedure and evidence) (Nov. 28, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on the Defence Motion for the Reinstatement of Jean Yaovi Degli as Lead Counsel for Gratien Kabiligi (Sept. 19, 2005); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Request for Private Representation of Gratien Kabiligi (Mar. 24, 2005); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi (Mar. 24, 2005). For a discussion on the role of defense counsel in an international criminal trial and the rights of the defense at the ICTY and ICTR, see Wladimiroff, supra note 152, at 421–28 (noting that the role of the defense counsel has a considerable influence on the way the rights of the defendant are applied) and Safferling, supra note 47, at 104 (discussing the right to counsel in the German legal system), 124–26 (discussing the right to counsel at the pre-trial stage). 164 Note that some constitutions guarantee both the right to counsel and to a defense. See, e.g., Nicar. Const. tit. IV, ch. I, art. 34(4), (5). 165 Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60.

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a. The Right to Counsel of One’s Choice. The Rome Statute, the ICCPR, the Fundamental Freedoms, the AMCHR, and the Banjul Charter extend the guarantee of counsel to include the right to counsel of one’s own choosing.166 Such a choice presumably allows for an effective defense by the accused, increases fairness in the proceedings, and promotes the public’s confidence in the criminal justice system. Of the constitutions surveyed, sixty-five guarantee the right to counsel of one’s choosing. Some extend the right to allow suspects to choose counsel immediately after detention.167 This right has only been partially extended to indigents who are financially unable to retain their own counsel.168 Many legal systems place the duty of assistance of counsel on the legal profession as a whole. Consequently, indigent defendants are represented by counsel appointed by the bar or by the bench, which results in weak legal representation. In addition, this method certainly does not afford a person counsel of his/her own choosing. b. The Right to Appointment of Counsel in Case of Indigency. While an indigent accused may not have recourse to the counsel or his/her choice, the appointment of counsel is, at a minimum, necessary under the right to defense, the right to counsel, the right to a fair trial, and the right to equal protection under the law. The overwhelming number of criminal defendants who are unable to afford counsel highlights this necessity. The Rome Statute, the ICCPR, the Fundamental

166 ICC Statute, supra note 5, pt. V, art. 55(2)(c) at 131, R. 21, 22, at 131–32, pt. VI, art. 67(1)(d), at 153; ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4. For cases discussing this right at the ECHR, see, e.g., Yolcu v. Turkey, App. No. 34684/97 (Feb. 5, 2002). Ezeh and Connors v. the United Kingdom, App. Nos. 39665/98 and 40086/98 (Oct. 9, 2003); Öcalan v. Turkey, App. No. 46221/99 (May 12, 2005); Salduz v. Turkey, App. No. 36391/02 (Nov. 27, 2008); Sakhnovskiy v. Russia, App. No. 21272/03 (Nov. 10, 2010). For cases discussing the right to assistance of counsel at the AMCHR, see e.g. Castillo Petruzzi et al. Case, Judgment of May 30, 1999, Inter-Am. C.H.R. (Ser. C) No. 52 (1999); Palamara-Iribarne Case, Judgment of November 22, 2005, Inter-Am. C.H.R. (Ser. C) No. 135 (2005); López Álvarez Case, Judgment of February 1, 2006, Inter-Am. C.H.R. (Ser. C) No. 141 (2006); Barreto Leiva Case, Judgment of November 17, 2009, Inter-Am. C.H.R. (Ser. C) No. 206 (2009). For the ICTY, see Prosecutor v. Kunarac et al., Case No. IT-96-23-PT, Decision on the Request of the Accused (Mar. 14, 2000); Prosecutor v. Knezevic, Case No. IT-95-4-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel (Sept. 6, 2002); Prosecutor v. Martic, Case No. IT-95-11-PT, Decision on Appeal Against Decision of the Registry (Aug. 2, 2002) and cases cited therein; Prosecutor v. Blagojevic, Case No. IT-02-60-PT, Decision on Oral Motion to Replace Co-Counsel (Dec. 9, 2002); Prosecutor v. Knezevic, Case No. IT-95-4-PT & IT-95-8/1-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel (Sept. 6, 2002). For the ICTR, see Prosecutor v. Ntakirutimana, Case No. ICTR-96-10-T & ICTR-96-17-T, Decision (June 11, 1997). 167 See, e.g., Guy. Const. pt. II, tit. I, art. 139(3) (“[A]ny person who is arrested or detained . . . shall be permitted . . . to retain and instruct without delay a legal advisor of his own choice . . . .”). 168 See infra text accompanying note 179–84.



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Freedoms, the AMCHR, and the BOP all guarantee appointed counsel for the indigent,169 as do forty-nine national constitutions. c. The Right to Self-Representation. The right to self-representation complements the right to counsel and is not meant as a substitute thereof. This right assures the accused of the right to participate in his/her defense, including directing the defense, rejecting appointed counsel, and conducting his/her own defense under certain circumstances. The Rome Statute, the ICCPR, the Fundamental Freedoms, the AMCHR,170 and possibly the Banjul Charter guarantee the right to self-representation.171 This right is also guaranteed in forty-eight of the national constitutions surveyed. In addition, more than sixty-nine constitutions contain language pertaining to the right of defense that may be intended to encompass the right to self-representation. Because representation of counsel is not only a matter of interest to the accused, but is also paramount to due process of the law and to the integrity of the judicial process, the court must ensure that selfrepresentation is adequate and effective. Thus, the court should appoint professional counsel to supplement self-representation. Conversely, whenever it is in the best interest of justice and in the interest of adequate and effective representation of the accused, the court shall disallow self-representation and appoint professional counsel. A prominent ICTY case addressing the right of self-representation concerned Slobodan Milošević, who insisted on serving as his own counsel.172 Milošević’s 169 ICC Statute, supra note 5, pt. V, art. 55(2)(c), at 131, R. 21, 22, at 131–32, pt. VI, art. 67(1)(d), at 153; ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; Banjul, supra note 54, princ. 17(2), at 299; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(e), at 4. For examples of cases before the ECHR, see Quaranta v. Switzerland, App. No. 12744/87 (Mar. 24, 1991); Pham Hoang v. France, App. No. 13191/87 (Sept. 25, 1992); Sakhnovskiy v. Russia, App. No. 21272/03 (Nov. 2, 2010). For the ICTY, see Prosecutor v. Kupreskic et al., Case No. IT-9616-T, Decision on the Registrar’s Withdrawal of the Assignment of Defense Counsel (Sept. 3, 1999). For the ICTR, see, e.g., Kajelijeli v. Prosecutor, Appeals Judgment, supra note 85, ¶ 243. 170 ICC Statute, supra note 5, pt. VI, art. 67(1)(d), at 153, pt. V, R. 21(4) at 132; ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4. For an example of this rights at the ECHR, see Kremzow v. Austria, App. No. 12350/86 (Sept. 21, 1993). Voisine v. France, App. No. 27362/95 (Feb. 8, 2000); Meftah and Others v. France, App. Nos. 32911/96, 35237/97 and 34595/97 (July 26, 2002). For the ICTY, see Milosevic v. Prosecutor, Case No. IT-02-54-A, Decision On Interlocutory Appeal Of The Trial Chamber’s Decision On The Assignment Of Defense Counsel, ¶¶ 11–17, 19 (Nov. 1, 2004); Prosecutor v. Milosevic, Order Inviting Designation of Amicus Curie, Case No. IT-99-37-PT (Aug. 31, 2001). For the ICTR, see Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, Decision on Defense Counsel Motion to Withdraw (Nov. 2, 2000); Prosecutor v. Nyiramasuhuko & Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali’s Motion for Withdrawal of Counsel ( June 22, 2001). 171 Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60. 172 Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, ¶ 3 (Nov. 1, 2004).

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health deteriorated throughout his trial, causing significant delays.173 The Trial Chamber appointed counsel for Milošević, over his objections.174 The Appeals Chamber, in reviewing the lower chamber’s decision, noted that although the presumptive “right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable,” referencing case law from the United States, England, and Canada holding that right of selfrepresentation to be a qualified right.175 The Appeals Chamber asked “whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.”176 The Appeals Chamber affirmed the Trial Chamber’s appointment of counsel, but noted that when Milošević was healthy, he should “take the lead” in presenting his case; only when his health disrupted the trial, should the Trial Chamber look to the assigned counsel to continue the case.177 Subsequent ICTY cases have affirmed that the right to self-representation can be withdrawn or limited where self-representation would “substantially and persistently obstruct the proper and expeditious conduct of the trial.”178 d. The Right to Assistance of an Interpreter. The right to assistance of an interpreter assures the effectiveness of the right to a fair trial and the right to counsel. Assistance is often necessary to ensure comprehension of proceedings and accusatory documents. The right to an interpreter paid by the court is guaranteed by five of the instruments examined, and is guaranteed in no fewer than fifty-one national constitutions.179

173 Id. ¶ 4. 174 Id. ¶ 6. 175 Id. ¶ 12. 176 Id. ¶ 13. 177 Id. ¶ 19–20. 178 Prosecutor v. Seselj, Decision on Assignment of Counsel, Case No. Case No. IT-03-67-PT, ¶ 79 (Aug. 21, 2006); see also, e.g., Prosecutor v. Krajišnik, Case No. IT-00-39-A, Decision on Momcilo Krajišnik’s Right to Self-Represent on Counsel’s Motions in Relation to Appointment of Amicus Curiae and on the Prosecution Motion of 16 February 2007, ¶ 13 (May 11, 2007). 179 ICC Statute, supra note 5, pt. V, art. 55(1)(c), at 129, pt. VI, art. 67 (1)(f ), at 153, pt. IV, R. 42, at 123; ICCPR, supra note 48, pt. III, art. 14(3)(f ), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(e), 213 U.N.T.S. at 228; SMRTP, supra note 54, pt. I, art. 30(3), at 69; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(a), at 4. For the jurisprudence of the ECHR, see, e.g., Luedicke, Belkacem and Koç v. Federal Republic of Germany, App. Nos. 6210/73, 6877/75, 7132/75 (Nov. 28, 1978); Öztürk v. Federal Republic of Germany, App. No. 8544/79 (Feb. 21, 1984); Daud v. Portugal, App. No. 22600/93 (Apr. 21, 1998); Güngör v. Germany, App. No. 31540/96 (May 17, 2001); Cuscani v. The United Kingdom, App. No. 32771/96 (Sept. 24, 2002). Husain v. Italy, App. No. 18913/03 (Feb. 24, 2005); Hermi v. Italy, App. No. 18114/02 (Oct. 18, 2006); For the ICTY, see Kordic & Cerkez v. Prosecutor, Case No. IT-95-14/2A, Decision on Motions to extend Time for Filling Appellant’s Briefs (May 11, 2001); Prosecutor v. Naletilic & Martinovic, Case No. IT-98-34-T, Decision on Defense’s Motion Concerning Translation of all Documents (Oct. 18, 2001).



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e. The Right to the Presence of Counsel during All Stages of the Proceedings. None of the instruments examined specifically guarantee the right to counsel at all stages of the proceedings. The Rome Statute assures the right to counsel where “there are grounds to believe a person has committed a crime and is about to be questioned,” and “in the determination of any charge.”180 The ICCPR guarantees the accused the right to counsel “in the determination of any criminal charge against him.”181 The Fundamental Freedoms provides counsel to “everyone charged with a criminal offense,”182 and the AMCHR guarantees counsel “during the proceedings” to those “accused of a serious crime.”183 The right to counsel in the Banjul Charter is compromised within the “right to have his cause heard.”184 The BOP guarantees the right to counsel during the preliminary investigation period.185 The phraseology in each of the instruments is consistent with the application of the right to procedures other than the actual trial. The right to counsel at all stages of the proceedings is explicitly granted in at least 29 national constitutions. It can be implied as well in the constitutions that provide for the right to defense at all stages of the proceedings. The constitutions that guarantee the right to counsel at time of detention, as well as at trial, come close to the protections guaranteed under this right. 2.2.8. The Right to a Speedy Trial The right to a speedy trial is intended to limit infringements on personal freedom caused by pretrial and trial detention. It is also crucial to the guarantee of a fair trial because undue delays may cause the loss of evidence or the fading of the memories of the witnesses. In addition, the right seeks to minimize the emotional strain on the accused caused by pending criminal proceedings. The ICCPR, the Fundamental Freedoms, the AMCHR, the BOP, and the statutes of the ICC, ICTY, and ICTR all guarantee the right to release from detention if the accused is not brought to trial within a reasonable time.186 The Rome

180 ICC Statute, supra note 5, pt. VI, art. 55, at 131, pt. VI, art. 67, at 153. 181 ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54. 182 Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228. 183 AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(e), at 4. 184 Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60. 185 BOP, supra note 54, princ. 17(1), at 299. 186 ICCPR, supra note 48, pt. III, art. 9(3), at 54; Fundamental Freedoms, supra note 54, § I, art. 5(3), 213 U.N.T.S. at 226; BOP, supra note 54, princ. 38, at 300; AMCHR, supra note 54, pt. I, ch. II, art. 7(5), at 5; ICC Statute, supra note 5, at 67(1)(d); ICTY Statute, supra note 3, at art. 20(1); ICTR Statute, supra note 4, at art. 19(1). For the jurisprudence of the ECHR, see, e.g., Textile Traders Limited v. Portugal, App. No. 52657/99 (Feb. 27, 2003); Ipsilanti v. Greece, App. No. 56599/00 (Mar. 6, 2003). Mooren v. Germany, App. No. 11364/03 (July 9, 2009); Stanev v. Bulgaria, App. No. 36760/06, (Jan. 17, 2012). For the IACHR, see, e.g., Garrido and Baigorria Case, Judgment of February 2, 1996, Inter-Am. C.H.R. (Ser. C) No. 26 (1996); López Álvarez Case, Judgment of February 1, 2006, Inter-Am. C.H.R. (Ser. C)

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Statute provides for the accused to be tried without undue delay with “regard to the need to facilitate fair and expeditious proceedings.”187 All of the instruments and the Banjul Charter guarantee the right to a trial within a reasonable time regardless of the custodial status of the accused.188 The right to a speedy trial is guaranteed in at least fifty-nine of the national constitutions surveyed. As in the ICCPR, the Fundamental Freedoms, and the AMCHR, many constitutions contain language relating to both the detention of an accused and the right to a speedy trial in general. In some constitutions, the right is articulated only in relation to detained persons.189 In each case, the right to a speedy trial may only guarantee release from detention and not necessarily an expeditious resolution of the case. However, the right to a speedy trial is qualified by the threat of expedited proceedings that jeopardize a fair trial. Counterbalancing this right is the accused’s right to adequate time and facilities for the preparation of his/her defense.

No. 141 (2006); Yvon Neptune Case, Judgment of May 6, 2008, Inter-Am. C.H.R. (Ser. C) No. 180 (2008); Barreto Leiva Case, Judgment of November 17, 2009, Inter-Am. C.H.R. (Ser. C) No. 206 (2009). For the ICTY, see Prosecutor v. Jelisic, Case No. IT-95-10-T, Decision on the Prosecutor’s Motion to add a few more witnesses according to Rule 73(E) (Apr. 27, 1999); Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-T, Decision on the Prosecution Request to Proceed by Deposition (Nov. 3, 1999); Prosecutor v. Kunarac et al., Case No. IT-96-23-PT, Decision on Joinder of Trials (Feb. 9, 2000); Prosecutor v. Hadzihasanovic et al., Case No. IT-01-47-PT, Decision (Mar. 26, 2002); Prosecutor v. Blagojevic, Case No. IT-02-60-PT, Decision on Oral Motion to Replace Co-Counsel (Dec. 9, 2002); Prosecutor v. Galic, Case No. IT-98-29-T, T. Ch. I Section B, Decision on Co-Operation Between the Parties (Oct. 16, 2002). For the ICTR, see Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Case No. ICTR-99-46-T, T. Ch. III, Decision on the Prosecutor’s Extremely Urgent Request for a Suspension of Time Limits and for an Extension of Time for Filing an Application for Rebuttal, (Apr. 10, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsenigiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Continuation or Commencement de novo of Trial ( June 11, 2003); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Nsabimana and Nteziryayo (Case No. ICTR-97-29A&B-T), Kanyabashi (Case No. ICTR-96-15-T), and Ndayambaje (Case No. ICTR-96-8-T), Joint Case No. ICTR-98-42-T, T. Ch. II, Decision on the Matter of Proceedings Under Rule 15bis (D) (July 15, 2003); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Nsabimana and Nteziryayo, Case No. ICTR-97-29A&B-T, Kanyabashi, Case No. ICTR-96-15-T, and Ndayambaje, Case No. ICTR96-8-T, Joint Case No. ICTR-98-42-T, T. Ch. II, Decision on the Matter of Proceedings Under Rule 15bis (D) (Sept. 24, 2003); Prosecutor v. Mugiraneza, Case No. ICTR-99-50-I-T. Ch. II, Decision on Prosper Mugiraneza’s Motion to Dismiss the Indictment for Violation of Article 20 (4) (c) of the Statute, Demand for Speedy Trial and for Appropriate Relief (Oct. 2, 2003); Elizaphan Ntakirutimana and Gerard Ntakirutimana v. Prosecutor, Case No. ICTR-96-10-A, and ICTR-96-17-A, A. Ch., Decision on Extremely Urgent Prosecution Application for an Adjournment of the Oral Hearing (Nov. 20, 2003). 187 ICC Statute, supra note 5, pt. VI, arts. 64(2), at 147, 67(1)(c), at 152, R. 101, at 153. 188 ICCPR, supra note 48, pt. III, art. 14(3)(c), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(1), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 38, at 300; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(d), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4. 189 See, e.g., Neth. Const. ch. I, art. 15(3) (“The trial of a person who has been deprived of his liberty pending trial shall take place within a reasonable period.”).



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This right varies in its application and in penalties for its violation. It may apply to each or all stages of the proceedings (i.e., pretrial, trial, post-trial, appeal). Specific time limits may be set for each stage or multiple stages. Exceeding the required time limits may result in dismissal of the charges or reversal of the conviction. In such cases, some systems will hold that the same charge may be barred from future adjudication, thus having a res judicata or jeopardy effect. 2.2.9. The Right to Appeal To err is human; thus, protection against error is necessary. The right to appeal judicial rulings, including a criminal conviction, to a higher court or tribunal fulfills this need. The elements of the proceedings that are appealable, and how this can be accomplished varies throughout legal systems. Some systems allow for reversal of the law, while others allow for both the facts and the law. Some may allow interlocutory appeals of non-final judicial rulings. The review or appeal process may be one-or-two tiered (i.e., an appellate court and a supreme court). For example, Article 14 or the ICCPR requires the right to at least one higher appellate level in criminal matters, as do the statutes of the ICC and ICTY.190 An 190 ICCPR, supra note 48, pt. III, art. 14(5), at 54; ICC Statute, supra note 5, at art. 81(1)(b); ICTY Statute, supra note 3, at art. 25(1). For ICC jurisprudence, see Situation in Uganda, Case No. ICC-02/04-01/05, P-T. Ch. II, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest Under Article 58 (Aug. 19, 2005); Situation in Uganda, Case No. ICC-02/04-01/05, P-T. Ch. II, Decision on the Prosecutor’s Position o the Decision of PreTrial Chamber II to Redact Factual Descriptions of Crimes From Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (Oct. 28, 2005); Situation in the Democratic Republic of the Congo, Case No. ICC-01/04, Decision on the Prosecutor’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6 (Mar. 31, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, A. Ch., Decision on the Appellant’s Application for an Extension of the Time Limit for the Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court (May 30, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal ( June 23, 2006); Situation in the Democratic Republic of the Congo, Case No. ICC-01/04, A. Ch., Judgment on the Prosecutor’s Application for Extraordinary Review of the Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal ( July 13, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on the Prosecution Amended Application Pursuant to Rule 81(2) (Aug. 2, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on Defence Motion for Leave to Appeal (Aug. 18, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, A. Ch., Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber/In the Alternative, Discontinuance of Appeal (Sept. 6, 2006); Prosecutor v. Dyilo, Case No. ICC-01/0401/06, P-T. Ch. I, Decision on Second Defence Motion for Leave to Appeal (Sept. 28, 2006). For ICTY jurisprudence, see Prosecutor v. Nikolic, Case No. IT-94-2-AR72, A. Ch., Decision on Notice of Appeal ( Jan. 9, 2003). For ICTR jurisprudence, see Prosecutor v. Bagosora and 28 Others, Case No. ICTR-98-37-A, A. Ch., Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment Against Theoneste Bagosora and 28 Others ( June 8, 1998); Nsengiyumva v. Prosecutor, Case No. ICTR-96-12-A, A. Ch., Decision on Appeal Against Oral Decision of Trial Chamber II of 28 September 1998 ( June 3, 1999); Ntuyahaga v. Prosecutor, ICTR-98-40-A,

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appeal is considered a continuation of the criminal justice process and, as such, implicates rights previously discussed, including the right to an impartial and independent tribunal, procedures established by law,191 speedy trial, public hearing, equality of arms, and assistance of counsel. However, constitutional guarantees to appeal do not always provide for the same rights at appeal as are available at trial. One of the rights necessary for an effective right of appeal by indigents is the right to obtain a free transcript. In practice, this right is seldom recognized. The right to appeal is guaranteed in five of the instruments surveyed.192 As contemplated in these instruments, the right does not encompass a de novo review of the facts of a case with a reevaluation of the evidence. Instead, the appellate court or tribunal193 serves as a forum to challenge violations of any of the rights that have adversely impacted the fairness of

A. Ch., Decision Rejecting Notice of Appeal ( June 3, 1999); Prosecutor v. Kanyabashi, Case No. ICTR-96-15-A, A. Ch., Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I ( June 3, 1999); Kanyabashi v. Prosecutor, Case No. ICTR-96-15-A, A. Ch., Decision Rejecting Notice of Appeal ( Jan. 21, 2000); Kajelijeli v. Prosecutor, Case No. ICTR-98-44-AR72, A. Ch., Order (Aug. 10, 2000); Ngeze and Nahimana v. Prosecutor, Cases No. ICTR-97-27AR72 and 96-11-AR72, A. CH., Decision on the Interlocutory Appeals (Sept. 5, 2000). 191 The ICCPR specifies that the appeal must be “according to the law.” Id. The Fundamental Freedoms indicates that an appeal “shall be governed by law.” Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 22, 1984, art. 2(1), 24 I.L.M. 435, 435 [hereinafter Protocol No.7]. For the ICTY, see Jelisic v. Prosecutor, Case No. IT-95-10-A, Order (Mar. 21, 2000); Furundzija v. Prosecutor, Case No. IT-95-17/1-A, Judgment ( July 21, 2000). For the ICTR, see, e.g., Semanza v. Prosecutor, Appeals Judgment, supra note 85, ¶ 1 (Pocar, J., dissenting) (“an accused [has a] fundamental right to an appeal as enshrined in Article 14(5) of the ICCPR.”). For the ICC, see Situation in Democratic Republic of the Congo, Case No. ICC-01/04-168, Appeals Chamber’s Judgment on the Prosecutor’s Appeal for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ¶ 20 ( July 13, 2006). For cases from the AMCHR see, e.g. Herrera-Ulloa Case, Judgment of July 2, 2004, Inter-Am. C.H.R. (Ser. C) No. 107 (2004); Lori Berenson Mejía Case, Judgment of November 25, 2004, Inter-Am. C.H.R. (Ser. C) No. 119 (2004). 192 ICC Statute, supra note 5, pt. XIII, arts. 81 at 181, art. 82 at 183. pt. XIII, R. 150, 151, 152, 154, 155, at 182–83; Protocol No. 7, supra note 191, art. 2(1), at 435; ICCPR, supra note 48, pt. III, art. 14(5), at 54; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(a), at 60; AMCHR, supra note 54, pt. I. ch. II, art. 8(2)(h), at 4. For a discussion of international criminal law appeal procedures and practices and their application in the practice of the ad hoc international tribunals, see Adolphus G. Kiribi-Whyte, Appeal Procedures and Practices, in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court 421–28 (G.K. McDonald & O. Swaak-Goldman eds. 2000). For cases discussing this right at the ECHR, see, e.g., Krombach v. France, App. No. 29731/96 (Feb. 13, 2001); Papon v. France, App. No. 54210/00 ( July 25, 2002). For the cases of the ICTY, see Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, ¶ 104 (Mar. 24, 2000). 193 The ICCPR and the Fundamental Freedoms guarantee the right of appeal to a “higher tribunal.” Protocol No. 7, supra note 191, art. 2(1), at 435; ICCPR, supra note 48, pt. III, art. 14(5), at 54. Under the Rome Statute, an Appeals Chamber governs appeals. ICC Statute, supra note 5, pt. XIII, R. 149, at 182. The AMCHR uses the term “higher court.” AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4. The Banjul Charter guarantees a “right to an appeal to competent national organs against acts . . . violating . . . fundamental rights. . . .” Banjul, supra note 54, pt. I, ch. I, art. 7(1)(d), at 60.



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the verdict or instances where violations of domestic law may have rendered the judgment flawed. At least sixty-two national constitutions contain guarantees that are tantamount to a right to appeal a criminal conviction to a higher court. In many of these documents, the guarantee refers to “constitutional violations” in criminal proceedings and often includes recourse to more than one appellate tribunal. This is particularly true where the judicial systems bifurcate the adjudication of questions of law and constitutionality, with the latter being handled exclusively in specialized constitutional courts. Many legal systems provide special remedies for appellate review, such as habeas corpus in the common law system and amparo (the counterpart of habeas corpus) in Latin American countries. 2.2.10. The Right to Be Protected from Double Jeopardy This right is designed to prevent the state from repeatedly subjecting a person to prosecution for offenses arising out of the same event until the desired results are achieved. Double jeopardy derives from a sense of fairness, and can be analogized to the civil law concept of res judicata. The non-common law countries refer to it as ne bis in idem.194 The concept of double jeopardy is interpreted differently by different world legal systems. In some states an acquittal on the facts is final and gives rise to double jeopardy.195 However, in most continental European nations the state may appeal an acquittal due to errors of law or questions of fact. A conviction may be reversed on appeal and a new trial ordered, or the judgment may be revised without remand for a new trial. Double jeopardy and ne bis in idem vary as to their scope and application. Double jeopardy is usually held to apply within a given legal system and not as between different legal systems or separate sovereignties.196 Ne bis in idem is a right that protects the person from repeated prosecution or punishment for the same conduct, irrespective of the prosecuting system. Note, however, that ne bis in idem under the Fundamental Freedoms applies as between the member states. Furthermore, legal systems differ as to when jeopardy attaches. Constitutional and treaty provisions do not go into such specificity. It should also be noted that some approaches to double jeopardy

194 See Michael Bohlander, Ne Bis in Idem, in 3 Bassiouni, ICL, supra note 13, at 539. 195 The U.S. Constitution Fifth Amendment guarantee, enforceable against states through the Fourteenth Amendment, protects against a second prosecution for the same offense after acquittal or conviction, and against multiple punishments for the same offense. See U.S. Const. amends V, XIV, § I; see also Benton v. Maryland, 395 U.S. 784 (1969) (applying the double jeopardy clause of the Fifth Amendment to the states through the Fourteenth Amendment). 196 See Blockburger v. United States, 284 U.S. 299, 304 (1932) (double jeopardy clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act under two criminal statutes whenever each statute does not “requir[e] proof of a fact which the other does not”).

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are limited to the non-applicability of double punishment, but do not exclude repeated prosecution. Protection from double jeopardy and ne bis in idem are found in five of the surveyed instruments and in the statutes of the ICC, ICTY, and ICTR.197 The ICCPR and the Fundamental Freedoms prohibit retrials of acquittals and convictions, as well as double punishment, but make allowances for differences in domestic legal systems.198 The Fundamental Freedoms also includes a specific exception: “if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”199 The AMCHR guarantees protection against double jeopardy without qualification, but only after an acquittal.200 The Rome Statute prohibits retrial of an acquittal or conviction with respect to conduct that formed the basis of an offense against the administration of justice.201 The right to protection from double jeopardy and ne bis in idem are found in over eighty-two national constitutions. 2.2.11. The Right to Be Protected from Ex Post Facto Law Protection from ex post facto laws is one of the fundamental principles of legality, which also include nulla poena sine lege and nullum crimen sine lege.202 This right guarantees that crimes and punishments will not be created ad hoc to apply retroactively to particular cases or persons. The basis of this fundamental right is that it provides people with prospective notice of a criminal violation and avoids the arbitrary criminalization of conduct after the fact, which would allow 197 ICC Statute, supra note 5, pt. II, art. 20, at 93–4, pt. IV, R. 168, at 167; Protocol No. 7, supra note 191, art. 4(1), at 436; ICCPR, supra note 48, pt. III, art. 14(7), at 55; ICTY Statute, supra note 3, at art. 10; ICTR Statute, supra note 4, at art. 9; SMRTP, supra note 54, pt. I, art. 30(1), at 69; AMCHR, supra note 54, pt. I, ch. II, art. 8(4), at 4; see also U.S. Const. amend. V. For the ECHR, see, e.g., Oliveira v. Switzerland, App. No. v ( July 30, 1998); W.F. v. Austria, App. No. 38275/97 (Mar. 30, 2002); Sailer v. Austria, App. No. 38237/97 ( June 6, 2002); Göktan v. France, App. No. 33402/96 ( July 2, 2002); Sergey Zolotukhin v. Russia, App. No. 14939/03 (Feb. 10, 2009). For the IACHR, see e.g. Loayza Tamayo Case, Judgment of September 17, 1997, Inter-Am. C.H.R. (Ser. C) No. 33 (1997); Cantoral Benavides Case, Judgment of August 18, 2000, Inter-Am. C.H.R. (Ser. C) No. 69 (2000); Lori Berenson Mejía case, Judgment of November 25, 2004, Inter-Am. C.H.R. (Ser. C) No. 69 (2004). For the ICTR, see, e.g., Prosecutor v. Akayesu, Trial Judgment, supra note 88, ¶ 462. 198 Both the ICCPR and the Fundamental Freedoms specify “in accordance with the law and penal procedure . . .” of each country. Protocol No. 7, supra note 191, art. 4(1), at 436; ICCPR, supra note 48, pt. III, art. 14(7), at 55. 199 Protocol No. 7, supra note 191, art. 4(2), at 436. 200 AMCHR, supra note 54, pt. I, ch. II, art. 8(4), at 4. 201 ICC Statute, supra note 5, pt. IV, R. 168, at 167. 202 See Jerome Hall, General Principles of Criminal Law 27, 35 (1960). Nulla poena sine lege means no punishment without a law. Nulla crimen sine lege means no crime without a law. See supra Chapter III, section 9, on the principles of legality; see also Bassiouni, Crimes Against Humanity, supra note 22, at 305, 345n.204.



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those in power to convict and punish at will anyone so targeted. Therefore, it is not only a fairness right but also a fundamental right against unbridled abuse of power. An extension of this prohibition in certain legal systems is the prohibition of interpreting criminal laws by analogy.203 The right was guaranteed as early as the American Constitution of 1787204 and the French Declaration of the Right of Man of 1789.205 It is included in six of the instruments surveyed.206 These instruments prohibit the conviction of any person “on account of any act or omission which did not constitute a criminal offense . . . at the time it was committed,”207 and proscribe the imposition of punishments in excess of those proscribed by law at the time of the commission of the offense. The Universal Declaration, the ICCPR, the Fundamental Freedoms and the AMCHR allow conviction and punishment for acts or omissions that constituted crimes under national or international law at the time of commission.208 The Rome Statute assigns conviction and punishment for the “most serious crimes of concern to the international community as a whole” through its jurisdiction over its states parties, as do the statutes of the ICTY and

203 In the Soviet Union prior to 1958, judges could find a person guilty by analogy, even though the particular conduct before the court did not constitute a crime at the time of its commission. See Harold J. Berman, Soviet Criminal Law And Procedure: The RSFSR Codes 22 (Harold J. Berman & James W. Spindler trans., 2d ed. 1972); see also ICC Statute, supra note 5, pt. III, art. 22(2), at 94. 204 U.S. Const. art. I, § 9. 205 The Declaration of the Rights of Man and the Citizen, at para. 8, at 744–45. 206 ICC Statute, supra note 5, pt. III, arts. 22–24, at 94–5; ICCPR, supra note 48, pt. III, art. 15(1), at 55; Fundamental Freedoms, supra note 54, § 1, art. 7(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 11(2), at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(2), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 9, at 4. For the ECHR, see Cantoni v. France, App. No. 17862/91 (May 29, 1995); G. v. France, App. No. 15312/89 (Sept. 27, 1995); C.R. v. The United Kingdom, App. No. 20190/92 (Nov. 22, 1995); Larissis v. Greece, App. Nos. 23372/94, 26377/95, 26378/94 (Feb. 24, 1998); Ecer and Zeyrek v. Turkey, App. No. 29295/95, 29363/95 (Feb. 27, 2001); K.-H.W. v. Germany, App. No. 37201/97 (Mar. 22, 2001); Streletz, Kessler and Krenz v. Germany, App. Nos. 34044/96, 35532/97, 44801/98 (Mar. 22, 2001); Veeber v. Estonia (no. 2), App. No. 45771/99 ( Jan. 21, 2003). For the IACHR see, e.g., Baena Ricardo et al. Case, Judgment of February 2, 2001, Inter-Am. C.H.R. (Ser. C) No. 72 (2001); Ricardo Canese Case, Judgment of August 31, 2004, Inter-Am. C.H.R. (Ser. C) No. 111 (2004); Lori Berenson Mejía case, Judgment of November 25, 2004, Inter-Am. C.H.R. (Ser. C) No. 119 (2004); Fermín Ramírez Case, Judgment of June 20, 2005, Inter-Am. C.H.R. (Ser. C) No. 126 (2005); García-Asto and Ramírez-Rojas Case, Judgement of November 25, 2005, Inter-Am. C.H.R. (Ser. C) No. 137 (2005). For the ICTY, see Prosecutor v. Hadzihasanovic et al., Case No. IT-01-47-PT, Decision on Joint Challenge to Jurisdiction (Nov. 12, 2002) and cases cited therein. 207 ICC Statute, supra note 5, pt. III, arts. 22–24, at 94–5; ICCPR, supra note 48, pt. III, art. 15(1), at 55; Fundamental Freedoms, supra note 54, § 1, art. 7(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 11(2), at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(2), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 9, at 4. 208 ICCPR, supra note 48, pt. III, art. 15(1), (2) at 55; Fundamental Freedoms, supra note 54, § 1, art. 7(1), (2), 213 U.N.T.S. at 228–29; Universal Declaration, supra note 48, art. 11(2), at 73; AMCHR, supra note 54, pt. I, ch. II, art. 9, at 4.

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ICTR.209 If, after the commission of an offense, the law is changed to provide the lighter sentences for the proscribed conduct, the ICC, the ICCPR and the AMCHR all allow the charged or convicted person to benefit from the change.210 The right to be protected from ex post facto laws is guaranteed in at least 133 national constitutions. Many of these constitutions also specify that the prohibition against retroactivity does not apply to laws that benefit the accused or convicted person.211 2.3. A Summary of Protected Procedural Rights This study has investigated more than 190 constitutions that enumerate some protections of human rights and procedural safeguards for persons in the criminal justice process. The analysis of these constitutions has revealed an overwhelming affirmation of such core rights as the right to life (124 countries), the right to recognition before the law and equal protection of the laws (176 countries), the right to be free from arbitrary detentions (169 countries), the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment (147 countries), the right to be presumed innocent (134 countries), the right to a fair trial (fifty countries), the right to assistance of counsel (115 countries), the right to a speedy trial (fifty-nine countries), the right to an appeal (sixty-two countries), the right to be protected from double jeopardy (eighty-two countries), and the protection against ex post facto laws (133 countries). If the right to a fair trial is considered in conjunction with the right to a defense, there exists a strong affirmation of the right to general fairness in criminal proceedings. The relatively high number of constitutions that guarantee the right to notice (93), to counsel of choice (65), to a speedy trial (59), to appeal (62), and to protection against double jeopardy (82) also indicates that there is broad international acceptance of these more concrete aspects of the right to a fair trial. 2.4. Conclusion The human rights guarantees investigated in this chapter were derived by the concordance of protected rights in national constitutions and international

209 ICC Statute, supra note 5, pt. II, arts. 5, 11, and 24, at 41 (listed as: genocide, crimes against humanity, war crimes, the crime of aggression); ICTY Statute, supra note 3, at art. 9; ICTR Statute, supra note 4, at art. 7. The exercise of the ICC’s jurisdiction is complementary to that of the national legal systems of its states parties. Id. at pt. I, art. 1, at 40. 210 Id. at pt. III, art. 22(2), at 94; ICCPR, supra note 48, pt. III, art. 15(1), at 55; AMCHR, supra note 54, pt. I, ch. II, art. 9, at 4. 211 See, e.g., Eth. Const. ch. II, art. 22(2); Nicar. Const. tit. IV, ch. I, arts. 34(10), 38; Para. Const. pt. I, ch. II, art. 14.



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instruments, which is a valid method of demonstrating the existence of “general principle of law” in international law. National laws and codes of criminal procedure, as well as court decisions, further expand upon these rights. However, there are divergences between the enunciation of principle and their application. Nonetheless, the principle purpose of this work is to establish the existence of certain general principles of human rights protection for persons in national criminal justice processes. Human rights activists should not shrink from asserting fundamental human rights protection as “general principles of law,” and should carry out further inductive investigations of national law to strengthen the validity of the contention. Section 3. Rules of Evidence 3.1. Introduction Evidence may be defined broadly as something that tends to prove or disprove the existence of a fact.212 It includes the testimony of witnesses, documents, tangible objects, scientific texts, and expert opinions on the existence or probability of certain occurrences. Legal systems govern the manner in which evidence can be obtained, the manner in which it can be introduced in the course of criminal proceedings or at trial, its legal significance and weight, the quantum of evidence needed for conviction, the legal sanctions applicable to evidence obtained improperly, and the applicability of trial court decisions on evidentiary matters. This all derives from the logic of the legal system of a particular country, i.e., the Romanist-civilist-Germanic families of legal systems, the common law, and the Islamic law families. Each of these families of legal systems has a different procedural and evidentiary approach that impacts each question of evidence in the course of criminal proceedings. Notwithstanding the differences between legal systems, all share the goal of the discovery of the truth in accordance with certain rules.213 The rules of evidence interact with the rules of procedure in order to create certain value-oriented outcomes. For example, it is now commonly accepted that evidence obtained as a result of torture is not admissible in an international criminal trial.214 This value-oriented outcome clearly recognizes that certain rights of the accused (in this case the right to be protected from torture) outweigh other important concerns of the criminal justice system related to the 212 Blacks Law Dictionary 576 (7th ed. 1999). 213 Safferling, supra note 47, at 292; see also M. Cherif Bassiouni, Issues Pertaining to the Evidentiary Part of International Criminal Law, in 3 Bassiouni, ICL, supra note 13, at 579. 214 See, e.g., ICTY Rules, supra note 121, at R. 95.

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admission of evidence. Rules of evidence, therefore, play a crucial role in the ultimate outcome of both national and international criminal proceedings. The rules of evidence applicable in international criminal trials have developed similarly to the rules of procedure. As noted above, the roots of the procedures governing international criminal trials are found in two major systems of law, the common law (or “adversarial” system) and the civil law (or “inquisitorial” system).215 The law of international criminal evidence synthesizes the rules found in these two legal systems and adapts them to the particular circumstances of the international criminal trial.216 In addition, the rules of evidence followed at the ICTY and ICTR have also benefited from norms of “international due process” that were developed and codified in the years following the conclusion of WWII.217 There are significant differences in the characteristics of these two legal systems. These differences are important to the analysis of procedures relevant to evidence in international criminal trials.218 For example, while the collection and presentation of evidence is generally reserved for the parties (similarly to the practice in adversarial legal systems), international tribunals have adopted a liberal policy towards the admission of evidence more akin to civil law systems. In practice, this means that the court has assumed the role of an independent arbiter, and very little evidence is excluded from the scope of international trials. The London Charter of the IMT and the Tokyo Charter of the IMTFE provided that the tribunals would not be bound by technical rules of evidence.219 Similarly, the common law rules of evidence aimed at restricting the admission of certain types of evidence have been also been eliminated at international trials because these trials are not conducted by juries (as in the common law system), but professional judges who do not need to be protected against these types of evidence the same way as lay juries do. In this respect, international criminal trials resemble more civil law criminal trials operating under a “free evaluation of evidence” than those held under common law systems.220

215 For a short history of international criminal procedure, see Safferling, supra note 47, at 31–34. 216 Id. 217 See supra sections 1, 2. 218 See Mark Findley, Synthesis in Trial Procedures, The Experience of International Criminal Tribunals, 50 I.C.L.Q. 26, 29 (2001). 219 Charter of the International Military Tribunal at Nuremberg, art. 19, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]; IMTFE Charter, supra note 2, at art. 13(a). 220 See, e.g., Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment and Sentence, ¶ 75 (Jan. 27, 2000).



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3.2. Historical Evolution of the Rules Governing Evidence The rules of evidence relied upon in the post-World War II tribunals were aimed at providing a summary procedure that would deny the advantages of AngloAmerican evidentiary and procedural rules to an accused.221 The rules of evidence at the IMTFE were essentially based on rules contained in the Nuremberg judicial rules and found in the Royal Warrant issued for trial of war criminals by the United Kingdom. They were intended to allow as much evidence as possible to be admitted against defendants.222 The tribunals’ practice with regard to admission of evidence, however, was not characterized by fairness or evenhandedness. This is reflected in the inconsistent rulings favoring the prosecution over the defense.223 Proceedings before the IMT and the IMTFE suffered from a series of evidentiary problems, including: argumentative questions by counsel; questions of judicial notice, the admission of affidavits without opportunity to cross-examine the affiant and the exclusion of evidence that was arguably relevant to the defense.224 These problems resulted in uncertainty of the rules applied and unfairness to the defendants.225 It was nearly fifty years after the Nuremberg trial before another international criminal court came into being. This was in 1993, when the U.N. Security Council established the ICTY in response to the large number of atrocities that were taking place in the former Yugoslavia. The ICTY paved the way for the ICTR, which was established in response to the atrocities that swept through Rwanda in 1994.226 Without a coherent set of rules governing procedure and evidence, these ad hoc tribunals were forced to develop rules that reflected a balance between the “international due process” rights of the accused,227 the rights of other par221 See Wallach, supra note 21, at 857. Wallach notes that, although the CCL No. 10 evidentiary rule was expanded over the rule at the IMT, the rule was enunciated to eliminate any question that all evidence useful to the tribunal could come in without objection. Id. at 863. As trials conducted under CCL No. 10 and the national prosecutions that followed in the aftermath of the IMTFE in the Far East were essentially conducted under the auspices of national procedural systems, their contribution to the development of international criminal procedure is minimal at best. Safferling, supra note 47, at 33. 222 Wallach, supra note 21, at 865. 223 See, e.g., The Tokyo Judgment, reprinted in 2 Judgments of the Member from India, 654–55 (B.V.A. Rolling & C.F. Ruter eds., 1977) [hereinafter Tokyo Judgment]; see also Wallach, supra note 21, at 869. 224 See Tokyo Judgment, supra note 223, at 641–42 ( Justice Pal’s dissent at the IMTFE was partly based on the refusal of the IMTFE to admit eleven different categories of evidence); Wallach, supra note 21, at 874–75, n.96. 225 See Telford Taylor, The Anatomy of Nuremberg Trials 176, 324, 242 (1992); see also Wallach, supra note 21, at 875. But see Joseph Keenan, Observations and Lessons From International Criminal Trials, 17 U. Kansas City L. Rev. 117, 123 (1949) (where Keenan, the Chief U.S. Prosecutor at IMTFE, noted that “I have never observed a proceeding in our own country where the rights of the accused were more scrupulously protected by any court”). 226 See ICTR Statute, supra note 4. 227 See supra section 2.

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ticipants in the legal process (such as victims), and the need for efficient and expeditious conduct of proceedings.228 These efforts have been reflected in the Rules of Procedure and Evidence adopted by the ICTY and ICTR. The creation of the ad hoc tribunals, in turn, provided a strong impetus for the establishment of a permanent international criminal court. In 1998, some 120 states signed the Rome Statute.229 By May 2012 there were 121 State Parties to the ICC. The drafters of the Rome Statute have provided for the elaboration of the rules of evidence as part of the Rules of Evidence and Procedure. The codification of these detailed rules, which was completed in September 2002, brings to an end the most elaborate effort to codify international rules of evidence. 3.3. The Collection and General Approach to Evidence Unlike national criminal trials, which depend on national investigative mechanisms for the collection of evidence, international criminal tribunals do not have the equivalent of an international “police force” which may be utilized for the collection of evidence. In most circumstances, international tribunals rely on the cooperation of states for the collection of evidence to be presented at trial. The aftermath of World War II provided far more favorable conditions for investigations then those facing the prosecutor of the ad hoc tribunals.230 Documentary evidence was preserved and captured by the Allies, especially in Germany.231 Unlike the trial at Nuremberg, the destruction of documents was a bigger problem at the IMTFE. Evidence was also not readily available to the prosecutor at the ad hoc tribunals who, in order to collect evidence, had to rely on the cooperation of states:232 Unlike at Nuremberg, where prosecutors submitted literally thousands of documents to the Tribunal, the evidence received by current international tribunals almost exclusively comes in the form of witness testimony. Further, many key facts in any given case are attested to by only one or two eyewitnesses. And finally, because most recent mass atrocities have taken place in oral societies, defense counsel has

228 The approach to evidence and procedure is reflected in the words of Judge David Hunt of the ICTY who noted that “in relation to the rules of evidence and matters of procedure, international law chooses, edits and adapts elements from the rules of the better developed systems of law, employing their reasoning and analogies to do so.” Prosecutor v. Simic, Case No. IT-95-9-T, Separate Opinion of Judge David Hunt in Prosecutor’s Motion for a Ruling Concerning the Testimony of a Witness, ¶ 26 ( July 27, 1999). 229 See ICC Statute, supra note 5. 230 See ICTY First Annual Report to the United Nations General Assembly and the Security Council (A/49/342-S/1994/1007), Aug. 29, 1994, at para. 84. 231 See John Appleman, Military tribunals and International Crimes (1954) (noting that some of the defendants even voluntarily delivered documents to their captors). 232 May & Wierda, Evidence, supra note 23, at 3.05.



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little ability to challenge the prosecutors’ eyewitnesses except by presenting more eyewitnesses.233

More troubling, the judges of these tribunals have taken a “cavalier approach to testimonial deficiencies.”234 Although these deficiencies could be expected to result in a high number of acquittals, these tribunals have successfully convicted “virtually every defendant . . . of at least one of the crimes for which they are charged.”235 The approach to evidence at international criminal tribunals reflects the unique circumstances in which these institutions operate. Thus, both the historical and modern trials attempted to strike a balance between guaranteeing the accused a fair trial, while ensuring that the guilty would not evade punishment on grounds of legal technicalities.236 This balance is not easy to achieve, and the ICTY and ICTR, as well as other international and mixed-model tribunals, “confront severe impediments to accurate fact-finding, impediments that should give rise to serious doubts about the accuracy of the Trial Chambers’ factual determinations.”237 The Blaskic Trial Chamber of the ICTY has summed up the approach taken by the ad hoc tribunals to admissibility of evidence as follows: The principle . . . is one of extensive admissibility of evidence—questions of credibility or authenticity being determined according to the weight given to each of the materials by the Judges at the appropriate time.238

The main rule of evidence at the ICTR and ICTY is Rule 89.239 The reading and application of this Rule reveals that the modern tribunals adopt an approach similar to historical tribunals in dealing with issues of evidence, namely that the Trial Chamber may admit any relevant evidence that it deems to have probative value.240 In addition, under the provisions of the Rome Statute, the Chambers 233 Combs, supra note 17, at 260. 234 Id. at 261. 235 Id. at 265. For example, the Special Court for Sierra Leone has a one-hundred percent conviction rate, the Special Panels for Serious Crimes in East Timor has a ninety-seven percent conviction rate, and the ICTR has an eighty-five percent conviction rate. Id. 236 UNWCC Law Reports (“The Procedure of the Courts”) Vol. XV, at 190, 197, cited in May & Wierda, Evidence, supra note 23, at 4.03. 237 Combs, supra note 17, at 239. Combs is particularly critical of testimonial deficiencies at these tribunals. Id. at 241–51. 238 Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment, ¶ 34 (Mar. 3, 2000). 239 ICTY Rules, supra note 120, at R. 89. ICTR Rule 89 omits parts (D) (providing for the exclusion of evidence if the probative value is substantially outweighed by the need to ensure a fair trial) and (F) (providing that the Chamber may receive the evidence of the witness orally or, where interests of justice allow, in written form) present in ICTY Rule 89. See International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, R. 89, Feb. 2010 [hereinafter ICTR Rules]. 240 ICTY Rules, supra note 121, at R. 89; ICTR Rules, supra note 239, at R. 89; see also May & Wierda, Evidence, supra note 23, at 4.17. National rules of evidence are not binding on modern tribunals. ICTY Rules, supra note 120, at R. 89(A). The statute and rules of the ICC anticipate a

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can rule on the relevance and admissibility of evidence while taking into account its probative value and any prejudice it “may cause to a fair trial or to a fair evaluation of the testimony of a witness.”241 The examination of the practice of the international tribunals to date establishes that these institutions have established a consistent practice of liberal admission of evidence. This approach is similar to what the civil law systems refer to as liberté de la preuve.242 In testing the admissibility of evidence at trial, however, considerations similar to those used in common law proceedings apply.243 The presentation of evidence at trial is governed by mostly adversarial rules similar to those followed in common law legal systems. These rules cover the order in which evidence is presented, the scope of examination of witnesses, the extent of rebuttal evidence, and the re-opening of proceedings to call new (or fresh) evidence.244 Historical trials placed great reliance on documentary evidence,245 but modern international tribunals place much greater reliance in witness accounts246 because documentary evidence is not readily available.247 One of the main disadvantage of the adversarial approach to the presentation of evidence at trial is the impact such presentation has on the length of the proceedings and their implication on the accused’s right to be tried expeditiously and without undue delay.248 However, advantages of this approach include the fact that evidence is “subjected to rigorous testing, thus adding both to apparent and actual fairness, while allowing the bench to remain impartial.”249 3.4. Fair Trial Rights and Evidence As discussed earlier, the collection of safeguards comprising the right to a fair trial250 serve to protect against the arbitrary deprivation of the right to life, liberty, and the enjoyment of all other civil, political, economic, and cultural rights. However, the bundle of rights that ensure the substantive aspects of procedural fairness in a criminal trial also play a significant role in the procedural

roughly similar regime. See ICC Statute, supra note 5, at art. 69(8), which provides that a Trial Chamber may not defy national law when deciding on the admissibility of evidence collected by a Member State. 241 ICC Statute, supra note 5, at art. 69(7); ICC Rules, supra note 36, at Rs. 63, 64, 72. 242 May & Wierda, Evidence, supra note 23, at 4.108. 243 Id. at 4.109. 244 Id. at 5.01. 245 Id. at 5.04. 246 Id. at 5.05. See generally Combs, supra note 17. 247 Combs, supra note 17, at 260 (quoted above); see also Prosecutor v. Kayishema & Ruzindana, Case No ICTR-95-1-T, Judgment and Sentence, ¶ 65 (May 21, 1999). 248 See supra section 2.2.8. 249 May & Wierda, Evidence, supra note 23, at 5.50. 250 See supra section 2.2.6; see also Wladimiroff, supra note 152.



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aspects of a trial related to admission and use of evidence. The rules created to ensure procedural fairness, therefore, also guide the trial process in regard to issues related to the admission and consideration of evidence. International criminal trials often take place in the immediate aftermath of large-scale violence and destruction. Thus, the context of the international criminal trial is filled with, on the one hand, calls for retribution and vengeance on the part of victims, and, on the other, a need to ensure a dispassionate and fair trial for the accused. With regard to the question of whether it is appropriate to take a contextual approach to certain fair trial rights, it is helpful to conceive of fairness in an international criminal trial as fairness to both parties and not just the accused.251 The rules that have been developed, therefore, represent an attempted balance between the interests of the victims and the remedies available to the accused if his/her rights were violated.252 The impact and interaction of some of the fair trial rights and evidence is considered below. 3.4.1. Equality of Arms The right to the equality of arms is fundamental to the adversarial nature of the modern criminal proceeding.253 Since the ad hoc tribunals essentially adopt the adversarial system in their approach to procedure and evidence, the inclusion of this right into the tribunals’ statutes is fundamental for the preservation of the accused’s right to fair trial.254 Article 21 of the ICTY Statute and Article 20 of the ICTR Statute provide that “all persons shall be equal before the International Tribunal.”255 The Rome Statute also expresses this right in Article 67.256 The “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”257 Procedurally, the principle of equality of arms means that parties involved should be given equal opportunities in terms of, for example, production of pleadings and evidence, submission of briefs, preparation time and access to judicial remedies.258

251 May & Wierda, Evidence, supra note 23, at 8.08. 252 Id.; see also Prosecutor v. Aleksovski, Case No. IT-95-14/1, Appeals Chamber Decision on Admissibility of Evidence, ¶ 25 (Feb. 16, 1999). 253 See supra section 2.2.6(g). 254 Id.; see also Stefania Negri, Equality of Arms—Guiding Light or Empty Shell?, in International Criminal Justice: A Critical Analysis of Institutions and Procedures 13–14 (Michael Bohlander ed., 2007) (noting that the right to equality of arms is considered the “minimum threshold requirement for all judicial processes to be considered fair, impartial and consistent with human rights standards.”). 255 ICTY Statute, supra note 3, at art. 21; ICTR Statute, supra note 4, at art. 20. 256 ICC Statute, supra note 5, at art. 67(1)(b), 67(1)(e); ICC Rules, supra note 36, at R. 101. 257 Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber Judgment, ¶ 48 ( July 15, 1999). 258 Negri, supra note 254, at 16.

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Defense teams in international courts and tribunals frequently encounter challenges in obtaining adequate facilities and employing trained investigators, among other obstacles.259 The ICTY has made an effort to balance the rights of the prosecution and defense.260 In particular, the Appeals Chamber has stated that a fair trial must entitle the accused to adequate time and facilities to prepare his/her defense.261 The European Commission on Human Rights and the Human Rights Committee have interpreted the principle of equality of arms to mean procedural equality between the parties,262 but the Appeals Chamber held that this is different with respect to the international tribunal, which relies on the cooperation of states in order to obtain evidence, which could impede the efforts of counsel to find that evidence.263 It follows that the “Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.”264 What time or facilities are adequate will depend on the particular circumstances of the case.265 Importantly, the right to equality of arms embodies the notion of proportionality—rather than strict equality—regarding the opportunity for both the prosecution and defense to present their cases.266 The time allotted was short in historical trials,267 while more time has been given in the modern tribunals.268 Finally, “the right to arms is not a right to equality of relief. . . . Only when the moving party has shown ‘good cause’ may it be granted relief under

259 Id. at 45. 260 Kordic & Cerkez v. Prosecutor, Appeals Judgment, supra note 110, ¶¶ 175–77; Tadic v. Prosecutor, Appeals Judgment, supra note 144, ¶¶ 43–44, 48, 52. 261 Prosecutor v. Aleksovski, Appeals Chamber Decision on Admissibility of Evidence, supra note 252, ¶ 25. 262 See, e.g., Dombo Beheer B.V. v. The Netherlands, Eur. Ct. H.R., Judgment of Oct. 27, 1993, Series A, No. 274, at para.33; see also Safferling, supra note 47, at 265–68 (discussing the principle of equality of arms in the jurisprudence of the European Commission on Human Rights, the AngloAmerican and Continental systems). 263 Prosecutor v. Aleksovski, Appeals Chamber Decision on Admissibility of Evidence, supra note 252, ¶¶ 49–51. 264 Id. ¶ 52; cf. Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-A, Appeals Chamber, Judgment (reasons), ¶¶ 63–71, June 1, 2001 (holding that “equality of arms . . . does not necessarily amount to the material equality of possessing the same financial and/or personal resources.”). 265 ICTY Statute, supra note 4, at art. 21; ICC Statute, supra note 5, at art. 67(10)(b). 266 See Prosecutor v. Prlić et al., Case No.IT-04-74-AR73.4, Decision on Prosecution Appeal following Trial Chamber’s decision on remand and further certification, ¶ 38 (May 11, 2007); Prosecutor v. Oric, Case No., IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, ¶ 7 ( July 20, 2005); see also Prosecutor v. Milutinovic et al., Case No. IT-99-37-AR73, Appeals Chamber, Decision on Interlocutory Appeal on Motion for Additional Funds, ¶ 24 (Nov. 13, 2003) (holding that the equality of arms principle is only violated if “either party is put at a disadvantage when presenting its case.”). 267 May & Wierda, Evidence, supra note 23, at 8.29. See also Wladimiroff, supra note 152, at 426. 268 ICC Statute, supra note 5, at art. 67(1)(b) and 67(1)(e); ICC Rules, supra note 36, at R. 101.



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[this] principle.”269 Alternatively, a violation of the right to equality of arms may addressed under remedies for procedural errors or errors of law.270 The ICTR addressed equality of arms stating, “equality of arms between the Prosecutor and Accused in a criminal trial goes to the heart of the fair trial guarantee.”271 In Nahimana et al., the ICTR heavily quoted the ICTY Appeals Chamber in defining equality of arms, and adopted the Tadic standard applicable to evaluating the right to equality of arms.272 3.4.2. The Right to Be Informed Promptly of the Charges and Disclosure of Evidence The right to be informed promptly of the charges is designed to protect against arbitrary arrests and prosecutions, as well as to provide the accused with information and evidence that will enable him/her to contest the legality of his/her arrest or detention and prepare a defense for trial.273 The ICTY Appeals Chamber held that the accused was to be told promptly of the charges against him/her in the indictment on which he was arrested.274 In another decision, this reasoning was explained to serve two important functions: first, it allows the suspect to challenge his/her detention, and second, it gives the suspect the information he/ she requires to prepare his/her defense.275 Due to the complexity of facts common to international criminal cases, indictments are usually longer in length than those in the common law systems.276 Additionally, the right to be promptly 269 Prosecutor v. Kordic & Cerzek, Case No. IT-95-14/2-A, Appeals Chamber, Judgment, ¶¶ 176–77, Dec. 17, 2004. 270 Negri, supra note 254, at 67. 271 Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Decision on the Motion to Stay the Proceedings in the Trial of Ferdinand Nahimana, ¶ 5 ( June 5, 2003). 272 Id., quoting Tadic v. Prosecutor, Appeals Judgment, supra note 147, Judgment, ¶ 48. 273 See supra section 2.2.6(f ). For the ICTY, see, e.g., Kvocka et al. v. Prosecutor, Appeals Judgment, supra note 146, ¶ 27; Krnojelac v. Prosecutor, Appeals Judgment, supra note 146, ¶ 139; Prosecutor v. Brdjanin, Pre-Trial Decision, supra note 146; Prosecutor v. Talic, Pre-Trial Decision, supra note 146; Prosecutor v. Kunarac et al., Pre-Trial Decision, supra note 146. For the ICTR, see, e.g., Ntakirutimana & Ntakirutimana v. Prosecutor, Case No. ICTR-96-10-A & ICTR-96-17-A, Judgment, ¶¶ 58, 78 (Dec. 13, 2004); Semanza v. Prosecutor, Appeals Judgment, supra note 85, ¶ 67; Prosecutor v. Nchamihigo, Trial Judgment, supra note 146, ¶ 32; Prosecutor v. Karera, Trial Judgment, supra note 146, ¶ 12; Prosecutor v. Muvunyi, Trial Judgment, supra note 146, ¶ 24; Prosecutor v. Mpambara, Trial Judgment, supra note 146, ¶ 29; Prosecutor v. Simba, Trial Judgment, supra note 146, ¶ 14; Prosecutor v. Muhimana, Trial Judgment, supra note 146, ¶ 451; Prosecutor v. Ndindabahizi, Trial Judgment, supra note 146, ¶ 28; Barayagwiza v. Prosecutor, Decision, supra note 79. 274 Prosecutor v. Kovacevic, Case No. IT-97-24-AR73, Appeals Chamber Decision Stating Reasons for Appeal’s Chamber’s Order of May 29, 1998, ¶ 36 ( July 2, 1998). 275 Barayagwiza v. Prosecutor, Decision, supra note 79. 276 Michael K. Keegan & Daryl A. Mundis, Legal Requirements for Indictments, Essays on ICTY Procedure and Evidence 123, 126 (May, Tolbert, Hocking, Roberts, Bing Jia, Mundis & Oosthuizen eds., 2001); N. Frederick Mignon, After Nuremberg, Tokyo, 25 Tex. L. Rev. 475 (1946–1947). However, the amount of evidence that needs to be produced in support of the indictment is rather low. See Safferling, supra note 47, at 12–83.

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informed of the charges applies to all charges, as “the fact that the offence of persecution is a so-called ‘umberalla’ crime does not mean that an indictment need not specifically plead the material aspects of the Prosecution case with the same details as other crimes.”277 Similarly, the ICTR has held that “any lack of precision or specificity in an indictment interferes with judicial economy,” noting that a “clear and unambiguous indictment benefits both the accused and the Prosecutor.278 The Rome Statute explicitly provides for the right to be informed of charges, as do the statutes of the ICTY and ICTR.279 277 Prosectuor v. Kupreškić et al., Case No. IT-95-16-A, Appeals Chamber Judgment, ¶ 98 (Oct. 23, 2001). 278 Prosecutor v. Zigiranyirazo, Case No. ICTR-2001-73-I, Decision on the Defence Preliminary Motion Objecting to the Form of the Amended Indictment, at 5 ( July 15, 2004). 279 ICC Statute, supra note 5, at art. 55(2)(a), art. 67(1)(a), Rule 121(3), and Rule 122(1); ICTY Statute, supra note 3, at art. 21(4)(a); ICTR Statute, supra note 4, at art. 20(4)(a). See also supra section 2.2.6(f ). For ICC cases, see Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on the Final System of Disclosure and the Establishment of a Timetable (May 15, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on the Defence Request for Unrestricted Access to the Entire File of the Situation in the Democratic Republic of the Congo (May 17, 2006). For jurisprudence of the ICTY, see Prosecutor v. Blaskic, Case No. IT-05-14-PT, T. Ch. I, Decision on the Production of Discovery Materials ( Jan. 27, 1997); Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-T, T. Ch. II, Decision on the Request of the Accused Hazim Delic Pursuant to Rule 68 for Exculpatory Information ( June 24, 1997); Prosecutor v. Furundzija, Case No. IT-95-17/1-T, T. Ch. II, Decision ( July 16, 1998); Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-A, A. Ch., Decision on Motion to Preserve and Provide Evidence (Apr. 22, 1999); Prosecutor v. Blaskic, Case No. IT-95-14-A, A. Ch., Decision on Appellants Dario Kordic and Mario Cerkez’s Supplemental Request for Assistance in Gaining Access to Non-Public Post Trial Submissions, Appellate Briefs, and Hearing Transcripts Filed in The Prosecutor v. Tihomir Blaskic (Oct. 16, 2002); Prosecutor v. Milosevic, Case No. IT-02-54-AR108bis & AR73.3, A. Ch., Public Version of the Confidential Decision on the Interpretation and Application of Rule 70 (Oct. 23, 2002); Prosecutor v. Brdanin, Case No. IT-99-36-T, T. Ch. II, Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis and Motion for Adjournment While Matters Affecting Justice and a Fair Trial can be Resolved” (Oct. 30, 2002); Prosecutor v. Blagojevic, Obrenovic, Jokic, and Nikolic, Case No. IT-02-60-PT, T. Ch. II, Joint Decision on Motions Related to Production of Evidence (Dec. 12, 2002); Prosecutor v. Galic, Case No. IT-98-29-T, T. Ch. 1, Decision on Rebuttal Evidence (Apr. 2, 2003); Prosecutor v. Blagojevic, Jokic, and Nikolic, Case No. IT-02-60-AR73.3, A. Ch., Decision (Apr. 8, 2003); Prosecutor v. Milosevic, Case No. IT-0254-T, T. Ch., Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (Apr. 10, 2003); Prosecutor v. Stankovic, Case No. IT-96-23/2-PT, T. Ch., Decision on Prosecution’s motion for Judicial Notice Pursuant to Rule 94(B) (May 16, 2003); Prosecutor v. Blaskic, Case No. IT-95-14-A, A. Ch., Decision on “Prosecution’s Preliminary Response and Motion for Clarification Regarding Decision on Joint Motion of Hadzihasanovic, Alagic, and Kubura of 24 January 2003” (May 23, 2003); Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, T. Ch. I, Decision on Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic & Request for an Expedited Open Session Hearing ( June 13, 2003); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch., Decision on Prosecution Motion for the Admission of Transcripts in lieu of Viva Voce Testimony Pursuant to 92Bis(d)—Foca Transcripts ( June 30, 2003); Prosecutor v. Mrksic, Case No. IT-95-13/1-AR73, A. Ch., Decision on Defence Interlocutory Appeal on Communication with Potential Witnesses of the Opposite Party ( July 30, 2003); Prosecutor v. Strugar, Case No. IT-01-42-PT, T. Ch. I, Decision on the Defence Motion to Suspend all Time Limits & Protect the Basic Rights of the Accused; and the Defence Motion for an Extension of Time



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(Sept. 18, 2003); Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, T. Ch. I, Decision on Prosecution’s Motion for Clarification of Oral Decision Regarding Admissibility of Accused’s Statement (Sept. 18, 2003); Prosecutor v. Milosevic, Case No. IT-02-54-AR73.4, A. Ch., Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements (Sept. 30, 2003); Prosecutor v. Brdanin, Case No. IT-99-36-T, T. Ch. II, Decision on the Defence “Objection to Intercept Evidence” (Oct. 3, 2003); Prosecutor v. Kordic & Cerkez, Case No. IT-05-14/2-A, A. Ch., Decision on Motion for Clarification and Motions for Protective Measures (Oct. 13, 2003). For ICTR jurisprudence, see Prosecutor v. Ndayambaje, Case No. ICTR-96-8-T, T. Ch. II, Decision on the Defence Motion of Utmost Urgency to Resolve all Difficulties posed by the File Processing and, in particular, Issues of Evidence Disclosure, Judicial Calendar, and Non-Enforcement of Decisions of the Trial Chamber of the Ndayambaje Case (Apr. 16, 1998); Prosecutor v. Kayishema and Ruzidana, Case No. ICTR-95-1-T, T. Ch. II, Decision on the Joint Defence Motion Requesting the Interpretation of Rules 67 of the Rules ( June 15, 1998); Prosecutor v. Bagosora, Case No. ICTR-967-T, T. Ch. II, Decision of the Defence Motion for Pre-Determination of Rules of Evidence ( July 8, 1998); Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, T. Ch. I, Decision on the Defence Motion for Disclosure of Evidence (Sept. 4, 1998); Prosecutor v. Bagosora, Case No. ICTR-96-7-T, T. Ch. II, Decision on the Defence Motion for Inadmissibility of Disclosure Based on the Decision of 11 June 1998 (Dec. 7, 1998); Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, T. Ch. I, Decision on the Request of the Defence for an Order for Service of a United Nations Memorandum, Prepared by Michael Hourigan, Former ICTR Investigator ( June 8, 2000); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, T. Ch. II, Decision on the Defence Motion for Disclosure of Evidence, (Sept. 8, 2000); Prosecutor v. Semanza, Case No. ICTR-97-20-I, T. Ch. III, Decision on Semanza’s Motion for Subpoenas, Depositions, and Disclosure (Oct. 20, 2000); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, T. Ch. II, Decision on Defence Motion for Disclosure of Evidence (Nov. 1, 2000); Prosecutor v. Nsabimana and Nteziryayo, Case No. ICTR-97-29-T, T. Ch. II, Decision on the Defence Motions for Disclsoure of Copies of the Prosecutor’s Exhibit (Rules 66B and 73 of the Rules) (Sept. 18, 2001); Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, T. Ch. II, Decision on the Motions of the Parties Concerning the Inspection and Disclosure of a Videotape (Apr. 28, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Defence Motion for Reconsideration of the Trial Chamber’s Decision and Scheduling Orer of 5 December 2001 ( July 18, 2003); Prosecutor v. Bizimungu, Mugenzi, Bicamumpaka, Mugiraneza, Case No. ICTR-99-50-I, T. Ch. II, Decision on Prosper Mugiraneza’s Motion to Require the Registrar to Allow Access to a Witness (Oct. 2, 2003); Prosecutor v. Nzirorera et al., Case No. ICTR-98-44-I, T. Ch. III, Decision on the Defence Motion for Disclosure of Exculpatory Evidence (Rule 68 of the Rules of Procedure and Evidence) (Oct. 7, 2003); Prosecutor v. Kajelijeli, Case No. ICTR-99-44A-T, T. Ch. II, Decision on Joseph Nzirorera’s Motion for Disclosure of Closed Session Testimony and Exhibits Received Under Seal (Oct. 7, 2003); Prosecutor v. Kajelijeli, Case No. ICTR99-44A-T, T. Ch. II, Decision on Joseph Nzirorera’s Second Motion for Disclosure of Closed Session Testimony and Exhibits Received under Seal (Oct. 29, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsemgiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on the Request for Documents Arising from Judicial Proceedings in Rwanda in Respect of Prosecution Witnesses (Dec. 16, 2003); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-R66, T. Ch. III, Decision on Motion to Unseal Ex Parte Submissions and to Strike Paragraphs 32.4 and 49 from the Amended Indictment (Rule 66(A)(i) of the Rules of Procedure and Evidence) (May 3, 2005); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nseniyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Disclosure of Materials Relating to Immigration Statements of Defence Witnesses (Sept. 27, 2005); Prosecutor v. Zigiranyirazo, Case No. ICTR-2001-73-PT, T. Ch. III, Decision on Defence Urgent Motion to Exclude Some Parts of the Prosecution Pre-Trial Brief (Rule 73bis of the Rules of Procedure and Evidence) (Sept. 30, 2005); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), A. Ch., Decision on Interlocutory Appeals of Decisions on Witnesses Protection Orders (Oct. 6, 2005); Prosecutor v. Karera, Case No. ICTR-01-74-T, T. Ch. I, Decision on Admissibility of Newspaper Article and Subpoena to Journalist ( Jan. 23, 2006); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Defence Motion for Disclosure of Information Obtained from Juvenal Uwilingiyimana (Rules 66(B) and 68(A) of the Rules of Procedure and Evidence) (Apr. 27, 2006); Prosecutor v. Ndayambaje (Case No. ICTR-96-8-T), Prosecutor v. Kanyabashi (Case No. ICTR-96-15-T), Prosecu-

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The right to be informed promptly of the charges is supplemented by the disclosure obligations of the parties in preparation or conduct of the trial. Procedures for disclosure of evidence were largely underdeveloped at the historical tribunals.280 For example, at Nuremberg, the initial provision of copies of document books to the defense was inadequate.281 In addition, different and stricter disclosure obligations were imposed on the defense, who was ordered to submit to the tribunal the evidence on which they intended to rely, including names of witnesses and the matters to which they would testify.282 In addition, the prosecution often withheld documents used in cross-examination in order to maintain the element of surprise.283 Over the defense objections, the presiding Judge held that “there was no reason why the prosecution should disclose everything it had in its arsenal before cross-examination” and “surprise frequently plays a big part in effective cross-examination.”284 The issue of disclosure, however, is essential to the adversarial form of modern international criminal process.285 Today, both the common and civil law legal systems require more disclosure from the prosecution than from the defense in criminal trials.286 The same applies to the disclosure rules of the ICTY. The rules and jurisprudence of the tribunals have established a timeline and framework for the prosecution’s disclosure at the ICTY.287 With respect to prosecution witness lists, the prosecution is required “as early as reasonably possible and in tor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Prosecutor v. Nsabimana and Nteziyayo, Case No. ICTR-97-29-T, Joint Case No. ICTR-98-42-T, T. Ch. II, Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997 (May 15, 2006); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Ntabakuze’s Motion for Exclusion of Evidence ( June 29, 2006); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-AR73.7, A. Ch., Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations ( June 30, 2006); Prosecutor v. Zigiranyirazo, Case No. ICTR-2001-73-T, T. CH. III, Decision on the Defence Motion for Disclosure of Exculpatory Information with Respect to Prior Statements of Prosecution Witnesses ( July 6, 2006); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Kabiligi Motion for Exclusion of Evidence (Sept. 4, 2006); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-AR73, A. Ch., Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence (Sept. 25, 2006); Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Joseph Nzirorera’s Motion for Inspection of Statement of Pierre Celestin Mbonankira (Rule 66(B) of the Rules of Procedure and Evidence) (Sept. 20, 2007). 280 May & Wierda, Evidence, supra note 23, at 3.42. 281 Taylor, supra note 225, at 175. 282 See May & Wierda, Evidence, supra note 23, at 3.46. 283 See id. at 3.47. 284 Arnold C. Brackman, The Other Nuremberg: The Untold Story of The Tokyo War crimes trials 299 (1987). 285 May & Wierda, Evidence, supra note 23, at 3.49. 286 See R. Schlesinger, Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience, 26 Buffalo L.Rev. 361, 372 (1977). 287 May & Wierda, Evidence, supra note 23, at 3.50.



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any event prior to the commencement of the trial [to] notify the defense of the names of the witnesses that the Prosecutor intends to call in proof of the guilt of the accused and in rebuttal of any defense plea of which the prosecutor has received notice.”288 But it should be noted that the right of suspects and the accused to disclosure is not absolute, and may be restricted by the need to balance the equality of arms with other interests, such as victim and witness protection and national security.289 The ICTR addressed the issue of the right to be informed as it applied to amended indictments. The Court stated that amended indictments could serve to provide a defendant with better information, Compared to the more general allegations in the Current Indictment, the added particulars in the Amended Indictment better reflect the case that the Prosecution will seek to present at trial and provide further notice to the Accused of the nature of the charges against them. Likewise, the specific allegation of a joint criminal enterprise gives the Accused clear notice that the Prosecution intends to argue this theory of commission of crimes. Particularized notice in advance of trial of the Prosecution’s theory of the case does not render proceedings unfair; on the contrary, it enhances the ability of the Accused to prepare to meet that case. Granting leave to file the Amended Indictment would therefore enhance the fairness of the actual trial by clarifying the Prosecution’s case and eliminating general allegations that the Prosecution does not intend to prove at trial. These amendments will very likely streamline both trial and appeal by eliminating objections that particular events are beyond the scope of the indictment.290

Therefore, the Court noted that an amended indictment must be evaluated to determine if it negatively or positively affects a defendant’s right to be informed of the charges and evidence against him/her. The factors noted by the Court were “the ameliorating effect of the changes on the clarity and precision of the case to be met; the diligence of the Prosecution in making the amendment in a timely manner that avoids creating an unfair tactical advantage; and the likely delay or other possible prejudice to the Defence.”291 Consequently, an amended indictment should be filed as early as possible in the pre-trial process, and if 288 ICTY Rules, supra note 121, at R. 67(A); see also Wladimiroff, supra note 152, at 441, noting that the ICTY Rules impose a duty on the prosecutor to disclose to the defense any evidence known to it which tends to suggest the innocence or mitigates the guilt of the accused or which may affect the credibility of prosecution evidence. This duty stems from the civil law system where prosecutors must act in the interests of the society and collect and present facts both for and against the accused. Id. For a discussion of defense disclosure, see May & Wierda, Evidence, supra note 23, at 3.61–3.67. 289 See Negri, supra note 254, at 55–56. 290 Prosecutor v. Muhimana, Case No. ICTR-1995-1B-I, Decision on Motion to Amend Indictment, ¶ 5 ( Jan. 21, 2004); Prosecutor v. Simba, Case No. ICTR-2001-76-I, Decision on Motion to Amend Indictment, ¶ 8 ( Jan. 26, 2004). 291 Prosecutor v. Muhimana, Decision on Motion to Amend Indictment, supra note 290, ¶ 6; Prosecutor v. Simba, Decision on Motion to Amend Indictment, supra note 290, ¶ 9.

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necessary, the defense should be given additional time to prepare a defense to the additional charges. The disclosure obligations of the ICC are principally provided in its Rules of Procedure and Evidence.292 Rule 79 of the ICC Rules, for example, imposes broader disclosure obligations on the defense than has been the case before the ad hoc tribunals. It requires disclosure of names of witnesses and evidence on which the defense intends to rely upon in order to establish an alibi, insanity or diminished mental capacity, intoxication, self-defense, and duress.293 3.4.3. The Right to Translated Documents The right to translated documents, which is a subpart of the right to assistance of interpreter, is designed to ensure the effectiveness of the right to fair trial and the right to counsel. In order for the accused to meaningfully participate in the proceedings, it is fundamental that he/she understands the testimony, documents, and other evidence presented against him/her.294 The practice of historical tribunals was to allow for the distribution of translated documents to the accused.295 In addition, and as a matter of procedural equality, the statutes of the modern tribunals provide for the right of the accused to have the free assistance of an interpreter if he/she cannot understand or speak the language of the tribunal.296 The accused is also entitled to have translated into his/her own language the following documents: all the evidence upon which the Trial Chamber will base its determination of the charges against him/her; all materials supporting the indictment; and all orders and decisions.297 At the ICC, where there are six official languages, namely Arabic, Chinese, English, French, Russian and Spanish,298 the right to translation and the assistance of the interpreter is provided in Articles 55 and 67.299

292 See Helen Brady, Disclosure of Evidence, in The ICC: Elements of Crimes and Rules of Procedure and Evidence 403 (Roy Lee ed., 2001). 293 ICC Rules, supra note 36, at R. 79; see also id. at Rs. 76 (Pre-trial disclosure relating to prosecution witnesses), 77 (Inspection of material in possession or control of the prosecutor), 78 (Inspection of material in possession or control of the defense), 84 (Disclosure of additional evidence at trial). 294 See supra section 2.2.7(d). 295 See IMT Charter, supra note 218, at art 16(c). 296 ICTY Statute, supra note 3, at art. 21(4)(f ); ICC Statute, supra note 5, at art. 67(1)(f ); ICTR Statute, supra note 4, at arts. 17(3), 20(4)(f ); see also Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision on the Defence “Request to Exclude Video Evidence Which has not Been Disclosed in one of the Working Languages” (Nov. 7, 2006). 297 Prosecutor v. Mucic et al., Case No. IT-96-21-T, Decision on Defense Application for Forwarding the Documents in the Language of the Accused, ¶ 14 (Sept. 25, 1996). 298 ICC Statute, supra note 5, at art. 50. 299 ICC Statute, supra note 5, at arts. 55(1)(c), 67(1)(f ); ICC Rules, supra note 36, at R. 42.



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The right to translated documents has proven to cause difficulties in some respects. In the Extraordinary Chambers in the Courts of Cambodia, the French defense attorney for Khieu Samphan ceased participating in the trial because his client’s 1,600-page file had not been translated into French.300 The Court pointed out that Samphan’s Cambodian defense counsel had access to all the evidentiary documents regarding the defendant. The question became whether it was the defendant, or his defense that was entitled to the translations. The Court released an order in June 2008 titled, the Order on Translation Rights and Obligations of the Parties.301 The Order sought to prioritize translation requirements, stating that the court is not obligated to translate every single document in the defendant’s file into the language of the attorney. However translation is required for “a named set of the most important documents, including the indictment, proof on which the indictment relies, and filings, among other documents.”302 It also provides the defense teams with translators. The order reflects a distinction within the ECCC’s Law and Rules, which require an interpreter for the defendant but not translated documents.303 The ICTR handles the issue of translated documents through the Court’s Registrar. Because the working languages of the ICTR are French and English, a party need not submit a document in both languages; the Court has found it is the Registrar’s duties to provide translated documents.304 Therefore, any issues a defense team has with regard to translation should first be addressed to the Registrar. The Trial Chamber will only intervene if the party and the Registrar have not been able to resolve the issue, or “where the unavailability of a translation impacts directly upon the trial, such as where it is necessary to preserve the rights of the accused.305 In the ICTR, the right of the accused to the assistance of an interpreter generally requires translation of the indictment, the supporting materials for the indictment, and decisions of the Trial Chamber regarding the indictment.306

300 See Prosecutor v. Khieu Samphan, Case No. 002/19-09-2007-ECCC/OCIJ (PTC11), Decision on Khieu Samphan’s Appeal against the Order on Translation Rights and Obligation of the Parties (Feb. 20, 2009); Prosecutor v. Khieu Samphan, Case No. 002/19-09-2007-ECCC/OCIJ (PTC11), Order on Translation Rights and Obligations of the Parties ( June 18, 2008). 301 Prosecutor v. Khieu Samphan, Order, supra note 300. 302 Sadie Blanchard, An Assessment of the ECCC Order on Translation Rights and Obligations (2008), available at http://www.genocidewatch.org/cambodiaarchives.html. 303 ECCC Internal Rules Rev.1, R. 30, Feb. 2008. 304 Prosecutor v. Nshogoza, Case No. ICTR-07-91-T, Decision on the Defence Motion for Urgent Translation of Official Filings into French, ¶ 3 (Feb. 12, 2009). 305 Id. ¶ 4. 306 Prosecutor v. Karemera et al., Case No. ICTR-98-44-2067, Decision Sur la Requete d’Edouard Karemera Aux Fins de Lui Garantir Un Process Equitable, ¶ 7 (Oct. 28, 2005).

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3.4.4. The Rights of the Suspects The Statutes and rules of the ICTY, ICTR and the ICC distinguish between the rights of “suspects” and the accused.307 Although a distinction is made between these two, the rights that attach to each are not separable since the respect and effectuation of the rights of the person as a suspect necessarily impacts the rights of that person as an accused.308 The affirmation of the rights of suspects is also important because of the suspect’s role as a potential source of evidence in the international trial. The statutes of the ICTY and ICTY ensure certain rights of suspects before they are formally charged.309 If questioned, the suspect has a right to counsel, including free legal assistance if indigent, and the right to necessary translation.310 The suspect also has a right to remain silent.311 The ICTR has stated that these rights remain with the suspect throughout his/her entire detention by the Tribunal.312 The accused must also be reminded of his/her right to remain silent throughout the questioning process.313 The accused must make a knowing waiver of these rights.314 The Rome Statute expands these rights to any persons subject to questioning during investigations, and further specifies that such persons shall not be subjected to any form of coercion, duress, threat, torture, or arbitrary arrest or detention.315 When such persons become suspects, they shall additionally be informed of which crimes they are suspected. They also have a right to remain silent, a right to legal assistance and a right to be questioned in the presence of counsel.316 3.4.5. The Right to an Expeditious Trial and to Be Tried without Undue Delay The right to a speedy trial is primarily intended to limit infringements on personal freedom caused by pretrial and trial detention, and applies to all stages of the criminal proceedings, including the appeal, and is reflected in the

307 See, e.g., ICTY Rules, supra note 121, at R. 2(A); see also, ICC Statute, supra note 5, at art. 67; ICTY Statute, supra note 3, at art. 21; ICTR Statute, supra note 4, at art. 20. 308 See Wladimiroff, supra note 152, at 428. 309 For an overview of the rights of suspects and human rights case law on this issue, see Safferling, supra note 47, at 115–27. 310 See ICTY Statute, supra note 3, at art. 18. 311 Id. at art. 21(IV)(g). 312 Prosecutor v. Kanyabashi, Case No. ICTR-96-15-T, Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997, ¶ 69 (May 15, 2006). 313 Id. 314 Id. ¶ 75. 315 ICC Statute, supra note 5, at art. 55(1). 316 Id. at art. 55(2).



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statutes of the ICC, ICTY and ICTR.317 However, due to the adversarial nature of the modern international criminal trial, this right is also relevant in the context of evidence. As noted previously, in international trials, the parties are generally responsible for the collection and introduction of evidence to the court.318 This adversarial feature of the trial has contributed to their length, which has averaged over 100 days at the ICTY and ICTR.319 The actual speed of trial is determined by a host of factors, including the scope of the indictment, the breadth of the dispute between the parties, and the complexity of facts.320 For the modern tribunals, it is important to ensure that the trials are conducted expeditiously, since lengthy trials result in congestion of the docket and extended periods of pre-trial detention.321 In light of the factual complexities inherent in international trials, it may be expeditious to avoid trial by means of a guilty plea, and in any case by narrowing the scope of the dispute prior to proceeding to trial.322 The ICTR specifically noted that the right to a trial without undue delay requires the balancing of the rights of the accused with “other important consideration of interest all of which serve the ends of justice.”323 The Court further stated, The Chamber notes that the issue of reasonable length of proceeding has been addressed by the U.N. Human Rights Committee, the European Court of Human Rights and the Inter-American Commission on Human Rights. “The reasonableness of the period cannot be translated into a fixed number of days, months or years, since it is dependent on other elements which the judge must consider.” In the opinion of the European Court of Human Rights, “the reasonableness of the length of proceedings coming within the scope of Article 6(1) must be assessed in each case according to the particular circumstances. The Court has to have regard, 317 See, e.g., ICC Statute, supra note 5, at art. 67(1)(c); ICTY Statute, supra note 3, at arts. 20(1), 21(4)(c); ICTR Statute, supra note 4, at arts. 19(1), 20(4)(c). For ICTR jurisprudence, see Prosecutor v. Bizimungu, Mugenzi, Bicamumpaka, and Mugiraneza, Case No. ICTR-99-50-T, T. Ch. II, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial Without Undue Delay (Articles 19 and 20(4)(c) of the Statute of the Tribunal) (May 29, 2007); Prosecutor v. Bizimungu, Mugenzi, Bicamumpaka, and Mugiraneza, Case No. ICTR-99-50-T, T. Ch. II, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance ( June 14, 2007). 318 This is slightly different at the ECCC, where parties make requests to the Investigating Judges, who admit evidence to the case file. The case file is available to the parties and the trial chamber. 319 May & Wierda, Evidence, supra note 23, at 8.47. 320 May & Wierda, Evidence, supra note 23, at 8.42. For a discussion of the principle of a speedy trial (Beschleunigungsmaxime) as a human rights issue, see Safferling, supra note 47, at 250–55. 321 May & Wierda, Evidence, supra note 23, at 8.43. 322 Id. at 2.70. 323 Prosecutor v. Mugiraneza, Case No. ICTR-99-50-I, Decision on Prosper Mugiraneza’s Motion to Dismiss the Indictment for Violation of Article 20(4)(C) of the Statute, Demand for Speedy Trial and For Appropriate Relief, ¶ 11 (Oct. 2, 2003).

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Therefore, a specific timeframe for justice cannot be defined. However, a court evaluating a defendant’s motion regarding his/her right to a speedy trial must necessarily evaluate the role the Prosecutor plays in causing any alleged delay. A Trial Chamber that fails to examine the Prosecutor’s role has “failed to conduct a full enquiry and then fail[s] to take into account a necessary factor to determine whether there has been undue delay.”325 In order to shorten the length of the proceedings, the ICTY and ICTR Chambers are empowered to assume a more active role then in usual common law trials.326 The right to a speedy trial is also guaranteed in the Rome Statute, which grants the Trial Chamber both the privilege and burden of maintaining a fair and expeditious trial.327 3.4.6. The Right to Be Present at Trial The right to be present at trial is an element of the rights of the defense.328 This right was recognized at Nuremberg, and continues to be recognized in the practice of modern tribunals.329 The accused’s right to be present has been 324 Prosecutor v. Kanyabashi, Case No. ICTR-96-15-I, Decision on the Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings (May 23, 2000). 325 Prosecutor v. Mugiraneza, Case No. ICTR-99-50-T, Decision on Prosper Mugiraneza’s Application for a Hearing or Other Relief on His Motion for Dismissal for Violation of His Right to a Trial Without Undue Delay, ¶ 27 (Nov. 3, 2004). But see Maximo Langer and Joseph W. Doherty, Managerial Judging Goes International, but Its Promise Remaines Unfulfilled: An Empirical Assessment of the ICTY Reforms, 36 Yale J. Int’l. L. 241 (2011). 326 May & Wierda, Evidence, supra note 23, at 8.46. But see Maximo Langer and Joseph W. Doherty, Managerial Judging Goes International, but Its Promise Remaines Unfulfilled: An Empirical Assessment of the ICTY Reforms, 36 Yale J. Int'l. L. 241 (2011). 327 ICC Statute, supra note 5, at arts. 64(2), 67(1)(c); ICC Rules, supra note 36, at R. 101; Heidi L. Hansberry, Too Much of a Good Thing in Lubanga and Haradinaj: The Danger of Expediency in International Criminal Trials, 9 Nw. J. Int’l Hum. Rts. 357, 369 (2011); see also Hansberry, supra, at 359 (noting that an accused person spends an average of 2.3 years in custody awaiting trial at the ICC); supra section 2.2.8. See generally Hansberry, supra (discussing two recent cases in the ICTY (Prosecutor v. Ramush Haradinaj et al.) and ICTR (Prosecutor v. Thomas Lubanga Dyilo) where the courts favored expediency, and describing the potential negative effects of prioritizing trial expediency over justice, particularly with regards to witness protection). 328 See supra section 2.2.6(j). 329 See Benjamin Ferencz, Nurnberg Trial Procedure and the Rights of the Accused, XXXIX J. Crim. L. & Criminology No. 2 (1948); see also ICC Statute, supra note 5, at arts. 63(1), 67(1)(d); ICTY Statute, supra note 3, at art. 21(4)(d); ICTR Statute, supra note 4, at art. 20(4)(d). For ICTR jurisprudence, see Zigiranyirazo v. Prosecutor, Case No. ICTR-2001-73-AR73, A. Ch., Decision on Interlocutory Appeal (Oct. 30, 2006); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Nsengiyumva Motion for Adjournment due to Illness of the Accused (Nov. 17, 2006); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-T, T. Ch. III, Decision on Joseph Nzirorera’s Motion for Stay of Proceedings



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held to be subject to the defendant not behaving contumaciously or disrupting the proceedings: if he/she does so, the trial may proceed in his/her absence.330 Trials in absentia, however, have been rejected in the practice of modern tribunals because of the “overriding need to ensure that justice is not only done but is seen to be done.”331 The Rome Statute also ensures the accused’s right to be present.332 While he is Unfit to Attend Trial or Certification to Appeal (Article 20 of the Statute, Rule 73(B) of the Rules of Procedure and Evidence) ( July 11, 2007); Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case No. ICTR-98-44-AR73.10, A. Ch., Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial (Oct. 5, 2007). 330 May & Wierda, Evidence, supra note 23, at 8.48. 331 See Statement by the President of the ICTY made at the Briefing to Members of Diplomatic Missions, IT/29, Feb. 11, 1994; see also Wladimiroff, supra note 152, at 446. (“The right to be tried in one’s presence is such an essential right that, in general, a trial in absentia can only be deemed justifiable if the accused, with the assistance of defense counsel, is well-informed and unequivocally renounces that right”). 332 ICC Statute, supra note 5, at arts. 63, 67(1)(d); ICC Rules, supra note 36, at Rs. 21–22; ICTY Statute, supra note 3, at art. 21(4)(d); ICTR Statute, supra note 4, at art. 20(4)(d). For ICC jurisprudence, see Situation in Uganda, Case No. ICC-02/04, P-T, Ch. II, Decision on the “Prosecutor’s Application to Disclose to Internal Auditor certain Information Relating to the Amended Application for Warrants” Dated 13 June 2005 ( June 17, 2005); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T., Ch. I, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents Into the Record of the Case of Mr. Thomas Lubanga Dyilo (Feb. 24, 2006); Sitaution in Darfur, Sudan, Case No. ICC-02/05, P-T. Ch. I, Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence ( July 24, 2006); Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, P-T. Ch. I, Decision to a General Framework Concerning Protective Measures for Prosecution and Defence Witnesses (Sept. 19, 2006). For ICTY jurisprudence, see Prosecutor v. Tadic, Case No. IT-04-1-T, T. Ch. II, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses (Aug. 10, 1995); Prosecutor v. Tadic, Case No. IT-04-1-T, T. Ch. II, Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-link ( June 25, 1996); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch. III, Decision on the Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69 (Feb. 19, 2002); Prosecutor v. Brdanin and Talic, Case No. IT-99-36-T, T. Ch. II, Decision on Motion to Set Aside Confidential Subpoena to Give Evidence ( June 7, 2002); Prosecutor v. Brdanin and Talic, Case No. IT-99-36-AR73.9, A. Ch., Decision on the Request for Extension of Time Limit and Authorising Applications as Amici Curiae (Aug. 1, 2002); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch., Decision on Prosecution Motion for Protective Measures (Concerning a Humanitarian Organization). Public Version of a Confidential Decision Filed 13 March 2003 (Apr. 1, 2003); Prosecutor v. Milosevic, Case No. IT-02-54-T, T. Ch., Decision on Prosecution Request for Reconsideration of the Trial Chamber’s Decision Concerning a Humanitarian Organization or for Certification of Appeal Against the Decision (Apr. 4, 2003); Prosecutor v. Mrksic, Case No. IT-95-13/1-PT, T. Ch. II, Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposing Party (May 7, 2003); Prosecutor v. Simic, Tadic, and Zaric, Case Nos. IT-95-9-AR73.6 & IT-95-9-AR73.7, A. Ch., Decision on Prosecution Interlocutory Appeals on the Use of Statements Not Admitted into Evidence pursuant to Rule 92Bis as a Basis to Challenge Credibility and to Refresh Memory (May 23, 2003); Prosecutor v. Kristic, Case No. IT-98-33-A, A. Ch., Decision on Application for Subpoenas ( July 1, 2003). For ICTR jurisprudence, see Prosecutor v. Kayishema and Ruzidana, Case No. ICTR-95-1-T, T. Ch. 2, Decision on the Motion for the Protection of Defence Witnesses (Oct. 6, 1997); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, T. Ch. I, Decision on the Motion to Subpoena a Witness (Nov. 19, 1997); Prosecutor v. Kanyabashi, Case No. ICTR-96-4-15-T, T. Ch. 2, Decision on the Protective Measures for Defence Witnesses and Their Families (Nov. 25, 1997); Prosecutor v. Akayesu, Case No.

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ICTR-96-4-T, T. Ch. I, Decision on a Motion for Summonses and Protection of Witnesses Called by the Defence (Feb. 17, 1998); Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, T. Ch. I, Decision on the Urgent Motion Filed by the Defence for the Immediate Transfer and Appearance of a Detained Witness, Froduald Karamira (Mar. 26, 1998); Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, A. Ch., Decision on Appeals against the Decision by Trial Chamber I rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC” ( June 8, 1998); Prosecutor v. Ntagerura, Case No. ICTR-96-10A-I, T. Ch. II, Decision on the Defence Motion for the Protection of Witnesses (Aug. 24, 1998); Prosecutor v. Bagambiki and Imanishimwe, Cases No. ICTR-97-36-I and 36-T, T. Ch. III, Decision on the Prosecutor’s Motion for Orders for Protective Measures for Victims and Witnesses (Mar. 3, 2000); Prosecutor v. Muhimana, Case No. ICTR-95-1B-I, T. Ch. III, Decision on the Prosecutor’s Motion for Orders for Protective Measures for Victims and Witnesses (Mar. 9, 2000); Prosecutor v. Nahimana, Case No. ICTR-96-11-T, T. Ch. I, Decision on the Defence’s Request for Measures of Investigation with Regard to Certain Prosecution Witnesses (Nov. 7, 2000); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, T. Ch. II, Decision on Pauline Nyiramasuhuko’s Motion for Protective Measures for Defence Witnessses and Their Family Members (Mar. 20, 2001); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, T. Ch. II, Decision on the Prosecutor’s Motion for Protective Measures for Victims and Witnesses (Mar. 27, 2001); Prosecutor v. Nyiramasuhuko v. Ntahobali, Case No. ICTR97-21-T, T. Ch. II, Decision on Arsene Shalom Ntahobali’s Motion for Protective Measures for Defence Witnesses (Apr. 3, 2001); Prosecutor v. Semanza, Case No. ICTR-97-20-I, T. Ch. III, Decision on the Defence Motion for Exclusion of Evidence on the Basis of Violations of the Rules of Evidence, Res Gestae, Hearsay, and Violations of the Statute and Rules of the Tribunal (Aug. 23, 2000); Prosecutor v. Semanza, Case No. ICTR-97-20-T, T. Ch. III, Decision on the Defence Motion for Protection of Witnesses (Rule 75) (May 24, 2001); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Prosecutor v. Nsabimana and Nteziryayo, Case No. ICTR-97-29-T, Prosecutor v. Kanyabashi, Case No. ICTR-96-15-T, Proescutor v. Ndayambaje, Case No. ICTR-96-8-T, T. Ch. II, Decision on the Prosecutor’s Allegations of Contempt, the Harmonization of the Witness Protection Measures and Warning to the Prosecutor’s Counsel (Rules 46, 54, 73, and 77 of the Rules and Article 9(3)(c)(ii) of the Code of Professional Conduct for Defence Counsel) ( July 10, 2001); Prosecutor v. Nahimana, Ngeze, and Barayagwiza, ICTR-99-52-I, T. Ch. I, Decision on the Prosecutor’s Application to Add Witness X to its List of Witnesses and for Protective Measures (Sept. 14, 2001); Prosecutor v. Semanza, Case No. ICTR-97-20-T, T. Ch. III, Decision on a Defence Application to Admit into Evidence a Report of Prosecution Investigator P.J.J. Heuts (Nov. 9, 2001); Prosecutor v. Bagosora, Nsengiyumva, Kabiligi, and Ntabakuze, Case No. ICTR-98-41-1, T. Ch. III, Decision and Scheduling Order on the Prosecution Motion for Harmonization and Modification of Protective Measures for Witnesses (Dec. 5, 2001); Rutuganda v. Prosecutor, Case No. ICTR-96-3-A, A. Ch., Decision (“Prosecutor’s Urgent Request for Clarification in Relation to the Applicability of Rule 66(B) to Appellate Proceedings and Request for Extension of the Page Limit applicable to Motions) ( June 28, 2002); Prosecutor v. Rukundo, Case No. ICTR-2001-70-I, T. Ch. III, Decision on the Prosecutor’s Motion for Protective Measures for Victims and Witnesses (Oct. 24, 2002); Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T, T. Ch. I, Decision on the Prosecutor’s Motion for Depositions of Ngeze Witnesses (Mar. 7, 2003); Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, T. Ch. II, Decision on the Prosecution Motion for Leave to Call Rebuttal Evidence (Rule 85) (May 12, 2003); Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Case No. ICTR-99-52-T. T. Ch. I, Decision of 9 May 2003 on the Prosecutor’s Application for Rebuttal Witnesses as Corrected According to the Order of 13 May 2003 (May 13, 2003); Prosecutor v. Gacumbitsi, Case No. ICTR2001-64-I, T. Ch. III, Decision on Prosecution Motion for Protective Measures for Victims and Witnesses (May 20, 2003); Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Case No. ICTR99-46-T, T. Ch. III, Decision on the Prosecutor’s Motion for Leave to Call Evidence in Rebuttal Pursuant to Rules 54, 73, and 85(A)(iii) of the Rules of Procedure and Evidence (May 21, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Prosecution Motion for Addition of Witnesses Pursuant to Rule 73bis (E) ( June 26, 2003); Prosecutor v. Nzirorera et al., Case No. ICTR-98-44-I, T. Ch. III, Decision on the Defence Motion for Subpoena to Witness G (Oct. 20, 2003); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Admission of Statements of Deceased



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The right of the defendant to be present at trial became an issue in both the ICTY and ICTR. At the ICTY, Slobodan Milosevic, the former President of the Republic of Serbia, initially insisted on representing himself at trial. However, as the trial progressed, Milosevic’s health continued to deteriorate, worsened by the stress of trial.333 The Trial Chamber repeatedly halted proceedings due to Milosevic’s health. Medical consultants opined that Milosevic’s health was too poor for him to continue representing himself. The Trial Chamber decided it would be best to appoint counsel for Milosevic over his objection. The Appeals Chamber examining Milosevic’s appeal of the appointment of counsel examined the right of the accused to represent himself, within the framework of the right of the accused to be present at trial, stating “If a defendant’s right to be present for his trial—which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation—may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right to self-representation any differently.”334 Witnesses ( Jan. 19, 2005); Prosecutor v. Nyiramasuhuko, Case No. ICTR-97-21-T, Joint Case No. iCTR-98-42-T, T. Ch. II, Decision on Nyiramasuhuko’s Strictly Confidential Ex-Parte—Under Seal— Motion for Additional Protective Measures for Some Defence Witnesses, (Mar. 1, 2005); Prosecutor v. Bizimungu, Mugenzi, Bicamumpaka, and Mugiraneza, Case No. ICTR-99-50-T, T. Ch. II, Decision on Defence Motion for Exclusion of Portions of Testimony of Expert Witness Dr. Alison des Forges (Sept. 2, 2005); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Defense Motion to Recall Prosection Witness OAB for Cross-Examination (Sept. 19, 2005); Prosecutor v. Rwamakuba, Case No. ICTR-98-44C-T, t. Ch. III, Decision on Defence Motion for Protective Measures (Rules 69 and 75 of the rules of Procedure and Evidence) (Sept. 21, 2005); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Exclusion of Testimony Outside the Scope of the Indictment (Sept. 27, 2005); Prosecutor v. Mpambara, Case No. ICTR-2001-65-T, T. Ch. I, Decision on the Prosecution’s Request to add Witness AHY (Sept. 27, 2005); Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, T. Ch. II, Decision on Tharcisse Muvunyi’s Motion for Protection of Defence Witnesses (Oct. 20, 2005); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Joint Case No. ICTR-98-42-T, T. Ch. II, Decision on Arsene Shalom Ntahobali’s Extremely Urgent-Strictly Confidential—Under Seal—Motion to Have Witness NMBMP Testify via Video-Link (Mar. 2, 2006); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Joint Case No. ICTR-98-42-T, T. Ch. II, Decision on Ntahobali’s Strictly Confidential Motion to Recall Witnesses TN, QBQ, and QY, for Additional Cross-Examination (Rule 54, 73(A), 90(G), Rules of Procedure and Evidence) (Mar. 3, 2006); Prosecutor v. Karera, Case No. ICTR-01-74-T, T. Ch. I, Decision on Motion for Further Alibi Particulars (Mar. 7, 2006); Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T, Joint Case No. ICTR-98-42-T, T. Ch. II, Decision on Nyiramasuhuko’s Motion for Separate Proceedings, a New Trial, and Stay of Proceedings (Rules 82(B) and 72(D), Rules of Procedure and Evidence) (Apr. 7, 2006); Prosecutor v. Serugendo, Case No. ICTR-05-84-I, T. Ch. I, Decision on urgent Motion for the Deposition of Joseph Serugendo ( June 8, 2006); Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. I, Decision on Request to Direct Registry to Comply with Order Concerning Witness Protection, ( July 3, 2006); Barayagwiza v. Prosecutor, Case No. ICTR-99-52-A, Pres., Review of the Registrar’s Decision Denying Request for Withdrawal of CoCounsel (Aug. 29, 2006). 333 Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, ¶ 4 (Nov. 1, 2004). 334 Id. ¶ 13.

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Likewise, the ICTR has recognized that the right of an accused to be tried in his/her presence is not absolute.335 Although the accused has the right to waive his/her presence at trial, a persistently disruptive defendant may forfeit the right.336 A decision to proceed with trial in the absence of the accused requires a Court to evaluate “the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.”337 Greater care is taken in the event of a defendant who is ill and unable to be present.338 3.4.7. Witnesses, the Right to a Public Trial, and Protective Measures Witnesses are indispensable as a source of evidence in international criminal trials.339 In order to be most useful to the conduct of proceedings, a witness must be both willing and available to testify. However, given the circumstances existing in post-conflict settings like Yugoslavia and Rwanda, witnesses are often reluctant to testify.340 As a result, international tribunals needed to develop rules and measures to ensure both the willingness of witnesses to testify and their protection; the ICC, ICTY, and ICTR Statutes all include such provisions341 Originally, the statutes of the ICTY and ICTR expressed a preference for hearing live evidence.342 The rules have been interpreted as reflecting an intention “to establish direct evidence or the morality of evidence as a general rule for the manner in which the testimony of a witness is to be presented to a Chamber.”343 335 Zigiranyirazo v. Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, ¶ 14 (Oct. 30, 2006). 336 Id. 337 Id. 338 Prosecutor v. Nzirorera, Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to be Present at Trial, ¶ 15 (Oct. 5, 2007). Nzirorera was ill for three days during which the trial chamber proceeded with the cross-examination of a prosecution witness giving testimony regarding the actions of Nzirorera’s co-accused over the objection of Nzirorera’s defense team. 339 A number of human rights treaties, including the ICCPR, ECHR, and the ACHR address the question of witnesses. See Safferling, supra note 47, at 276–77. 340 See Report of 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 1991, A/49/342, ¶¶ 75, 78 (1994) [hereinafter ICTY, First Annual Report]. 341 Such rules and measures include ICTY Rule 69, which allows the protection of witness identity from the accused and public (ICTY Rule 75), as well as ICTY Rule 96, which provides for special provisions for testimony in cases of sexual assault. See also Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses (Aug. 10, 1995) (holding that the identities of several victims and witnesses can be withheld indefinitely from the accused and his counsel). See ICC Statute, supra note 5, at arts. 67(1), 68; ICTY Statute, supra note 3, at arts. 20(4), 21(4)(e), 22; ICTR Statute, supra note 4, at arts. 19(4), 21. 342 For a discussion of the principle of an “oral trial,” see Safferling, supra note 47, at 239– 40. 343 Prosecutor v. Aleksovski, supra note 252, ¶ 10 (Robinson, J., dissenting).



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However, there are exceptions to the principle of hearing witnesses directly including rules providing for depositions and for use of video-link in exceptional circumstance and/or in cases necessitating witness protection.344 Other amendments to the rules made possible the admission of written materials such as expert reports and affidavits.345 The Rome Statute provides that the testimony of a witness at trial “shall be given in person” and that the Court may also permit the giving of oral or recorded testimony of a witness by means of video or audio technology.346 In determining the credibility of witnesses, inconsistencies in testimony are not considered fatal to the testimony of a witness, provided that they are not material, and even then the court may still accept the evidence provided by a witness.347 As mentioned elsewhere in this chapter, international criminal trials face serious obstacles to fact-finding which cast doubt on the precision of the factual determinations of these tribunals.348 In particular, the reliability of eyewitness testimony at the tribunals has been questioned, for reasons including testimonial discrepancies about the alleged crimes and inconsistencies about the involvement of the accused.349 Although the court will form an opinion as to the credibility of the witness during his/her testimony, the final assessment of credibility must be considered in light of the entire trial record.350 However, the evidence of witnesses may be impeached on a number of grounds, including: (1) prior inconsistent statement;351 (2) character evidence (either of poor reputation for truthfulness or of specific

344 Prosecutor v. Nzizorera, Case No. ICTR-98-44-T, Decision on Defence Motion to Obtain Documents Pertaining to Witness HH in Possession of Government of Rwanda, ¶ 5 (Nov. 27, 2006). 345 May & Wierda, Evidence, supra note 23, at 6.03; see also Vohrah, infra note 367, at 532–35 (discussing the taking of evidence by other then direct means (deposition, video link) at the ICTY and ICTR). 346 ICC Statute, supra note 5, at art. 69(2); ICC Rules, supra note 36, at R. 67. 347 Kupreskic et al. v. Prosecutor, Case No IT-95-16-A, Judgment, ¶ 202 (Oct. 23, 2001). 348 Combs, supra note 17, at 239. 349 See generally id. at 239, 250. Combs speculates that these obstacles result from a range of causes, including a lack of education and life experiences of witnesses, cultural differences between witnesses and predominantly Western court personnel, the need for multiple translations, and dishonesty. Id. at 251–261. These problems are particularly severe because, “unlike at Nuremberg, evidence received by current international tribunals almost exclusively comes in the form of witness testimony, and often crucial facts are only attested to by a few eyewitnesses who live in “oral societies.” Id. 350 See Prosecutor v. Naletilic & Martinovic, Case No. IT-98-34-T, Decision on the Request of the Accused to be Given an Opportunity to be Interrogated Under Application of a Polygraph (Nov. 27, 2000). See also May & Wierda, Evidence, supra note 23, at 6.09. For factors considered at the ICTY and ICTR, see id. at 6.10–6.14. 351 See Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Prosecutor’s Motion for Production of Defense Witness Statements (Nov. 27, 1996).

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misconduct);352 (3) bias;353 and (4) sensory deficiencies.354 These grounds of impeachment are also commonly used in both adversarial and inquisitorial systems of justice. In the ICTR co-accused cannot be forced to testify as a witness in a joint trial due to the protection of the accused from self-incrimination.355 In the ICTR Joseph Kanyabashi, the Bourgmestre of Ngoma commune, was charged with various counts of conspiracy to commit genocide, genocide, complicity in genocide, direct and public incitement to commit genocide, and crimes against humanity. The testimony of another defendant, Arsène Shalom Ntahobali, incriminated Kanyabashi.356 Kanyabashi sought to introduce Ntahobali’s prior custodial statements to incriminate his testimony as inconsistent with those earlier statements. In evaluating the earlier statements of the witness, the Trial Chamber examined the circumstances under which the statements were given.357 The Trial Chamber sought specifically to ensure that the witness’ rights to counsel and to remain silent were clearly communicated and understood by Ntahobali before allowing them to be used during cross examination by Kanyabashi’s counsel.358 Traditionally, the primary role of witnesses in a criminal proceeding has been limited to the production of evidence.359 This role has begun to change, especially in cases of witnesses who are also the victims of international crimes.360 Thus, although the ad hoc trials have followed the common law approach in not

352 See Prosecutor v. Kupreskic et al., Case. No IT-95-16-T, Judgment, ¶ 392 ( Jan. 14, 2000). 353 A blanket allegation regarding the bias of prosecution witnesses will not suffice to raise doubts concerning their credibility. Defense witnesses may also be attacked on bias, including any close relationship to the accused or any benefit that the witness may stand to gain either from shielding the accused form criminal liability or from accusing him. See Prosecutor v. Akayesu, Trial Judgment, supra note 88, ¶ 45. 354 May & Wierda, Evidence, supra note 23, at 6.17. These authors note that at international criminal tribunals no extrinsic evidence to establish a basis for certain attacks on the credibility of witnesses is required, although it would clearly serve to strengthen any allegations. Id. at 6.18; see also ICC Rules, supra note 36, at R. 63(4). 355 Prosecutor v. Ngirumpatse, Case No. ICTR-98-44-I, Decision on the Prosecutor’s Motion for Joinder of Accused and on the Prosecutor’s Motion for Severance of the Accused, ¶ 32 ( June 29, 2000). 356 Prosecutor v. Kanyabashi, Case No. ICTR-96-15-T, Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997 (May 15, 2006). 357 Id. ¶ 75. 358 Id. ¶ 81. 359 See Claus Kres, Witnesses in Proceedings Before the International Criminal Court, in International and National Prosecutions of Crimes Under International Law (Fisher, Kres & Luder eds. 2001). 360 See Christine Chinkin, The Protection of Victims and Witnesses, in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Courts 455–78 (G.K. McDonald & O. Swaak-Goldman eds. 2000); see also Kres, supra note 359, at 310 (noting that this change in paradigm has resulted in a great number of national acts of legislation dealing with the protection of witnesses).



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allowing victims a formal role other then as witnesses,361 the Rome Statute provides the right of victims to be represented and heard during the proceedings.362 However, the emerging rights of victims must be carefully balanced against the rights of the accused to fair trial.363 The right to a public trial is part of the accused’s right to fair trial and is subject to narrow limitations.364 The right to a public trial at the ICTY and ICTR is subject to articles that state that the tribunals shall provide protective measures for victims and witnesses, including protection of the identity of victims.365 A number of measures were developed to prevent the identity of witnesses from becoming known to the public and to the media. Applications for such measures are considered on a case-by-case basis, and before an application for protective measures is approved the witness must demonstrate a genuine fear that giving testimony may result in a risk to his/her safety or that of relatives.366 In addition, protective measures are granted not because of past sufferings but rather to redress fears of future retaliation.367 The primary concern with the imposition of protective measures is the negative impact of such measures on the right of the accused to examine witnesses against him/her, thus jeopardizing the ability of the accused to asses and challenge the evidence brought forward in this manner.368 However, this right is not synonymous with the right to cross-examine during trial.369 Cross-examination by defense counsel in an adversarial context is a feature of common law trials; in civil law trials, examination may take other forms.370 The right to “examine or

361 May & Wierda, Evidence, supra note 23, at 1.36. 362 ICC Statute, supra note 5, at art. 68; ICC Rules, supra note 36, at Rs. 85–93; see also supra Chapter II, section 9. 363 See supra section 2.2.6. 364 See supra section 2.2.6(e). 365 ICTY Statute, supra note 3, at art. 21; ICC Statute, supra note 5, at art. 64(7). 366 May & Wierda, Evidence, supra note 23, at 6.38. 367 Id. at 6.39. See also Chinkin supra note 360, at 459–76 (examining the statutes and jurisprudence of the ICTY and ICTR, as well as national and regional jurisprudence on the protection of victims and witnesses); Lal Chand Vohrah, Pre-Trial Procedures and Practices, in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court 530–32 (G.K. McDonald & O. Swaak-Goldman eds., 2000) (discussing the pre-trial protection of victims and witnesses at the ad hoc tribunals). The Rome Statute differs from those of the ad hoc tribunals in that: (a) it grants victims (but not witnesses) an opportunity to express their views at various stages of the proceedings; ICC Rules, supra note 36, at R. 89; (b) it provides that the prosecutor and/or the Trial Chamber should consider the interests of victims; ICC Statute, supra note 5, at arts. 53(1)(c), 65(4), 87(4); (c) provides for the needs of vulnerable victims by expanding the role of the Victims and Witnesses unit; Id. at Arts. 43(6), 68(1), (2); ICC Rules, supra note 36, at Rs. 17(3), 19, and 88(5); and (d) it provides for reparations. ICC Statute, supra note 5, at art. 75. 368 See Wladimiroff, supra note 152, at 448. 369 See Safferling, supra note 47, at 283–88 (comparing the common law and inquisitorial systems approach to the examination of witnesses). 370 Id.

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have examined witnesses against him” has been guaranteed at both the Nuremberg and Tokyo trials, as well as modern tribunals, and is fundamental to the accused’s ability to assess evidence introduced against him/her.371 The accused must have the ability to conduct an in-depth investigation of the background of prosecution witnesses in order to test the veracity of their testimony and identify their potential bias.372 It is important to note that “false testimony”373 is punishable at both the ICTY and ICTR,374 as well as under the Rome Statute.375 In conclusion, the right of the accused to a public trial must be protected. If protective measures are granted too liberally, this will have a significant negative impact on the accused’s right to public trial.376 As a result, protective measures should always be assessed on a case-by-case basis,377 an approach that is envisioned for the ICC.378 3.4.8. The Privilege against Self-Incrimination and the Right to Remain Silent The privilege against self-incrimination is well-established in both the common law, as well as historical and modern tribunals.379 Contrary to many common law systems, at the ICTY and ICTR this privilege is not absolute since the witness can be compelled to answer questions; however, the compelled testimony may not be used as evidence in the subsequent prosecution of the witness except for

371 See IMT Charter, supra note 219, at art. 16(e); ICTY Statute, supra note 3, at arts. 21, 67(1)(e); see also Safferling, supra note 47, at 286. 372 See Wladimiroff, supra note 152, at 448. In international criminal trials there is no requirement of corroboration of accomplices or co-perpetrators evidence, although such evidence must be treated with caution. In cases before international tribunals a witness may enter into agreement with the prosecution, guaranteeing, for example, the witness’ immunity from prosecution. Generally, the court may inquire about any such agreements between the prosecution and the witness, as the existence of such an agreement would be a factor in determining the credibility of the witness. In addition, although in general the preference for live testimony has been abolished in the jurisprudence of the ICTY, this certainly is one instance in which live evidence is to be preferred over documentary evidence. Written evidence of a co-perpetrator therefore may, in principle, be admissible but, absent any corroborating evidence, it would normally not suffice as grounds for a conviction. See May & Wierda, Evidence, supra note 23, at 6.23. 373 The giving of false testimony may consist of the affirmation of a false fact or the negation of a true fact. 374 ICTY Rules, supra note 121, at R. 91; ICTR Rules, supra note 239, at R. 91. 375 ICC Statute, supra note 5, at art. 70(1). 376 May & Wierda, Evidence, supra note 23, at 8.57. 377 Id. 378 ICC Statute, supra note 5, at arts. 64(7), 67(1). But see ICC Statute, supra note 5, at art. 68(2). 379 See Safferling, supra note 47, at 121–24; see also May & Wierda, Evidence, supra note 23, at 6.57. For the ICTY, see, e.g., Prosecutor v. Limaj et al., Trial Judgment, supra note 110, ¶ 22; Prosecutor v. Halilovic, Trial Judgment, supra note 110, ¶ 13; Prosecutor v. Strugar, supra note 110, ¶ 11; Prosecutor v. Blagojevic & Jokic, supra note 110, ¶ 19; Prosecutor v. Nikolic, supra note 110, ¶ 148; Mucic et al. v. Prosecutor, Appeals Judgment, supra note 70, ¶ 783; Prosecutor v. Brdanin, Case No. IT-99-36-T, Judgment, ¶¶ 1077, 1081 (Sept. 1, 2004).



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false testimony.380 The Rome Statute also recognizes this privilege and extends it to the family members of the accused.381 However, the Rome Statute does not contain an explicit right of non-self-incrimination for witnesses.382 The right to remain silent is another right that is both evidentiary and substantive in nature. The right to silence derives from the privilege against selfincrimination, nemo tenetur se ipsum prodere.383 The common and civil law systems take different approaches to this right; both of which have, to some extent, been reflected in the rules of international criminal tribunals.384 Thus, in common law systems the accused has a right to remain silent but may choose to testify under oath.385 On the other hand, in civil law trials the accused has no right to silence and may be questioned, but is not subject to oath.386 The international criminal tribunals follow the common law approach with the exception of allowing an unsworn statement to be made by the accused.387 At historical trials, the right to silence was generally acknowledged, but its application was rudimentary and adverse inferences were allowed from the accused’s failure to testify.388 The same principle does not apply at modern tribunals, where no adverse inference may be drawn from a failure to testify.389 At Nuremberg, most of the defendants testified on their own behalf,390 while in the modern trials a number of the accused have also chosen to testify on their own behalf.391 The power of the tribunal to compel witnesses to appear is contained in Article 19 of the ICTY Statute and the inherent powers of the tribunal as a court.392 The tribunal may exercise these powers through summons and subpoenas.393 Both are addressed directly to the witness, indicate a time and place for

380 ICTY Rules, supra note 121, at R. 90(E); ICTR Rules, supra note 239, at R. 90(E); ICTY Statute, supra note 3, at art. 21(4)(g); ICTR Statute, supra note 4, at art. 20(4)(g). 381 ICC Statute, supra note 5, at arts. 55(1)(a), 55(2)(b), 67(1)(g); Rules 74–75. 382 Id. at arts. 69(1) and 69(5); see also Kai Ambos, The Right of Non-Self-Incrimination of Witnesses Before the ICC, 15 Leiden J. Int’l L. 155, 157 (2002). 383 See Safferling, supra note 47, at 121. 384 May & Wierda, Evidence, supra note 23, at 8.68. 385 See Safferling, supra note 47, at 122. 386 Id. at 123 (noting that, in Germany, a suspect is considered to have refused to testify if he/ she does not comment on the allegations). 387 See, e.g., ICC Statute, supra note 5, at art. 67(1)(h). 388 See Paul Spurlock, The Yokahama War Crimes Trials: The Truth About a Misunderstood Subject, 36 A.B.A.J. 387, at 388 (1950). May & Wierda, Evidence, supra note 23, at 8.70. 389 May & Wierda, Evidence, supra note 23, at 8.71. See, e.g., ICC Statute, supra note 5, at art. 67(1)(g). 390 May & Wierda, Evidence, supra note 10, at 8.77. 391 See, e.g., Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2, Decision on the Prosecutor’s Motion on Trial Procedure, ¶ 779 (Nov. 2, 2001). 392 ICTY Statute, supra note 3, at art. 19; see Vohrah, supra note 367, at 526–30 (discussing subpoenae Duces Tecum and binding orders for appearance of witnesses or production of evidence at the ICTY). 393 ICTY Rules, supra note 121, at R. 54.

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appearance, and may set out the penalty for non-compliance.394 In the Blaskic case, the Appeals Chamber addressed the question of whether the ad hoc tribunals may issue binding subpoenas on state officials or other private individuals.395 The Appeals Chamber determined that the Tribunal “is not empowered to issue binding orders under threat of penalty to States or to State officials,” but could issue such binding orders to private individuals.396 The Chamber noted that issuance of subpoenas to states would be ineffective as violating the subpoena order would have no practical effect on states, who unlike individuals, cannot be the subject of criminal sanctions.397 It is the binding power of Security Council resolutions that requires U.N. member state cooperation with subpoenas ordered for individuals by the Tribunal. Considering the inability of the Tribunal to enforce issued subpoenas, this cooperation is necessary. The ICC also retains the power to “require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States.”398 As the ICC does not have an enforcement arm, the Court is necessarily dependent on State Parties to cooperate in the production of witnesses and documents. However, it should be noted that, according to the ICTR, a Trial Chamber is not able to compel an accused to testify in another case, since this would result in a violation of the fundamental right to testify against himself/herself or to confess guilt.399 Remedies for non-compliance with a subpoena may be imposed either by a state where the witness resides or by the tribunal.400 In cases where national authorities are unwilling or unable to cooperate, the tribunal itself may impose remedies and may include specific sanctions listed in Rule 77 (such as imprisonment or fines).401 The powers of the ICC to compel witnesses are contained in Rule 65 of the Rules of Procedure and Evidence.402

394 Id. 395 Prosecutor v. Blaskic, Case No. IT-95-14-AR108bis, Decision on the Admissibility of the Request for Review by the Republic of Croatia of an Interlocutory Decision of a Trial Chamber (Issuance of Subpoenae Duces Tecum) and Scheduling Order ( July 29, 2007). 396 Prosecutor v. Blaskic, Case No. IT-95-14, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, ¶ 21 (Oct. 29, 1997). For an analysis of the practical effect of this decision see Ambos, supra note 382. 397 Prosecutor v. Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, supra note 396, ¶ 25. 398 ICC Statute, supra note 5, at art. 64(6)(b). 399 Prosecutor v Akayesu, Case No. ICTR-96-4-T. Decision on the Motion for Summonses and Protection of Witnesses Called by the Defense (Feb. 7, 1998); Prosecutor v. Ngirumpatse, Case No. ICTR-98-44-I, Decision on the Prosecutor’s Motion for Joinder of Accused and on the Prosecutor’s Motion for Severance of the Accused, ¶ 32 ( June 29, 2000). 400 May & Wierda, Evidence, supra note 23, at 6.65. 401 ICTY Rules, supra note 121, at R. 77; see Vohrah, supra note 367, at 530. 402 ICC Rules, supra note 36, at R. 65.



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3.4.9. Remedies for the Infringement of Rights The protection of the rights of the accused in international criminal trials is of paramount importance to the integrity and future development of international justice. As noted in the above sections, the rights of suspects and accused are intertwined with the rules governing evidence in international criminal trials. Violation of the accused’s rights causes harm to him/her and necessitates the existence of a remedy to ameliorate the effect of the violation. The most frequently utilized remedy for the infringement of fair trial rights is the exclusion of evidence obtained as a result of the infringement.403 Rule 95 governs the exclusion of evidence at the ICTR and ICTY.404 This rule provides that no evidence shall be admissible if obtained by methods that cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.405 No other remedies are explicitly provided for in the Statutes or the rules of the modern tribunals. The Appeals Chamber of the ICTY and ICTR have, however, confirmed that all such infringements demand a remedy, which will depend on the seriousness of the infringement in the particular case.406 The remedy may change depending on whether the organs of the Tribunal or some other entity are responsible for the violation of the accused’s rights.407 The Rome Statute, in Article 69(7), provides that evidence obtained by means of violation of the Statute or an internationally protected human right is not admissible under certain conditions.408 3.5. Other Issues Related to Evidence 3.5.1. Expert Evidence Expert evidence plays an important part in international criminal trials. The purpose of expert evidence is to provide a court with information that is outside its ordinary experience and knowledge.409 Indeed, a Trial Chamber should refrain from acting as its own expert in cases where expert evidence is available.410 403 See Chinkin supra note 360, at 476–77. 404 ICTY Rules, supra note 121, at R. 95. 405 Id.; see also ICC Statute, supra note 5, at art. 69(7); Wladimiroff, supra note 151, at 437. 406 See, e.g., Barayagwiza v. Prosecutor, Decision, supra note 79. 407 Prosecutor v. Karadzic, Case No. IT-95-5/18-PT, Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest, ¶ 6 (Aug. 31, 2009). 408 ICC Statute, supra note 5, at art. 69(7). The unique nature of international trials also raises questions concerning the remedies available to an accused in cases where infringements of the rights of the accused occur at hands of national authorities, before the accused comes to the custody of an international court. Such questions will be of particular relevance in the work of the ICC, which will significantly rely on the work of national legal systems. 409 May & Wierda, Evidence, supra note 23, at 6.83. 410 Id.

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Expert evidence may be open to initial challenges such as: (1) Whether the subject matter is proper topic for expert evidence, or whether it is a matter within the knowledge and experience of the court. In the latter case the evidence will be rejected; (2) Even if it is a proper subject for expert evidence, the evidence must be relevant in the sense of assisting the court to determine the matter in dispute in order to be admitted; (3) Whether the expert has the necessary qualifications and methods. It is submitted that the better course usually is to admit the evidence and treat questions about qualifications later, when determining the weight of the evidence; and (4) Whether the expert is independent.411 An important issue concerning expert evidence concerns the differing roles of the expert and the Trial Chamber, in particular in relation to the evidence in the case. It is, after all, for the court to make the factual findings on the evidence, whereas it is for the expert to express an opinion on them.412 It should also be noted that a Trial Chamber is not bound to accept the evidence of an expert.413 However, if the Trial Chamber does not accept the facts (upon which the expert opinion is based), the expert opinion has no probative value and is inadmissible for that reason. This is a decision that cannot be made at earlier stages of the trial; challenges to the testimony of an expert can be made instead during “any stage in the course of hearing the testimony.”414 This does not mean that the Trial Chamber will work on behalf of the defendant to procure witnesses.415 Finally, it must be stressed that the same basic rules apply to experts as to ordinary witnesses.416 A special regime governs the reception of expert evidence in the ICTY, aimed at expediting the trial and avoiding the unnecessary calling of experts.417

411 Id. at 6.84. 412 Id. at 6.88. 413 See Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-T, Decision on Prosecutor’s Motion for Exclusion of Evidence and Limitation of Testimony ( July 3, 2000). 414 Prosecutor v. Kayishema, Case No. ICTR-95-1-T, Decision on the Prosecution Request to Rule Inadmissible the Evidence of Defence Expert Witness, Dr. Pouget ( June 29, 1998). 415 Prosecutor v. Semanza, Case No. ICTR-97-20-T, Decision on the Defence Motion Pursuant to Rule 73 of the Rules of Procedure and Evidence to seek Cooperation from the Ministry of Foreign Affairs of France and Leave to Call Before the ICTR Expert Witnesses Dominique Lecomte and Walter Vorhauer of the Institut Medico-Legal de Paris (Oct. 10, 2001). 416 May & Wierda, Evidence, supra note 23, at 6.91. 417 ICTY Rules, supra note 121, at R. 94bis. The Rome Statute, for example, also provides for the use of expert testimony at various stages of proceedings. See, e.g., ICC Rules, supra note 36, at Rs. 113, 140(3).



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3.5.2. Documentary and Forensic Evidence There are two basic types of documentary evidence in international criminal trials: (1) written statements offered in lieu of oral evidence; and (2) anything on which information is recorded.418 The use of written statements419 in lieu of oral evidence has been a major part of practice at international criminal tribunals. Both the historical and modern tribunals have relied extensively on such evidence for two main reasons: (1) because live evidence may be impossible or difficult to obtain; and (2) in order to expedite the trials.420 The expression “documentary evidence” has been given a broad interpretation in the ad hoc international criminal trials and includes “anything in which information of any description is recorded.”421 This includes, inter alia, maps, sketches, digital records, audiotapes, videotapes, and photographs. In the historical trials, documentary evidence was deemed admissible if it contained information of probative value.422 The admissibility of documentary evidence in the modern tribunals is generally governed by the same rules that govern the other types of evidence.423 Since these types of evidence “provide a context and the complete picture,”424 documents are usually liberally admitted both before and during trial, leaving it to the opposing party to raise any objections.425 Even if such objections (usually, the objections are to relevance, reliability, and repetition) are made, documents may still be admitted and weighted for their probative value in the final judgment.426 3.5.3. Interpretation of the Rules of Evidence and Procedure at the ICTY/ICTR As part of the proceedings of the ICTY and ICTR, the Tribunals are tasked with the job of implementing the Rules of Procedure and Evidence that govern the respective entities. Part of enacting the governing Rules involves interpreting the Rules, particularly when the Rules do not express set out terms of practice.

418 May & Wierda, Evidence, supra note 23, at 7.02. 419 This includes affidavits, transcripts and depositions. 420 May & Wierda, Evidence, supra note 23, at 7.03. 421 Prosecutor v. Musema, Trial Judgment and Sentence, supra note 220, ¶ 53. 422 May & Wierda, Evidence, supra note 23, at 7.72. 423 See ICTY Rules, supra note 121, at R. 89(C). 424 Prosectutor v. Mucic et al., Case No. IT-96-21-A, Decision on the Motion of Prosecution for Admissibility of Evidence, ¶ 20 ( Jan. 19, 1998). 425 May & Wierda, Evidence, supra note 23, at 7.73. 426 Prosecutor v. Kvocka et al., Case No. IT-98-30/1-T, Decision on Defense Motion to Introduce Exhibit Evidence (Apr. 17, 2001). Traditional Common Law rules, such as the rule excluding selfserving documents, are not applicable in international criminal trials. Likewise, the rule against documents prepared solely for the purposes of litigation does not apply. See May & Wierda, Evidence, supra note 23.

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First, it should be noted that the Tribunals are not bound by the national rules of evidence.427 But in evaluating the admissibility of evidence, the chambers do consider general principles of law, and therefore, national rules may influence the evidentiary aspect of proceedings.428 Tribunals may admit any relevant evidence deemed to have a probative value and should apply the rules with the goal of achieving fairness in the proceedings.429 When determining the admissibility of evidence not explicitly provided for in the Rules of the ICTY and ICTR the Rules stipulate that the “Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”430 The requirement of fairness and the general refusal of international tribunals to be hindered by technical rules of evidence result in a liberal approach to the admission of evidence at the Tribunals.431 Tellingly, the leeway given to judges of the ICTY Chambers in admitting evidence is referred to as the “flexibility principle.”432 An example of the flexibility principle in practice is the approach of the Tribunals regarding hearsay evidence. ICTY judges have regularly noted the broad discretion under the ICTY Rules to admitting hearsay evidence.433 Nonetheless, hearsay evidence must be “voluntary, truthful, and trustworthy . . . .”434 Additionally, the ICTY Appeals Chamber has noted that although hearsay evidence still has probative value, it may be given less weight than live testimony.435 In sum, the “crucial aspect of the Tribunal’s treatment of hearsay evidence is that it is, generally speaking, a question not of admissibility, but of weight.”436 In some cases, despite the leeway granted under the flexibility principle, evidence may be given so little weight that there is no value in admitting it and it is best excluded.437 427 ICTY Rules, supra note 121, at R. 89(A); ICTR Rules, supra note 239, at R. 89(A). 428 See Gideon Boas, Admissibility of Evidence under the Rules of Procedure and Evidence of the ICTY: Development of the ‘Flexibility Principle’, in Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald 265 (Richard May et al. eds., 2000). 429 ICTY Rules, supra note 121, at Rs. 89(B)–(C); ICTR Rules, supra note 239, Rs. 89(B)–(C). 430 ICTY Rules, supra note 121, at R. 89(B); ICTR Rules, supra note 239, at R. 89(B). 431 See Boas, supra note 428, at 265; Richard May and Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 Colum. J. Transnat’l L. 729, 745 (1999); Erik Møse, Main Achievements of the ICTR, 3 J. Int’l Crim. Just. 920, 934 (2005). 432 Boas, supra note 428, at 264. 433 See, e.g., Prosecutor v. Aleksovski, supra note 152, ¶ 15 (“Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence.”); Prosecutor v. Tadić, Case No. IT-94-1-T, Decision on the Defence Motion on Hearsay, ¶ 7 (Aug. 27, 1996) (“Under our Rules . . . out-of-court statements that are relevant and found to have probative value are admissible”). 434 Prosecutor v. Aleksovski, supra note 252, at ¶ 15. 435 Id. 436 Boas, supra note 428, at 271. 437 See, e.g., Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-T, Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, ¶ 23 ( July 29, 1999) (excluding witness statements in a dossier, but admitting exhumation documents, photos, maps).



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An issue that arises in the interpretation of the rules often highlights the distinctions between the adversarial and inquisitorial systems. The ICTY and ICTR are not purely based on common law or civil law, rather the Tribunals feature aspects of the two systems.438 But in general, the Tribunals are largely considered to follow the adversarial legal system;439 for example the ICTY framework for presentation of evidence is party-driven by an independent Prosecutor and the accused, and features the presentation of the case-in-chief followed by crossexamination and rebuttal.440 Nonetheless, judges are faced with interpreting the Rules with the framework of both the common-law and civil-law systems, which often highlights the tension between the systems. As an example of the adversarial and inquisitorial features at the international tribunals, Rule 92bis(A) of the ICTY Rules allows a Chamber to admit written evidence of a witness “in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.”441 Written evidence is more typical of civil-law systems, as common-law systems prefer oral testimony in criminal cases, accompanied with the right of the other party to cross-examine the witness.442 Furthermore, Rule 92bis(C) gives the Trial Chamber discretion to decide whether the witness should appear for cross-examination.443 The ICTY prosecution relies heavily on Rule 92bis, and in some cases as many 92bis written statements may be admitted as live witnesses, many without cross-examination.444 Rule 92bis is illustrative of the tension between the adversarial and inquisitorial systems, as although the presentation of evidence

438 See Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an International Context, 75 Ind. L.J. 809, 842 (2000); Stephanos Bibas & William W. Burke-White, International Idealism Meets Domestic-Criminal-Procedure Realism, 59 Duke L.J. 637, 694 (2010); Daryl A. Mundis, From ‘Common Law’ Towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence, 14 Leiden J. Int’l L. 367, 367–69 (2001). See generally Vernon Valentine Palmer, Mixed Legal Systems . . . and the Myth of Pure Laws, 67 La. L. Rev. 1205, 1207–08 (2007). Palmer argues that even civilian legal systems in Europe can be considered to be mixed systems and that world legal systems in general are a combination of various laws and customs. Palmer notes that mixed systems should be analyzed on their own terms, and not as a variation or mixture of civil law and common law. Id. at 1211 (quoting Hector MacQueen, Looking Forward to a Mixed Future: A Response to Professor Yiannopoulos, 78 Tul. L. Rev. 411, 412 (2003). 439 See ICTY, First Annual Report, supra note 340, ¶ 71 (“Based on the limited precedent of the Nürnberg and Tokyo trials, the statute of the Tribunal has adopted a largely adversarial approach to its procedures, rather than the inquisitorial system prevailing in continental Europe and elsewhere.”); Antonio Cassese, International Criminal Law 364–88 (2003); Patrick L. Robinson, Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY, 3 J. Int’l Crim. Just. 1037, 1039 (2005); cf. Máximo Langer, The Rise of Managerial Judging in International Criminal Law, 53 Am. J. Comp. L. 835, 835–87 (2005). 440 Robinson, supra note 439, at 1039. 441 ICTY Rules, supra note 121, at R. 92bis(A). 442 Robinson, supra note 439, at 1040–42. 443 ICTY Rules, supra note 121, at R. 92bis(C). 444 Robinson, supra note 439, at 1042.

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at the ICTY generally follows the adversarial system, Rule 92bis impacts a key element of the common-law system, namely, the right to cross-examination.445 The discretion given to the Trial Chamber judge to determine whether a Rule 92bis witness should be cross-examined is more reflective of the civil-law system, where judges have a greater role in questioning witnesses and statements are admitted without cross-examination.446 Thus, a resulting question arising from Rule 92bis is whether the loss of an accused’s right to cross-examine in the name of promoting judicial efficiency is unfair and prejudicial to the case.447 Another characteristically inquisitorial feature found in the ICTY Rules is Rule 98, which permits a Trial Chamber to order either party to produce more evidence and “may proprio motu summon witnesses and order their attendance.”448 Notably, in the case Limaj et al., the ICTY Trial Chamber held that there was “no universal or absolute principle” in resolving “weighty issues that are at a watershed between civil and adversarial systems,” rather the circumstances of each case would be material to achieve a just result.449 The Trial Chamber also acknowledged that “[t]he more that the Rules and jurisprudence of this Tribunal are altered to incorporate features of a civil law approach, the more issues of this nature will present difficulty.” The ICC also incorporates aspects of the adversarial and inquisitorial legal systems, without imposing a strict pattern of fact-finding activity.450 Trial judges may regulate the production of evidence as they see fit, for example, letting the parties question the witnesses without interfering or choosing to examine witnesses on their own initiative.451

445 Id. at 1039, 1043. 446 Id. at 1043, 1046. 447 Id. at 1042, 1045; see also id. at 1046 (“The predominantly civil-law feature of admitting statements without cross-examination is not counterbalanced by the predominantly common-law role of ICTY Judges, who do not have sufficient background information to engage in any in-depth questioning of witnesses.”). 448 ICTY Rules, supra note 121, at R. 98. The proprio motu power of the Trial Chamber may in fact create duties for the Trial Chambers. For example, in the case Haradinaj et al., the Appeals Chamber emphasized that the Trial Chamber should have taken proprio motu measures to counter witness intimidation and secure the testimony of relevant witnesses. Prosecutor v. Haradinaj et al., Case No. IT-04-84-A, Judgment, ¶¶ 36–41 ( July 19, 2010). 449 Prosecutor v. Limaj et al., Case No. IT-03-66-T, Decision on the Prosecution’s Motion to Admit Prior Statements as Substantive Evidence, ¶ 28 (Apr. 25, 2005). 450 See Damaška, supra note 38, at 176. 451 Id. Damaška posits that the manner in which a judge chooses to approach fact-finding is influenced from the legal tradition in which the judge hails; for example, judges familiar with the continental European legal system are more likely to be independently involved in a case than their common law counterparts. Id. Damaška also argues that a “combination of partychoreographed and judicially directed evidence” is not necessarily a superior method. Id. at 177. For example, it may be difficult for a judge to inject himself/herself into a case without appearing to help one of the sides; likewise independent inquiry from the bench may negatively affect a party’s trial strategy. Id.



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3.6. Evidence in Appellate Proceedings The historical trials did not provide for a right to appeal. Today, however, the right to appeal is considered as an integral part of the right to fair trial.452 The appellate proceedings at modern tribunals rest on the principle that it is for the Trial Chamber to hear, assess, and weigh the evidence at trial.453 Therefore, the Appeals Chamber is required to give the Trial Chamber a margin of deference in reaching its factual findings.454 Rules were designed to limit the admissibility of evidence at the appeals stage or on review, although ultimately the guiding standard must be the interests of justice.455 At the ICTY, the Appeals Chamber may not disturb the Trial Chamber’s findings to substitute its own, unless the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact, or where the evaluation was “wholly erroneous” and the error resulted in a miscarriage of justice.456 Such an error is found, for example, when a defendant is convicted despite a lack of evidence on an essential element of the crime,457 or where a Trial Chamber erred in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond reasonable doubt.458 Section 4. Conclusion Evidence is intimately linked to rules of procedure. Both derive from a particular systemic approach to the conduct of criminal proceedings. The adversaryaccusatorial and inquisitorial systems have, respectively, a logic, coherence, and method which are evidenced throughout their respective procedural and evidentiary rules. International criminal proceedings have freely borrowed from both approaches and developed a hybrid, dictated by the peculiar exigencies of the proceedings. Consequently, the hybrid approach does not lack in logic. Its

452 See Prosecutor v. Aleksovski, Appeals Judgment, supra note 192, ¶ 113; see also ICC Statute, supra note 5, at art. 81. For a discussion of appeals procedures and practices at the ICTY and ICTR see Kiribi-Whyte, supra note 192. 453 See infra section 2.2.9; see also Safferling, supra note 47, at 331; May & Wierda, Evidence, supra note 23, at 9.08. 454 Id. 455 Id.; see also ICC Statute, supra note 5, at art. 84; Wladimiroff, supra note 152, at 449–50. 456 Tadic v. Prosecutor, Appeals Judgment, supra note 147, ¶ 64; Kupreskic et al. v. Prosecutor, Appeals Judgment, supra note 326, ¶ 30. 457 Kupreskic et al. v. Prosecutor, Appeals Judgment, supra note 277, ¶ 37. 458 Mucic et al. v. Prosecutor, Appeals Judgment, supra note 70, ¶ 434. The converse in not allowing new factual arguments at trial is that factual findings of another Chamber, including the Appeals Chamber, are not binding and it is open for the parties of each case to present evidence and argue for their own interpretation of the facts. See May & Wierda, Evidence, supra note 23, at 9.49.

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method, however, derives from pragmatic considerations, and not from doctrinal ones. The peculiarities of international criminal proceedings are a reflection of the types of crimes committed in conflicts of an international character, noninternational character, and those committed in internal conflicts and by tyrannical regimes. These peculiarities have a direct impact on evidence. A substantial portion of the evidence at these proceedings is obtained through cooperating states, and that too, presents evidentiary problems. Consequently, the rules of evidence before international criminal tribunals tend to be flexible and leave much discretion to the judges. International tribunals like the ICTY and ICTR have dealt with relatively localized conflicts. The ICC addresses situations all over the world and encounters different conditions affecting the collection of evidence. It is essential for the ICC to respond to evidentiary challenges with a flexibility that safeguards the integrity of the process and the rights of the accused while balancing the need for effective prosecution. The evidentiary questions discussed above represent some of the questions that arise in international criminal proceedings.



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Appendix I: International Instruments Surveyed 1. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N.Doc A/RES/39/46 (1984) (referred to as Convention Against Torture). 2. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S 195 (referred to as Convention on Racial Discrimination). 3. International Convention on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N.Doc A/6316 (1966) (referred to as ICCPR). 4. Convention for the Protection of Human Rights and Fundamental Freedoms (and accompanying Protocols), Nov. 4, 1950, 213 U.N.T.S. 221 (referred to as Fundamental Freedoms). 5. Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43rd Sess., Supp. No. 49, at 297, U.N.Doc. A/43/173 (1988) (referred to as BOP). 6. Universal Declaration on Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., at 71, U.N.Doc A/810 (1948) (referred to as Universal Declaration). 7. United Nations Standard Minimum Rules for the Treatment of Prisoners at 67, U.N.Doc A/CONF/6/1, Annex I, A, U.N. Sales No. 1956.IV.4 (1956) (referred to as SMRTP). 8. European Convention on the Protection of Detainees from Torture and from Cruel, Inhuman or Degrading Treatment or Punishment, signed Nov. 26, 1987, reprinted in 27 I.L.M. 1152 (referred to as European Convention on Protection of Detainees). 9. African Charter on Human and Peoples’ Rights, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5 (1981) reprinted in 21 I.L.M. 58 (1982) (referred to as Banjul). 10. American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. A/16 (referred to as AMCHR). 11. Rome Statute of the International Criminal Court, U.N. Doc A/CONF.183/9* (1998), reprinted in 71 Nouvelles Études Pénales Toulouse, Fr.: Association Internationale de droit Pénal: Ere, 2000. (text combined with the Rules of Procedure and Evidence (PCNICC/200/INF/3/Add.2) and Elements of Crime (PCNICC/2000/INF/3/Add.1) (referred to as ICC).

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1. The right to life, liberty, and security of the person 2. The right to recognition before the law and equal protection of the law 3. The right to be free from arbitrary arrest and detention Rule 117 Detention in the Custodial State 1. The Court shall take measures to ensure that it is informed of the arrest of a person in response to a request made by the Court under article 89 or 92. Once so informed, the Court shall ensure that the person receives a copy of the arrest warrant issued by the Pre-Trial Chamber under article 58 and any relevant provisions of the Statute. The documents shall be made available in a language that the person fully understands and speaks. 2. At any time after arrest, the person may make a request to the Pre-Trial Chamber for the appointment of counsel to assist with proceedings before the Court and the Pre-Trial Chamber shall take a decision on such request. 3. A challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay. 4. When the competent authority of the custodial State notifies the Pre-Trial Chamber that a request for release has been made by the person arrested, in accordance with article 59, paragraph 5, the Pre-Trial Chamber shall provide its recommendations within any time limit set by the custodial State. 5. When the Pre-Trial Chamber is informed that the person has been granted interim release by the competent authority of the custodial State, the PreTrial Chamber shall inform the custodial State how and when it would like to receive periodic reports on the status of the interim release. Rule 118 Pre-Trial Detention at the Seat of the Court 1. If the person surrendered to the Court makes an initial request for interim release pending trial, either upon first appearance in accordance with rule 121 or subsequently, the Pre-Trial Chamber shall decide upon the request without delay, after seeking the views of the Prosecutor.



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2. The Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days and may do so at any time on the request of the person or the Prosecutor. 3. After the first appearance, a request for interim release must be made in writing. The Prosecutor shall be given notice of such a request. The Pre-Trial Chamber shall decide after having received observations in writing of the Prosecutor and the detained person. The Pre-Trial Chamber may decide to hold a hearing, at the request of the Prosecutor or the detained person or on its own initiative. A hearing must be held at least once every year. Rule 119 Conditional Release 1. The Pre-Trial Chamber may set one or more conditions restricting liberty, including the following: (a) The person must not travel beyond territorial limits set by the Pre-Trial Chamber without the explicit agreement of the Chamber; (b) The person must not go to certain places or associate with certain persons as specified by the Pre-Trial Chamber; (c) The person must not contact directly or indirectly victims or witnesses; (d) The person must not engage in certain professional activities; (e) The person must reside at a particular address as specified by the Pre-Trial Chamber; (f ) The person must respond when summoned by an authority or qualified person designated by the Pre-Trial Chamber; (g) The person must post bond or provide real or personal security or surety, for which the amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber; (h) The person must supply the Registrar with all identity documents, particularly his or her passport. 2. At the request of the person concerned or the Prosecutor or on its own initiative, the Pre-Trial Chamber may at any time decide to amend the conditions set pursuant to sub-rule 1. 3. Before imposing or amending any conditions restricting liberty, the Pre-Trial Chamber shall seek the views of the Prosecutor, the person concerned, any relevant State and victims that have communicated with the Court in that case and whom the Chamber considers could be at risk as a result of a release or conditions imposed. 4. If the Pre-Trial Chamber is convinced that the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person.

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5. When the Pre-Trial Chamber issues a summons to appear pursuant to article 58, paragraph 7, and intends to set conditions restricting liberty, it shall ascertain the relevant provisions of the national law of the State receiving the summons. In a manner that is in keeping with the national law of the State receiving the summons, the Pre-Trial Chamber shall proceed in accordance with sub-rules 1, 2 and 3. If the Pre-Trial Chamber receives information that the person concerned has failed to comply with conditions imposed, it shall proceed in accordance with sub-rule 4. 4. The right to be free from torture and cruel, inhuman, and degrading treatment or punishment Rule 120 Instruments of Restraint Personal instruments of restraint shall not be used except as a precaution against escape, for the protection of the person in the custody of the Court and others or for other security reasons, and shall be removed when the person appears before a Chamber. a. Right against Self-Incrimination Rule 74 Self-Incrimination by a Witness 1. Unless a witness has been notified pursuant to rule 190, the Chamber shall notify a witness of the provisions of this rule before his or her testimony. 2. Where the Court determines that an assurance with respect to self-incrimination should be provided to a particular witness, it shall provide the assurances under sub-rule 3, paragraph (c), before the witness attends, directly or pursuant to a request under article 93, paragraph (1) (e). 3. (a) A witness may object to making any statement that might tend to incriminate him or her. (b) Where the witness has attended after receiving an assurance under sub-rule 2, the Court may require the witness to answer the question or questions. (c) In the case of other witnesses, the Chamber may require the witness to answer the question or questions, after assuring the witness that the evidence provided in response to the questions: (i) Will be kept confidential and will not be disclosed to the public or any State; and (ii) Will not be used either directly or indirectly against that person in any subsequent prosecution by the Court, except under articles 70 and 71.



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4. Before giving such an assurance, the Chamber shall seek the views of the Prosecutor, ex parte, to determine if the assurance should be given to this particular witness. 5. In determining whether to require the witness to answer, the Chamber shall consider: (a) The importance of the anticipated evidence; (b) Whether the witness would be providing unique evidence; (c) The nature of the possible incrimination, if known; and (d) The sufficiency of the protections for the witness, in the particular circumstances. 6. If the Chamber determines that it would not be appropriate to provide an assurance to this witness, it shall not require the witness to answer the question. If the Chamber determines not to require the witness to answer, it may still continue the questioning of the witness on other matters. 7. In order to give effect to the assurance, the Chamber shall: (a) Order that the evidence of the witness be given in camera; (b) Order that the identity of the witness and the content of the evidence given shall not be disclosed, in any manner, and provide that the breach of any such order will be subject to sanction under article 71; (c) Specifically advise the Prosecutor, the accused, the defence counsel, the legal representative of the victim and any Court staff present of the consequences of a breach of the order under subparagraph (b); (d) Order the sealing of any record of the proceedings; and (e) Use protective measures with respect to any decision of the Court to ensure that the identity of the witness and the content of the evidence given are not disclosed. 8. Where the Prosecutor is aware that the testimony of any witness may raise issues with respect to self-incrimination, he or she shall request an in camera hearing and advise the Chamber of this, in advance of the testimony of the witness. The Chamber may impose the measures outlined in sub-rule 7 for all or a part of the testimony of that witness. 9. The accused, the defence counsel or the witness may advise the Prosecutor or the Chamber that the testimony of a witness will raise issues of selfincrimination before the witness testifies and the Chamber may take the measures outlined in sub-rule 7. 10. If an issue of self-incrimination arises in the course of the proceedings, the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests for the purpose of the application of the rule.

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Rule 75 Incrimination by Family Members 1. A witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate that accused person. However, the witness may choose to make such a statement. 2. In evaluating the testimony of a witness, a Chamber may take into account that the witness, referred to in sub-rule 1, objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer. 5. The right to be presumed innocent 6. The right to a fair trial a. The right to the inadmissibility of certain evidence Rule 64 Procedure Relating to the Relevance or Admissibility of Evidence 1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court. 2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1. 3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber. Rule 70 Principles of Evidence in Cases of Sexual Violence In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive



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environment undermined the victim’s ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; (d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness. Rule 71 Evidence of Other Sexual Conduct In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness. Rule 72 In Camera Procedure to Consider Relevance or Admissibility of Evidence 1. Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in principles (a) through (d) of rule 70, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case. 2. In deciding whether the evidence referred to in sub-rule 1 is relevant or admissible, a Chamber shall hear in camera the views of the Prosecutor, the defence, the witness and the victim or his or her legal representative, if any, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by principles (a) to (d) of rule 70, especially with respect to the proposed questioning of a victim. 3. Where the Chamber determines that the evidence referred to in sub-rule 2 is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of rule 70.

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Rule 73 Privileged Communications and Information 1. Without prejudice to article 67, paragraph 1 (b), communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless: (a) The person consents in writing to such disclosure; or (b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. 2. Having regard to rule 63, sub-rule 5, communications made in the context of a class of professional or other confidential relationships shall be regarded as privileged, and consequently not subject to disclosure, under the same terms as in sub-rules 1 (a) and 1 (b) if a Chamber decides in respect of that class that: (a) Communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure; (b) Confidentiality is essential to the nature and type of relationship between the person and the confidant; and (c) Recognition of the privilege would further the objectives of the Statute and the Rules. 3. In making a decision under sub-rule 2, the Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of a religious clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion. 4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless: (a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or (b) Such information, documents or other evidence is contained in public statements and documents of ICRC.



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5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees when such evidence has also been acquired by this source independently of ICRC and its officials or employees. 6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court’s and ICRC’s functions. Rule 74 Self-Incrimination by a Witness 1. Unless a witness has been notified pursuant to rule 190, the Chamber shall notify a witness of the provisions of this rule before his or her testimony. 2. Where the Court determines that an assurance with respect to self-incrimination should be provided to a particular witness, it shall provide the assurances under sub-rule 3, paragraph (c), before the witness attends, directly or pursuant to a request under article 93, paragraph (1) (e). 3. (a) A witness may object to making any statement that might tend to incriminate him or her. (b) Where the witness has attended after receiving an assurance under sub-rule 2, the Court may require the witness to answer the question or questions. (c) In the case of other witnesses, the Chamber may require the witness to answer the question or questions, after assuring the witness that the evidence provided in response to the questions: (iii) Will be kept confidential and will not be disclosed to the public or any State; and (iv) Will not be used either directly or indirectly against that person in any subsequent prosecution by the Court, except under articles 70 and 71. 4. Before giving such an assurance, the Chamber shall seek the views of the Prosecutor, ex parte, to determine if the assurance should be given to this particular witness. 5. In determining whether to require the witness to answer, the Chamber shall consider: (e) The importance of the anticipated evidence; (f ) Whether the witness would be providing unique evidence; (g) The nature of the possible incrimination, if known; and

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(h) The sufficiency of the protections for the witness, in the particular circumstances. 6. If the Chamber determines that it would not be appropriate to provide an assurance to this witness, it shall not require the witness to answer the question. If the Chamber determines not to require the witness to answer, it may still continue the questioning of the witness on other matters. 7. In order to give effect to the assurance, the Chamber shall: (f ) Order that the evidence of the witness be given in camera; (g) Order that the identity of the witness and the content of the evidence given shall not be disclosed, in any manner, and provide that the breach of any such order will be subject to sanction under article 71; (h) Specifically advise the Prosecutor, the accused, the defence counsel, the legal representative of the victim and any Court staff present of the consequences of a breach of the order under subparagraph (b); (i) Order the sealing of any record of the proceedings; and (j) Use protective measures with respect to any decision of the Court to ensure that the identity of the witness and the content of the evidence given are not disclosed. 8. Where the Prosecutor is aware that the testimony of any witness may raise issues with respect to self-incrimination, he or she shall request an in camera hearing and advise the Chamber of this, in advance of the testimony of the witness. The Chamber may impose the measures outlined in sub-rule 7 for all or a part of the testimony of that witness. 9. The accused, the defence counsel or the witness may advise the Prosecutor or the Chamber that the testimony of a witness will raise issues of selfincrimination before the witness testifies and the Chamber may take the measures outlined in sub-rule 7. 10. If an issue of self-incrimination arises in the course of the proceedings, the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests for the purpose of the application of the rule. Rule 75 Incrimination by Family Members 1. A witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate that accused person. However, the witness may choose to make such a statement. 2. In evaluating the testimony of a witness, a Chamber may take into account that the witness, referred to in sub-rule 1, objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer.



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Rule 82 Restrictions on Disclosure of Material and Information Protected Under Article 54, Paragraph 3 (e) 1. Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3 (e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused. 2. If the Prosecutor introduces material or information protected under article 54, paragraph 3 (e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance. 3. If the Prosecutor calls a witness to introduce in evidence any material or information which has been protected under article 54, paragraph 3 (e), a Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality. 4. The right of the accused to challenge evidence which has been protected under article 54, paragraph 3 (e), shall remain unaffected subject only to the limitations contained in sub-rules 2 and 3.  A Chamber dealing with the matter may order, upon application by the defence, that, in the interests of justice, material or information in the possession of the accused, which has been provided to the accused under the same conditions as set forth in article 54, paragraph 3 (e), and which is to be introduced into evidence, shall be subject mutatis mutandis to subrules 1, 2 and 3. b. The right to an impartial and independent tribunal Rule 5 Solemn Undertaking under Article 45 1. As provided in article 45, before exercising their functions under the Statute, the following solemn undertakings shall be made: (a) In the case of a judge: I solemnly undertake that I will perform my duties and exercise my powers as a judge of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions and the secrecy of deliberations.

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(b) In the case of the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court: I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.

2. The undertaking, signed by the person making it and witnessed by the President or a Vice-President of the Bureau of the Assembly of States Parties, shall be filed with the Registry and kept in the records of the Court. Rule 6 Solemn Undertaking by the Staff of the Office of the Prosecutor, the Registry, Interpreters and Translators 1. Upon commencing employment, every staff member of the Office of the Prosecutor and the Registry shall make the following undertaking: I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.

The undertaking, signed by the person making it and witnessed, as appropriate, by the Prosecutor, the Deputy Prosecutor, the Registrar or the Deputy Registrar, shall be filed with the Registry and kept in the records of the Court. 2. Before performing any duties, an interpreter or a translator shall make the following undertaking: I solemnly declare that I will perform my duties faithfully, impartially and with full respect for the duty of confidentiality.

The undertaking, signed by the person making it and witnessed by the President of the Court or his or her representative, shall be filed with the Registry and kept in the records of the Court. Rule 7 Single Judge under Article 39, Paragraph 2 (b) (iii) 1. Whenever the Pre-Trial Chamber designates a judge as a single judge in accordance with article 39, paragraph 2 (b) (iii), it shall do so on the basis of objective pre-established criteria. 2. The designated judge shall make the appropriate decisions on those questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules.



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3. The Pre-Trial Chamber, on its own motion or, if appropriate, at the request of a party, may decide that the functions of the single judge be exercised by the full Chamber. Rule 33 Excusing of a Judge, the Prosecutor or a Deputy Prosecutor 1. A judge, the Prosecutor or a Deputy Prosecutor seeking to be excused from his or her functions shall make a request in writing to the Presidency, setting out the grounds upon which he or she should be excused. 2. The Presidency shall treat the request as confidential and shall not make public the reasons for its decision without the consent of the person concerned. Rule 34 Disqualification of a Judge, the Prosecutor or a Deputy Prosecutor 1. In addition to the grounds set out in article 41, paragraph 2, and article 42, paragraph 7, the grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall include, inter alia, the following: (a) Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties; (b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or er subsequently, in which the person being investigated or prosecuted was or is an opposing party; (c) Performance of functions, prior to taking office, during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned; (d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned. 2. Subject to the provisions set out in article 41, paragraph 2, and article 42, paragraph 8, a request for disqualification shall be made in writing as soon as there is knowledge of the grounds on which it is based. The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned, who shall be entitled to present written submissions. 3. Any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by a majority of the judges of the Appeals Chamber.

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Rule 35 Duty of a Judge, the Prosecutor or a Deputy Prosecutor to Request to Be Excused Where a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused and shall not wait for a request for disqualification to be made in accordance with article 41, paragraph 2, or article 42, paragraph 7, and rule 34. The request shall be made and the Presidency shall deal with it in accordance with rule 33. c. The right to have procedures established by law d. The right to a speedy trial Rule 101 Time Limits 1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims. 2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court. e. The right to a public Hearing f. The right to be informed of the Charges Rule 121 Proceedings before the Confirmation Hearing 1. A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67. At this first appearance, the Pre-Trial Chamber shall set the date on which it intends to hold a hearing to confirm the charges. It shall ensure that this date, and any postponements under sub-rule 7, are made public. 2. In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the



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person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure: (a) The person concerned may be assisted or represented by the counsel of his or her choice or by a counsel assigned to him or her; (b) The Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions. For each case, a judge of the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her own motion, or at the request of the Prosecutor or the person; (c) All evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the PreTrial Chamber. 3. The Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing. 4. Where the Prosecutor intends to amend the charges pursuant to article 61, paragraph 4, he or she shall notify the Pre-Trial Chamber and the person no later than 15 days before the date of the hearing of the amended charges together with a list of evidence that the Prosecutor intends to bring in support of those charges at the hearing. 5. Where the Prosecutor intends to present new evidence at the hearing, he or she shall provide the Pre-Trial Chamber and the person with a list of that evidence no later than 15 days before the date of the hearing. 6. If the person intends to present evidence under article 61, paragraph 6, he or she shall provide a list of that evidence to the Pre-Trial Chamber no later than 15 days before the date of the hearing. The Pre-Trial Chamber shall transmit the list to the Prosecutor without delay. The person shall provide a list of evidence that he or she intends to present in response to any amended charges or a new list of evidence provided by the Prosecutor. 7. The Prosecutor or the person may ask the Pre-Trial Chamber to postpone the date of the confirmation hearing. The Pre-Trial Chamber may also, on its own motion, decide to postpone the hearing. 8. The Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired. 9. The Prosecutor and the person may lodge written submissions with the PreTrial Chamber, on points of fact and on law, including grounds for excluding criminal responsibility set forth in article 31, paragraph 1, no later than three days before the date of the hearing. A copy of these submissions shall be transmitted immediately to the Prosecutor or the person, as the case may be.

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10. The Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the person and victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91. Rule 122 Proceedings at the Confirmation Hearing in the Presence of the Person Charged 1. The Presiding Judge of the Pre-Trial Chamber shall ask the officer of the Registry assisting the Chamber to read out the charges as presented by the Prosecutor. The Presiding Judge shall determine how the hearing is to be conducted and, in particular, may establish the order and the conditions under which he or she intends the evidence contained in the record of the proceedings to be presented. 2. If a question or challenge concerning jurisdiction or admissibility arises, rule 58 applies. 3. Before hearing the matter on the merits, the Presiding Judge of the Pre-Trial Chamber shall ask the Prosecutor and the person whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing. 4. At no subsequent point may the objections and observations made under sub-rule 3 be raised or made again in the confirmation or trial proceedings. 5. If objections or observations referred to in sub-rule 3 are presented, the Presiding Judge of the Pre-Trial Chamber shall invite those referred to in sub-rule 3 to present their arguments, in the order which he or she shall establish. The person shall have the right to reply. 6. If the objections raised or observations made are those referred to in subrule 3, the Pre-Trial Chamber shall decide whether to join the issue raised with the examination of the charges and the evidence, or to separate them, in which case it shall adjourn the confirmation hearing and render a decision on the issues raised. 7. During the hearing on the merits, the Prosecutor and the person shall present their arguments in accordance with article 61, paragraphs 5 and 6. 8. The Pre-Trial Chamber shall permit the Prosecutor and the person, in that order, to make final observations. 9. Subject to the provisions of article 61, article 69 shall apply mutatis mutandis at the confirmation hearing.



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Rule 128 Amendment of the Charges 1. If the Prosecutor seeks to amend charges already confirmed before the trial has begun, in accordance with article 61, the Prosecutor shall make a written request to the Pre-Trial Chamber, and that Chamber shall so notify the accused. 2. Before deciding whether to authorize the amendment, the Pre-Trial Chamber may request the accused and the Prosecutor to submit written observations on certain issues of fact or law. 3. If the Pre-Trial Chamber determines that the amendments proposed by the Prosecutor constitute additional or more serious charges, it shall proceed, as appropriate, in accordance with rules 121 and 122 or rules 123 to 126. Rule 129 Notification of the Decision on the Confirmation of Charges The decision of the Pre-Trial Chamber on the confirmation of charges and the committal of the accused to the Trial Chamber shall be notified, if possible, to the Prosecutor, the person concerned and his or her counsel. Such decision and the record of the proceedings of the Pre- Trial Chamber shall be transmitted to the Presidency. g. The right to equality of arms Rule 20 Responsibilities of the Registrar Relating to the Rights of the Defence 1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia: (a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b); (b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence; (c) Assist arrested persons, persons to whom article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel; (d) Advise the Prosecutor and the Chambers, as necessary, on relevant defence-related issues;

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(e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f ) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules. 2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel. 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties. Rule 77 Inspection of Material in Possession or Control of the Prosecutor The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person. Rule 84 Disclosure and Additional Evidence for Trial In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber.



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Rule 101 Time Limits 1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims. 2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court. h. The right to assistance of counsel Rule 21 Assignment of Legal Assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel. Rule 22 Appointment and Qualifications of Counsel for the Defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience,

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whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties. i. The right to compulsory process Rule 20 Responsibilities of the Registrar Relating to the Rights of the Defence 1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia: (a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b); (b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence; (c) Assist arrested persons, persons to whom article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel; (d) Advise the Prosecutor and the Chambers, as necessary, on relevant defence-related issues; (e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f ) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules.



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2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel. 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties. Rule 84 Disclosure and Additional Evidence for Trial In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber. j. The right to be tried in one’s own presence Rule 123 Measures to Ensure the Presence of the Person Concerned at the Confirmation Hearing 1. When a warrant of arrest or summons to appear in accordance with article 58, paragraph 7, has been issued for a person by the Pre-Trial Chamber and the person is arrested or served with the summons, the Pre-Trial Chamber shall ensure that the person is notified of the provisions of article 61, paragraph 2. 2. The Pre-Trial Chamber may hold consultations with the Prosecutor, at the request of the latter or on its own initiative, in order to determine whether there is cause to hold a hearing on confirmation of charges under the conditions set forth in article 61, paragraph 2 (b). When the person concerned has a counsel known to the Court, the consultations shall be held in the presence of the counsel unless the Pre-Trial Chamber decides otherwise. 3. The Pre-Trial Chamber shall ensure that a warrant of arrest for the person concerned has been issued and, if the warrant of arrest has not been executed within a reasonable period of time after the issuance of the warrant, that all reasonable measures have been taken to locate and arrest the person.

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Rule 124 Waiver of the Right to be Present at the Confirmation Hearing 1. If the person concerned is available to the Court but wishes to waive the right to be present at the hearing on confirmation of charges, he or she shall submit a written request to the Pre-Trial Chamber, which may then hold consultations with the Prosecutor and the person concerned, assisted or represented by his or her counsel. 2. A confirmation hearing pursuant to article 61, paragraph 2 (a), shall only be held when the Pre-Trial Chamber is satisfied that the person concerned understands the right to be present at the hearing and the consequences of waiving this right. 3. The Pre-Trial Chamber may authorize and make provision for the person to observe the hearing from outside the courtroom through the use of communications technology, if required. 4. The waiving of the right to be present at the hearing does not prevent the Pre-Trial Chamber from receiving written observations on issues before the Chamber from the person concerned. Rule 125 Decision to Hold the Confirmation Hearing in the Absence of the Person Concerned 1. After holding consultations under rules 123 and 124, the Pre-Trial Chamber shall decide whether there is cause to hold a hearing on confirmation of charges in the absence of the person concerned, and in that case, whether the person may be represented by counsel. The Pre-Trial Chamber shall, when appropriate, set a date for the hearing and make the date public. 2. The decision of the Pre-Trial Chamber shall be notified to the Prosecutor and, if possible, to the person concerned or his or her counsel. 3. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is not available to the Court, the confirmation of charges may not take place until the person is available to the Court. The Pre-Trial Chamber may review its decision at any time, at the request of the Prosecutor or on its own initiative. 4. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is available to the Court, it shall order the person to appear.



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Rule 126 Confirmation Hearing in the Absence of the Person Concerned 1. The provisions of rules 121 and 122 shall apply mutatis mutandis to the preparation for and holding of a hearing on confirmation of charges in the absence of the person concerned. 2. If the Pre-Trial Chamber has determined that the person concerned shall be represented by counsel, the counsel shall have the opportunity to exercise the rights of that person. 3. When the person who has fled is subsequently arrested and the Court has confirmed the charges upon which the Prosecutor intends to pursue the trial, the person charged shall be committed to the Trial Chamber established under article 61, paragraph 11. The person charged may request in writing that the Trial Chamber refer issues to the Pre-Trial Chamber that are necessary for the Chamber’s effective and fair functioning in accordance with article 64, paragraph 4. 7. The right to assistance of counsel Rule 21 Assignment of Legal Assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.

892

chapter nine

Rule 22 Appointment and Qualifications of Counsel for the Defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties. a. The right to counsel of one’s own choice Rule 21 Assignment of Legal Assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.



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Rule 22 Appointment and Qualifications of Counsel for the Defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties. b. The right to appointment of counsel in case of indigency Rule 21 Assignment of Legal Assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.

894

chapter nine

Rule 22 Appointment and Qualifications of Counsel for the Defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties. c. The right to self-representation Rule 21 Assignment of Legal Assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.



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d. The right to assistance of an interpreter Rule 42 Translation and Interpretation Services The Court shall arrange for the translation and interpretation services necessary to ensure the implementation of its obligations under the Statute and the Rules. 8. The right to a speedy trial Rule 101 Time Limits 1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims. 2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court. 9. The right to appeal Rule 150 Appeal 1. Subject to sub-rule 2, an appeal against a decision of conviction or acquittal under article 74, a sentence under article 76 or a reparation order under article 75 may be filed not later than 30 days from the date on which the party filing the appeal is notified of the decision, the sentence or the reparation order. 2. The Appeals Chamber may extend the time limit set out in sub-rule 1, for good cause, upon the application of the party seeking to file the appeal. 3. The appeal shall be filed with the Registrar. 4. If an appeal is not filed as set out in sub-rules 1 to 3, the decision, the sentence or the reparation order of the Trial Chamber shall become final.

896

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Rule 151 Procedure for the Appeal 1. Upon the filing of an appeal under rule 150, the Registrar shall transmit the trial record to the Appeals Chamber. 2. The Registrar shall notify all parties who participated in the proceedings before the Trial Chamber that an appeal has been filed. Rule 152 Discontinuance of the Appeal 1. Any party who has filed an appeal may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed. 2. If the Prosecutor has filed an appeal on behalf of a convicted person in accordance with article 81, paragraph 1 (b), before filing any notice of discontinuance, the Prosecutor shall inform the convicted person that he or she intends to discontinue the appeal in order to give him or her the opportunity to continue the appeal proceedings. Rule 154 Appeals That Do Not Require the Leave of the Court 1. An appeal may be filed under article 81, paragraph 3 (c) (ii), or article 82, paragraph 1 (a) or (b), not later than five days from the date upon which the party filing the appeal is notified of the decision. 2. An appeal may be filed under article 82, paragraph 1 (c), not later than two days from the date upon which the party filing the appeal is notified of the decision. 3. Rule 150, sub-rules 3 and 4, shall apply to appeals filed under sub-rules 1 and 2 of this rule. Rule 155 Appeals That Require Leave of the Court 1. When a party wishes to appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, that party shall, within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal. 2. The Chamber shall render a decision and shall notify all parties who participated in the proceedings that gave rise to the decision referred to in sub-rule 1.



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Rule 156 Procedure for the Appeal 1. As soon as an appeal has been filed under rule 154 or as soon as leave to appeal has been granted under rule 155, the Registrar shall transmit to the Appeals Chamber the record of the proceedings of the Chamber that made the decision that is the subject of the appeal. 2. The Registrar shall give notice of the appeal to all parties who participated in the proceedings before the Chamber that gave the decision that is the subject of the appeal, unless they have already been notified by the Chamber under rule 155, sub-rule 2. 3. The appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing. 4. The appeal shall be heard as expeditiously as possible. 5. When filing the appeal, the party appealing may request that the appeal have suspensive effect in accordance with article 82, paragraph 3. Rule 157 Discontinuance of the Appeal Any party who has filed an appeal under rule 154 or who has obtained the leave of a Chamber to appeal a decision under rule 155 may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed. 10. The right to be protected from double jeopardy Rule 168 Ne bis in idem In respect of offences under article 70, no person shall be tried before the Court with respect to conduct which formed the basis of an offence for which the person has already been convicted or acquitted by the Court or another court. 11. The right to be protected from ex post facto laws

898

chapter nine Appendix III: Constitutions Surveyed

Albania (1998), Algeria (1976), Angola (1992), Antigua and Barbuda (1981), Argentina (1853, as amended through 1994)), Armenia (1995), Austria (1929, amended through 2000), Azerbaijan (1995, as amended thru 2002), Bahrain (2002), Bahamas (1973), Bangladesh (1972), Barbados (1966), Belarus (1996), Belgium (1831, as amended through 2000), Belize (1981), Benin (1990), Bolivia (1967), Botswana (1966), Brazil (1988, amended through 2002), Bosnia (1995), Bulgaria (1991), Burkina Faso (1991), Burundi (1998), Cambodia (1993, amended through 1999), Cameroon (1972), Canada (1867), Cape Verde (1992), Cayman Islands (2009), Central African Republic (1994), Chad (1996), Chile (1980), People’s Republic of China (1982), Colombia (1991), Comoros (1996), Congo (2002), Costa Rica (1949), Cote d’Ivoire (2000), Croatia (1990, amended through 2001), Cuba (1976), Denmark (1953), Djibouti (1992), Dominica (1978), Dominican Republic (1966), Ecuador (1998), Egypt (1980), El Salvador (1983), Equatorial Guinea (1991), Eritrea (1997), Estonia (1992), East Timor, Ethiopia (1995), Fiji (1997), Finland (1999), France (1958, amended through 2000), Gabon (1991), Gambia (1996), Georgia (1995, amended through 2001), Germany (1949), Ghana (1992), Greece (1975), Grenada (1973), Guatemala (1985), Guinea (1990), Guinea-Bissau (1991), Guyana (1980), Honduras (1982), Hungary (1949), Iceland (1944), India (1950), Iraq (1970), Ireland (1937), Italy (1947, amended through 2001), Jamaica (1962), Japan (1946), Jordan (1952), Kazakhstan (1995), Kenya (1969), Kiribati (1979), Korea (Democratic People’s Republic of ) (1972), Korea (Republic of ) (1980), Kuwait (1962), Kyrgyzstan (1993), Latvia (1922, amended through 1998), Lebanon (1926), Lesotho (1993), Liberia (1984), Libya (1969), Liechtenstein (1921), Lithuania (1992), Luxembourg (1868, amended through 2000), Macedonia (1991), Madagascar (1998), Malawi (1994), Malaysia (1957), Maldives (1998), Mali (1992), Malta (1964), Marshall Islands (1995), Mauritania (1991), Mauritius (1968, amended through 2000), Mexico (1917), Moldova (1994), Monaco (1962), Mongolia (1992), Montenegro, Morocco (1996), Mozambique (1990), Myanmar (1974), Namibia (1990), Nauru (1968), Nepal (1990), Netherlands (1983, amended through 2000), Nicaragua (1987), Niger (1966), Nigeria (1999), Norway (1814), Oman (1996), Pakistan (1973), Palau (1981), Panama (1972), Papua-New Guinea (1975), Paraguay (1992), Peru (1993), Philippines (1987), Poland (1997), Portugal (1976, amended through 2001), Qatar (1972), Romania (1991), Russia (1993), Rwanda (1991), St. Christopher-Nevis (1983), Samoa (1962), San Tome and Principe (1975), Saudi Arabia (1992), Senegal (2001), Serbia (1992), Seychelles (1993), Sierra Leone (1991), Singapore (1963, reprinted 1999), Slovenia (1991), Slovak Republic (1992, amended through 2001), Solomon Islands (1978), Somalia (1979), South Africa (1996), Spain (1978), Sri Lanka (1978), Sudan (1998), Suriname (1987), Swaziland (1968), Sweden (1975), Switzerland (1998), Syria (1973), Taiwan (1947), Tajikistan (1994), Tanzania (1977), Thailand (1991), Togo (1992), Tonga (1875), Trinidad and Tobago (1976),



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899

(cont.)

Tunisia (1959), Turkey (1982), Turkmenistan (1992), Tuvalu (1986), Uganda (1995), Ukraine (1996), United Arab Emirates (1971), United States (1789), Uzbekistan (1992), Vanuatu (1988), Venezuela (1999), Vietnam (1992), Yemen (1991), Zaire (1990), Zambia (1991), Zimbabwe (1979)

900

chapter nine Appendix IV: ICC Comparison Chart

RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

1. The right to life, liberty and security of a person.

2. The right to recognition before the law and equal protection of the law.

Art. 21(3)

INTERNATIONAL CONVENTIONS

CONSTITUTIONS

Convention on Racial Discrimination, supra note 54, pt. I, art. 5, 660 U.N.T.S. at 220; ICCPR, supra note 48, pt. III, arts. 6(1), 9(1), at 53, 54; Fundamental Freedoms, supra note 54, § I, arts. 2(1), 5(1), 213 U.N.T.S. at 224, 226; Universal Declaration, supra note 48, art. 3, at 72; SMRTP, supra note 54, pt. II, art. 57, at 71; Banjul, supra note 54, pt. I, ch. I, arts. 4, 6, at 60; AMCHR, supra note 54, pt. I, ch. II, arts. 4(1), 7(1), 7(2), at 2, 3.

80

Convention on Racial Discrimination, supra note 54, pt. I, art. 5(a), 660 U.N.T.S. at 220; ICCPR, supra note 48, pt. III, arts. 16, 26, at 55; Universal Declaration, supra note 48, arts. 6, 7, at 73; SMRTP, supra note 54, pt. I, art. 6(1), at 67; Banjul, supra note 54, pt. I, ch. I, arts. 3, 5, at 60; AMCHR, supra note 54, pt. I, ch. II, arts. 3, 24, at 2, 8.

176



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901

(cont.) INTERNATIONAL CONVENTIONS

CONSTITUTIONS

Art. 55(1)(d), R. 117 R. 118, Art. 58, R. 119 Art. 59, Art. 60

ICCPR, supra note 48, pt. III, art. 9(1), at 54; Fundamental Freedoms, supra note 54, § I, art. 5(1), 213 U.N.T.S. at 226; BOP, supra note 54, princ. 2, at 298; Universal Declaration, supra note 48, art. 9, at 73; Banjul, supra note 54, pt. I, ch. I, art. 6, at 60; AMCHR, supra note 54, pt. I, ch. II, art. 7(3), at 3.

169

Art. 55(1)(b)

Convention Against Torture, supra note 54, pt. I, art. 1, at 197, pt. I, art. 16, at 198; Convention on Racial Discrimination, supra note 54, pt. I, art. 5(b), 660 U.N.T.S. at 220; ICCPR, supra note 48, pt. III, art. 7, at 53; Fundamental Freedoms, supra note 54, § I, art. 3, 213 U.N.T.S. at 224; BOP, supra note 54, princ. 6, at 298; Universal Declaration, supra note 48, art. 5, at 73; SMRTP, supra note 54, pt. I, arts. 31, 32(1), (2), at 69; European Convention on Protection of Detainees, supra note 54, ch. I, art. 1, at 1154; Banjul, supra note 54, pt. I, ch. I, art. 5, at 60; AMCHR, supra note 54, ch. II, art. 5(2), at 2.

147

RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

3. The right to be free from arbitrary arrest and detention.

4. The right to freedom from torture, cruel, inhuman, and degrading treatment/ punishment.

R. 120

902

chapter nine

(cont.) INTERNATIONAL CONVENTIONS

CONSTITUTIONS

RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

a. The right against selfincrimination.

Art. 55(1)(a), R. 74, R. 75 Art. 55(2) (b), Art. 67(1)(g)

ICCRP, supra note 48, pt. III, art. 14(3)(g), at 54; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(g), at 4; BOP supra note 54, princ. 11(2), at 298.

75

5. The right to be presumed innocent.

Art. 55(2) (b), Art. 66, Art. 67(1)(g)

ICCPR, supra note 48, pt. III, art. 14(2), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(2), 213 U.N.T.S. at 228; SMRTP, supra note 54, pt. II, § C, art. 84(2), at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(b), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2), at 4.

134

6. The right to a fair trial.

Art. 67(1)

As a general principle of law: ICCPR, supra note 48, pt. III, art. 14(1), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 10, at 73; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4. Containing a list of elements of procedural fairness: ICCPR, supra note 48, pt. III, art. 14(3), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3), at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2), at 4.

50



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903

(cont.) RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

INTERNATIONAL CONVENTIONS

CONSTITUTIONS

a. The right to the Art. 69(4), inadmissibility Art. 69(7) of certain evidence.

R. 64, R. 70, R. 71, R. 72, R. 73, R. 74, R. 75, R. 82

Convention against Torture, supra note 54, pt. I, art. 15, at 198; AMCHR, supra note 54, pt. I, ch. II, art. 8(3), at 4.

57

b. The right to an Art. 40, impartial and Art. 67(1) independent tribunal.

R. 5, R. 6, R. 7, R. 33, R. 34, R. 35,

ICCPR, supra note 48, pt. III, art. 14(1), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 10, at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(d), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4.

157

ICCPR, supra note 48, pt. III, art. 14(2), at 54; Fundamental Freedoms, supra note 54, art. 6(2), 213 U.N.T.S at 228; Universal Declaration, supra note 48, art. 11(1), at 73; AMCHR, supra note 54, pt. I, ch. II, art. 8, at 4; Banjul, supra note 54, pt. I, ch. I, art. 6, at 60. (The Banjul Charter provides protection against ex post facto convictions and punishments in pt. I, ch. I, art. 7(2), at 60.)

120

c. The right to have procedures established by law.

904

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(cont.) RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

d. The right to a speedy trial.

Art. 64(2), Art. 67(1)(c)

e. The right to a public hearing.

Art. 64(7), Art. 67(1) (But see, art. 68(2))

CONSTITUTIONS

ICCPR, supra note 48, pt. III, art. 14(3)(c), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(1), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 38, at 300; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(d), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4.

59

ICCRP, supra note 48, pt. III, art. 14(1), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 10, at 73; AMCHR, supra note 54, pt. I, ch. II, art. 8(5), at 4.

121

R. 121, R. 122, R. 128, R. 129

ICCPR, supra note 48, pt. III, arts. 9(2), 14(3)(a), at 54; Fundamental Freedoms, supra note 54, § 1, arts. 5(2), 6(3)(a), 213 U.N.T.S. at 226, 228; Banjul, supra note 54, pt. I, ch. I, art. 6, at 60; AMCHR, supra note 54, pt. I, ch. II, arts. 7(4), 8(2) (b), at 3, 4.

93

Art. 67(1)(b) R. 20, & (e) R. 77, R. 84, R. 101

ICCPR, supra note 48, pt. III, art. 14(3)(e), at 54; Fundamental Freedoms, supra note 48, § 1, art. 6(3)(d), 213 U.N.T.S. at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(f ), at 4.

57

f. The right to be Art. 55(2)(a), informed of the Art. 60(1), Art. 61(3)(a), charges. Art. 64 (8), Art. 67(1)(a)

g. The right to equality of arms.

INTERNATIONAL CONVENTIONS

R. 101



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905

(cont.) INTERNATIONAL CONVENTIONS

CONSTITUTIONS

Art. 55(2)(c), R. 21, Art. 67(1)(d) R. 22

ICCPR, supra note 48, pt. III, art. 14(3)(b), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(c), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 17, at 299; SMRTP, supra note 54, pt. II, art. 93, at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4.

115

i. The right to compulsory process.

Art. 64(6); Art. 67(1)(e)

R. 20, R. 84

ICCPR, supra note 48, pt. III, art. 14(3)(c), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(d), 213 U.N.T.S at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(f ), at 4.

64

j. The right to be tried in one’s own presence.

R. 123 Art. 63, Art. 67(1)(d) R. 124, R. 125, R. 126

ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54.

44

7. The right to assistance of counsel.

Art. 55(2)(c), R. 21, Art. 67(1)(d) R. 22

ICCPR, supra note 48, pt. III, art. 14(3)(b), at 54; Fundamental Freedoms, supra note 54, § 1, art. 6(3)(c), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 17, at 299; SMRTP, supra note 54, pt. II, art. 93, at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4.

115

RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

h. The right to assistance of counsel.

906

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(cont.) INTERNATIONAL CONVENTIONS

CONSTITUTIONS

RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

a. The right to counsel of one’s own choice.

Art. 55(2)(c), R. 21, Art. 67(1)(d) R. 22

ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4.

65

Art. 55(2)(c), R. 21, b. The right to appointment of Art. 67(1)(d) R. 22 counsel in case of indigency.

ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; Banjul, supra note 54, princ. 17(2), at 299; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(e), at 4.

49

Art. 67(1)(d) R. 21 c. The right to selfrepresentation.

ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(d), at 4; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60.

48



the “procedural part” of icl

907

(cont.) RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

d. The right to assistance of an interpreter.

Art. 55(1)(c), R. 42 Art. 67(1)(f )

Art. 55, e. The right to the presence of Art. 67 counsel at all stages of the proceedings.

8. The right to a speedy trial.

Art. 64(2) Art. 67(1)(c)

R. 101

INTERNATIONAL CONVENTIONS

CONSTITUTIONS

ICCPR, supra note 48, pt. III, art. 14(3)(f ), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(e), 213 U.N.T.S. at 228; SMRTP, supra note 54, pt. I, art. 30(3), at 69; AMCHR, supra note 54, pt. I, ch. II, art. 8(2)(a), at 4.

51

None of the instruments examined specifically guarantee the right to counsel at all stages of the proceedings. ICCPR, supra note 48, pt. III, art. 14(3)(d), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(3)(c), 213 U.N.T.S. at 228; AMCHR, supra note 54, pt. I, ch. II, art. 8(2) (e), at 4; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(c), at 60; BOP, supra note 54, princ. 17(1), at 299.

29

ICCPR, supra note 48, pt. III, art. 14(3)(c), at 54; Fundamental Freedoms, supra note 54, § I, art. 6(1), 213 U.N.T.S. at 228; BOP, supra note 54, princ. 38, at 300; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(d), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 8(1), at 4.

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(cont.) INTERNATIONAL CONVENTIONS

CONSTITUTIONS

RIGHTS SURVEYED

ICC ICC RULE STATUTE PROVISION (supra note 36) (supra note 5)

9. The right to appeal.

Art. 81, Art. 82

R. 150, R. 151, R. 152, R. 154, R. 155, R. 156, R. 157

Protocol No. 7, supra note 190, art. 2(1), at 435; ICCPR, supra note 48, pt. III, art. 14(5), at 54; Banjul, supra note 54, pt. I, ch. I, art. 7(1)(a), at 60; AMCHR, supra note 54, pt. I. ch. II, art. 8(2)(h), at 4.

62

10. The right to be Art. 20 protected from double jeopardy.

R. 168

Protocol No. 7, supra note 190, art. 4(1), at 436; ICCPR, supra note 48, pt. III, art. 14(7), at 55; SMRTP, supra note 54, pt. I, art. 30(1), at 69; AMCHR, supra note 54, pt. I, ch. II, art. 8(4), at 4.

82

ICCPR, supra note 48, pt. III, art. 15(1), at 55; Fundamental Freedoms, supra note 54, § 1, art. 7(1), 213 U.N.T.S. at 228; Universal Declaration, supra note 48, art. 11(2), at 73; Banjul, supra note 54, pt. I, ch. I, art. 7(2), at 60; AMCHR, supra note 54, pt. I, ch. II, art. 9, at 4.

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11. The right to be Art. 22, protected from Art. 23, Art. 24 ex post facto laws.

Chapter Ten

International Criminal Justice in the Age of Globalization* Section 1. Introduction The international criminal justice (ICJ) system is a combination of international institutions such as the ICC, ad hoc and mixed-model tribunals, international investigating bodies, and national criminal justice systems. The combined work of these mechanisms enforces ICL.1 The effectiveness of these loosely connected institutions depends on how each one of them, particularly national legal systems, carry out their obligations to prosecute or extradite, and cooperate with each other. Achieving operational connectivity between these institutions will result in complementary. For that to occur, jurisdictional rules will need to be established to better regulate the respective functions of these institutions, and turn them into a network capable of maximizing the exercise of jurisdiction over perpetrators of international crimes, and thus enhance accountability. In addition, this network will actualize universal jurisdictional reach, without the need for establishing universal jurisdiction in national systems as a legal basis to reach perpetrators who may otherwise escape accountability.2 Such a global approach, which preserves the primacy of national legal systems, the episodic exceptionalism of international institutions, and the permanency of the ICC requires reinforcing the modalities of international cooperation in penal matters.3 These modalities require the full and effective implementation of the legal maxim aut dedere aut judicare.4 Thus far the system has been ad hoc and incomplete: excluding the international and mixed-model tribunals, one scholar has estimated that there have been 1,051 complaints considered by competent national authorities under the rubric of * Parts of this chapter are based on M. Cherif Bassiouni, The Philosophy and Policy of International Criminal Justice, in Man’s Inhumanity to Man 65 (L.C. Vorah & Michael Bohlander eds., 2003). It is reprinted with permission from Kluwer Law International. 1 See infra Chapter I, section 1.4; Chapter V, section 4; and Chapter VII, section 2.2. 2 See Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (Stephen Macedo ed., 2006); Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction (2001); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001). 3 See supra Chapter V. 4 M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995).

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universal jurisdiction, primarily for crimes committed by Nazis, former Yugoslavs, Argentinians, Rwandans, Americans, Chinese, and Israelis. Of these 1,051 complaints there have been only 32 trials, of which a full two-thirds were against Rwandans, former Yugoslavs, and Nazis.5 The networking concept proposed above has become a reality in the economic, financial, and communications sectors in this age of globalization, and has proven its effectiveness and success in these sectors. There is no reason to believe that a similar approach would not enhance the goals of ICJ. Jurisdictional networking will make complementarity a functional reality which, by enhancing accountability and reducing impunity for international crimes, will enhance prevention and reduce international criminality. Cumulatively, these outcomes will enhance international peace and security. The most effective approach to achieving individual criminal accountability for international, transnational, and national crimes requires enhanced national and international investigatory and prosecutorial capabilities, coupled with improved international cooperation in penal matters6 based on international due process norms and standards.7 With the world approaching two hundred national legal systems, in addition to international adjudicating and investigating

5 Maximo Langer, The Displomacy of Universal Jurisdiction: The Role of Political Branches in the Transnational Prosecution of International Crimes, 105 AM. J. INT'L L. 1 (2011). At present 18 states have universal jurisdiction and 5 have universal jurisdiction for aggression. Michael Scharf, Universal Jurisdiction and the Crimes of Aggression, 53 Harv. Int’l. L.J. 357, 359 (2010). 6 See the following articles in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms (M. Cherif Bassiouni ed., 3d ed. 2008): M. Cherif Bassiouni, The Modalities of International Cooperation, at 3; Giuliana Ziccardi Capaldo & Michele Nino, Globalization of International Law Enforcement Mechanisms: Issues of Legality and Legitimacy, at 47; Steven Becker, Increased Cooperation Between Law Enforcement and Intelligence Agencies After September 11, 2001, at 71; Christopher Blakesley, Extraterritorial Jurisdiction, at 85; M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, at 153; Leila Nadya Sadat, Competing and Overlapping Jurisdictions, at 201; Mark Drumbl, Immunities and Exceptions, at 231; Bert Swart, The European Union and the Schengen Agreement, at 243; M. Cherif Bassiouni, Extradition: Law and Practice of the United States, at 269; Paul Gully-Hart, The European Approach to Extradition, at 343; Demostenes Chryssikos, Commentary on the United Nations Draft Model Law on Extradition, at 377; Bruce Zagaris, United States Treaties on Mutual Legal Assistance in Criminal Matters, at 385; Demostenes Chryssikos, Commentary on the United Nations Draft Model Law on Mutual Legal Assistance in Criminal Matters, at 403; Kimberly Prost, Cooperation in Penal Matters in the Commonwealth, at 413; Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, at 455; Claude Nicati & Juliette Noto, A European Perspective on International Cooperation in Matters of Terrorism, at 493; M. Cherif Bassiouni, Introduction to Recognition of Foreign Penal Judgments, at 509; M. Cherif Bassiouni, Introduction to Transfer of Criminal Proceedings, at 517; Michael P. Scharf, The Lockerbie Model of Transfer of Proceedings, at 523; Mohammed Abdul-Aziz, International Perspective on Transfer of Prisoners and Execution of Foreign Penal Judgments, at 531; and M. Cherif Bassiouni, United States Policies and Practices on the Execution of Foreign Penal Sentences, at 553 7 See Stefan Trechsel, Human Rights in Criminal Proceedings (2006); Anne Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994).



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bodies, the goals of ICJ can best be achieved by applying the same or similar substantive and procedural legal norms and standards under ICL and IHRL, by making international cooperation more effective and by the inclusion of victim redress as part of the mechanisms of ICJ.8 Enhanced international cooperation, however, presumes the existence of effective national justice systems,9 but this is not always the case, especially in developing and least developed countries (LDCs), where sufficient expertise in ICL is lacking among the operators of these national justice systems. This is even more apparent in states that have ongoing civil conflicts or have emerged from such conflicts, and whose legal systems have either collapsed or have been significantly impaired. Recent experiences in post-conflict justice have also demonstrated how ill-prepared the international community is in responding to these exigencies.10 States whose systems of justice have failed are faced with competing economic priorities, and their governments are unable to allocate sufficient resources for criminal justice over other more pressing social and economic needs. Donor states that could assist these countries often fail to recognize the importance of providing economic and other forms of technical assistance to restore or enhance the justice systems of recipient states. More particularly donor countries’ funding is poorly administered, and often squandered, as is evident in the cases of Afghanistan11 and Iraq.12 No effective international programs exist to adequately deal with the restoration of national justice systems in post-conflict situations.13 Moreover, existing repressive regimes prevent their

8 There must also be a focus on providing victims of international crimes with compensation, restitution, and rehabilitation. See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 147, U.N. Doc. A/RES/60/147 (March 21, 2006). The enforcement of these victims’ rights essentially is to be made through national legal systems, and will require a convergence of accountability processes for perpetrators and redress mechanisms for victims. See M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203 (2006). 9 See supra Chapter V. 10 See generally, The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (2 vols., M. Cherif Bassiouni ed., 2010). 11 See e.g., Afghanistan: Judicial Reform and Transitional Justice (International Crisis Group, January 2003). See also the reports of the Independent Expert on Human Rights in Afghanistan (2004–06), M. Cherif Bassiouni, United Nations Commission on Human Rights, U.N. Doc. A/59/370 (Sept. 21, 2004), and U.N. Doc. E/CN.4/2005/122 (Mar. 11, 2005). 12 See Joseph E. Stiglitz & Linda J. Bilmes, The Three Trillion Dollar War: The True Cost of the Iraq Conflict (2008). 13 See generally The Pursuit of International Criminal Justice supra note 10; Transitional Justice and Development: Making Connections (Pablo de Grieff & Roger Duthie eds., 2010); Localizing Transitional Justice: Interventions and Priorities After Mass Violence (Rosalind Shaw, Lars Waldorf, & Pierre Hazan eds., 2010); Hakeem O. Yusuf, Transitional Justice, Judicial Accountability, and the Rule of Law (2010); Post-Conflict Peacebuilding: A Lexicon (Vincent Chetail ed., 2009); The Chicago Principles on Post-Conflict Justice (International Human Rights Law Institute, DePaul University College of Law, 2008); Building a Future on Peace and Justice: Studies on Transitional Justice (Kai Ambos, Judith Large, &

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own systems of justice from functioning independently, impartially, and fairly. All these considerations taken together illustrate that with respect to ICJ, a more globalized approach is indispensable. A system of ICJ is simply a global cooperative undertaking that links international and national justice systems to guarantee that each adheres to the functions to which they are dedicated, in an independent, impartial, fair, and effective manner, and that each and all components of such a network assist one another in the pursuit of the commonly-agreed mission. This includes the enhancement of cooperation and enforcement capabilities, which maximizes the prospects of accountability.14 The international community is gradually recognizing that ICJ is part of globalization, even though a politically independent ICJ system would not accommodate the interests of some states, particularly the more powerful ones. For instance, the events of September 11, 2001 showed that international crimes are global in scope and require global responses.15 Terrorism-related crimes, however, are not the only criminal activities that can be considered global. Other transnational crimes also share this trait, such as drug-related crimes, organized crime, traffic in women and children for commercial sexual exploitation, Marieke Wierda eds., 2008); Atrocities and International Accountability: Beyond Transitional Justice (Edel Hughes, William A. Schabas, & Ramesh Thakur eds., 2008); Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006); The Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, U.N. Doc. S/2004/616 (Aug. 23, 2004); Jane Stromseth, Accountability for Atrocities: National and International Responses (2003); Ruti Teitel, Transitional Justice (2002); The Politics of Memory: Transitional Justice in Democratizing Societies (Alexandra Barahona de Brito, Carmen Gonzalez Enriquez, & Paloma Aguilar eds., 2001); Post-Conflict Justice (M. Cherif Bassiouni ed., 2001); Transitional Justice: How Emerging Democracies Reckon with Former Regimes (3 Vols., Neil Kritz ed., 1995). See also Paige Arthur, Identities in Transition: Developing Better Transitional Justice Initiatives in Divided Societies (International Center for Transitional Justice, November 2009); Alexander L. Boraine, Transitional Justice: A Holistic Interpretation, 60 J. Int’l Aff. 17 (2006); Eric A. Posner, Transitional Justice as Ordinary Justice, 117 Harv. L. Rev. 761 (2004); Ruti G. Teitel, Transitional Justice in a New Era, 26 Fordham Int’l L.J. 893 (2003). See also the work of the International Center for Transitional Justice in New York, NY, available at http://ictj.org/ (last visited Nov. 8, 2010); as well as the quarterly International Journal of Transitional Justice, edited by the Centre for the Study of Violence and Reconciliation in South Africa and Human Rights Center of the University of California-Berkeley, and published by Oxford Journals. 14 The certainty of accountability may be achieved by any one or a combination of several mechanisms irrespective of whether they are enforced through international or national legal and administrative organs. See M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9, 18–22 (1996). 15 See M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); see also Ahmed Seif El-Dawla, Effects of Contemporary International Obligations for Combating the Financing of Terrorism on Interstate Cooperation in Criminal Matters, in International Criminal Law: Sources, Subjects, and Contents 779 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]; Malvina Halberstam, International Maritime Navigation and Installations on the High Seas, id. at 815; Claes Sandgren, Corruption of Foreign Public Officials, id. at 963.



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and money laundering. These are crimes which most affect state interests on an ongoing basis. This explains why states express their concerns about these crimes and allocate significant resources to confront them. The interests of the international community are, however, more significantly affected in human and material harm by international crimes, and more evident in the prevention of such crimes as genocide, crimes against humanity, and war crimes, where state action and state policy are most involved. The concerns and priorities of the international community reflect those of states, and the latter in turn primarily reflect their interests. Other factors have been brought to bear on state interests, and in the last two decades there is evidence that certain commonly-shared values by the world’s different societies have curtailed the primacy of state interests over all else. Admittedly, this is far from having reached a level that even remotely places values at the same level as interests, but there is progress.16 The international community, acting through U.N. processes, has failed to embrace a comprehensive approach towards international crimes by ignoring the fact that they are linked. For example, in conflicts of a non-international character, nonstate actor groups not only commit crimes against humanity, war crimes, torture, slavery and slave-related practices, and terrorism, but also trafficking in drugs, weapons, and human beings. Yet the international community’s approach to ICL and ICJ continues to be on an ad hoc basis without the benefit of a comprehensive understanding or policy of international criminalization.17 Thus, there are multiple legal regimes and sub-regimes whose application hinders effectiveness of investigation and prosecution by states and international organizations. The processes are slow and gradual.18 ICL and ICJ have recently become part of the values, policies, and practices of the international legal system. Consequently, the identification of the philosophy and policy of ICL and ICJ reflects the interests, goals, and values of the international legal system, as well as, in part, those of national legal systems.19

16 For example, in 1984, torture became an international crime. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 Annex, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. E/CN.4/1984/72, Annex (7 December 1984), reprinted in 23 I.L.M. 1027 (1984) [hereinafter Torture Convention]; see also Draft Convention for the Prevention and Suppression of Torture, 48 Rev. Internationale Droit Pénal 262 (1977); Nigel S. Rodley & Matt Pollard, The Treatment of Prisoners Under International Law (3d ed., 2009); José de la Cuesta, El Delito de Tortura (1990); J. Herman Burgers & Hans Danelius, The U.N. Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988); Daniel Derby, The International Prohibition of Torture, in 1 International Criminal Law: Crimes 621 (M. Cherif Bassiouni ed., 3d ed. 2008). 17 See supra Chapter III. 18 See Strobe Talbott, The Great Experiment, The Story of Ancient Empires, Modern States, and the Quest for a Global Nation (2009). 19 This is why the philosophy and policy of ICJ derives in large part from “general principles of law,” which are identified from both international and national legal norms. See M. Cherif

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A comparative assessment of national philosophies and policies of criminal justice leads to the conclusion that, notwithstanding the diversity of national criminal justice systems, they all share some common threads. These historical affinities can be retraced to most criminal justice systems going back to approximately 3,500 years ago. It is the existence of an implied “social contract,” which connotes that the individual forsakes the right to individual vengeance in exchange for the state’s duty to protect its members.20 In cases of infringement, the individual is required to accept punishment as ‘just desert’.21 As a result, every organized society’s legal system that has either entirely or partially taken away the victim’s right to act unilaterally in seeking vengeance or redress outside the established social order.22 The dictates of public order have historically taken away the individual’s right of unilateral vengeance or redress.23 In doing so, it has substituted for it a social system whose goals include legal redress obtainable through legal institutions applying legal norms, in a fair and impartial manner. In other words, organized society has separated the right to exact punishment, which devolved from the individual to the state, from the right to seek civil redress, which remains the individual’s prerogative. The same phenomenon can be found in the ICJ system, where the existence of an implied social contract is assumed through the allocation of the right to punish to the ICJ system based on the concept of complementarity in order to provide individual redress, justice, and peace.24 Change never comes easy. As Niccolo Machiavelli so aptly noted in 1537, “There is nothing more difficult to take in hand, more perilous to conduct, or

Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990) [hereinafter Bassiouni, General Principles]. 20 See, e.g., Jean-Jacques Rousseau, The Social Contract, or Principles of Political Right (Ronald Ginsley ed., 1972) (1762); see also Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans., 1990) (1748). 21 See Lloyd Weinreb, Natural Law and Justice (1987). 22 The Islamic criminal justice system may be an exception in its crimes of qesas. See M. Cherif Bassiouni, Qesas Crimes, in The Islamic Criminal Justice System 203 (M. Cherif Bassiouni ed., 1982). 23 Through the institutionalization of criminal justice, societies have removed the need for individual vengeance and the continuing cycle of violence which often times results. Immanuel Kant, The Metaphysical Elements of Justice (John Lord trans. 1965). By analyzing the dictates of social order the author finds that the desire to survive brings people together to form societies, and in the absence of this desire men would have no reason for obeying rules; therefore, the corresponding desires for security and respect provide a basis for legal and moral rules prohibiting killing, bodily attack, and respect for property. As a result, the state agrees to protect the citizens by enforcing these laws in exchange for the citizens’ allegiance to the law. Id. Legal philosophers, no matter what philosophical persuasion they adopt, agree with that proposition. See, e.g., Cesare Beccaria, On Crimes and Punishments (Richard Bellamy ed., 1995); Lon Fuller, The Morality of Law (2d rev. ed. 1969); Herbert L.A. Hart, The Concept of Law (1961); John Locke, The Second Treatise of Civil Government (Thomas P. Peardon ed., 1952) (1689); Thomas Hobbes, Leviathan (A.R. Waller ed., 1904) (1651); Jeremy Bentham, Works (John Boaring ed., 1859). 24 See M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000).



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more uncertain in its success, than to take the lead in the introduction of a new order of things.”25 1.1. National Criminal Justice Systems Enforcing ICL Norms The pursuit of ICJ has become part of the international legal system through an evolutionary process, which began with the emergence, convergence, and coalescence of certain values in different civilizations,26 which, along with the interests of states, has produced a synthesis of goals and policies between national criminal justice systems and the international legal system. That process, however, also included the development of international norms, prohibiting certain conduct such as the criminalization of genocide, crimes against humanity, and war crimes, among the most serious crimes.27 The emergence of international criminal law norms has necessarily led to the need to enforce them, both as a means of upholding the values transgressed by the violation and also because of policy considerations believed to enhance compliance and reinforce deterrence.28 The need to enforce these norms required the creation of post-conflict justice (PCJ) institutions,29 which has led to the establishment of ad hoc international investigatory bodies,30 ad hoc international criminal tribunals,31 and the ICC.32 As enforcement processes have developed, they have contributed to the evolution of the norms they apply, leading to active interaction between international law norm-making and jurisprudential development of norm application. In turn, this process gave impetus and vigor 25 Niccolo Machiavelli, Il Principe: Le Grandi Opere Politiche (1532) (G. M. Anselmi & E. Menetti trans., 1992). 26 See M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 U. Va. J. Int’l L. 269 (2009). 27 See supra Chapter III. 28 See supra Chapters IV and V. 29 See, e.g., Steven R. Ratner, Jason S. Abrams, & James L. Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3d ed. 2009); Mark Drumbl, Atrocity Crimes, Punishment, and International Law (2007); Gary Bass, Stay the Hand of Vengeance (2000); Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (1995); see also M. Cherif Bassiouni, The Need for International Accountability, in 3 International Criminal Law: International Enforcement (M. Cherif Bassiouni ed., 3d ed. 2008); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2542 (1991). 30 See supra Chapter VI. 31 Id.; see also supra Chapter VIII. 32 This was the case with the ICC. See supra Chapter VII; Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002); see also Commentary on the Rome Statute of the International Criminal Court (Otto Triffterer ed., 2d ed. 2008); William A. Schabas, An Introduction to the International Criminal Court (3d ed. 2007); The Legislative History of the International Criminal Court (3 vols., M. Cherif Bassiouni ed. 2005); The International Criminal Court: The Making of the Rome Statute (Roy Lee ed., 1999).

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to the norm-developing processes, as well as to the development of enforcement institutions and structures. The enforcement of ICL norms requires prospective sanctions against perpetrators of international crimes, those who generate the policies, and those who command their execution to have an effective deterrent. The deterrence assumption is one of the most questionable aspects of ICJ.33 Limited and inconsistent enforcement, as well as the changing characteristics of conflicts in the past few decades and their participants, have contributed to making this assumption a tenuous one.34 ICL directs its sanctions against individuals on the assumption that individual criminal responsibility is a more effective general deterrent.35 ICL has necessarily had to turn to the experience of national legal systems to borrow from their experiences and practices in connection with articulating substantive forms and with the nature and functioning of the institutions and structures of criminal justice. ICJ’s investigatory, prosecutorial, and adjudicating bodies and processes were thus modeled after national criminal justice systems, while ICL norms blended the diversity represented in the families of the world’s major criminal justice systems.36 The borrowing process necessarily included the method by which norms are formulated, their contents, and the sanctions attached to them. The borrowing of sanctions from national legal experiences was relatively simple with respect to contemporary national legal systems, in which penalties are limited to the death penalty, imprisonment, fines, confiscations, limitations on civil and political rights as a consequence of conviction, and, in some countries, corporal punishment. With the exception of the latter, which is practiced in some Muslim states with respect to certain crimes, and the death penalty, which has been abolished in over half the countries of the world, the other penalties are recognized and applied in all legal systems of the world.37 33 See Bassiouni, Perspectives on International Criminal Justice, supra note 26; M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in 1 The Pursuit of International Criminal Justice, supra note 10, at 3. 34 Id.; see also M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 711 (2008). 35 See David M. Kennedy, Deterrence and Crime Prevention: Reconsidering the Prospect of Sanction (2008); Punishment (A. John Simmons, Marshall Cohen, Joshua Cohen, & Charles Beitz eds., 1994); Johannes Andenaes, Punishment and Deterrence (1974); Johannes Andenaes, The Morality of Deterrence, U. Chi. L. Rev. 649–64 (1970); Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 950 (1966). 36 See Bassiouni, General Principles, supra note 19. 37 A total of 141 countries have abolished the death penalty in law or practice, and only 23 of the 58 retentionist states carried out an execution in 2010, with the majority of actual executions occuring in China, Iran, Saudi Arabia, Pakistan, and the United States. For more facts and figures on the death penalty around the world, see Abolish the Death Penalty, Amnesty International, available at http://www.amnesty.org/en/death-penalty/numbers (last visited June 6, 2012). The infliction of death as punishment has been condemned by many because of its barbaric nature and the lack of regard given to the interests of the offender. “The death penalty cannot be useful, because of the example of barbarity it gives men . . . It seems to me absurd that the laws which are



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The Talmudic theory of punishment connoting an “eye for an eye” may or may not support the infliction of death as a means to deter criminals from committing certain international crimes, which produce large-scale killings and other human depredations. It does, however, fulfill the atavistic human impulse for revenge. However, as Gandhi once stated, however, “an eye for an eye leaves the whole world blind.”38 These questions have their metaphysical origins and they are difficult to address, let alone resolve, because there are no neutral grounds in matters of religious belief. What is established is that the death penalty as a deterrent cannot be proven, even though the harshness and finality of such punishment is evidenced each time an individual’s life is taken.39 Thus, the nonapplicability of the death penalty is a symbol of reverence for human life. Consequently, international and regional human rights instruments abolish it, and it has been excluded as punishment from the statutes for the ICC, ICTY, and ICTR. The question with respect to punishment in the ICJ system is, therefore, not so much what penalties to apply if one excludes the death penalty and corporal punishment; rather, it is a question founded on the philosophical and policy bases and goals of punishment for international crimes. 1.2. The Distinction between the Policies and Goals of Punishment in National Criminal Justice Systems and Those in the ICJ System The ICJ system’s primary punishment goals are the preservation of world order, the maintenance of peace and security, and the reduction of human harm and

an expression of the public will, which detest and punish homicide, should themselves commit it.” Beccaria, supra note 23, at 50; M. Cherif Bassiouni, Death Penalty in the Shari’a, in Capital Punishment: Strategies for Abolition (Peter Hodgkinson & William A. Schabas eds., 2004). Moreover, some scholars argue that such barbaric and brutal punishment impedes the moral development of societies that resort to capital punishment, while, simultaneously, undermines the moralizing effects of punishment. See Capital Punishment: Strategies for Abolition, id.; Roger Hood, The Death Penalty: A Worldwide Perspective (3d ed. 2002); Franklin E. Zimring & Gordon J. Hawkins, Deterrence 186–90 (1973); The Death Penalty in America: Current Controversies (Hugo A. Bedau ed., 2d ed. 1998); Mark Costanzo, Just Revenge: Costs and Consequences of the Death Penalty (1997). In contrast, one expert notes that “[i]t may be said that capital punishment for murder exerts a moral influence by indicating that life is the most highly protected value.” Andenaes, The General Preventive Effects of Punishment, id. at 34. Still, how can the death penalty be ignored for crimes in which so many are killed? To allow such perpetrators to live could be an affront to the victims and their survivors, while also not conducive to reconciliation. The converse may, however, be true if the spared perpetrator genuinely accepts responsibility and expresses remorse. All of these and other considerations are, however, speculative, because they deal with so many variables. 38 See Mohandes K. Gandhi, The Story of My Experiments with Truth (1927). 39 Various studies have compared homicide rates of different states with similar social environments but contrasting penalties for homicide, and have concluded that executions have no effect on homicide rates. Zimring & Hawkins, supra note 37, at 189.

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economic loss arising out of conflicts.40 National criminal justice systems, while concerned with the preservation of public order, strive to achieve the goals of rehabilitation and social integration of individual offenders. Furthermore, the assumptions of general deterrence in national legal systems are different from those that can be made about the international legal system’s capacity for generating deterrence, thus resulting in general prevention. The differences between these two types of legal systems, the international and the national, imply consequences that go beyond considerations of philosophical and policy bases of punishment for international crimes. National legal systems have established institutions, structures and personnel to carry out the enforcement functions of the criminal justice system on a consistent and regular basis. Therefore, they produce certain results and allow for specific assumptions that can be made about prevention and deterrence. In contrast, the international community does not yet have a permanent system of ICJ with similar capabilities; consequently, the assumptions about its deterrence cannot be assessed. Retribution and just desert are more appropriate as philosophical and policy bases for the punishment of international crimes, whereas rehabilitation and social integration goals are more relevant to that of national criminal justice systems. Further, the functions of national criminal justice are also educational, and thus have a preventive effect, a result of the socio-psychological impact of the notoriety attached to trials and prosecutions.41 Assumptions about the effectiveness of the different functions of justice systems vary significantly between national legal systems and the international legal system. However, the effectiveness of these functions can be measured inter alia against two different criteria: 1) the absence of prosecutions for major crimes, such as genocide, crimes against humanity, and war crimes; and 2) the absence of other forms of accountability.42 For instance, national societies have varying degrees of political integration and social cohesion. Therefore, they 40 See W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke J. Comp. & Int’l L. 175, 176 (1995). The author synthesizes the goals of national legal systems into seven specific goal programs: (1) preventing discrete public order violations that are about to occur; (2) suspending public order violations that are occurring; (3) deterring, in general, potential public order violations in the future; (4) restoring public order after it has been violated; (5) correcting the behavior that generates public order violations; (6) rehabilitating victims who have suffered the brunt of public order violations; and (7) reconstructing in a larger social sense to remove conditions that appear likely to generate public order violations. Id. 41 Prohibitions against certain conduct demonstrates to all individuals that society views such conduct as wrong and morally reprehensible, while punishment for violations of certain norms reinforces the negative attributes of the conduct and educates society on the implications of violating certain norms. See Franklin E. Zimring & Gordon Hawkins, Crime Is Not the Problem 163–64 (1997). 42 See Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in Bassiouni, Pursuit of International Criminal Justice, supra note 10, at 3; see also, The Chicago Principles on Post-Conflict Justice, supra note 13.



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are not entirely dependent on the role of trials as a form of education, victim redress, victim satisfaction, reconciliation between victim and aggressor groups, or as a means of achieving general deterrence. These goals and functions are accomplished through different political and social mechanisms, except for the goal of general deterrence,43 which is predicated on the assumption of effective enforcement and sanctions.44 Alternatively, the international legal system needs to accomplish all of these goals through particular enforcement mechanisms and through the notoriety given to its trials. The notoriety with respect to “direct enforcement,” however, has only started in the last eighty years, or on an ad hoc basis.45 Only recently have other accountability mechanisms, which are also necessary to advance international criminal accountability evolved.46 1.3. The Need to Harmonize the International Criminal Justice System and National Criminal Justice Systems The ICJ system consists of international and national criminal justice institutions which collectively undertake enforcing international criminal law norms.47 Ideally it would function as a networking system whose cooperating units need to have: (1) uniform or substantially similar substantive legal norms;48 (2) similar norms and procedures on international cooperation in penal matters applicable to international and national legal institutions;49 3) harmonized penalties for international crimes (whether before international or national institutions); and 4) harmonized due process norms applicable to international and national processes.50 The ICJ system will not likely occur as a result of planning and sound legal techniques, but rather it will develop as a result of non-orderly processes in which fortuitous events and practical exigencies will incrementally enhance the goals intended to be attained. These processes are likely to be spurred by 43 General deterrence is applicable to all members of society, and involves the effectiveness of legal threats in changing the behavior of all members of society. Zimring & Hawkins, supra note 37. 44 The latter being accomplished by an effective system. 45 For a discussion on the history of international prosecutions, see supra Chapter VI. See also Bernaz & Prouveze, International and Domestic Prosecutions, in Bassiouni, Pursuit of Inter­ national Criminal Justice, supra note 10. 46 See supra note 34. 47 See supra Chapter I, section 1.4; Chapter IV. 48 See M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987). 49 See supra Chapter V. 50 See Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice, supra note 7; Anne F. Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997); see also supra Chapter IX.

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the need to enhance inter-state criminal cooperation in preventing and repressing the increased number of transnational crimes in the age of globalization illustrated since September 11, 2001.51 The same phenomenon of globalization will also require greater inter-state cooperation with respect to domestic criminality. All of these factors will enhance international criminal justice, though they will not bring about orderly or systematic outcomes. Instead, they will enhance the harmonization and, in some respects, uniformization of norms52 and procedures.53 International criminal justice will be enhanced by increased cooperation in preventing and suppressing transnational and domestic criminality. However, it may not necessarily be enhanced with the same effectiveness for major international crimes, which perhaps may not occur until the ICC attains more universality.54 The threat to this progress will confirm the suspicions about the political manipulation of ad hoc international criminal tribunals and the ICC with respect to the three most serious international crimes, namely genocide, crimes against humanity, and war crimes. This political manipulation will derive from realpolitik, which will use ICJ as a tool to achieve its goals.55 Thus, the likelihood that amnesties and other de facto means of granting impunity will compromise ICJ remains a threat to it.56 The battle for ICJ, which started after World War I, has ended with the establishment of the ICC, and a new phase is about to begin. Similar to its predecessor, the new phase will go through a series of difficulties as realpolitik will seek to manipulate ICJ, while its proponents will seek to prevent it. However, judging by the success of the earlier phase, it is accurate to predict that the next one is also likely to succeed, though only incrementally.57 This notion of creating cohesion within an international framework is reminiscent of the belief that there is nothing more powerful than an idea whose time has come.58 International criminal justice is more than an idea; it is an ideal which represents the commonly shared values of the international community.

51 See, e.g., U.N. Security Council Resolution 1373 (Sep. 28, 2001) on terrorism-financing, which led over 124 states to enact legislation in less than three months. 52 An example is the result of developing ICC national implementing legislation. 53 An example is the case of international cooperation in penal matters. See supra Chapter V. 54 As of May 2012, there are 121 state parties to the ICC Statute. See also generally supra Chapter VII. 55 Bassiouni, Combating Impunity, supra note 24; Bass, supra note 29. 56 See Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001). 57 See supra Chapter VI. 58 “An invasion of armies can be resisted, but not an idea whose time has come.” Victor Hugo, Histoire d’un Crime (1852), part II § 10.



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1.4. The Philosophy and Policy of Punishment for Jus Cogens International Crimes 1.4.1. Philosophical Considerations History records the existence of some forty civilizations,59 all of which developed laws and legal institutions irrespective of how we may judge them.60 Each of these civilizations had notions of justice that evolved over the last 7,000 years.61 These notions of justice encompassed a variety of dimensions, ranging from what would be considered in contemporary terms as individual justice in the civil and criminal contexts, to collective social justice.62 Cultural anthropology also reveals the range of different approaches to modalities and techniques of providing justice through various mechanisms and processes employed by societies from the tribal to the modern state. Within these civilizations, the identification of the moral philosophical foundations of what constitutes justice in its different meanings, as well as in the applications to social processes, has historically been by reference to religious teachings and practices. Additionally, the writings of philosophers, historians, and more recently, social scientists, who have described these moral philosophical foundations of justice have also been historically referenced. Invariably, however, what emerges from history is that law and legal institutions, when not imposed by a ruler’s force, are an outgrowth of the social values which characterize these societies. International criminal justice is still in its nascent stage and has not yet undergone the same evolution that national criminal justice systems have. The commonly shared values and interests of the international community, as discussed in Chapter I, are still being shaped. However, the era of globalization, as discussed in this chapter, will surely have a more significant impact upon the emerging philosophy of international criminal justice. The outcome of the globalization process can be predicted, but not with certainty. Nevertheless, because of the differences between the international and national legal orders,63 ICJ is not likely to encompass the dimension of social justice that exists in national legal orders.64 One aspect that can be identified with certainty, however, is that the philosophy of ICJ will be premised, similar to national criminal justice, on the 59 See Arnold J. Toynbee, A Study of History (12 vols., 1947). 60 See Henry Wigmore, A Panorama of World Legal Systems (1936); Jacques Ellul, I, II Histoire des Institutions et des Faits Sociaux (1955); Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Times (1867). 61 See Rene A. Wormser, The Law: The Story of Lawmakers and the Law We Have Lived by, from the Earliest to the Present Day (1949). 62 For a Western perspective of social justice, see David Miller, Principles of Social Justice (1999). For an Islamic perspective, see Sayid Qutb, Social Justice in Islam (1948). 63 See supra Chapter I, section 3. 64 Contemporary international law doctrine however seeks to establish a right to international economic justice. See Global Justice (Thomas W. Pogge ed., 2001).

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individual, because individuals commit both national and international crimes, and are not abstract legal entities such as states.65 Notwithstanding the age-old debate about human nature’s capacity for good and evil, right and wrong, passion and reason, and how to best control the impetus for individual negative impulses or tendencies, the question ultimately winds down to what means are necessary and appropriate to achieve behavioral and social control. That is why ICJ is on the same continuum of national criminal justice. Regardless of how philosophers throughout history have treated issues of social control, the goals of both systems are to control individual aberrant behavior proscribed by legal norms. What the philosophy of ICJ must essentially answer are three questions: why, by what means, and to what end? Thus, is reason, individual values, or a combination thereof enough to control natural negative impulses, or is it means of social control and coercive sanctions? The moral philosophical inquiry seeks inter alia to identify what is right and what is wrong and why. The social inquiry seeks inter alia to assess the significance of certain behavior, determine the necessary and appropriate control mechanisms, and appraise their expected outcomes. No matter their differences, moral philosophers and social scientists agree, however, that a certain authority, whether subject to limitations or not, must exercise the power to insure compliance with moral and legal norms. Thus, deeming genocide, crimes against humanity, war crimes, torture, and slavery to be moral or legal offenses or both, and referring to them as “shocking to the conscience of humanity” or jus cogens international crimes, is conduct that negatively affects national communities and the international community.66 Consequently, such aberrant behavior must be controlled, due to either morality or policy, first by effective prevention and then by suppression, which in turn reinforces prevention. It is in this respect more than any other that ICJ is on the same track as the philosophy and policy of national criminal justice systems, notwithstanding their differences. From Aristotle to contemporary times, philosophers, behavioral and social scientists, and others acknowledge human nature’s tendency to inflict harm on others.67 However, does the transformation from individual to collective behavior 65 Robert Jackson, as Chief U.S. Prosecutor at the IMT, asserted in his opening statement that crimes are not committed by abstract entities called states, but by individuals, and that is the pragmatic philosophy of international criminal justice. See 1 The Trial of the Major War Criminals Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, 447 (22 vols. HMSO 1950). 66 For a policy-oriented analysis of human rights, see Myres S. McDougal, Harold D. Lasswell & Lung-Chen Chung, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980). 67 For Aristotle, natural passions need to be controlled by reason, and reason needed to be enforced, for only fear of some form of retribution is a deterrent. See The Basic works of Aristotle (Richard McKeon, ed. 1941); Aristotle, Ethics, II 1 (W.D. Ross, trans. 1954). His views, not unlike those of some contemporary behaviorists, is that the human is subject to a constant



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change its nature? Does the nature of aberrant individual and collective behavior differ depending on whether it is confined to a state’s territory or extending to the territory of other states? Does the artificiality of state boundaries cause a mutation in the essential characteristics of deviant or aberrant human behavior? The answer to those related questions is in the negative, though it should be noted that collective aberrant behavior frequently has a multiplier effect that goes beyond that of the sum total of its individual components, as is evidenced by the ferocity and cruelty of what occurs in the course of genocide68 and crimes against humanity.69 The tendency of humans, though at times sordid, is usually driven by base instincts. These instincts, however, become accentuated in collective behavior at times when social controls weaken or are no longer in effect. Thus, it is at this time when the worst atavistic instincts surface and produce devastating harmful results.70 Experience reveals that the veneer of civilization is indeed thin. Abstract entities called states, the community of states, or international organizations, exist only because they are created and managed by individuals. Thus, these entities are inexorably linked to human nature’s basic instincts which have an impact on ultimate outcomes through the interactions of these entities’ collective decision-making processes.71 Moral philosophers and social scientists perceive and describe differently the legal nectar of justice distilled from the alembic of values that they observe. thrust toward what the passions dictate and needs to be constrained by what reason dictates. Thus, he says, “None of the moral virtues arise in us by nature.” Thomas Hobbes considers the natural impulse as an inclination for the sordid, and that reason, backed by the sovereign’s power, must recuse us. See Hobbes, Leviathan, supra note 23, at 189. Immanuel Kant emphasizes that we have a duty to eschew these natural inclinations based on pure reason and that only through the collective power of the sovereign can that be achieved. Unlike Aristotle, he does not see it as a desideratum, but as a moral imperative. See Immanuel Kant, Fundamental Principles of the Metaphysics of Morals (1985), translated by Kingsmill Abbott in The Critique of Practical Reason and Other Ethical Treatises, in Great Books of the Western World (Robert Maynard Hutchins ed., 1952). 68 See William A. Schabas, Genocide in International Law: The Crime of Crimes (2d ed. 2009); Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002). 69 See generally M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Practice (2011); Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d ed. 2002). 70 This was documented in detail in the conflict in the former Yugoslavia between 1991 and 1994. See Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, S.C. Res. 780, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/780(1992); Annexes to the Final Report, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/674/Add.2 (1994). For an insight into human behavior in war, see Geoffrey Best, Humanity in Warfare (1983). For studies on victimization in conflicts since World War II, see The Pursuit of International Criminal Justice, supra note 10. 71 The full complexity of these interactions and their internal interrelatedness is almost impossible to assess and retracing the specific impact of an individual’s power or influence occurs mostly in dictatorial regimes. See Myres S. McDougal et al., Law and Minimum World Public Order (1961).

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For Aristotle,72 it stems from ethics and reason, and for Aquinas and Christian naturalists,73 as well from the perspectives of Judaism74 and Islam,75 it stems from the Creator. For the latter group, The Creator is not only integral to the process, but is the original source, even when acting through the agency of humans. For the naturalists,76 law is divine in origin, unchallengeable, holistic, and needs positive law only to make it more widely known. The ultimate enforcer is the Creator, even when humans enforce it on earth as vicars of God. For the positivists, law is not immutable, but changeable.77 It is based on theories of utility, public interest, and the common good. It needs to be postulated and disseminated, and it is enforced by the state which has the monopoly of coercive means through the authoritative process of decision making.78 All of that does not mean that law is devoid of moral or ethical content.79 A certain parallelism exists between these views insofar as legal experience reveals that enforcement is undertaken through social and legal institutions no matter how different.80 The fundamental difference between the various philosophical foundations of justice, including the methods employed to achieve it, is the recognition of power’s extent and limitations. For the naturalists, power must be subordinated to the higher law. For the positivist, it is subordinated to the legal norm which is the product of the legal process. For the political realist, the anarchical stage of international relations, permits, if not justifies, the supremacy of power, tempered only by reason which identifies the outer limits of what power can secure.81 If reason were to be the only guide for political realists, they would rejoin Aristotle. But for the political realists, it is not Aristotelian reason guided by ethics, or reason subject to divine dictates as for Aquinas, or reason subject to positive law’s limitations as for the positivists, but reason, as in the analysis and predictability of political outcomes. In that respect, the political realists bring to international relations, and thus to international law which reflects the practices of states, the antithesis of what the laboratory of human experience in national societies has produced over 7,000 years of legal history, namely, the exclusion

72 See supra note 67. 73 See Thomas Aquinas, Summa Theologica (1485). 74 See generally Jewish Law and Legal Theory (M. Golding ed., 1994). 75 See M. Cherif Bassiouni & Gamal Badr, The Shari’ah: Sources, Interpretation and Rule-Making, 1 UCLA J. Islamic & Near Eastern L. 135 (2002). 76 See A. Passerin D’Entreves, Natural Law: An Introduction to Legal Philosophie (1965 ed.); Weinreb, Natural Law and Justice, supra note 21. 77 See John Austin, The Province of Jurisprudence Determined (1954). For a utilitarian perspective, see H.L.A. Hart, The Concept of Law (1961). For a philosophical perspective, see Hans Kelsen, Pure Theory of Law (1970). 78 Id. For a utilitarian positivist approach to national criminal justice, see John Rawls, A Theory of Justice (1971, rev. ed. 1979). 79 See Roscoe Pound, Law and Morals (1969). 80 See supra notes 2, 3 and 4. 81 See supra Chapter I, section 3.



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of legitimacy as a limitation on power.82 Although time and again power without legitimacy has prevailed in international relations, while legitimacy meekly accommodated itself to the exigencies of power, realists fail to see how the imposition of the rule of might unavoidably must also adjust itself to some form of legitimacy.83 If tangible power is limited by the intangible influence of what morality brings to social values, then moral philosophy is relevant to international criminal justice. Questions of whether reason or faith motivates or guides humans’ behavior, and how and to what extent it blends with learned experiences and social conditioning factors, are the same set of questions that are posed in the end, namely, the choice of social control means and the functions and goals of the coercive sanctions. From that perspective, the philosophy of ICJ is no different than that of national criminal justice systems, notwithstanding the different approaches of moral philosophers. As stated above, experience reveals the existence of commonly shared values in every society from which moral and legal significance is extracted to become rights and obligations. These rights and obligations then become the basis for justified individual and social expectations and that impels institutional guarantees.84 The incremental process of the identification and articulation of social values and their embodiment in prescriptive and proscriptive norms, as experienced in national societies, is repeated at the international level, though with the differences, inter alia, as to participants, processes, interactions, and connectivity.85 In the end however, we see the emergence of international normative proscriptions,86 which reflect social values transcending national contexts. The history of ICL reveals that the philosophical foundations of ICJ rest on similar bases as those of national criminal justice systems, notwithstanding their differences and the distinctions between these legal orders.87 However, at this historical stage, ICJ means essentially retributive justice for certain international crimes. This is not easily reconcilable from the perspective of moral philosophy to alternative methods of accountability which do not necessarily include

82 See supra notes 1, 2; Carl J. Friedrich, The Philosophy of Law in Historical Perspective (2d ed. 1990). 83 See, for example, post-conflict justice situations with all their limitations and flow. See The Pursuit of International Criminal Justice, supra note 10; Accountability for Atrocities: National and International Responses (Jane Stromseth ed., 2003). 84 See, e.g., John O’Marnique, The Origins of Justice (2003). 85 Supra note 8. 86 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982). 87 As is evident from the methods of enforcing ICL whether as part of the “direct enforcement system,” discussed in Chapters VI and VII, or the “indirect enforcement system” discussed in Chapter V. ICJ is also essentially process-oriented, which is discussed in John Rawls’ seminal book, A Theory of Justice (1971, rev. ed. 1999). See also Justice as Fairness: A Restatement-John Rawls (Erin Kelly ed., 2001).

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coercive sanctions. The explanation is that contemporary ICJ is still locked in struggle against the practices of realpolitik, which reflect the political realist view of power’s precedence over legal legitimacy. International criminal justice seeks to enhance accountability and reduce impunity for international crimes, particularly jus cogens international crimes. It seeks to accomplish that by the techniques of direct and indirect enforcement.88 Both techniques are complementary and rely on the maxim aut dedere aut judicare.89 Since the goal of both techniques is accountability, the question of “why punish” discussed in this section is linked to the philosophy and policy of punishment, which applies to national and ICJ systems. Since alternative accountability mechanisms exist in ICJ, however, they are also discussed in this chapter. 1.4.1.1. Moral and Social Philosophy As noted above, the ICJ system, like its counterpart the national criminal justice system, is based on a proposition which presupposes the existence of an implied “social contract.” The “social contract” theory establishes the individual’s duty to obey its norms in exchange for the international community’s duty to provide security for its inhabitants by exacting a punishment from those who transgress its norms. As a result, the international community takes from the individual the right to exact individual punishment or obtain personal vengeance.90 Similarly, the state, acting on behalf of the community, reserves for itself the right to grant pardons. As a result, this reservation has historically hindered the pursuits of justice through the application of unjustified pardons. Pardons are justifiable only when the offender has already suffered enough, or stands to suffer too much, and when it is necessary to relieve some punishment or lingering consequences. Pardons are not justified as politically expedient mechanisms to shield perpetrators. Therefore, policy guidelines for the granting of pardons must be created, because it is the only way in which the international community will reach the theory of universal justice, and leave behind the notions of unequal application of the law, unfairness, and uncertainty of the law. 88 See supra Chapters VI, VII, V. 89 See Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 4; see also supra Chapter V, section 2. 90 Seeking personal vengeance is not only vindictive but it represents the emotional impulse that derives from the victimization incurred as a result of the original transgression. Those in favor of vengeance align themselves with one of the following vindictive theories of punishment, which include: (1) the escape-value version, which finds that legal punishment is an orderly outlet for aggressive feelings that would otherwise demand satisfaction in socially disruptive ways; (2) the hedonistic version of the vindictive theory holds that the justification of punishment is in the pleasure it gives people to see the criminal suffer for the crime; and (3) the romantic version of the vindictive theory finds that the justification of punishment originates in the emotions of hate and anger it expresses; these emotions include those allegedly felt by all normal or right-thinking people. See Joel Feinberg, Doing and Deserving: The Classic Debate 649–50 (1970).



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Just as states have reserved the right to pardon, they have also reserved the right to prosecutorial discretion when handing down punishments, which is limited to certain types of crimes;91 however, not all states allow for this type of prosecutorial discretion. Historically, as the need to punish became imperative for the preservation of social order, several theories of punishment developed, such as retribution, just desert, deterrence, and rehabilitation. Because of the developmental stages of each system, the application of these punishment theories differs from national criminal systems to the ICJ system. An assumption of the national criminal justice system is the existence of a functioning legal system, with checks and balances, without abuses, where values are upheld, and public order is achieved. By contrast, the ICJ system, with its amorphous legal system and continuous battle with realpolitik, is currently developing processes designed to accomplish the goals of accountability, justice, and, in the future, deterrence.92 1.4.2. The Historical Premise of Punishment 1.4.2.1. Talion Law To a large extent, the state’s decision to take from the individual the right to exact individual personal vengeance is a consequence of the Talmudic “Talion law.” “Talion law” gave rise to social disruptions as individuals, families, clans, tribes, and later nations sought to extract vengeance from one another in ways that often led to greater social harm and conflict than the original purpose of “Talion law” envisaged.93 The prescription “thou shalt give life for life, eye for eye, tooth for tooth, burning for burning, wound for would, stripe for stripe,” also found in the Quʾrān,94 is the essence of the right of retaliation, which Roman Law referred to as ius talionis. For Jews and Muslims, as well as some Christian philosophers,95 this equal retaliatory right is the fair and just penalty, both qualitatively and quantitatively. Its merit lies in its simple purity, strictness and equality. However, interestingly,

91 See infra section 8. 92 See e.g., The Pursuit of International Criminal Justice, supra note 10. 93 In contemporary legal systems, only a few traditionalist Islamic systems consider that qesas still gives rise to a victim’s individual right to secure “Talion” retribution against a perpetrator, or alternatively, to seek the diyya (victim compensation). With that exception, every contemporary legal system has separated the rights of victims as between the civil, which remains inherently the victim’s right and the criminal, which passes on to the state acting on behalf of the victim, and which is either de jure or de facto promoted by the victim. See M. Cherif Bassiouni, Les Crime relevant du prècepte de Qesas, 4 Revue Internationale de Criminologie et de Police Technique 485 (1989); Bassiouni, Death Penalty and the Shari’a, supra note 37. 94 M. Cherif Bassiouni, Qesas Crimes, in Islamic Criminal Justice System 203 (M. Cherif Bassiouni ed., 1982). 95 See Immanuel Kant, The Categorical Imperative (1797); Hobbes, Leviathan, supra note 23; see also, Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest 28–31 (1989). Kant strongly believed that the law of retribution, returning an eye for an eye, is justified by the principle of equal freedom, which in essence represents the social contract theory. Id.

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both the Mosaic and Quʾrānic prescriptions give the victim, and the victim’s heirs in lieu of death, the option to choose victim compensation, or the diyya in Islamic law, as an alternative to the penalty. Thus, this practice reflects a sound policy that surely transcends the pure retributive theory.96 Furthermore, the Quʾrān also enjoins the believer to forgive, as that is the best course in the eyes of the Lord, who is the ultimate judge and avenger.97 Earlier, Jesus Christ in the Sermon on the Mount declares: [T]hat it hath been said, an eye for an eye, and a tooth for a tooth, but I say unto you that ye shall resist not evil, but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also.98

In Jesus Christ’s admonition one finds the same preference for forgiveness that is embodied in the Quʾrān.99 Metaphysically, vengeance is not part of human justice, however retributive it may be, and this is evidenced in the Bible: “You shall not take vengeance, nor bear any grudge against the children of your people, but you shall love your neighbor as yourself.”100 Instead, vengeance belongs only to the Almighty. The Bible, according to St. Paul, commands this: “for it is written, vengeance is mine, I will repay, saith the Lord.”101 The Quʾrān also refers to Allah as the avenger, a divine quality that is not that of humans.102 Thus, the lex talionis, which was followed by the Greeks, the Romans, the Muslims, and all legal families for varying periods since then, represents retribution. When the state punishes, retribution is transformed into a substitution for vengeance and is not a philosophy of vengeance itself, although the two are frequently confused. 1.4.2.2. Just Desert As the right to exact punishment devolved to the collectivity under the “social contract” theory, almost every national criminal justice system has been based in some way primarily on the notions of retribution or just desert. The goals of humanism and social rehabilitation, however, only emerged in national legal systems in the eighteenth century. The theories of just desert and retribution

96 See Surat al-Baqarah, 2:178–79; Surat al-Ma’ida, 5:45; Surat al-Nisa, 4:92. See also Bassiouni, Death Penalty in the Shari’a, supra note 37; Bassiouni, Qesas Crimes, supra note 22; Bassiouni, Les Crime relevant du prècepte de Qesas, supra note 93. 97 See Bassiouni, Death Penalty in the Shari’a, supra note 37; Bassiouni, Qesas Crimes, supra note 22; Bassiouni, Les Crime relevant du prècepte de Qesas, supra note 93. 98 Matthew 5:38–5:40 (King James). 99 See Bassiouni, Death Penalty and the Shari’a, supra note 37; Bassiouni, Quesas Crimes, supra note 22; Bassiouni, Les Crime relevant du prècepte de Quesas, supra note 93. 100 Leviticus 19:18. 101  Romans 12:19. 102 See Bassiouni, Death Penalty and the Shari’a, supra note 37; Bassiouni, Quesas Crimes, supra note 22; Bassiouni, Les Crime relevant du prècepte de Quesas, supra note 93.



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are based on philosophical premises similar to the one that gave the individual the right to unilateral vengeance or satisfaction under “Talion law.” The collectivity has simply assumed the individual’s prerogative, thereby also assuming the obligation to exercise that substituted prerogative as part of the “social contract.”103 Therefore, based on the “social contract” theory, it can be concluded that “general principles” of ICJ exist. These general principles are namely that victims have both an inherent and inalienable right to expect that the legal order, whether national or international, shall judge and punish violators of certain norms.104 Also, the legal system should provide the victims with the right to seek, and where meritorious, to obtain civil redress.105 The legitimacy of punishment for international criminal law violations derives from: (1) its authoritative source; (2) the application of equal and fair penalties to all perpetrators; (3) the reciprocal and commensurate nature of the penalty in relation to the violation and extent of the harm produced; and (4) because it constitutes just desert. The notions of retribution and just desert are both a consequence of the first two factors, which constitute the underpinning of the legitimacy of punishment as well as a philosophical premise or social policy to legitimize society’s right to punish.106 103 Roman justice was sum cinque, to each his due. See Kant and Hobbes, supra note 95; David Miller, Social Justice (1976); John Rawls, A Theory of Justice (1971); Weinreb, Natural Law and Justice, supra note 21; David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. Rev. 1623, 1626–30 (1992). 104 See Edward M. Wise, The International Criminal Court: A Budget of Paradoxes, 8 Tul. J. Int’l & Comp. L. 261, 267 (2000). 105 See supra note 6. The victims’ right to a remedy includes: (1) access to justice; (2) reparation for harm suffered; and (3) access to factual information concerning the violations. The victims’ right to reparation entails the following forms: restitution, compensation, rehabilitation, and satisfaction and guarantees of non-repetition. Specifically, restitution should involve the restoration of the victim to the original situation before the violations occurred, which may include the restoration of liberty, legal rights, social status, family life and citizenship, return to one’s place of residence, and restoration of employment and return of property. Compensation should be provided for any economically assessable damage resulting from the violations, such as: physical or mental harm, lost opportunities, material damages and loss of earnings, harm to reputation or dignity, and costs required for legal or expert assistance, medicines and medical services, and psychological and social services. Rehabilitation should involve medical and psychological care as well as legal and social services. Lastly, satisfaction and guarantees of non-repetition should include: cessation of continuing violations; verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others; the search for bodies of those killed or disappeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families; an official declaration or a judicial decision restoring dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim; apology; judicial or administrative sanctions against persons responsible for the violations; commemorations and tributes to the victims; inclusion of an accurate account of the violations; and preventing the recurrence of violations. Id. 106 This was the position of Kant and Hobbes, supra note 95. See also Moore, supra note 95. According to Kant, punishment is a “categorical imperative” based on the principle of equal freedom, thus the failure to punish is an injustice to all, even the perpetrator. Kant stated that:

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Legal philosophies and policies vary as to whether retribution constitutes an end in itself, or whether it also serves other goals such as deterrence, or perhaps rehabilitation. In some respects, retribution implies the just desert end of legitimate punishment meted out by an authoritative source, which represents a social group’s fulfillment of an implied “social contract.”107 The inherently just nature of punishment as desert is at the heart of the retributive notion of punishment irrespective of the expediency or utility of punishment, which some scholars also see in the policy of retributive punishment.108 Even though retribution and just desert are based on the same philosophical premises, just desert, as opposed to retribution, predicates the violator’s right to punishment on the need for individual redemption, which occurs only after the violator has fulfilled the requirements of the given punishment. As a result, the violator may re-enter society with the confidence that he/she has accepted and satisfied the requirements of his/her just desert, thereby emerging free from further punishment for his/her past violation. Theoretically, just desert provides the violator with a means to feel as if he/she has “paid his dues.” However, in practice, society is less likely to accept a violator’s completion of their given punishment as a means for personal redemption or vindication. In fact, depending on the social structure of a given society, violators continue to be punished, even after they have served their sentence. Continuing punishment is carried out through certain social and procedural mandates which label violators as lifetime “criminals.”109 As a result, the just desert nature of punishment is sometimes more severe and less deserved than what was theoretically intended. The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it . . . . Id. (quoting Immanuel Kant, The Metaphysical Elements of Justice (John Lord trans., 1965)). 107 Exploring the basis of desert as a justification for punishment the author notes that: “Punishment is just when it is deserved, and it is deserved by the commission of an offense. The offense committed is the sole ground of the state’s right and duty to punish . . . . Justice in these matters is to treat offenders according to their deserts, to give them what they deserve, not more, and not less.” Dolinko, Three Mistakes of Retributivism, supra note 103, at 1628 (quoting Igor Primoratz, Justifying Legal Punishment (1989)). 108 Moore, supra note 95. The Kantian “categorical imperative” of punishment is not inconsistent with utilitarian policies. It should be noted that retribution is not vengeance and that certain forms of punishment are not “just desert” when they are applied to a given category of offenders irrespective of the individual actor’s motives. Id. 109 For example, on May 17, 1996, President Clinton signed Megan’s Law, which compels each state and federal government to register individuals who have been convicted of sex crimes against children. In most states, the registration requirement was extended to all sex offenders. As a result, all persons convicted of a sex crime are required to register as a “sex offender” within ten days of being released from prison, even though they have served their entire sentence in prison. This registration list is available to everyone and can be accessed on the Internet and found at your local post office. This practice clearly contradicts the theory of just desert by labeling the violator as a sex offender, which impairs his freedom, his ability to experience feelings of redemption, and his chance to rebuild his life. Megan’s Law in All 50 States, Klass Kids Foundation, available at http://www.klaaskids.org/pg-legmeg.htm (last visited Nov. 8, 2011).



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1.4.2.3. Deterrence and Rehabilitation In the opinion of this writer, retribution is not vengeance. Rather, it can produce utilitarian results and achieve humanistic goals, such as deterrence and rehabilitation.110 Thus, even though the underlying philosophical premises differ, their outcomes are not inconsistent. Up to the eighteenth century, the essential difference in these philosophical and policy views was whether penalties should be commensurate with a social judgment of the gravity of the crime, or whether that penalty could be varied to fit certain characteristics pertaining to the violator, particularly the likelihood of rehabilitation.111 The philosophical debate about the purpose of punishment may be viewed as separate from whatever purpose it may fulfill.112 However, both can also be viewed as being on the same continuum, which starts with punishment as an end in itself. Punishment, in this context, justifies its existence. It then progresses to serve another end, beyond punishment in itself, which is whether it can produce deterrence or rehabilitation. The compromise position is that utilitarian purposes do not take away from the pure retributive theory, rather, they add another dimension to it. 1.4.2.4. Punishment of Jus Cogens International Crimes The relevance of the debate between the purpose of punishment and whatever purpose it may fulfill to jus cogens international crimes depends on a number of facts and assumptions. Since the Second World War, jus cogens international

110 Deterrence theories justify punishment based on the good or desirable consequences that are derived from the punishment, while retributivism justifies punishment as a corollary of a transgression of a certain norm. See Dolinko, supra note 103. 111 Cesare Beccaria, Dei delitti e delle pene 13 (Domenico Pisapia ed., 1964) (1764). Beccaria was probably the first penal reformist of the 18th century. Jeremy Bentham was among his leading followers whose authoritative position in the English legal tradition had a profound effect on the family of common law systems. See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (James H. Burns & Herbert L. A. Hart eds., 1970) (1780). 112 Because of the complexities involved with defining the “purpose” of punishment, such as the characteristics of human nature, various scholars differ as to the true purpose of punishment. See Wise, supra note 104. Wise, quoting Emile Durkheim, defines the true purpose of punishment as: “to maintain intact the cohesion of society by sustaining in all its vigor communal consciousness.” Thereby, the most important effect of punishment is that it reinforces collective beliefs on the differences between right and wrong, thus reaffirming the actions of honest, law-abiding people and helping hold the community together. In contrast, Durkheim questions the effectiveness of punishment in reforming those who commit crimes or deterring future crimes. Id. See also Moore, supra note 95, where Jeremy Bentham’s utilitarian justifications for punishment are recognized as: (1) states have the duty to achieve a specified object, (2) laws are used by states to reach its object, (3) infractions of the law frustrate the achievement of the object, and, lastly, (4) states have the right to punish infractions in order to achieve the object of punishment. Id. at 36–37. However, Moore points out that, according to the principles of utility, punishment shall not be inflicted where: (1) it would be ineffective in deterring crimes; (2) no mischief was caused; (3) education and social reorganization exist in order to stop crime; and (4) it would cause greater harm than the harm of not punishing. Id.

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crimes have produced an extraordinary number of victims,113 and have caused the disruption of national orders and international peace. Nonetheless, the perpetrators of these crimes have faced impunity. Naturally, in the absence of justice, aggrieved groups seek vengeance and any hope of national reconciliation disappears. As a result, future disruptions of national and international public order, in addition to more victimization, are likely to occur. Consequently, punishment is as essential to world order as it is to the social order of national societies. Punishment for jus cogens international crimes must, therefore, be essentially retributive, with a view toward future general deterrence, and only marginally concerned with the prospective expectation of rehabilitation of individual violators. Nevertheless, there is room for considering the assessment of punishment on the basis of the harm produced and the motives of the individual perpetrator. Even though this latter qualification may appear philosophically incongruent with the pure retributive theory, it is nonetheless essential in light of other contemporary international community. The justification for this mixed theory of punishment lies in its value-oriented goals. Lastly, another metaphysical dimension exists where punishment for jus cogens international crimes helps restore the human dignity of the specific victim. Additionally, it symbolically reaffirms the value of human dignity, and in the Kantian sense, it restores the human dignity of the perpetrator.114 This is why punishment for such crimes cannot be compromised by the political practice of blanket amnesties. For the foregoing reasons, it is necessary to make a distinction between policy makers and senior executors of jus cogens international crimes and low-level executors.115 1.4.3. Universal Justice for Jus Cogens International Crimes The notion of universal justice is not exclusively based on the Western philosophy of natural justice as so eloquently expressed by Cicero: True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter 113 Between 1945 and 2009, the world witnessed 313 conflicts of different types, which resulted in the killing of an estimated 92 to 101 million persons; notably, in most of these cases, the perpetrators have benefited from impunity. See The Pursuit of International Criminal Justice, supra note 10. 114 For a similar view see Moore, supra note 95, at 47–49. Moore, quoting Hegel, states that punishment is a right that treats criminals as persons who have a right to act freely; therefore, failure to punish treats the offender as an object rather than a human being. Punishing offenders, in recognition that the criminal act does not conform to the state’s rules, fulfills a public duty. Id. 115 See Bassiouni, Crimes Against Humanity, supra note 69, at 18–19.



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of it. And there will not be different laws at Rome and at Athens, or different law now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.116

Universal justice is also based on the idea that law is part of any social order— whether divinely ordained or socially conceived. Its corollary is that normative principles arising out of jus cogens are universal because they apply to all persons similarly situated, irrespective of who they are or where they may be. The ICJ system must, therefore, provide dual tracks of access to justice in cases involving violations of jus cogens international crimes.117 This does not mean, however, that international judicial bodies must necessarily be the ones to administer these two tracks. Instead, as mentioned earlier, the ICJ system must operate in a complementary manner in order to cooperate with national criminal justice systems.118 This complementarity can be analogized, with poetic license, to the different planets and stars of the solar system. The sun in this case is the common denominator of the planets and the stars, and it represents the central value of justice whose pursuit is carried out by the different planets and stars, which are part of the same constellation. Setting aside the jurisdictional connection between international judicial bodies and national ones, all of these systems should converge to produce the best possible results that they can, individually and collectively. In doing so, these systems can provide criminal accountability and punishment, which is a public function, and individual redress, which is a quasi-private function, supported by a public system. The “social contract” theory requires that ICJ must pursue the goal of accountability for those who commit transgressions of certain norms of international criminal law. These norms apply particularly to jus cogens international crimes119 116 De Reppublica 3.22.33, (Clinton Walker Keyes trans., 1928). The same essential point is made repeatedly in the Laws. De Legibus 1–6.18–19, 2.4–9–10, 2.5.13–14, (Clinton Walker Keyes trans., 1928). See also Weinreb, Natural Law and Justice, supra note 21, wherein he states: It was a philosophy well adapted to the historical circumstances of an empire incorporating diverse nations and races, which governed by an accommodation of imperial hegemony and local difference. Greek speculative philosophy did so well in Rome because it supported practical objectives, not because it stimulated or satisfied the intellect. It remained for other writers to turn the attention of natural law again from the practical to the speculative, substituting Christian theology for Greek cosmology. Id. at 41. 117 Among the 27 categories of international crimes, only jus cogens crimes rise to that level. See Bassiouni, The Discipline of International Criminal Law, in 1 Bassiouni, ICL, supra note 15, at 3. 118 This is the premise of the ICC. 119 See M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63 (1996). These very words “jus cogens” mean “the compelling law” and, as such, a jus cogens principle holds the highest position in the hierarchy of all other norms, rules, and principles. It is because of that standing that jus cogens principles have come to be known as

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because of their universal condemnation, and the large-scale harm they produce. For these reasons, jus cogens crimes require criminal prosecution and, in cases of a determination of guilt, the application of punishment irrespective of the realpolitik considerations that may be advanced in opposition thereto. This determination is based on a value judgment that such crimes, because of their nature and consequences, require criminal sanctioning. Thus, the goals of desert and retribution are fulfilled, as well as the goals of deterrence and prevention irrespective of their effectiveness. Moreover, deterrence and prevention reduce harm and preserve world public order.120 The higher nature of these goals and social interest they achieve warrant resolving the criminal sanctioning process at the national and international levels. The type of legal forum through which this sanctioning process is applied should be of no consequence on the ultimate goal that is to be pursued. International jus cogens crimes are, at this point in time: genocide, crimes against humanity, war crimes, slavery and slave related practices, torture and, for historic reasons, piracy.121 It is precisely because of the nature of these norms and their inderogability that certain legal consequences attach.122 For instance, they are: the duty for any and all legal systems, whether national or international, to

“peremptory norms.” However, scholars are in disagreement as to what constitutes a peremptory norm and how a given rule, norm, or principle rises to that level. The basic reason for this is that the underlying philosophical premise of the scholarly protagonist view is different. These philosophical differences are also aggravated by methodological disagreements. Scholars differ as to jus cogens substance, sources, content (the positive or norm-creating elements), evidentiary elements (such as universality or less), and value-oriented goals (for example, preservation of world order and safeguarding of fundamental human rights). The Vienna Convention on the Law of Treaties (Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27; 1155 U.N.T.S. 331 (1969)) embodies customary rules which have emerged from international and national legal experience, as well as national legal principles of the law of contracts (this position is affirmed by the Restatement of the Foreign Relations Law of the United States (Revised) 102 (Tent. Draft No. 6, 1985)). It uses the term “peremptory norm” to mean inderogable. Id. Art. 53; see, e.g., C. Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976). The International Court of Justice, in its opinion in Nicaragua v. United States: Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14. See generally Appraisals of the International Court of Justice’s Decision: Nicaragua v. United States (Merits), 81 Am. J. Int’l L. 77 (1987). In the Barcelona Traction case, the International Court of Justice stated: [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Barcelona Traction (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5). Thus, the first criterion of an obligation rising to the level of erga omnes is, in the words of the ICJ, “the obligation(s) of a State towards the international Community as a whole.” Id. at 32. 120 See McDougal, et al., Law and Minimum World Public Order, supra note 66. 121 See Bassiouni, Combating Impunity for International Crimes, supra note 24, at 68. 122 Id. at 67.



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prosecute or extradite,123 and when necessary to resort to universal jurisdiction;124 to provide legal assistance to national or international legal orders undertaking the investigation, adjudication or prosecution of such crimes; to not recognize or apply statutes of limitations;125 and to recognize and enforce penal judgments arising out of such cases.126 Admittedly, different modalities as discussed may apply to different transgressions, depending upon the goals of justice and peace sought to be achieved through the international legal orders.127 Indeed, not every transgression requires criminal prosecution. Similarly, not every criminal conviction requires a given penalty. The range of accountability modalities will vary depending upon the nature of the transgression, and the requirements of restoring the social order will occur either by achieving reconciliation between different social groups, or by reaching peace agreements between different states. Thus, a balance must exist between these collective interests and public order goals on one hand, and the rights and interests of the victims on the other. The pursuit of peace and justice are not incompatible, however, they often times contradict one another. Therefore, legal criteria that provide consistency and predictability in the application of these modalities of accountability must be established. Achieving accountability for international crimes will only evolve once an integrated and comprehensive strategy is developed where international and 123 Bassiouni & Wise, Aut Dedere Aut Judicare, supra note 4. 124 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001); see also Universal Jurisdiction (Stephen Macedo ed., 2003); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Leila Nadya Sadat, Competing and Overlapping Jurisdictions, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 201 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL]. 125 See Christine Van den Wyngaert, War Crimes, Genocide and Crimes Against Humanity: Are States Taking National Prosecutions Seriously?, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 227 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL]. 126 See Bassiouni, Combating Impunity for International Crimes, supra note 24, at 65–66. 127 In the past, the following accountability mechanisms have been employed: international prosecutions, international investigatory commissions, national investigatory and truth commissions, national prosecutions, lustration mechanisms, civil remedies, and mechanisms for victim compensation. See Bassiouni, Combating Impunity for International Crimes, supra note 24, at 18–22, 67; Ratner, Abrams, & Bischoff, supra note 29; Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2542 (1991). A parallel track to the criminal sanctioning process is the civil one which may be pursued by victims and their heirs, either before national or international administrative or legal bodies, in order to secure any of several modalities of redress. These modalities include monetary compensation, material and legal restitution, moral vindication, and also the right to have the legal system provide protection and prevention against potential future violations. Similar to what was said about the criminal sanctioning process, this civil track does not presuppose an allocation of jurisdictional competence as between national and international administrative and legal bodies. See Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, U.N. Doc. A/ RES/40/34 (Dec. 11, 1985).

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national institutions complement each other. This notion of complementarity is not limited to having alternative jurisdictional mechanisms as in the case of the ICC. Rather, complementarity can be based on a variable network of cooperating systems. Although different institutions within this global system such as the ICC, ad hoc tribunals, national criminal justice institutions, and other international and regional mechanisms, function independently of one another, they are also increasingly cooperating with one another. In its initial stages, such a system will require integrated strategies to link international, regional, and national institutions. At the very least, it requires enhanced cooperation in penal matters, and national legal systems will be the essential enforcement organs of international crimes. To accomplish this, it will be necessary for national legal systems to develop new views on jurisdiction. For an integrated system of ICJ to be effective, specific norms and criteria must exist in order to assist policy makers in selecting appropriate mechanisms in a post-conflict situation. These criteria must be flexible and take into consideration the sui generis nature of a given conflict. For example, the reparation scheme used by Chile and Argentina to compensate human rights victims is not appropriate for a state such as Rwanda that faces a very different economic reality and a larger number of victims and offenders.128 Accountability is an end in and of itself, but it is also a means to achieve other goals, such as deterring future violations, making victims whole, and serving as a point of departure for reconciliation. Certainly, the criteria for accountability may change from conflict to conflict and evolve over time. Thus, the process of defining accountability and selecting the mechanisms employed to achieve it must: (1) be inclusive of all sectors of society; (2) emanate from or be acceptable to the given society, not just state actors, but their population; (3) incorporate international norms and standards, but reflect local characteristics; (4) be tailored to a given conflict, but within a general framework; and (5) look both to the short-term of cessation of conflict and to the long term of institution and society building. However, if the enforcement of international criminal law is to be more than Potemkin justice, which merely provides moments of forced peace between 128 In post-genocidal societies like Rwanda, where there exists hundreds of thousands of aggressors and approximately 800,000 murdered, the best accountability mechanism was difficult to find and to apply. See Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U. L. Rev. 1221 (2000); see also Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed With Our Families (1998). Gourevitch, reflecting on the atrocities committed within the Republic of Rwanda, noted: Decimation means the killing of every tenth person in a population, and in the spring and early summer of 1994 a program of massacres decimated the Republic of Rwanda. Although the killing was low-tech—performed largely by machete—it was carried out at dazzling speed . . . [A]t least eight hundred thousand people were killed in just a hundred days. It was the most efficient mass killing since the atomic bombings of Hiroshima and Nagasaki. Id.



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conflicts, political negotiators must not be allowed to define accountability so as to leave it without meaning. Further, they must be prohibited from bartering away what they know to be their community’s sense of justice. Indeed, the provision of blanket amnesties offends universal notions of justice. While a place exists within the framework of ICJ for amnesty, pardon, and mercy, these notions can only come after judgment or some acceptance of responsibility on the part of the offender.129 For example, while the South African Truth and Reconciliation Commission contains provisions for amnesty, this amnesty is not blanket and is conditioned on the offenders participation in the process of accounting for the apartheid regime’s past violations.130 However, the mechanism was essentially predicated on a compromise whereby the offer of justice based on a process paved the way for reconciliation.131 If this generation fails to achieve the expectations of ICJ, then the words of George Santayana represent reality, “those who cannot remember the past are condemned to repeat it,”132 and our era of world civilization will have failed to achieve its most important global goal of justice.133 However, through the consistent application of punishment for jus cogens international crimes, this generation will be one step closer to obtaining this goal of universal justice. Section 2. Accountability Mechanisms International and national prosecutions are not the only methods of accountability. There are other options that must be examined, though in the opinion of this writer, a duty to prosecute exists, whether at the international or national level, for genocide, crimes against humanity, war crimes, and torture.134 129 See Martha Minow, Between Vengeance and Forgiveness (1999); Jeffrie G. Murphy & Jean Hampton, Forgiveness & Mercy (1988); Moore, supra note 95. 130 The international community agrees that by creating the Truth Commissions, South Africa has made a good faith attempt to comply with international obligations of accountability. See Eric Wiebelhaus-Brahm, Truth Commissions and Other Investigatory Bodies, in 1 The Pursuit of International Criminal Justice, supra note 10, at 477; see also Lynn Berat & Yossi Shain, Retribution or Truth-telling in South Africa? Legacies of the Transitional Phase, 20 L. & Soc. Inquiry 1, 163 (1995); Ziyad Motala, The Promotion of National Unity and Reconciliation Act, the Constitution and International Law, 28 Comp. & Int. L. J. S. Africa 338 (1995). 131 Some scholars argue that granting amnesties in hopes of reconciliation may not be sufficient justification to validate the granting of such amnesty. See Louise Mallinder, Amnesties, in 1 The Pursuit of International Criminal Justice, supra note 10, at 793. 132 George Santayana, The Life of Reason: The Reason of Common Sense (1905), vol. 1, at ch. 12. 133 See Bassiouni, Combating Impunity in International Crimes, supra note 24. 134 Whether such cases should be prosecuted before an international or national body is essentially relevant to the issue of primacy of competence and to the issue of effectiveness and fairness of national prosecution. Another relevant question arises as to the prosecution of decisionmakers, senior executors and perpetrators of particularly heinous crimes and other violators. A policy could be established to prosecute the former before an international criminal court as a

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Accountability measures fall into three categories: truth, justice, and redress.135 Accountability must be recognized as an indispensable component of peace and eventual reconciliation. Accountability measures which achieve justice range from the prosecution of all potential violators to the establishment of the truth. Accountability is the antithesis of impunity, which occurs either de jure through the granting of amnesties or de facto through the failure of a state to enforce legal norms either willingly or as a result of an insufficient legal infrastructure. Amnesties are essentially a form of forgiveness,136 granted by governments, for crimes committed against a public interest. While amnesty is a deliberate positive action, impunity is an act of exemption—an exemption from punishment, or from injury or loss.137 Amnesty can occur after a person or a group of persons have been convicted, not beforehand. The recurrence of pre-prosecution amnesty is, therefore, an anomalous phenomenon developed as part of a policy of impunity. Impunity can also result from de facto conduct, often occurring under color of law when, for example, measures are taken by a government to curtail or prevent prosecutions. As a de facto act, it can be the product of either the failure to act or the product of more deliberate procedural and practical impediments which can preclude prosecution.138 It is also possible to achieve impunity through other practical impediments.139 In the context of accountability, the attainment of truth, justice, and redress raises a host of issues addressed by other studies.140 first priority, leaving lesser violators to be prosecuted by national bodies. In addition, the question arises as to the possibility of lesser sentences or alternatives to traditional criminal sentences for lesser offenders and for national bodies to resort to various forms of conditional release, pardons or amnesties after conviction of lesser offenders. These measures would not be contrary to the principle of non-derogation from the duty to prosecute. 135 For a survey of various accountability measures from a criminological perspective, see Stanley Cohen, State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past, 20 L. & Soc. Inquiry 7 (1995). 136 See Forgiveness, Forgetfulness, or Intentional Overlooking, The New Shorter Oxford English Dictionary On Historical Principles 67 (Lesley Brown ed., 1993). 137 Id. 138 For example, a short-term statute of limitation can preclude prosecution. 139 For example, with respect to rape in the former Yugoslavia, prosecutions take place in the Netherlands while the victims are usually refugees in different countries. If the victims are required to travel to the Netherlands without speaking the language, without proper support (familial, social, psychological, medical, emotional), and are to be cross-examined there, then they may elect not to testify, resulting in impunity. M. Cherif Bassiouni & Marcia McCormick, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University). See also Prosecutor v. Tadic, Case No. IT-94-1-T (May 7, 1997) (McDonald, J., dissenting) (defendant was acquitted of charges of rape before the ICTY because the victims were fearful of testifying). 140 These issues include: Can the need for redress always be found through traditional monetary or prosecutorial mechanisms? What level of compensation should be given, and to whom? Can it not, particularly in financially poorer countries, be achieved in a non-monetary form? Many of the crimes involve the potential accountability of many people, maybe large sectors of a society. How many people should be prosecuted in order to attain justice? How can the interest and sup-



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Accountability options include: (a) international prosecutions; (b) international and national investigatory commissions; (c) truth commissions; (d) national prosecutions; (e) national lustration mechanisms; (f) civil remedies; and (g) mechanisms for the reparation of victims. 2.1. International Prosecutions As a matter of policy, international prosecutions should be limited to leaders, policy-makers and senior executors.141 This policy, however, does not and should not preclude prosecutions of other persons at the national level which can be necessary to achieve particular goals.142 There must be prosecution for at least the four jus cogens crimes of genocide, crimes against humanity, war crimes, and torture. Prosecution at the international level is important because it is likely the only way to reach the leaders, senior executors, and policy makers, who may otherwise be de facto beyond the reach of local law. In addition, victims should also be allowed to participate in an international prosecution as partie civile, which is provided for in civilist legal systems, in order to have the right to claim compensatory damages.143 Presently, there are two existing ad hoc international criminal tribunals: the ICTY and the ICTR.144 The jurisdiction of each of these tribunals is temporally and territorially limited to respond to the specific threat to peace and security that necessitated their respective creations; namely, the civil and ethnic wars that ensued the break-up of the former Yugoslavia, and the four month intensive slaughter that occurred in Rwanda. While each of these tribunals has concurrent criminal jurisdiction with national courts, the international tribunals

port of the general population be maintained? For an account of these and other such problems that arose from the human rights trials in the wake of the restoration of democracy in Argentina, see generally Carlos Santiago Nino, Radical Evil on Trial (1996). 141 See M. Cherif Bassiouni, Policy Perspectives Favoring the Establishment of the International Criminal Court, Colum. J. Int’l Aff. 795 (1999); see also Security Council Resolution 1329 (December 5, 2000) (taking note the position expressed by the International Tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors). 142 It may be important, for example, to prosecute lower level actors in order to generate information regarding the actions and identities of higher level officials. 143 For example, while the ICC Statute contains several provisions providing victims an opportunity to participate in proceedings or to obtain compensations (e.g., arts. 75, 79), similar provisions are lacking in the Statutes for the ad hoc Tribunals for the former Yugoslavia and Rwanda. See generally The Rome Statute of the International Criminal Court (ICC), 17 July 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute]; infra note 143. 144 See Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159 [hereinafter ICTY Statute]; of the International Criminal Tribunal for Rwanda, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute].

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nonetheless retain primacy and may request the deferral of a national proceeding at any stage in order to prosecute.145 Consistent with the two prior international prosecutions at Nuremberg and Tokyo, both of these tribunals have focused on the leaders and senior architects. Indeed, notwithstanding the fact that there are admittedly “thousands of significant targets” in the former Yugoslavia and Rwanda, the Prosecutor for these tribunals selected fewer than 200 for each and publicly acknowledged that not all of these would be prosecuted.146 As such, a significant amount of the prosecutorial work, including the prosecution of a number of important figures, has been left to the national courts of the former Yugoslavia and Rwanda. In addition, international efforts have been undertaken in mixed-model tribunals in Sierra Leone, Cambodia, Lebanon, Bosnia and Herzegovina, Kosovo and Timor-Leste. Future international prosecutorial efforts will for the most part occur before the ICC.147 The ICC has jurisdiction over the crimes of genocide, crimes against humanity, war crimes and eventually aggression.148 Importantly, it only exercises its jurisdiction over individuals who are either nationals of a state party or who have committed a crime on the territory of a state party.149 The ICC also only exercises its jurisdiction prospectively.150 This effectively precludes it from dealing with crimes committed on a state’s territory or by one of its nationals prior to that state’s ratification of the treaty embodying the ICC Statute. The jurisdiction of the ICC may be triggered in three fashions: (1) state party’s referral; (2) referral by the Security Council acting pursuant to Chapter VII of the United Nations Charter responding to a threat to peace and security; and (3) a proprio motu initiation by the prosecutor.151 As of 2012, there are seven situations before the ICC, of which three were initiated by a state referral (the Central African Republic, the Democratic Republic of 145 See ICTY Statute, supra note 144, at art. 9(2); ICTR Statute, supra note 143, at art. 8(2). 146 See Office of the Prosecutor, Address By The Prosecutor of the International Criminal Tribunal For the Former Yugoslavia, Carla Del Ponte, to the UN Security Council, GR/P.I.S./642-e (Nov. 27, 2001) (issued as a press release) (“From the many thousands of significant targets, we have selected under 200 in each Tribunal, and we do not expect to prosecute even all of those. Many, many important crimes have therefore been left to be dealt with by national jurisdictions.”). 147 The statute of the ICC came into effect on July 1, 2002, after sixty-six countries had ratified on April 11, 2002. See ICC Statute, supra note 143, at art. 126. 148 See ICC Statute, supra note 143, at arts. 6 (genocide), 7 (crimes against humanity), and 8 (war crimes). In addition, the statute envisions that the court will eventually exercise jurisdiction over aggression, once that crime is defined and added pursuant to the Statute’s amendment procedure. See ICC Statute, at art. 5(1)(d). Other crimes may eventually be added as well, and there have been proposals for both the crimes of terrorism and drug trafficking. 149 See ICC Statute, supra note 143, at art. 12. However, the S.C. may refer a case involving a non-state party to the ICC acting under its authority pursuant to Chapter VII of the U.N. Charter in response to a threat to peace and security just as it has been able to create the ad hoc tribunals. 150 Id. arts. 11, 24. 151 See id. art. 13.



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the Congo and Uganda), two were initiated through a Security Council referral (Libya and the Darfur, Sudan), and two were initiated by the prosecutor propio motu (Côte d’Ivoire and Kenya). A central tenet of the ICC is its complementarity with national criminal jurisdictions.152 In contrast with the Yugoslav and Rwandan Tribunals, national criminal jurisdiction almost always has priority over the ICC. Only in two situations may the ICC exercise primacy of jurisdiction, namely: (a) when a national legal system has collapsed; or (b) when a national legal system refuses or fails to carry out its legal obligations to investigate and prosecute persons alleged to have committed the three crimes presently within its jurisdiction or punish those who have been convicted.153 2.2. International and National Criminal Investigatory Commissions International and national criminal investigatory commissions include internationally established commissions, or designated individuals, assigned to collect evidence of criminality, in addition to other fact finding information of a more general nature.154 These commissions or specially designated individuals are important in providing the basis for future, and to be sure, timely, national and international prosecutions and in documenting violations of international humanitarian and human rights law.

152 For a discussion of the principle of complementarity, see John T. Holmes, The Principle of Complementarity, in Roy S. Lee, The Rome Conference and its Contributions to International Law, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 41–78 (Roy S. Lee ed., 1999); see also Sharon A. Williams & William A. Schabas, Article 17: Issues of Admissibility, in Triffterer, Commentary on the Rome Statute of the International Criminal Court, supra note 32, at 605; see also Chapter VII, section 2.2. 153 See ICC Statute, art 17. The principles of the primacy of national legal systems and the ICC’s complementarity are evident in other provisions of the Statute. Perhaps most indicative of these principles are the provisions of the Statute in Part 9 that require all requests for cooperation, including the arrest and surrender of an accused and the securing of evidence, to be directed to and executed by national legal systems. See M. Cherif Bassiouni, Explanatory Note, 71 Revue Internationale de Droit Pénal 1, 5 (2000). 154 The five international investigative commissions are: (1) The 1919 Commission on the Responsibilities of Authors of War and on the Enforcement of Penalties; (2) The 1943 United Nations War Crimes Commission; (3) The 1946 Far Eastern Commission; (4) The 1992 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate War Crimes and other Violations of International Humanitarian Law in the Former Yugoslavia; and (5) The 1994 Independent Commission of Experts Established Pursuant to Security Council Resolution 935 (1994) to Investigate Grave Violations of International Humanitarian Law in the Territory of Rwanda. See generally Bassiouni, From Versailles to Rwanda, at 11–49. The Commission on Human Rights and the Sub-Commission on Promotion and Protection of Human Rights have established, respectively, special experts and rapporteurs whose work and contribution over the years has proven invaluable.

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Like the Commission of Experts for the former Yugoslavia,155 these commissions or specially designated individuals are often actively investigating or collecting evidence during periods of open hostilities or ongoing human rights violations by repressive regimes. That is because the mandate of these entities and individuals is typically to evaluate a situation in the first instance in order to advise political decision-makers as to an appropriate course of action to remedy the situation. Security Council Resolution 780 (1992), which created the Commission of Experts for the Former Yugoslavia is illustrative: 2. Requests the Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyse the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further information as the Commission of Experts may obtain through its own investigations or efforts, or other persons or bodies pursuant to Resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia; . . . 4. Further Requests the Secretary-General to report to the Council on the conclusions of the Commission of Experts and to take account of these conclusions in any recommendations for further appropriate steps called for by Resolution 771 (1992).156 Investigative commissions, however, play a role other than simply that of impartial analyst. Indeed, the evidence they collect and preserve will likely form the basis of any initial prosecutions, whether they are national or international in nature. For that reason, at times, some of the information that gives rise to a commission’s conclusions may be kept under seal, at least in the beginning. Investigative commissions are related and often share similar nomenclature and operating procedures with other accountability mechanisms such as truth commissions. While both of these mechanisms share the over-arching goal of

155 See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex, U.N. Doc. S/1994/674 (1994); Final Report, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/674/Add.2 (1994) (annexes); see also M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L. 784 (1994); M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L. F. 279–40 (1994). 156 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, S.C. Res. 780, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/780 (1992).



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ascertaining the truth about a given conflict, the principal distinction between these two types of bodies primarily lies in the timing of their establishment and their immediate purposes. Indeed, investigative commissions are focused on making an immediate assessment and initial record of what is occurring. In contrast, truth commissions are focused on making sense of what has happened and establishing somewhat of a permanent conclusion. As mentioned above, investigative commissions have different names but share many of the same practices. The Human Rights Council (HRC) has established since 2006 a number of Commissions of Inquiry (CoI) pursuant to a resolution of the Council. The mandates of CoIs differ both temporally and spatially, as does the scope of each mandate. CoIs likewise differ in the size of their membership, although they usually are made up of three Commissioners. CoIs must be distinguished from Special Procedures, which are fact finding mechanisms applicable to ongoing mandates such as that for “torture and other cruel, inhuman or degrading treatment or punishment” and “violence against women, its causes and consequences”. Each one of these mandates under the Special Procedures mechanism has a designated Special Rapporteur. The Special Rapporteur appointed by HRC determines how to conduct fact finding within the terms of his/her mandate. In addition to CoIs and Special Procedures, there are Fact Finding Missions (FFM) established by the Secretary General, usually pursuant to a General Assembly or Security Council resolution. The Secretary General determines the temporal and spatial competence of each FFM. A final, distinct category are the treaty bodies established by different United Nations treaties, some of which are empowered in certain circumstances conduct investigations. 2.3. International and National Truth Commissions Truth commissions or fact-finding investigative bodies are generally considered to have the following four attributes: (1) they focus on past events; (2) they attempt to discern the overall picture of a conflict as opposed to a given event; (3) they exist for a finite period of time, generally ceasing with the publication of a report; and (4) they generally have some form of authority emanating from either an international or national mandate.157 These commissions may be established internationally, regionally, or nationally. Truth commissions have been established in the aftermath of conflicts in countries including Uganda, Bolivia, Argentina, Uruguay, Zimbabwe, El Salvador, Chad, Chile, South Africa, and Ethiopia.158

157 See Wiebelhaus-Brahm, Truth Commissions and Other Investigatory Bodies, supra note 130; Hayner, supra note 56, at 599, 604. See also Ratner, Abrams, & Bischoff, supra note 28, at 193. 158 Id.

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Truth commissions serve the needs of accountability because they generally have the ambitious mandate to discover the entirety of the truth. They should not, however, be deemed as a sole substitute for prosecution of the four jus cogens crimes of genocide, crimes against humanity, war crimes, and torture. It is better perhaps that these commissions serve as a precursor or possibly operate in tandem with prosecutions. Indeed, their role is to establish a record of what has happened, and to disseminate this information widely at both the national and the international level.159 Essentially, their goals are to serve the end of peace and reconciliation, and may sometimes be less relevant to criminal justice, though by no means less important to that purpose. The advantage of these commissions is that they establish the broader context of a given conflict, thus eliminating the need at national and international prosecutions to provide that broader context or to use a given trial as a means of establishing a historical context160 that could, in some cases, be deleterious to the case under prosecution or the due process quality of the trial. Trials are generally ill-suited to deal with the task of providing a complete history of past violations. This is specifically a result of their adversary nature where the duty of the prosecutor is to focus on limited facts relevant to the guilt of the individual before the court, and the duty of the defense is to challenge the admissibility of the essential information.161 It is to be noted that an international or national truth commission is not necessarily a reconciliation commission. Some of these commissions can also be of a hybrid nature, taking on investigative features.162 2.4. National Prosecutions Notwithstanding the interest of international civil society in the establishment of international criminal tribunals, national criminal jurisdictions remain the cornerstones of the prosecution of international crimes.163 This is highlighted by the principle of complementarity found in the ICC Statute, which defers in most instances to national efforts and relies heavily on national systems and authorities for judicial assistance. The importance of national jurisdictions is further highlighted by their reach, as indeed, international tribunals generally focus only on the senior level decision makers and planners. National prosecutions should include all persons who have committed criminal acts, subject, however,

159 See Hayner, supra note 56, at 607. 160 See Gideon Hausner, Justice in Jerusalem 3, 4 (1966) (commenting on the Eichmann case). 161 See Charles Villa-Vicenio, Why Perpetrators Should Not Always be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 217 (2000). 162 See, e.g., Berat & Shain, supra note 130, at 186; M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 664–715 (2011). 163 See Bernaz & Prouveze, International and Domestic Prosecutions, supra note 45.



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to reasonable and justified prosecutorial discretion. This includes persons who have committed the four jus cogens crimes of genocide, crimes against humanity, war crimes, and torture. Furthermore, there should be a principle of no general amnesty for these four crimes. For crimes other than the four mentioned above, the national system may develop criteria for selectivity or symbolic prosecution consistent with their laws, provided these criteria are not fundamentally unfair to the accused. This does not preclude prosecutorial discretion when the evidence is weak or the criminality tenuous, or when a plea bargain can lead to the prosecution of more culpable offenders. Such prosecutions must be subject to standards whereby the exercise of discretion against prosecution, unless legally or factually justifiable, should result in remanding the individual to another accountability mechanism. For example, persons may receive sentences other than the deprivation of liberty, including the personal payment of reparations or compensation to the victims, the undertaking of some form of community service, or the making of a public apology. Other options could include the serving of limited sentences, or the serving of only partial sentences, followed by an amnesty or pardon, provided there are no a priori blanket amnesties or pardons that fail to take into account the criminality of the act and the consequences applicable to each individual receiving such an amnesty or pardon. It is also suggested that victims be allowed to participate as partie civile in those legal systems that recognize this action so as to accord them the right to claim compensatory damages in an appropriate legal forum. National prosecutions may occur in several different contexts. They should first and foremost occur in the jurisdiction where the violations occurred, and indeed several states have attempted to prosecute crimes committed by previous repressive regimes.164 A recent example of a national prosecution of the previous regime is the prosecution of Hosni Mubarak, his sons and associates following the Egyptian revolution of January 2011. In June 2012 the tribunal found

164 For example, ambitious national prosecutorial efforts have been undertaken in Ethiopia and Rwanda, but each has not been without a degree of criticism. See Ratner, Abrams, & Bischoff, supra note 29, at 151–56. In addition, a series of high-level prosecutions occurred in Argentina in the late 1980s, which after conviction ultimately resulted in presidential pardon and the promulgation of amnesty laws. Nino, Radical Evil On Trial, supra note 140. New complaints, however, have been lodged in 2001, and two chambers of a federal court in Argentina have declared these amnesty laws unconstitutional, paving the way for new prosecutions. The Haitian government has likewise prosecuted several of the major atrocities committed against its people during the de facto military rule of Raoul Cedras. The largest of these prosecutions involved the massacre at Raboteau, where more than twenty of the former military and paramilitary who executed the operation where convicted. In addition, the members of the high command were convicted in absentia. In addition, for the prosecution arising out of World War II concerning Touvier and Barbie in France, see Sorj Chalandon & Pascale Nivelle, Crimes Contre L’Humanité: Barbie, Touvier, Bousquet, Papon (1998); Leila Sadat, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 289 (1994).

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Mubarak guilty of failing to prevent the killing of protestors and sentenced him to life in prison. In addition, prosecutions for international crimes also occur in states that have duly implemented international crimes within their domestic criminal codes.165 In the years to come, a number of additional states will likewise empower their national systems to prosecute these crimes as a number of states seek to implement the provisions of the ICC. 2.5. National Lustration Mechanisms National lustration is a purging process whereby individuals who supported or participated in violations committed by a prior regime may be removed from their positions and/or barred from holding positions of authority in the future.166 These measures have been undertaken in many former communist bloc states such as Lithuania, Bulgaria, the Czech and Slovak Republics,167 as well as other repressive regimes, such as Haiti after Duvalier,168 Ethiopia after the Dergue, and Iraq after Saddam Hussein’s Ba’ath party.169 Lustration measures include both efforts to prevent members of a repressive regime from becoming decision makers and bureaucrats in the new administration, but also seek to remove known 165 Belgium perhaps has been the most aggressive in prosecuting individuals based on principles of universal jurisdiction. See Loi relative à la répression des infractions graves aux Conventions internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977, additionnels à ces Conventions (June 16, 1993); Loi relative à la répression des violations graves de droit international humanitaire (Feb. 10, 1999), reprinted in 38 I.L.M. 918 (1999); see also A. Andries, E. David, C. Van den Wyngaert, Commentaire de la loi du 16 juin 1993 relative à la répression des infractions graves aux droit international humanitaire, Revue du Droit Pénal Criminel 1114 (1994); Damien Vandermeersch, La répression en droit belge des crimes de droit international, 68 Revue International de Droit Pénal 1093 (1997). Indeed, complaints have been lodged concerning the conflicts in Congo, Rwanda, as well as against leaders such as Pinochet and Ariel Sharon. Investigations have been based both on principles of universal jurisdiction, as well as on active and passive personality. For prosecution in Canada, see the 1994 case of Regina v. Finta. For prosecutions in Denmark of individuals based on the commission of international crimes, see the 1995 case of Prosecutor v. Refic Saric. See also Marianne Holdgaard Bukh, Prosecution Before Danish Courts of Foreigners Suspected of Serious Violations of Human Rights or Humanitarian Law, 6 Eur. Rev. Pub. L. 339 (1994). For prosecutions in France, see Brigitte Stern, Universal Jurisdiction Over Crimes Against Humanity Under French Law, Grave Breaches of the Geneva Conventions of 1949, Torture, Human Rights Violations in Bosnia and Rwanda, 93 Am. J. Int’l L. 525 (1999). Finally, for the importance of implementing legislation prior to prosecuting international crimes, see Nulyarimma v. Thompson, reprinted in 39 I.L.M. 20 (2000) (Federal Court of Australia) (concluding that individuals may not be prosecuted for genocide in the absence of implementing legislation). 166 See Monika Nalepa, Lustration, in 1 The Pursuit of International Criminal Justice, supra note 10, at 735. 167 See Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, in Bassiouni, Post-Conflict Justice, supra note 13, at 345. 168 See Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J. 1, 4 (1996). 169 See The Ethiopian Red Terror Trials: Transitional Justice Challenged (Kjetil Tronvoll, Charles Schaefer, & Girmachew Alemu Aneme eds., 2009); Wondwossen L. Kidane, The Ethiopian “Red Terror” Trials, in Bassiouni, Post-Conflict Justice, supra note 13, at 667.



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human rights abusers from the new security forces, as was the case in El Salvador and Haiti, but with scant success. For the most part, these prohibitions often expire after periods ranging from five to ten years.170 Nevertheless, in time, generational changes occur which resolve these problems. Though punitive in nature, these mechanisms are used essentially as a political sanction which carries moral, social, political, and economic consequences. The danger of such mechanisms is that they tend to deal with classes or categories of people without regard to individual criminal responsibility, and thus lustration may tend to produce injustice in any number of individual cases. Furthermore, when lustration laws result in the loss of any type of earning capacity, dependents of those individuals who fall within the ambit of the lustration legislation suffer when they may not have had any connection with the prior violations. Lastly, these laws tend to have a stigmatizing effect that carries beyond those who may have deserved such stigmatization and can fall onto innocent third parties or family members.171 In short, lustration mechanisms are a form of collective punishment which also affects the families of those in the class of persons targeted. While it has the advantage of turning the page on a given era, it seldom closes the chapter in itself. To cure the apparent injustice of targeting an entire category of persons, two more selective techniques can be used. The first is referred to as “vetting,” which means screening persons who were part of a former regime. However, because such a category of persons may be very broad, it requires significant personnel and time. Even so, the subjectivity of the process is likely to be unfair. The second is the prohibition to hold public office or be active in political organizations

170 For example, the German Act for Liberation from National Socialism and Militarism (Mar. 5, 1946) denied individuals for a period of five or ten years, depending on their offense, the opportunity to serve as an elected or appointed public official, vote, participate in a profession, or have a vehicle. The 1987 Haitian Constitution prohibited individuals associated with the prior dictatorship from holding public office for a period of ten years. The Czech and Slovak Lustration Law (Oct. 4, 1991) created a mechanism to exclude certain individuals from almost all aspects of civil society, including the military, police, government, and professions such as law, media, banking, and commerce. In addition, another mechanism was set up to remove newly elected members of parliament who had served in the prior regime’s security apparatus. In Lithuania, former KGB employees and informers were barred from government positions for a period of five years. In Iraq, Coalition Provisional Authority Order No. 1 (May 16, 2003) was promulgated to create the complete “De-Ba’athification of Iraqi Society.” Nearly 85,000 public employees lost their jobs following the passing of the order. See generally Dana Michael Hollywood, The Search for Post-Conflict Justice in Iraq, 33 Brook. J. Int’l L. 59 (2007). 171 The Czech and Slovak Constitutional Court subsequently struck down portions of its lustration laws. In addition, in Bulgaria leading members of the Communist Party were prohibited from holding positions on the managerial bodies of banks for a period of five years. This provision was ultimately found to be unconstitutional and contrary to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Vienna Convention on the Right of Contracts.

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similar to the banned ones. This was tried in various post-conflict political contexts with uneven results that cannot be assessed for lack of empirical data. 2.6. National Civil Remedies National civil remedies are the development, within civil legislation, of the right to bring suit by victims and their heirs, which enables them to obtain certain civil remedies. For example, individuals should be able to institute legal actions to obtain compensatory damages or to receive some form or injunctive relief, such as to compel the inclusion of a person in national criminal prosecution or in the category of those subject to lustration laws.172 Moreover, persons having certain rights under civil law should also be allowed to join in national prosecutions as partie civile in criminal proceedings. Civil remedies should not be available to the victim exclusively in the jurisdiction where the violation occurred. However, while some states have opened their courts to victims of violations that occurred outside of their borders, this type of remedy is not without difficulties. As a general rule, the “courts of one country will not sit in judgment on the acts of the government of another done within its own territory.”173 Thus, with few exceptions,174 this renders a foreign state immune for its conduct within another state’s domestic legal system, regardless of whether the action attributed to the state violates international law. For example, in Siderman de Blake v. Argentina, a U.S. Federal Court held that Argentina was immune for its alleged jus cogens violations of international law.175 Notwithstanding, while states have been unwilling to pass judgment on the foreign sovereign, this rule has not prohibited them from sitting in judgment of the acts of the foreign state’s citizens, both state and non-state actors.176 Thus, if the domestic legal system has an adequate basis to assert jurisdiction over the

172 But see Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), where the Court held that “in American Jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” 173 See Underhill v. Hernandez, 168 U.S. 250, 252 (1897). 174 See Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602–1611. The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over a foreign state in U.S. courts. This statute provides for only commercial suits against a state. See Nelson v. Saudi Arabia, 508 U.S. 349 (1993) (alleged acts of torture were not within the commercial exception to sovereign immunity). 175 See Siderman de Blake v. Argentina, 965 F.2d 699, 719 (9th Cir. 1992); see also Hirsch v. Israel, 962 F. Supp. 377, 385 (S.D.N.Y. 1997); Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1 (D.D.C. 1990). The reasoning in Siderman de Blake was also adopted in the English case of Al Adsani v. Kuwait, [QBD] 15 Mar. 1995, 103 I.L.R. 420. 176 See Malcolm D. Evans, International Wrongs and National Jurisdiction, in Remedies in International Law 173, 175, 182–89 (1998). (arguing that the new emphasis in international law on individual responsibility obfuscates the need to hold states accountable for their failure to comply with their international obligations).



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person, then the state of nationality may permit either a civil claim against the violator or a partie civile to complement its own criminal prosecution. Under the Torture Victim Protection Act,177 the U.S. provides jurisdictional grounds for its nationals to sue an individual for an official act of torture. However, this cause of action is limited by both the claimant’s ability to gain in personam jurisdiction over the defendant and her exhaustion of local remedies in the foreign jurisdiction. A requirement of personal jurisdiction over the offender constitutes a serious limitation with respect to the victim’s pursuit of a remedy, whether civil or criminal. Unless the offender happens to be in the jurisdiction by chance, this remedy is often meaningless. However, the national’s state could request extradition based on a protective interest theory. Nevertheless, if the victim was unable to obtain a remedy in the foreign state, it is doubtful that the state would either extradite the individual or enforce the foreign civil or penal judgment. A state has limited ability to provide a remedy to non-national victims who were injured outside that state’s territory; still, a limited number of national systems provide access to a remedy for alien victims. However, the exercise of these domestic remedies is quite limited as a result of both strict jurisdictional requirements and the reality of enforcing the judgment. The U.S. experience with the Alien Tort Claims Act178 (ATCA) is illustrative of these limitations. The ATCA states that “the district court shall have original jurisdiction of 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.”179 Over the past twenty years, claims have been filed under the ATCA by alien plaintiffs for genocide,180 war crimes,181 slavery,182 torture,183 forced disappearance,184 arbitrary detention,185 summary execution,186 cruel, unusual, and degrading treatment,187 and environmental damage.188 Under the ATCA, only violators in their individual capacity can be named as defendants, and as such, a violator foreign state is immune.189 Furthermore, the court must be able to exercise in personam jurisdiction over the

177 Torture Victim Protection Act, Pub. L. 102–56, Mar. 12, 1992 (codified at 28 U.S.C. § 1350). 178 Alien Tort Claims Act, 28 U.S.C. § 1350. 179 Id. 180 Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995). 181 Id. at 242–43; Doe I v. Islamic Salvation Front, 993 F. Supp. 3, 8 (D.D.C. 1998). 182 Doe I v. Unocal, 963 F. Supp. 880, 892 (C.D. Cal. 1997). 183 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 184 Forti v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) 185 Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998); Eastman Kodak v. Kavlin, 978 F.Supp. 1078, 1092 (S.D. Fla. 1997). 186 Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). 187 Id. at 887. 188 Aguinda v. Texaco, Inc., 1994 WL 142006 at *1 (No. 93 Civ. 7527) (S.D.N.Y. April 11, 1994). 189 See Foreign Sovereign Immunities Act, supra note 174.

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individual defendant, which requires the defendant to be present in the U.S. at least for service of process. This requirement presents a unique challenge and severely limits the ability of a plaintiff to pursue a claim, as personal jurisdiction is often achieved only by chance. For example, in one case, a victim of torture in Ethiopia who was living in exile in the U.S. stumbled across her former torturer in a hotel in Atlanta where they both happened to work.190 One of the most important cases interpreting the ATCA is the Kadic case decided by the Second Circuit Court of Appeals in 1995.191 In that case, two groups of victims form Bosnia and Herzegovina brought actions for damages (under the ATCA) against Radovan Karadzic, then President of the Serbian part of the Bosnian Federation called Republika Srpska. The victims and their representatives asserted that they were victims of various atrocities including brutal acts of rape, forced prostitution, forced impregnation, torture, and summary execution which were carried out by Bosnian-Serb military forces as part of a genocidal campaign conducted in the course of the war in former Yugoslavia.192 Karadzic’s liability was predicated on the fact that the plaintiff’s injuries were committed “as part of a pattern of systematic human rights violations that was directed by Karadzic and carried out by military forces under his command.”193 The suit was dismissed in September 1994 by a District Court judge who held that “acts committed by non-state actors do not violate the law of nations.”194 Finding that the “current Bosnian-Serb warring faction” does not constitute a “recognized state,”195 and that “the members of Karadzic’s faction do not act under the color of any recognized state law,” the District Judge found that “the acts alleged in the instant action[s], while grossly repugnant, cannot be remedied” through the ATCA.196 The Court of Appeals reversed, holding that plaintiffs sufficiently alleged violations of customary international law and the war of law for purposes of ATCA. The Court dismissed the argument that the law of nations “confines its reach to state action.”197 Rather, the Court held that “certain forms of conduct violate the law of nations whether undertaken by those acting under the “auspices of the state or only as private individuals.”198 Noting that the customary international law of human rights “applies to states without distinction between recognized and unrecognized states,” the Court held that plaintiffs sufficiently alleged that Republika Srpska was a “state” and that Karadzic acted under color of law for 190 See Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996). 191 Kadic v. Karadzic, 760 F.3d 232, 241 (2d Cir. 1995). 192 Id. at 236–37. 193 Id. at 237. 194 866 F. Supp. 734, 739. 195 Id. at 741. 196 Id. at 740–41. 197 Id. at 239. 198 Id.



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purposes of international law violations requiring official action.199 Finally, the Court held that Karadzic was not immune from personal service of process while invitee of the United Nations200 and that the causes of action brought by the plaintiffs were not precluded by the political question doctrine.201 As a result of these findings, the decision of the District Court was reversed and the cases were remanded for further proceedings.202 While the potential monetary judgments in ATCA cases are substantial, the actual likelihood of attaining full satisfaction from the defendant is minimal. For example, in Mushikiwabo v. Barayagwiza, over $100 million was awarded to five plaintiffs against a single defendant arising out of the genocide in Rwanda.203 Clearly, unless the defendant has significant assets in the jurisdiction or his/ her state of nationality is willing to enforce the judgment, the victims will likely receive virtually no compensation. Thus, as the ATCA illustrates, the domestic remedy in a third state is a less than satisfactory remedy. However, it does serve the purposes of documenting the violations and providing, at the very least, a public forum for the victim to expose and denounce the perpetrator. 2.7. Mechanisms for the Reparation of Victims The provision of a remedy and reparations for victims of these violations is a fundamental component of the process of restorative justice.204 To this end, states 199 Kadic, 760 F.3d at 245. 200 Id. at 248. 201 Id. at 249, 250. The court also noted that, as to the act of state doctrine, the doctrine was not asserted in the District Court and was, therefore, waived on appeal. Id. at 250. 202 Despite the Court’s ruling, Karadzic did not submit to a requested deposition in the matter and the case was appealed all the way to the US Supreme Court, which denied review. See Karadzic v. Kadic, 518 U.S. 1005 (1996). On February 27, 1997, without giving the requisite deposition, Karadzic notified his attorney Ramsey Clark that he no longer wanted to mount a defense to the suit. See Gail Appleson, Karadzic Drops Human Rights Case Defense, Reuters News Service, Mar. 4, 1997. Following Karadzic’s default, US District Court Judge Peter Leisure entered a default judgment against the former Bosnian Serb leader finding him liable for directing troops to terrorize the women of Bosnia and Herzegovina through an organized campaign of mass rape between 1991 and 1993. In August 2000, a jury awarded $745 million to the plaintiffs. See Larry Freund, Karadzic Verdict, Hellenic Resources Institute, available at http://www.hri.org/news/usa/voa/2000/ 00-08-10.voa.html#03 (last visited Nov. 11, 2011). In another case against Karadzic, also brought under the provisions of ATCA, the jury in New York awarded $4.5 billion in compensatory and punitive damages to the plaintiffs. See Radovan Karadzic Proven Guilty of Atrocities, Associated Press (Sept. 27, 2000). 203 Mushikiwabo v. Barayagwiza, 1996 WL 164496 at *3 (94 Civ. 3627) (S.D.N.Y. April 9, 1998) (not reported in F. Supp.). Other similar awards include an award of several million dollars per plaintiff against a single individual defendant in Xuncax, supra note 186, at 197–202, and a judgment of $10 million against a defendant police inspector in Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984). 204 See supra Chapter II, section 9; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 147, U.N. Doc. A/RES/60/147 (Mar. 21, 2006); M. Cherif Bassiouni, International Recognition of Victims’ Rights, in 6 Hum. Rts. L. Rev. 203

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and their national legal systems serve as the primary vehicle for the enforcement of human rights and international humanitarian law. Accordingly, the existence of a state’s duties to provide a remedy and reparations forms a cornerstone of establishing accountability for violations and achieving justice for victims. While monetary compensation may certainly be central to this process, often victims or their survivors desire solely that their suffering be acknowledged as wrongful, their violators be condemned, and their dignity be restored through some form of public remembrance.205 Thus, perhaps the most important goals of this process are the “re-humanization” of the victims and their restoration as functioning members of society. Achieving these restorative goals is certainly fundamental to both the peace and security of any state since it eliminates the potential of future revenge and any secondary victimization that may result from the initial violation.206 Notwithstanding the widespread abuses of recent history, few efforts have been undertaken to provide redress to either the victims or their families. This often results from the reality that the provision of remedies and reparations are undertaken by either the violator regime or a successor government that has treated post-conflict justice as a bargaining chip rather than an affirmative duty. However, the international community has become increasingly concerned with providing a legal framework that ensures the redress of violations of human rights and international humanitarian law norms. The 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power207 (“Basic Principles of Justice”) is perhaps the first expression of this desire. The Sub-Commission on the Prevention of Discrimination and the Protection of Minorities continued the efforts to create a legal framework for the redress of victims by producing Draft Guidelines on Victim Redress.208 Moreover, the inclusion of provisions (2006); Naomi Roht-Arriaza, Reparations in International Law and Practice, in 1 The Pursuit of Inter­national Criminal Justice, supra note 10, at 655. 205 See also Yael Danieli, Justice and Reparations: Steps in the Healing Process, 14 Nouvelles Etudes Penales 303, 308-12 (1998). With respect to refusing compensation out of principle, Danieli quotes an Israeli idealist who had previously fought against taking money from the Germans after World War II: “I refused. Today, I am sorry, because I concluded that I did not change anything by refusing. There are aging survivors who don’t have extended family. The steady sum enables them to go on. The fact that I gave up only left the money in the hands of the Germans. We were wrong.” See id. at 308. For further discussion of the forms of non-monetary victim reparation, see generally Minow, supra note 129. 206 For example, the victims may be forced to flee their homelands or deprived of any means of providing for themselves or their families, which subsequently leaves them vulnerable to future victimization, including starvation, discrimination, and slave-like working conditions. See Victims of Crimes: Working Paper Prepared by the Secretariat, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, A/Conf.121/6 (1 Aug.1985), in Symposium, International Protection of Victims, 7 Nouvelles Études Pénales 241 (1988). 207 The 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34 (29 Nov. 1985) [hereinafter Basic Principles of Justice]. 208 Mr. van Boven prepared three versions of the basic principles and guidelines on the right to reparation for victims. The first version is found in document E/CN.4/Sub.2/1993/8 of 2 July



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addressing the compensation of victims in the Rome Statute of the ICC is further evidence of the growing interest in furnishing a remedy to these individuals.209 Most notably, in a 1998 resolution the United Nations Commission on Human Rights expressed the importance of addressing the question of redress for these victims in a systematic and thorough manner at the national and international level.210 Pursuant to this mandate, this writer submitted to the Commission on Human Rights the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.211 Victim reparation is essential to the process of restorative justice. Mechanisms for victim reparation include the above-mentioned accountability mechanisms. For example, compensation can be achieved through the execution of a civil judgment against a culpable individual or state. However, individuals or states are often either unable or unwilling to ensure either full or partial reparation. In such cases, other mechanisms should be considered, such as state or international trust funds for the purposes of compensating victims or providing them with essential social services. The Basic Principles of Justice encourages states to establish such funds. This call was heeded at the last Preparatory Committee meeting on the Establishment of an International Criminal Court held before the 1998 Rome Conference when Egypt proposed the inclusion of a connection between victim compensation and the establishment of criminal liability.212 Monetary compensation should not, however, be deemed the only available remedy. Non-monetary forms of compensation should also be developed, particularly in societies where the economy is unable to absorb the loss of large monetary sums. The various modalities of reparation do not exclusively involve some form of valuable consideration or social service to redress a past harm. Rather, reparation could also include an accurate historical record of the wrongful acts and a public acknowledgment of the violations. These more intangible 1993, section IX. The second version is found in document E/CN.4/Sub.2/1996/17 of 24 May 1996. The third version is found in document E/CN.4/1997/104 of 16 January 1997. For the final version of these guidelines, see Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, supra note 204. 209 See ICC Statute, supra note 142; see also T. Markus Funk, Victims’ Rights and Advocacy at the International Criminal Court (2010). 210 U.N. Commission on Human Rights Resolution 1998/43. 211 See supra note 204. In preparing the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, the independent expert also examined the work of Mr. Louis Joinet, who, in his capacity as Special Rapporteur of the Sub-Commission on the question of the impunity of perpetrators of violations of human rights (civil and political), developed basic principles and guidelines on impunity. Two versions of these guidelines (E/CN.4/Sub.2/1997/20 of June 26, 1997 and E/CN.4/Sub.2/1997/20/Rev.1 of Oct. 2, 1997) were analyzed insofar as they related to reparation for victims of human rights violations. 212 See ICC Statute, supra note 143, at art. 75.

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forms of reparation are achieved through investigatory and truth commissions and domestic or international prosecutions. Also, guarantees against repeated violations are contemplated which result from either criminal sanctions against the violator as a result of prosecutions, removal from power as a result of lustration laws, or changes in a state practice pursuant to injunctive relief. 2.8. Policy Considerations Which of these accountability measures or what combination thereof is appropriate in light of the circumstances of a given conflict, the expectations of the parties to the conflict, and the anticipated outcomes, will depend on a variety of factors which must be considered in the aggregate. This is obviously not an easy task and is one that is both challenging and fraught with dangers affecting the lives and well-being of many. However, it is a task that must be guided by legal, moral, and ethical considerations. Accountability is among these considerations. The accountability mechanisms described above are not mutually exclusive; they are complementary. Each mechanism need not be taken as a whole. Rather, a portion of one or more may be used and combined with others. No single formula can apply to all types of conflicts, nor can it achieve all desired outcomes. Just as there is a range in the types of conflict and types of peace outcomes, there is a corresponding range of accountability mechanisms. In the final analysis, whichever mechanism or combination is chosen, it is designed to achieve a particular outcome which is in part traditional justice, and wherever possible, reconciliation and ultimately peace. In this respect, we must not look at each mechanism exclusively from the perspective of a crime control model, but also as an instrument of social policy which is designed to achieve a particular set of outcomes which are not exclusively justice-based. So far, however, there exist no set of international guidelines by which to match the type of conflicts, expected peace outcomes, and eventual accountability mechanisms. Such guidelines are needed in order to create common bases for the application of these mechanisms and to avoid abuses and denial of justice. What should be achieved is not only a sense of justice, but also the elimination of a sense of injustice. In choosing from among the various procedures, it must be remembered that among the goals are education and prevention, as well as to shake people from a sense of complacency, a goal that bureaucracies, including military and police bureaucracies, tend to foster in a climate of silent conspiracy—the omerta of these bureaucracies must be eliminated.213

213 See Hannah Arendt, Eichmann in Jerusalem: A Report On The Banality Of Evil 14, 15 (1963).



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Accountability mechanisms, if they are to have a salutary effect on the future and contribute to peace and reconciliation, must be credible, fair, and as exhaustive of the truth as possible. The fundamental principles of accountability must, therefore, take into account: (a) cessation of the conflict and thereby the ending of the process of victimization; (b) prevention and deterrence of future conflict (particularly conflicts which may be initiated directly after the cessation of the conflict being addressed); (c) rehabilitation of the society as a whole and of the victims as a group; and (d) reconciliation between the different peoples and groups within the society. At a minimum, the establishment of truth, as relative as it may be, must be established in order to provide a historical record, so as to mitigate the simmering effects of the hardships and hardened feelings which result from violent conflicts that produce victimization, to dampen the spirits of revenge and renewed conflict, to educate people and, ultimately, to prevent future victimization.214 Truth is, therefore, an imperative, not an option to be displaced by political convenience, because, in the final analysis, there truly cannot be peace (meaning reconciliation and the prevention of future conflict stemming from previous conflict) without justice (meaning at the very least, a comprehensive exposé of what happened, how, why, and what the sources of responsibility are). Forgiveness can most readily follow from the satisfaction of all parties, particularly those who have been victimized, after the truth has been established. It should be noted, however, that in this context, there is a difference between the qualities of mercy and the qualities of forgiveness. Whereas forgiveness is a change of heart towards a wrongdoer that arises out of a decision by the victimized person, and is therefore wholly subjective, mercy, on the other hand, is the suspension or mitigation of a punishment that would otherwise be described as retribution, and is an objective action which can be taken not only by the victim but by those entrusted with government and the administration of justice.215 Forgiveness is not a legal action, but rather is primarily a relationship between persons. The arena of resentment and forgiveness is individual and personal in a way that legal guilt and responsibility are not.216 Institutions, states, and systems of justice cannot forgive; they can pardon and show mercy.217 The

214 See Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U. Pa. L. Rev. 493 (1995). 215 See Murphy & Hampton, supra note 129. 216 See id. at 33. 217 See Kathleen Dean Moore, Pardons, Justice, Mercy, and the Public Interest 181–97 (1989).

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act of mercy may arise out of feelings of compassion or pity for the wrongdoer; however, these feelings are to be distinguished from those of forgiveness, which belong to the victim. 2.9. Selecting the Appropriate Accountability Mechanism Selecting the appropriate accountability mechanism in a post-conflict environment for violations of international humanitarian and human rights law norms requires the balancing of numerous factors. While accountability should never be bartered in a realpolitik fashion in order to arrive at political expediency at the expense of both the dictates of international law and the interests of the victims that does not necessarily mean that every individual violator must be prosecuted in order to assure accountability. These factors, which should be balanced in deciding the most appropriate accountability mechanism include, but are not limited to: (a) The gravity of the violation: for example, is it a jus cogens violation? (genocide, crimes against humanity, war crimes); (b) The extent and severity of the victimization; (c) The number of the accused; (d) Those who are the accused (e.g., the senior architect, low-level executor, bureaucrat); (e) The extent to which both sides are equally committed to international criminal standards;218 (f ) The current government: is the violator regime still in power either de jure or de facto?; (g) The competence and independence of the domestic judiciary; (h) The evidentiary issues; (i) The extent to which the conflict or violations have subsided; (j) cultural concerns or “the will” of the community; (k) nature of the conflict: international or internal armed conflict, or repressive regime. None of the above listed factors should be exclusive in determining the appropriate accountability mechanism that should be employed in a post-conflict situation or a transition from a repressive regime. Each of the factors must be 218 The fact that there are violations on both sides should not operate to preclude accountability. Rather, the fact that there are violations on both sides of a conflict should influence the selection of an appropriate mechanism that will deal fairly with all violations in an impartial manner. See Bassiouni, Crimes Against Humanity, supra note 69, at 637 (discussing the inapplicability of the tu quoque defense to crimes against humanity).



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evaluated individually and collectively in conjunction with the above listed policy considerations. Ultimately, the selection of a given mechanism must be made in good faith in order to achieve a just result and should be transparent and justifiable. Moreover, the selection must be acceptable to the victims, interested states, and international civil society in light of applicable legal norms. As a general rule, violations of jus cogens crimes should always be subject to prosecution. However, in deciding whether to prosecute at the international or domestic level, other considerations should be weighed. For example, if the government in power is the violator regime, an independent international prosecution might be favored. If, however, the domestic judiciary retains its independence and competence, then there might be little need to invoke international accountability procedures. In contrast, even if there is a commitment to prosecute, a significant breakdown in the local judicial infrastructure might necessitate international prosecutions, or at least an international investigative commission to collect and preserve evidence for later adjudication when the judiciary is again functioning. Furthermore, large-scale victimization over a period of time would tend to suggest the need for some form of a truth commission in conjunction with prosecution in order to accurately chronicle the violations, whereas an accurate chronicle of a limited number of violations might be sufficiently made by the record at trial. In addition, not every conflict situation requires the prosecution of every possible accused. Indeed, South Africa opted for a truth commission to provide accountability for past human rights violations. This decision was made not to allow de facto impunity for the prior regime, but rather based on the people’s determination that this was the best manner in which to put its past behind it. Secretary-General Kofi Annan, speaking about the ICC in the context of the South African experience, stated: No one should imagine that [the clause which allows the Court to intervene where the state is unwilling or unable to exercise jurisdiction] would apply in a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power. It is inconceivable that, in such a case, the Court would seek to substitute its judgment for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future.219

The above factors should serve as a guide in selecting the most appropriate accountability mechanism for international humanitarian and human rights law

219 See Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted, supra note 161 (quoting Kofi Annan in a speech delivered at Witwatersrand University Graduation Ceremony, September 1, 1998).

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violations. They should not, however, be manipulated in order to provide the international community and the victims with “Potemkin justice,” which is de facto impunity.220 Thus, in the context of a mass campaign of genocide, it would be an “insult to justice” to preclude any form of prosecution in favor of only publishing an accurate chronicle of the abuses. 2.10. The Right to a Remedy and Reparation for Victims221 2.10.1. The Duty to Provide a Remedy The state’s duty to provide a domestic legal remedy to a victim of violations of human rights and international humanitarian law norms committed in its territory is well grounded in international law. Provisions of numerous international instruments either explicitly or implicitly require this of states. Furthermore, a survey of contemporary domestic legislation and practice reveals that states endeavor to provide remedies for victims injured within their borders. The existence of a state’s duty to provide a remedy is grounded in several international and regional conventions. With respect to violations of IHL, the following conventions implicitly recognize the right to a remedy since they impose a duty on the violating party to provide compensation for their violation: (1) the Hague Convention Regarding the Laws and Customs of Land Warfare; (2) the Geneva Convention Relative to the Treatment of Prisoners of War; (3) the Geneva Convention Relative to the Protection of Civilian Persons in Time of War; and (4) Protocol I Additional to the Geneva Convention. With respect to violations of human rights norms, the ICCPR is perhaps illustrative. It declares at Article 2(3) that each state party to the convention undertake: a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

220 While speaking with respect to penalties for crimes, the following words of Pope Pius XII are also applicable with respect to the task of selecting an appropriate accountability mechanism: It is possible to punish in a way that would hold the penal law up to ridicule . . . . In the case where human life is made the object of a criminal gamble, where hundreds and thousands are reduced to extreme want and driven to distress, a mere privation of civil rights would be an insult to justice. See Pope Pius XII, Address to the Sixth International Congress of Penal Law (1954). 221 For victims as subjects of ICL, and for their standing in ICL, see supra Chapter II, section 7.



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c) To ensure that the competent authorities shall enforce such remedies when granted.222

While the ICCPR does not mandate a state party to pursue a specific course of action to remedy the violation of protected rights, the language of this provision clearly envisions that the remedy be effective, of a legal nature, and enforceable. Significantly, the ICCPR renders the “act of state” defense inapplicable by ensuring the duty to provide a remedy regardless of whether the violations were committed by persons acting in an official capacity. This limitation is fundamental in ensuring that human rights and international humanitarian law violations are remedied since these acts are often committed only by states. The International Convention on the Elimination of All Forms of Racial Discrimination223 also exemplifies an explicit requirement that states provide a remedy. This convention requires states parties to: [A]ssure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.224

Similarly to the ICCPR, the International Convention on the Elimination of All Forms of Racial Discrimination envisions that the remedy be effective and carried out by competent and official tribunals. Other conventions also explicitly require that a state provide a remedy for human rights violations. For example, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families contains language identical to the above quoted provision of the ICCPR.225 The following instruments all contain provisions regarding the right to some form of reparation, which implies the right to a remedy: (1) Convention Concerning Indigenous and Tribal Peoples in Independent Countries;226 (2) Convention 222 International Covenant on Civil and Political Rights art. 2(3), Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force Mar. 23, 1976) [hereinafter ICCPR]. 223 The International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res.2106A (XX), 21 Dec. 1965 660 U.N.T.S. 195 (entered into force 4 Jan. 1969). 224 Id. art. 6. 225 See International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, reprinted in Human Rights: A Compilation of International Instruments, U.N. Doc. ST/HR/1/Rev.4 (1993), art. 83. Furthermore, the convention articulates an “enforceable right to compensation” with respect to unlawful detention or arrest. Id. art. 16(9). It requests states parties to provide assistance to the migrant workers or their families for the prompt settlement of claims relating to death. Id. 71(2). Also, the convention provides the right to “fair and adequate” compensation for the expropriation of the migrant’s assets by the state. Id. art. 15. 226 Convention Concerning Indigenous and Tribal Peoples in Independent Countries, reprinted in Human Rights: A Compilation of International Instruments, U.N. Doc. ST/HR/1/Rev.4

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Relating to the Status of Stateless Persons;227 (3) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;228 (4) Convention on the Rights of the Child;229 (5) American Convention on Human Rights;230 (6) European Convention for the Protection of Human Rights and Fundamental Freedoms;231 and (7) African Charter on Human and People’s Rights.232 In addition to the conventional law, which creates a binding obligation on the part of states parties, numerous international declarations reaffirm the principle that a state has a duty to provide a remedy to victims of human rights abuses and international humanitarian law. A comprehensive treatment of this duty was found in the Basic Principles of Justice. In addition, a survey of contemporary state practice, as evidenced in the substantive laws and procedures functioning in their domestic legal systems, confirms the duty to provide a remedy to victims of these violations. Several declarations of international and regional organizations reflect the principle that a state has the duty to provide a remedy. For example, the Universal Declaration of Human Rights plainly articulates that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”233 The United Nations Declaration on the Elimination of All Forms of Racial Discrimination further reflects the concept that “everyone shall have the right to an effective remedy and protection against any discrimination . . . through independent national tribunals competent to deal with such matters.”234 In addition, the Declaration on the Protection of All Persons from Enforced Disappearance envisions a duty to provide “an effective remedy” as a means of determining the status of such disappeared individuals.235 Furthermore, the declaration requires

(1993), at arts 15–16. 227 Convention on Relating to the Status of Stateless Persons, 28 Sept. 1954, 360 U.N.T.S. 65, art. 24, 9 (entered into force Aug. 11, 1958). 228 Torture Convention, supra note 16, at art. 14. 229 Convention on the Rights of the Child, G.A. Res. 44/25, 20 Nov. 1989, 44 U.N. GAOR Supp. (No. 49) 166, U.N. Doc. A/44/736, art. 39. 230 American Convention on Human Rights, 22 Nov. 1969, O.A.S.T.S. No. 36, p.1, O.A.S. Off. Rec. OEA/Ser.L/V/II.23, doc. 21, rev. 6, arts. 63(1), 68. 231 European Convention on Human Rights, Nov. 4, 1950, EUR. TS. Nos. 5, 213 U.N.T.S. 221 [hereinafter ECHR]. 232 African Charter on Human and People’s Rights, 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, art. 21(2) (entered into force Oct. 21, 1986). 233 Universal Declaration. For the Declaration’s status as a source of customary law, see generally Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287, 316–51 (1996). 234 United Nations Declaration on the Elimination of All Forms of Racial Discrimination, supra note 223. 235 Declaration on the Protection of All Persons from Enforced Disappearances, G.A. Res. 47/133, 18 Dec. 1992, 47 U.N. GAOR Supp. (No. 49) 207, U.N. Doc. A/Res/47/133, art. 9.



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“adequate compensation” for the victims.236 The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that the victim of official torture be “afforded redress and compensation in accordance with national law.”237 The American Declaration on the Rights and Duties of Man provides that “every person may resort to the courts to ensure respect for his legal rights”238 The Muslim Universal Declaration on Human Rights issued by the Islamic Council states that “every person has not only the right but also the obligation to protest against injustice; to recourse and to remedies provided by the Law in respect to any unwarranted personal injury or loss . . .”239 The Basic Principles of Justice set forth the first comprehensive details concerning a state’s duty to provide a remedy to individual victims.240 Primarily, the Basic Principles of Justice provide that victims are entitled to redress and recommends that states establish judicial and administrative mechanisms for victims to obtain prompt redress.241 However, it should be noted that since the Basic Principles are primarily concerned with victims of domestic crime, it is only applicable in the event that the domestic criminal law of a given state has incorporated the applicable human rights or international humanitarian norm.242 The contemporary state practice, evident in a survey of various domestic legal frameworks, reinforces the hortatory statements contained in the above declarations as a norm of customary international law.243 236 Id. art. 19. 237 The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452, U.N. GAOR, 30th Sess., Supp. No. 34, U.N. Doc. A/10034 (1976), art. 11. 238 American Declaration on the Rights and Duties of Man, reprinted in Human Rights: A Compilation of International Instruments, U.N. Doc. ST/HR/1/Rev.5 (1997), art. 18. 239 See Muslim Universal Declaration on Human Rights, art. IV(b), reprinted in Justice and Human Rights in Islam 14 (Gerald E. Lampe ed., 1997). 240 See Basic Principles, supra note 204. See generally Symposium, International Protection of Victims, 7 Nouvelles Études Pénales (1988); Guide for Policy Makers on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, U.N. Doc. E/CN.15/1998/CRP.4 (17 April 1998). 241 Id. princs. 4–5. 242 Id. princs. 18–19. 243 For example, many states have extensive human rights protections within their national constitutions and provisions that create a remedy in cases of their violation. For example, in states such as Peru, Malta, Romania, Uruguay, and the U.S., the constitution contains either explicitly or implicitly an extensive list of human rights guarantees and provides a remedy for their violation. Other states perhaps lack specific legislation with respect to human rights violations; however, their legal systems contain other general remedies that encompass specific violations. For example, under Swedish and U.K. law, domestic tort law provides a remedy for the compensation of gross violations of human rights. In China, the State Compensation Act and Administrative Proceedings Act allows its citizens to receive compensation when they have been denied their civic rights. Still other states, such as Cyprus and Nepal, noted that they were in the process of enacting legislation with respect to redressing individual victims. For Romania, Togo, the U.K., see U.N. Doc. E/CN.4/1996/29/Add.3; Cyprus, Kuwait, see U.N. Doc. E/CN.4/1997/Add.1; Argentina,

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While the conventional and customary law do not impose an explicit duty to create special procedures, the language of the international instruments, noted above, contemplates that the remedy be “effective” and administered by “competent” tribunals and personal in order to provide “just” and “adequate” reparations. Thus, to the extent that a state’s existing legal framework is inadequate to handle the claim, it would seem that the state is implicitly in violation of the requirements of the conventional law.244 Furthermore, even in instances where the judicial system has not collapsed, a state may find it advantageous to establish special procedures with respect to situations involving numerous claimants, or with respect to the settlement and distribution of the proceeds of lump sum agreements between states.245 The conventional and customary law reflects the principle that both a state’s nationals and aliens will equally have the right to a remedy for violations committed within the state’s territory. This is evident in the conventional law by the use of language such as “any persons”246 and “everyone within their jurisdiction”247 when referring to whom the state shall provide a remedy. Furthermore, state practice also reveals that aliens are generally accorded national treatment.248 Moreover, it should be noted that failing to provide an alien an effective remedy amounts to a denial of justice, which subsequently gives rise to an international claim by the alien’s state of nationality. Thus, clearly a state must afford national treatment to aliens in the provision of remedies for violations committed within its territory.

the Czech Republic, Chile, China, Colombia, Ghana, Mauritius, Namibia, Nepal, the Philippines, the Sudan, Sweden, see U.N. Doc. E/CN.4/1996/29; Peru, see U.N. Doc. E/CN.4/sub.2/1995/17/Add.1; China, Malta, Mexico, Uruguay, Yugoslavia, see U.N. Doc. E/CN.4/sub.2/1995/17/Add.2; Belarus, Netherlands, see U.N. Doc. E/CN.4/sub.2/1995/17; United States, see U.N. Doc. E/CN.4/1996/29/ Add.2. 244 For example, Togo noted that during a period of internal strife, “l’Etat avait perdu certaines de ses prérogatives: le gouvernement était impuissant à faire réprimer les actes délictuels ou criminels qui émaillaient cette période et la justice était loin de disposer des moyens d’agir.” Specifically, Togo planned to create a ministry of human rights, adopt legislative measures aimed at compensating victims of socio-political problems, and ensure the independence of the judiciary and equal protection for all citizens. 245 See generally Richard B. Lillich, International Claims: Their Adjudication by National Commissions (1962); Richard B. Lillich, International Claims: Postwar British Practice (1967); International Claims: Contemporary European Practice (Richard B. Lillich & Bruce H. Weston eds., 1982). 246 See ICCPR, supra note 222, at art. 2(3)(a)–(b). 247 See International Covenant on the Elimination of All Forms of Racial Discrimination art. 6, Dec. 21, 1965, G.A. Res. 2106 (XX) (entered into force Jan. 4, 1969). 248 See generally International Law of State Responsibility for Injuries to Aliens (Richard B. Lillich ed., 1983); Individual Rights and The State of Foreign Affairs: An International Compendium (Elihu Lauterpact & John G. Collier eds., 1972); The Law of International Responsibility (James Crawford, Alain Pellet and Simon Olsen, eds. 2010).



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2.10.2. Duty to Provide Reparation A state’s duty to make reparations for its acts or omissions is fairly well established in the conventional and customary law. For example, the Permanent Court of International Justice affirmed this proposition in The Chorzów Factory Case when it stated: It is a principle of international law that the breach of an engagement involves an obligation to make reparations in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.249

Notwithstanding this general proposition, specific language in international instruments specifically articulates the duty to provide reparations. With respect to violations of international humanitarian law, the major conventions which regulate armed conflict contain provisions both vesting individuals with the right to claim compensation against the state parties and requiring states to provide reparation for their breaches. For example, the Hague Convention Regarding the Laws and Customs of Land Warfare provides for the duty of a state to pay indemnity in cases of violations of its regulations.250 Furthermore, the Four Geneva Conventions of August 12, 1949 contain similar provisions with respect to the grave breaches of the convention.251 In addition, Protocol I provides that a state party shall be liable “to pay compensation” for violations of the convention.252 With respect to human rights abuses, both the conventions and declarations provide that their violations shall be remedied with some modality of reparations. Clearly, if the state is the author of the violation, the duty to make reparations can fall to no other. Furthermore, state practice reflects both the legal framework and practice of providing reparations to victims. For example, the U.S. government has provided redress to American citizens and permanent resident aliens of Japanese ancestry who were forcibly evacuated, relocated, and

249 See The Chorzów Factory Case, (Claim for Indemnity) (Jurisdiction), 1927 P.C.I.J. (Ser. A) No. 8, at 4, 21. 250 See Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277 (1907), T.S. No. 539, 3 Martens Nouveau Recueil (ser. 3) 461, reprinted in 2 Am. J. Int’l L. 90 (1908), 1 Friedman 308, 1 Bevans 631, art. 3. 251 See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [Geneva Convention I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 68, 6 U.S.T. 3316, 75 U.N.T.S. 135 [Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 55, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Geneva Convention IV]. 252 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Jun. 8, 1977, art. 91, 1125 U.N.T.S. 3 [Protocol I].

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interned by the government during World War II.253 In addition, Chile, in an effort to account for its human rights abuses of past decades, has created a national commission whose goal is to provide compensation to victims’ families.254 Reparations include monthly pensions, fixed sum payments, and health and educational benefits. It is thus perhaps well grounded in the conventional and customary law that a state is under a duty to provide reparations for its violations of human rights and international humanitarian law. It is basic tort law that a non-state actor who authors a human rights and international humanitarian law violation is individually liable to make reparations to the victims.255 A distinct question is raised, however, as to whether a state bears any responsibility to provide compensation for acts or omission of non-state actors.256 While certainly a laudable aspiration, a state’s duty to provide reparation or a remedy with respect to violations not attributable to the state is perhaps best described as somewhat of an emerging norm. With respect to Europe, the European Convention on the Compensation of Victims of Violent Crimes257 (“European Compensation Convention”) mandates this principle in instances when the applicable human rights or international humanitarian law norms are incorporated within the domestic criminal law. Further, with respect to other states, the strongest support for this principle is similar provisions found in the Basic Principles of Justice. The European Compensation Convention was established by the states of the Council of Europe to introduce or develop schemes for the compensation of victims of violent crime by the state in whose territory such crimes were committed, in particular when the offender has not been identified or is without resources.258 This convention does not mandate any particular compensation scheme; rather, its focus is to establish minimum provisions in this field.259 As a

253 See Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (2001); Gill Gott, A Tale of New Precedents: Japanese American Interment as Foreign Affairs Law, 40 B.C.L. Rev. 179 (1998). 254 See Report of the Commission on Crime Prevention and Criminal Justice, E/CN.15/1996/16/ Add.3, at 55. 255 See also Torture as Tort (Craig Scott ed., 2001). 256 The question posed is essentially different than that in Velasquez Rodriguez, where Honduras was found to bear responsibility for a failure to investigate and prosecute a crime committed by its agents. In that case, the state does in fact bear responsibility, but not simply for the underlying act committed by its agents, but rather for the distinct wrong, which is commonly characterized as a “denial of justice” in failing to properly investigate and bring the perpetrators to justice. See Velasquez Rodriguez Case, Preliminary Objections, Judgment of June 26, 1989, Inter. Am. Ct. H.R. (Ser. C) No. 1 (1994); Velasquez Rodriguez Case, Compensatory Damages, Judgment of July 21, 1989, Inter. Am. Ct. H.R. (Ser. C) No. 7 (1990). 257 European Convention on the Compensation of Victims of Violent Crimes, E.T.S. No. 116 (1983) [hereinafter European Compensation Convention]. 258 See id. at prmbl. 259 Id.



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result, there are several significant limitations that may be placed on the extent of the state’s duty to provide compensation. At a minimum, the European Compensation Convention mandates that compensation be paid to either victims who have sustained serious bodily injury directly attributable to an intentional violent crime or to dependants of persons who have died as a result of such crime when compensation is not fully available from other sources.260 In these instances, compensation is to be awarded irrespective of whether the offender is prosecuted or punished.261 However, as noted, a state may impose several limitations on its duty to provide compensation. For example, Article 3 provides that: Compensation shall be paid by the State on whose territory the crime was committed: (a) to nationals of the States party to the convention; (b) to nationals of all member States of the Council of Europe who are permanent residents in the State on whose territory the crime was committed.262

Thus, a state party can seemingly deny compensation to a victim who is either a non-resident or a citizen of a state which is not a member of the Council of Europe. Furthermore, the states may limit compensation in situations where a minimum threshold of damages is not met263 or based on the applicant’s financial situation.264 Moreover, compensation can be reduced or refused: (1) on account of the victims’ conduct before, during, or after the crime; (2) on account of the victims’ involvement in organized crime; or (3) if a full award is contrary to a sense of justice or public policy.265 With respect to countries that are not states parties to the European Compensation Convention, the Basic Principles of Justice provide a legal foundation for asserting that a state has a duty to provide a victim with reparations. The Basic Principles of Justice state that: [W]hen compensation is not fully available from the offender or other sources, States should endeavor to provide financial compensation to: a) victims who have sustained significant bodily injury or impairment of physical or mental health as a result of a serious crime; b) the family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.266

260 Id. art. 1. 261 Id. 262 European Compensation Convention, supra note 257. 263 Id. art. 5. 264 Id. art. 6. 265 Id. art. 8 266 See Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, princ. 12, G.A. Res. 40/34 (Dec. 11, 1985).

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While this recommendation envisions reparations to crime victims, it certainly would be applicable in cases where the applicable international violations had been incorporated into the domestic criminal law. A survey of national systems reflects this principle in the growing state practice of providing reparations to crime victims and their families when the perpetrator is unable. In 1996 the U.N. surveyed state practices with respect to the implementation of the Draft Basic Principles and received responses from forty-four states.267 In Cuba, Denmark, Finland, France, Mexico, Jordan, Romania, and Sweden, the state’s financial compensation was 100% of the reparations that the victim could claim from the offender.268 Furthermore, eighteen states reported that state funds for compensation to victims had been established pursuant to recommendations in the Basic Principles of Justice.269 The concept of providing reparations from sources other than the violator has also been recognized at the international level in the ICC Statute through the Victim Fund.270 While the European Compensation Convention and the Basic Principles of Justice set an important precedent for establishing a duty of a state to provide reparations for the conduct of non-state actors, it should be noted that this duty is neither a universal norm nor without significant reservations. However, the principle is certainly being put into practice as evinced by efforts of individual states and the world community (e.g., the ICC victim Trust Fund).271 Thus, the groundwork is certainly being laid for establishing collective responsibility that seeks to make victims whole again. 2.10.3. Forms of Reparation There are four principal forms of reparation available for violations of international human rights and humanitarian law, namely: (1) restitution; (2) compensation; (3) rehabilitation; and (4) satisfaction and guarantees of non-repetition.272 Restitution should whenever possible restore the victim to the original situation before the violation occurred.273 This includes, inter alia: the restoration of liberty, legal rights, social status, family life and citizenship; return to one’s place 267 See Report of the Commission on Crime Prevention and Criminal Justice, supra note 254. 268 Id. para. 38. 269 The following are representative: Australia, Belgium, Canada, Cuba, Finland, France, Jordan, Luxembourg, Mexico, Netherlands, Oman, Peru, Philippines, Qatar, Republic of Korea, Romania, Spain, and Sweden. See id. para. 41. 270 See ICC Statute, art. 79. 271 Id. See Schabas, An Introduction to the International Criminal Court, supra note 32, at 150; Hakan Friman & Peter Lewis, Reparation to Victims, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 474, 487 (Roy Lee ed., 2001); Mark Jennings, Article 79: Trust Fund, in Triffterer, Commentary on the Rome Statute, supra note 32, at 1439. 272 Basic Principles and Guidelines on the Right to a Remedy and Reparation, supra note 204, at princ. 18. 273 See Id. at princ. 19.



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of residence; and restoration of employment and return of property.274 Compensation is in turn designed for economically assessable damages resulting from a violation, including: physical or mental harm, lost opportunity, material damages, harm to reputation and dignity, and costs associated with presenting a claim.275 Rehabilitation includes the provision of medical, psychological, legal, and other social services.276 A victim is also entitled to satisfaction and guarantees of non-repetition which should include, where applicable, any or all of the following: (a) Cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others; (c) The search for the bodies of those killed or disappeared and assistance in the identification and re-burial of the bodies in accordance with the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim; (e) Apology, including public acknowledgement of the facts and acceptance of responsibility; (f ) Judicial or administrative sanctions against persons responsible for the violations; (g) Commemorations and tributes to the victims; (h) Inclusion of an accurate account of the violations that occurred in international human rights and humanitarian law training and in educational material at all levels; (i) Preventing the recurrence of violations by such means as: (i) Ensuring effective civilian control of military and security forces; (ii) Restricting the jurisdiction of military tribunals only to specifically military offences committed by members of the armed forces; (iii) Strengthening the independence of the judiciary; (iv) Protecting persons in the legal, media and other related professions and human rights defenders; (v) Conducting and strengthening, on a priority and continued basis, human rights training to all sectors of society, in particular to military and security forces and to law enforcement officials;

274 Id. at princ. 19. 275 Id. at princ. 20. 276 Id. at princ. 21.

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Each of the forms of reparation may be sought either singularly or collectively.278 Moreover, several are not dependant on a judicial proceeding, and indeed may in many cases only come about by decisions of a state’s political branches. This is especially true with respect to the elements of satisfaction and guarantees of non-repetition. In addition, inter-governmental and non-governmental organizations can assist in providing certain forms of reparation such as the facilitation of the truth, rehabilitation services, and commemoration. However, such actions by third parties in no way substitutes for reparation provided by the principal violator, and by the necessary and appropriate redress modalities that a state or international organization can offer.279 2.11. Social Policy Considerations History reveals that crimes committed in the course of conflict typically occur after a breakdown in social controls. Some ascribe it to cultural factors and argue that some cultures have a tendency to be more cruel or violent than others.280 It is difficult to say, however, whether these cultural factors are endemic, or whether they are produced by social and economic conditions and by the absence of effective legal and social controls. Accountability mechanisms are, therefore, important because they tend to shore up legal and social controls which are preventive, and they tend to support the hypothesis of deterrence. Human nature also has its darker side, and while evil can emerge on its own without external inducement, it no doubt tends to emerge more harmfully when external controls are reduced and inducements offered. Impunity is certainly one of these inducements, as is the prospect of indifference and the expectation that the worst deeds may be characterized as justified, reasonable, acceptable, or normal.

277 See id. at princs. 22–23. 278 Id. at princ. 8. 279 See Raquel Aldana Pindel, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes, in 35 Vand. J. Transnat’l. L., 1399, 1499 (2002). 280 See, e.g., Geoffrey Best, Law and War Since 1945 (1994); John Keegan, A History of Warfare (1993).



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Victimization frequently involves the dehumanization of the prospective victims, frequently after a stage of psychological preparation by the perpetrators. Anyone “less than human” can, therefore, be dealt with as an animal or an object to which anything can be done without fear or risk of legal or moral consequence. Another approach is for the perpetrators to characterize the victims as perceived threats, thus providing rationalization for the ensuing victimization. Such characterization can even rise to the level of self-defense against individuals and groups, portrayed or perceived as constituting a threat or danger to some degree of plausibility and immediacy. Thus, the victims can be perceived and portrayed as being responsible for the victimization inflicted upon them, as if they had done something to justify it, or had called for it by their conduct, or for that matter, as in the case of the Holocaust, by their very being.281 This rationalization can even reach the point where the perpetrators can perceive themselves as forced to inflict the victimization. That reasoning can reach the absurd: the perpetrators become the victims by being “forced” by the actual victims to engage in victimizing conduct. Such distorted intellectual processes may be the product of inherent evil. However, they are most frequently the product of evil manipulation by the few of the many. From the days of Goebbels’ and Streicher’s propaganda to the 1994 Rwanda Hutu incitements to kill the Tutsis, the use of propaganda has been the main incitement to group violence. Obviously, the less educated or the more gullible a society is, the more likely it is to be induced into such false beliefs. There are many other factors, however, which influence the effectiveness of such techniques and which use the accumulation of uncontradicted falsehood over time to produce a deleterious effect. It is during that time that the international community should mobilize on the basis of certain early warning signals that group victimization is about to occur. Thus, the prevention of such forms of victimization must be developed. Accountability mechanisms appear to focus on events after-the-fact and may appear to be solely punitive, but they are also designed to be preventive through enhancing commonly shared values and through deterrence. Accountability, therefore, has a necessary punitive aspect. However, it is also integrally linked to prevention and deterrence. The weakness in the accountability argument is that it is after-the-fact, but its strength is that it has a crucial role to play in the formation and strengthening of values and the future prevention of victimization within society. As stated above, impunity is the antithesis of accountability. To foster or condone impunity is as illegal as it is immoral. Impunity is also frequently counterproductive to the ultimate goal of peace. Indeed, large-scale victimization arising 281 See Raul Hilberg, The Destruction of the European Jews (3 Vols. 1985).

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out of international crimes is never safely hidden away in the limbo of the past. It remains fixed in time in an ongoing presence that frequently calls for vengeance, and longs for redress. Victims need to have their victimization acknowledged, the wrongs committed against them decried, the criminal perpetrators, or at least their leaders, punished, and compensation provided to the survivors. A more outcome-determinative consideration of the processes of peace and the prospects of justice is to limit the discretion of leaders who are involved in political settlement processes that are intended to bring an end to conflicts. These leaders’ values, expectations, personal ambitions, positioning of power, the degree of public support they possess, and, above all, their responsibilities in connection with the initiation of the conflict and the conduct of the hostilities, particularly when international humanitarian law violations have occurred, affect the outcome of political settlements and bear the most on the subsequent pursuit and integrity of justice processes. Leaders involved in conflict situations are those who negotiate political settlements, usually through the mediation efforts of other leaders. Without the involvement of leaders in conflict situations, there can be no cessation of hostilities, and that is why they are essential to the pursuit of peace. However, conversely, they may also be opposed to the pursuit of justice. That is the essence of the mediator’s dilemma—how to bring about peace without sacrificing justice. In most conflicts, that dilemma has been resolved at the expense of justice. To avoid this dilemma in the future, the peace negotiators, acting in good faith in the pursuit of peace, must be immune from the pressures of having to barter away justice for political settlements. That card must not be left for them to play in the course of negotiating political settlements. Impunity must, therefore, be removed from the “tool box”282 of political negotiators. 2.12. The Internationalization of National Criminal Justice The process of internationalization of criminal justice principles, once considered to be limited by national boundaries, brought with it the need to strengthen transnational crime prevention and criminal justice. International initiatives aimed at assisting states in the reduction of criminality, effective law enforcement, fair administration of justice, respect for human rights and fundamental freedoms, and the promotion of high standards of professional conduct must 282 W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke J. Comp. & Int’l L. 175 (1995). Reisman notes that “[t]here is no general institution that can be applied as a paradigm for all circumstances. In each context, an institution appropriate to the protection and re-establishment of public order in the unique circumstances that prevail must be fashioned such that it provides the greatest return on all the relevant goals of public order.” Id. at 185. The question is, to what extent are accountability mechanisms deemed a part of “public order?” Id. Where do such mechanisms rank, and what is their value?



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be enhanced. The challenges posed by crime and justice in the future are at the very core of economic and social development and human security. Continued and improved coordination and cooperation in the administration of justice and crime prevention, particularly in judicial assistance between countries, are crucial in today’s global society. It appears a natural corollary that the internationalization of national criminal justice and increased inter-state cooperation in penal matters283 should extend to restorative justice, particularly those measures aimed at providing redress for victims and other healing mechanisms discussed above. The establishment of victims and witnesses units in the ICTY and ICTR were positive developments, as was the ICC Rome Statute’s broadening of the concept to oblige the Court “to establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”284 Victim compensation, when it is in the nature of a national or international program, and which allocates a certain amount to compensation, must provide for a fair administrative method to determine actual damages (as opposed to punitive damages). Monetary compensation should not be deemed the only outcome; non-monetary compensation should also be developed, particularly in societies where the economy is unable to sustain large monetary sums. There exists an enormous disparity in the capacity of states to address their respective national problems of criminal justice. This is due to resources, professionally capable personnel, technological and logistical support, and the levels of priorities ascribed by politicians to criminal justice. Moreover, states that have these capabilities and resources do not provide those that do not with enough assistance and support. This is also evident in such post-conflict justice situations as Ethiopia, Somalia, Cambodia, Rwanda, and Afghanistan. Some forty states fall in the category of Least Developed Countries (LDCs), and an estimated sixty states who are in the category of Developing Countries (DCs) are economically so marginal that they are borderline LDCs. Moreover, almost all other DCs are overwhelmed by their respective domestic crises of crime and corruption. This means that some two thirds of the world’s criminal justice systems are unable to effectively cope with their domestic problems, let alone with the needs of international criminal justice. However, considering that ICL depends on the “indirect enforcement system,”285 and that means reliance on national criminal justice systems, one has to conclude that unless we can internationalize support and standards for national criminal justice systems, the

283 See supra Chapter V. 284 See ICC Statute, supra note 143, at art. 75. 285 See supra Chapter V.

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international criminal justice system will not be effective, except occasionally and selectively. Section 3. Amnesties and International Criminal Justice The existence of the “social contract” theory postulated herein is grounded in legal history and in the evolution of social values in national legal systems. It necessarily implies that the rights of victims, to the extent described above, are both inherent and inalienable, and, therefore, punishment must follow. That does not mean, however, that these victims’ rights are necessarily fixed in terms of their modalities, processes, and outcomes, which vary depending upon the nature of the transgression, as well as other social and legal factors. It does mean that the principles embodied in these rights cannot be abrogated by the collectivity because these rights are inherently those of the victim and the victim’s heirs. As a result, states do not have the right to provide blanket amnesty to transgressors of jus cogens international crimes, particularly leaders and senior executors.286 Instead, they have the obligation to see to it that all the legal consequences pertaining to these crimes are carried out in good faith. Consequently, neither de jure nor de facto impunity can be provided to the transgressors of these jus cogens international crimes. Alternative accountability measures for alleged perpetrators other than leaders and senior executives are not precluded by this postulate. Rather, a range of alternative measures exists. The application of these measures, however, will vary depending upon the nature of the transgressions and the overall social goal that is pursued. It may, therefore, appear that a contradiction exists between the insistence on criminal punishment and the resort to alternative accountability measures for certain types of violations. However, these alternatives should only be considered if they produce a certain type of punishment, or if they are in and of themselves a form of punishment.

286 The international community views domestic amnesties as instruments of impunity, not of justice. See Louise Mallinder, Amnesties, in 1 The Pursuit of International Criminal Justice, supra note 10, at 793; see e.g., E.H. Guisse & L. Joinet, Progress Report on the Question of Impunity of Perpetrators of Human Rights Violation, U.N. Commission on Human Rights, Sub-Commission on the Prevention and Protection of All Minorities, 45th Sess., Item 10(a), U.N. Doc. E/CN.4/Sub.2/1993/6 (1993)(prepared pursuant to Sub-Commission Res. 1992/23); L. Joinet, Question of the Impunity of Perpetrators of Violations of Human Rights (Civil and Political Rights): Final Report, U.N. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 48th Session, Item 10, U.N. Doc. E/CN.4/Sub.2/1996/18 (1996) (prepared pursuant to Sub-Commission Resolution 1995/35); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 475 n.137 (1990); Scharf, Swapping Amnesty for Peace, supra note 168.



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If punishment is the international community’s right by virtue of the implied “social contract,” does it also include the right to pardon? It could be argued that the right to pardon is implied in the right to punish. However, if the right to punish is delegated from the victim to the international community, then the right to pardon remains that of the individual and not that of the international community. Whether the “social contract” negates the international legal order’s right of pardon for jus cogens international crimes is a question that remains in debate.287 Thus, if the right of punishment originally belonged to the victim and the international legal community exercises it on behalf of the victim, it cannot be traded in for blanket amnesties or in exchange for political concessions.288 However, this has been the case, from the granting of political asylum to the Kaiser of Germany in 1919, to the de facto immunity granted to Milosevič in exchange for his signature on the Dayton Accords in 1994.289 Political negotiators acting on behalf of major powers have compromised the victim’s right and breached the “social contract” for international criminal justice by bartering accountability for political settlements. Admittedly, such settlements are often times necessary to end to conflicts that bring more victimization, harm, and destruction, especially when there is a legitimate interest in seeking such settlements. The question then becomes whether such pardons violate an inderogable right, or whether they are to be given in accordance with certain criteria which ensure that a greater benefit is achieved by providing this compromise.290 The choice between an absolute application of blanket amnesties and politically motivated pardons without the democratically given consent of the victims is a question that has yet to be decided by the international legal order.291 According to the principles of retribution, a pardon may be justified in the following circumstances: (1) the offender has already suffered enough; (2) the offender stands to suffer too much because of special circumstances; (3) to relieve any punishment that is too severe; or (4) to relieve the lingering consequences of criminal conviction.292 Accordingly, the granting of amnesty is justified when

287 The right of pardon mentioned here refers to the victim’s right of forgiveness, whereas Moore refers to the right of pardon in a more traditional light as the right of a state to reduce punishment. Moore instead recognizes mercy, not pardon, as the victim’s right of forgiveness. See Moore, supra note 95, at 193–94; Minow, supra note 129; Murphy & Hampton, supra note 129. 288 See Bassiouni, Combating Impunity for International Crimes, supra note 24. 289 See Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002). 290 Moore, supra note 95; Minow, supra note 129; Murphy & Hampton, supra note 129. Reisman, supra note 282, at 177, finds that even though amnesties may facilitate the suspension of ongoing violations, they also undermine deterrence for the future, the law of state responsibility, and human rights. Id. 291 Supra note 286. 292 Moore, supra note 95, at 98.

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it intends to correct an injustice. However, too often, little to no justification exists for the granting of amnesty, and those formerly charged are released from punishment and free from guilt. Therefore, if amnesty, in the nature of a pardon, is granted before conviction then all penalties are removed and the person is returned to the community as a new person, guiltless and without a criminal record.293 Granting of pardons without justification clearly hinders the pursuit of justice because it destroys all beliefs of fairness, equality of application of the law, and certainty of the law. Lastly, it also eradicates hopes of deterring similar crimes from being committed in the future. In order for the right of pardon to co-exist with the theory of universal justice, the past political exploitations of pardon must be eliminated, or at least sharply circumscribed. The suggested policy guidelines proposed include: (1) pardons should only be granted after conviction and sentencing; (2) pardons should only be granted for specific crimes; and (3) pardons should be justified with reasons.294 These limitations restore the theory of punishment as just desert by ensuring that a punishment is not granted to the undeserving, and blanket pardons are not granted either for unspecified crimes or unjustified reasons. In this respect it is necessary to distinguish between policy makers and senior executors on the one hand, and low-level executors on the other.295 It is also necessary to identify the social benefits of pardons for the latter category in light of the goals of peace, reconciliation, and justice. International human rights law instruments contain a general provision that states parties are under an obligation to secure or ensure the respect of the rights embodied in the respective instrument.296 International bodies have interpreted these provisions to require that some violations, namely serious violations of physical integrity, such as torture, extra-judicial executions and forced disappearances, must be investigated and those responsible for them brought to justice. A fortiori, this applies to jus cogens international crimes. The groundbreaking case in which such an interpretation was first adopted is the case of Velásquez-Rodríguez before the Inter-American Court of Human Rights.297 The case concerned the unresolved disappearance of VelásquezRodríguez in Honduras in violation of Article 7 of the Inter-American Convention, which, according to the findings of the Inter-American Commission, was committed by persons connected to or acting in pursuance of orders from the armed forces. The Court interpreted Article 1(1) in conjunction with Article 7 293 Id. 294 Id. at 219–21. 295 See generally Bassiouni, Crimes Against Humanity, supra note 69, at 18–19. 296 Cf. art. 2(1) ICCPR (“to respect and to ensure . . . the rights . . .”); art. 1 ECHR (“shall secure”); art. 1(1) of the Inter-American Convention on Human Rights (“to respect and to ensure . . .”); art. 1 of the African Charter on Human and Peoples’ Rights (“shall recognize . . . and shall undertake to adopt . . . measures to give effect . . .”). 297 Judgment of 29.7.1988, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988).



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to mean that “. . . States must prevent, investigate, and punish any violation of the rights recognized by the Convention and . . . if possible to restore the right violated and provide compensation as warranted for damages resulting from the violation.”298 The Court furthermore indicated that: [T]he State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.299

According to the Court, the obligation not only entails the duty “to effectively ensure . . . human rights”300 but also requires that investigations be conducted “in a serious manner and not as a mere formality preordained to be ineffective.”301 The Court concluded that “[I]f the State apparatus acts in such a way that the violation goes unpunished . . . the State has failed to comply with its duty to ensure the full and free exercise of those rights to the persons within its jurisdiction.”302 It is noteworthy from the perspective of transitional justice that the Court regarded this due diligence requirement to be binding “independently of changes of government over a period of time and continuously from the time of the act that creates responsibility to the time when the act is declared illegal.”303 Thus, the obligations are equally applicable to new governments which were not in power at the time the violation occurred. Furthermore, the holding of the Court suggests that it is applicable irrespective of the scale of violations and thus even covers cases of a single, isolated violation.304 While such interpretation was confirmed in later decisions of both the InterAmerican Court and the Commission,305 the exact scope of such an obligation to 298 Id. at para 166. 299 Id. at para. 174 (emphasis added). 300 Id. at para. 167. 301 Id. at para. 177. 302 Id. at para. 176. 303 Id. at para. 184. 304 Naomi Roht-Arriaza, Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress, in Impunity and Human Rights in International Law and Practice 24, 31 (Naomi Roht-Arriaza ed., 1995). 305 For decisions of the ICHR, see, for example: Godínez Cruz, judgment of 20.1.1989, at para. 184 et seq.; Aloeboetoe et al., judgment of 4.12.1991, Annual Report Inter-Am. Ct. H.R., 1991, at 76 et seq.; Gangaram Panday, judgment of 21.1.1994; El Amparo, judgment of 18.1.1995, Annual Report 1995, at 23 et seq.; Neira Alegria et al., judgment of 19.1.1995, Annual Report 1995, at 41 et seq.; Caballero Delgado y Santana, judgment of 8.12.1995, Annual Report 1995, at 135 et seq.; Barrios Altos Case, Judgment of May 14, 2001, Inter-Am Ct. H.R. (Ser. C) No. 75 (2001), paras. 41–44, available at http://www1.umn.edu/humanrts/iachr/C/75-ing.html; for decisions of the Inter-Am. C. H.R., see for example: cases No. 10.235, 10.454, 10.581, Annual Report Inter-Am. C. H.R., 1992, at 27 et seq.; 1993, at 52, 61; cases No. 10.433, 10.443, 10.528, 10.531, Annual Report Inter-Am. C. H.R. 1992–93, at 110, 118, 128, 136; Report No. 1/99 of 27.1.1999, case 10.480: Lucio Parada Cea et. al., at para. 130. For further references, see also Kai Ambos, Völkerrechtliche Bestrafungspflichten bei schweren Menschenrechtsverletzungen, 37 Archiv des Völkerrechts 318 (1999) at 319–21.

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respect and ensure is a matter of discussion, namely in regards to the question whether it implies a duty to conduct criminal proceedings. Some warn not to read too much into the judgment, because the Court, in ordering remedies, did not direct the Honduran government to institute criminal proceedings against those responsible for the disappearance despite the fact that the lawyers for the victims’ families, the Inter-American Commission and a group of international experts acting as amici curiae had specifically made a request to that effect. In light of the absence of any express reference to criminal prosecution as opposed to other forms of disciplinary action or punishment, the obligation to investigate violations, to identify those responsible, to impose the appropriate punishment, and to ensure the victim adequate compensation thus does not appear to exclude non-criminal responses per se, as long as one assumes a broad notion of what constitutes “punishment.” On the other hand, the Inter-American supervisory organs have derived additional criteria for the permissibility of such noncriminal responses from the right to a remedy, as provided for in Article 25 of the Inter-American Convention, and the right to a judicial process, contained in Article 8, read together with the obligation to ensure respect embodied in Article 1. According to the understanding of the Court and the Commission, the due diligence standard set forth by the Inter-American Convention excludes some noncriminal responses, namely blanket amnesties. Thus, when confronted with the permissibility of amnesty laws adopted in El Salvador,306 Argentina,307 Uruguay,308 and Peru,309 the Commission determined that they were incompatible with the mentioned obligations flowing from the Inter-American Convention.310 While differing in the degree of permissible margins of appreciation in complying with the requirements flowing from the respective instruments, the jurisprudence of the Inter-American supervisory organs was confirmed by the European Court for Human Rights and the Human Rights Committee. Thus, the Human Rights Committee concluded in its General Comment no. 20,311 with respect to the prohibition of torture contained in Article 7 of the ICCPR that amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom of such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible. The Human Rights Committee also confirmed its view 306 Inter-Am. C.H.R., Rep. 26/92 OEA/ser.L/V/II.82 (Sept. 24, 1992). 307 Inter-Am. C.H.R., Rep. 24/92, id., Doc. 24 (Oct. 2, 1992). 308 Inter-Am. C.H.R., Rep. 29/9, id., Doc. 25 (Oct. 2, 1992). 309 Barrios Altos Case, supra note 306. 310 For a detailed discussion of that jurisprudence, see Douglas Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 L. & Contemp. Probs. 197, 208–19 (1996). 311 General Comment no. 20, adopted during the Committee’s 44th session in 1992.



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that amnesties are incompatible with States’ obligations under the ICCPR in a number of its communications.312 In contrast to the Inter-American human rights bodies and the Human Rights Committee, no jurisprudence with respect to amnesties has emerged in the European Court of Human Rights as of yet. However, the Strasbourg organs were confronted with the question whether and to what extent states parties to the ECHR are under an obligation to investigate and, if appropriate, prosecute violations of the rights guaranteed by the ECHR. In Selmouni v. France,313 the Court had to consider whether an inquiry for alleged acts of torture was effective. The Court affirmed earlier decisions314 and stated that the notion of an effective remedy315 entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible.316 In the decision of Al-Adsani v. United Kingdom, the European Court confirmed that approach.317 However, it did not accept the applicant’s claim that the U.K. was in breach of its obligations under the European Convention by granting State immunity to Kuwaiti authorities, at whose hands the applicant suffered from torture, thus precluding him from civil claims of compensation against the Kuwaiti authorities. While the Court accepted “[. . .] that the prohibition of torture has achieved the status of a peremptory norm in international law” it observed that the case at hand concerned the immunity of a State in a civil suit for damages in respect of acts of torture within the territory of that State, rather than criminal liability of an individual for alleged acts of torture. In such a case, the Court considered itself “unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.”318 However, by stressing the difference between criminal and civil liability,319 it might be argued that the European Court would have come to the conclusion that the U.K. was

312 Cf. e.g., Hugo Rodriguez v. Uruguay, U.N. Doc. CCPR/C/51/D/322/1988, 2 IHRR (1995) 112, paras. 12.3–12.4, available at http://193.194.138.190/tbs/doc.nsf/(Symbol)/c6100f530629eae48025672 300553422?Opendocument. 313 Selmouni v. France, 411 Eur. Ct. H.R. (1999). Application no. 25803/94, judgment available at http://www.echr.coe.int/Eng/Press/1999/Jul_Aug/Selmouni.eng.htm. 314 Among others, these include the following judgments: Aksoy v. Turkey case, judgment of 18 December 1996, Reports 1996-VI, at 2287, § 98; Assenov and Others v. Bulgaria, 28 October 1998, Reports 1998-VIII, p. 3290, § 102; and, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, Series A no. 161, at 34–35, § 88. 315 Cf. Article 13 of the ECHR, supra note 232. 316 Selmouni v. France, supra note 313, judgment at para. 79. 317 Application no. 35763/97, Judgment of Nov. 21, 2001, at 38–40, available at http://cmiskp.echr .coe.int/tkp197/search.asp?skin=hudoc-en. 318 Id. at para. 61. 319 For the Court’s emphasis on this difference see also id. at para. 65.

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in breach of the ECHR, had it granted immunity from its criminal jurisdiction to individuals that were responsible for torturing the applicant. Assuming that no blanket amnesties can be provided for jus cogens international crimes, which of the accountability measures described above should be applied, and do these measures satisfy the goals of accountability? So far, there are no explicit norms to answer this question and many other questions deriving from it. Nor is there sufficient international practice to evidence customary international law. The dichotomy of peace versus justice is still debated, as are the merits of amnesty when they can achieve an immediate and certain result of bringing an ongoing conflict to an end, thus sparing many lives. In the Iraq conflict, the U.S. offered Saddam Hussein amnesty if he abandoned power before the war started.320 For sure, his departure from power would have saved thousands of lives lost in this conflict, as well as prevented the destruction of much of the country. Who can say that upholding the principle of accountability would have been worth the deaths, injuries, and devastation brought by the war? Perhaps the answer is to split the political promise of amnesty from the eventual inevitability of the legal implications of accountability. After all, this is what happened with Slobodan Milosevič.321 If it is only a question of time, the political promise may be upheld, and eventually the inevitability of accountability can follow.322 But this is not always a certainty. General Raoul Cedras was given de facto amnesty in Haiti, and now lives in Panama,323 and Idi Amin spent more than twenty years in exile in Saudi Arabia after he was deposed from the presidency of Uganda. There are many others, including Mengitsu of Ethiopia,324 Pinochet of Chile, and Habré of Chad.325 For sure, they all were trapped and tracked, and that in itself is a measure of the world’s condemnation.

320 For example, prior to military action in Iraq, there were rumors that Saddam Hussein might leave the country in search of a safe haven. Both President George W. Bush and Defense Secretary Donald Rumsfeld welcomed the prospect, even though the crimes committed by Hussein and his regime are quite significant. See Remarks of President in Address to the Nation, March 17, 2003; M. Cherif Bassiouni, Post-war Justice, Justifying War, Chi. Trib. Mar. 30, 2003, at Sec. 2, p. 1. See also Bass, supra note 29, in which he argues the difficult choice of not giving amnesty to certain leaders in exchange for peace, which also results in the saving of many lives. 321 See Williams & Scharf, supra note 289; Michael P. Scharf: Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997). 322 See Diane F. Orentlicher, Settling Accounts—The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991); Naomi Roht-Arriaza, supra note 286, at 475. 323 See Scharf, Swapping Amnesty for Peace, supra note 168. 324 See Kidane, supra note 169. 325 See supra Chapter II, section 4.



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Section 4. Assessment The philosophy of international criminal justice is a reflection of certain values embodied in the historical experiences of national criminal justice systems. What emerges is at once complex, but can also be simple in practice. This complexity is present because it reflects several philosophical premises that have developed in different cultures, and at different times. However, the philosophy is also simple, because it amounts to four essential value-oriented goals. They are: (1) prevention through deterrence and the strengthening of social values; (2) enhancement of peace by providing retribution and corrective justice which makes violators accountable and punishable, which in turn reduces the victims’ needs for revenge; (3) provide victims with redress which in some ways compensates them for the harm they have suffered and the losses they incurred; and (4) record history and make remembrance part of social reality.326 These four value-oriented goals of international criminal justice are reflected in almost all legal philosophies, irrespective of their differences. To attain these value-oriented goals, the international criminal justice system, as a whole and in part, must be impartial and fair in its processes. These notions of impartiality and fairness include three other unarticulated philosophical premises—equality, liberty, and individual dignity—which are reflected in varying degrees in almost all legal systems throughout history, and evidence the philosophical understanding that human justice is achieved by processes that are perceived as impartial and fair because they uphold equality, liberty, and individual human dignity. Experience also reveals that in order for legal processes to be impartial and fair, they must also be effective. This conception of ICJ does not have to reach consensus on the metaphysical questions of what is justice, so long as it achieves fairness. Its value-oriented goals are broad enough to satisfy a wide range of metaphysical conceptions of justice, yet narrow enough to avoid the contrasting aspects of these metaphysical conceptions. Thus, for example, ICJ does not need to address whether justice is divinely inspired or human-made, or whether it is the product of authority or of a natural order; whether it is a moral virtue or a social policy; whether it fulfills social or individual needs; whether it achieves individual or inner happiness or satisfaction or socio-political objectives; whether it is designed to achieve or 326 Martha Minow & Ruth G. Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 Cornell Int’l L.J. 356 (2002); Osiel, Ever Again: Legal Remembrance of Administrative Massacre, supra note 214.

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support a given form of government or satisfy some socio-political or economic ideology; or, whether it achieves certain ends, or conforms with certain forms. It can encompass these ideals without having to confine itself to any one of them. In short, it is a pragmatic, humanistic,327 utilitarian, and process-oriented concept, which modestly aims at the attainment of certain value-oriented goals that reflect a wide consensus among national collectivities and international civil society. The challenges to ICJ are in part posed by globalization, which makes local crime capable of being transnational, and which facilitates the commission of international crimes.328 However, since it can easily be predicted that most states will be unable to cope with the challenges of crime in the era of globalization because of the reasons mentioned in section 7.12, the danger will be to the preservation of international human rights standards. Already, we have witnessed the erosion of civil liberties in the U.S. since September 11, 2001. Those who for ideological reasons have opposed the human rights movement will seize upon the dangers of crime to fan the fears of people, and thus justify serious infractions of what we have come to consider as fundamental fairness and due process of law. Human experience evidences that curtailing due process has never benefited security, but has always enhanced dictatorships. The words of Benjamin Franklin inscribed on the Statue of Liberty are more eloquent today than ever: “They that can give up essential liberty to obtain a little safety, deserve neither liberty nor safety.”329 As to another aspect of ICJ, impunity for international crimes and for systematic and widespread violations of fundamental human rights is a betrayal of our human solidarity with the victims of conflicts to whom we owe a duty of justice, remembrance, and compensation. Accountability and victim redress are also fundamental to post-conflict justice, as the re-establishment of a fair and func327 The term humanistic encompasses human rights, including compassion for the victims of crime, be it national or international. 328 For example, Liberia and Sierra Leone’s internal wars which caused a cumulative estimated 600,000 to 800,000 victims was financed by the illicit diamond trade, which rebels sold to major Western companies. The proceeds were then laundered through Western banks, and with it, weapons were bought in the Ukraine and Russia and smuggled through other African countries to cause the mayhem the world witnessed with if not indifference, at least inaction. See Report of the Panel of Experts pursuant to Security Council resolution 1343 (2001), Paragraph 19, Concerning Liberia, U.N. Doc. S/2001/1015 (Oct. 26, 2001); Supplementary Report of the Monitoring Mechanism on Sanctions against UNITA, U.N. Doc. S/2001/966 (Oct. 12, 2001); Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (April 12, 2001); Report of the UN Expert Panel on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC (January 16, 2001); Final Report of the Monitoring Mechanism on Angola Sanctions, U.N. Doc. S/2000/1225 (Dec. 21, 2000); Report of the Panel of Experts Appointed Pursuant to Security Council Resolution 1306 (2000), Paragraph 19, in Relation to Sierra Leone, U.N. Doc. S/2000/1195 (Dec. 20, 2000); Final Report of the UN Panel of Experts on Violations of Security Council Sanctions Against Unita The “Fowler Report”, U.N. Doc. S/2000/203 (Mar. 10, 2000). 329 Benjamin Franklin, Historical Review of Pennsylvania (1759).



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tioning criminal justice system in the aftermath of conflicts is the only means to avoid impunity and ensure a lasting peace, which only a viable criminal justice system can protect and guarantee. To remember and to bring perpetrators to justice is a duty we also owe to our own humanity and to the prevention of future violations of international humanitarian and human rights law.330 To paraphrase George Santayana, if we cannot learn from the lessons of the past and stop the practice of impunity, we are condemned to repeat the same mistakes and to suffer their consequences. The reason for our commitment to this goal can be found in the eloquent words of John Donne: No man is an island, entire of itself; every man is a piece of the continent, a part of the main . . . Any man’s death diminishes me because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee . . .331

330 In the classic and profoundly insightful characterization of George Orwell, “Who controls the past, controls the future. Who controls the present, controls the past.” Thus, to record the truth, educate the public, preserve the memory, and try the accused, makes it possible to prevent abuses in the future. See Cohen, supra note 134, at 49. 331 John Donne, Devotions Upon Emergent Occasions XVII (1626).

Chapter Eleven

Reflections on International Criminal Justice: Past and Future* Fiat Justitia Pereat Mundus Let there be justice though the world perish. —Immanuel Kant (1795)

Section 1. Introduction Ideally, laws reflect social values. Legal systems are designed to achieve the valueoriented goals of social policy, and are to be distinguished from their justice meanings and contexts. However, that has seldom been the case in the history of law and legal institutions.1 Laws, no matter what their value contents and goals, may have existed in human societies as far back as anthropological and historical studies have been able to record. However, their substantive justice meanings and contents have varied over time, within each society, and also between societies. Laws and legal systems have been recorded for some five thousand years, and more often than not, they reflect control mechanisms established by rulers or ruling elites to further their power and wealth goals. The history of law and legal institutions reflect the occasional migration of legal concepts from one civilization to the other, as in the case of Roman law’s absorption of certain philosophical and legal concepts from ancient Greece.2 This was followed by the influence of Roman law on Western European legal systems,3 including different historic legal traditions such as the English Common Law, which occurred after the Norman Conquest in 1066.4 In turn, European colonialism in the Americas and the Caribbean in the 1600s, and Africa and Asia in the 1800s, saw the transfer of continental and English legal systems to colonized societies. As a result of this complex historical process, most of the * Published M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l L. 269 (2010), reprinted with permission. 1 Jean Imbert et al., Histoires des Institutions et des Faits Sociaux (1956); John Henry Wigmore, A Panorama of the World’s Legal Systems (1928); see also René David & John E.C. Brierley, Major Legal Systems in the World Today (3d ed. 1985). 2 See generally Coleman Phillipson, 1 The International Law and Custom of Ancient Greece and Rome (1911). 3 See generally David & Brierley, Major Legal Systems in the World Today, supra note 1. 4 See also John H. Langbein, Renee Lettow Lerner, & Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (2009).

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world’s legal systems have belonged to a few major families of law, thus engendering some degree of rapprochement between national systems belonging to the same family.5 This historical process has in turn had an impact on international criminal law (ICL), which has borrowed from the major families of law in order to form its substantive and procedural part, which is applied by international and mixed model criminal tribunals.6 This is evident in the “general part” of criminal law as applied by international criminal tribunals, which relies on comparative law techniques to deduce principles and norms common to the major families of legal systems.7 Moreover, the harmonization of criminal procedural laws in many contemporary legal systems reflects the growing influence of international human rights law on domestic laws.8 This is evident in a comparative analysis of national constitutions, which demonstrates not only a high level of commonality in the formulation of individual rights, but also a certain level of similarities between the constitutions and international instruments on the protection of human rights.9 Chapter 9 describes these developments, as well as the congruence of the statutes, rules, and jurisprudence of the international and mixed model tribunals with international human rights standards and norms on due process of law in criminal proceedings.10 Consequently, laws and legal systems in contemporary times manifest a higher level of congruence with moral and social values than at any other time in history. The contemporary quest for ICJ demonstrates a high level of demand by international civil society and by some governments. This is due to the convergence of shared moral and social values of constituencies supporting ICJ and intergovernmental agencies’ policies on maintaining international peace and security. However, while this demand for ICJ has increased in postmodern times, its supply, as described below in this chapter, is still low, notwithstanding the establishment of several ICJ institutions in the past fifteen years.11 5 Id. 6 Such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Extraordinary Chambers of the Courts of Cambodia, the Special Tribunal for Sierra Leone, the ‘Regulation 64 Panels’ of Kosovo, the Court of Bosnia-Herzegovina, the Ad Hoc Tribunal for East Timor, and the Special Tribunal for Lebanon. 7 See supra Chapter IV. 8 See Jean Pradel, Procédure pénale comparée dans les systèmes modernes: Rapports de synthèse des colloques de l’ISISC, 15 Nouvelles Etudes Pénales (1998); supra Chapter IX. 9 For a list of constitutions that have been comparatively analyzed as such, see supra Chapter IX. 10 For a comprehensive compilation of the jurisprudence of these bodies, see Annotated Leading Cases of International Criminal Tribunals (25 vols., Andre Klip & Goran Sluiter eds., 1999–2010). 11 See supra Chapters VI–VIII. For the impact of international criminal law, international criminal tribunals, and hybrid tribunals on the rule of law building efforts of post-conflict societies see



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ICJ processes have historically evidenced a tension between the interests of power and wealth represented by states and the commonly shared moral and social values of the international community, no matter how these values are identified and appraised.12 More often than not, considerations of states’ power and wealth interests clash with whatever moral and social values are sought to be attained by ICJ.13 At times, however, these divergent values and interests also converge. Whenever such convergence occurs, it may be because the power and wealth interests of states temporarily give way to the imperatives of commonly shared moral and social values of the international community, or because the former (interests) are deemed to be better served by states’ acceptance of the moral and social value-oriented goals of ICJ. Such occasional convergence is, however, always opportunistic and temporal. Nevertheless, they serve as precedential footholds by those who seek to advance ICJ. In the study of conflicts, political and economic factors are often intertwined. Those who promote conflict in extremely poor countries are usually motivated by personal greed, and are able to combine their personal goals with such political and economic factors by becoming surrogates for the interests of other states (as was the case during the Cold War), or seeking to advance the interests of foreign corporations (e.g., oil, diamonds, or arms). These conflicts’ criminological typologies are often more in the nature of organized crime or gang criminality, yet surprisingly (or by cynical standards, not surprisingly), the international community, as manifested through the United Nations’ work, has created several separate legal regimes for different forms and manifestations of transnational and international criminality.14 The activities of non-state actors in conflicts generically described as civil wars are part of the same continuum of what is also generally referred to as terrorism, and perhaps more specifically, organized crime or gang criminality. Traditional distinctions between these phenomena of aberrant social behavior are no longer valid, and neither are the traditional mechanisms of social control,

Jane Stromseth, Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?, 1 Hague J. on the Rule of L. 87, 90 (2009). 12 See M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000); M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 Ga. St. U. L. Rev. 541 (2006). For more on contemporary realpolitik, see generally Chalmers Johnson, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (2004); Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules from FDR’s Atlantic Charter to George W. Bush’s Illegal War (2005). 13 See M. Cherif Bassiouni, International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice, in The Oxford Companion to International Criminal Justice 131 (Antonio Cassese ed., 2009). 14 See the statement of this writer before the United Nations General Assembly, on the occasion of the 10th Anniversary of the United Nations Transnational Organized Crime Convention (“The Palermo Convention”), June 17, 2010.

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particularly, the assumptions on deterrence and prevention. In many ways, traditional assumptions of compliance with IHL are no longer valid, and, therefore, new means of control need to be devised.15 Just as national laws and legal systems have developed through processes of accretion and some borrowing from other societies’ experiences, so has ICJ. However, ICJ has also been shaped by political considerations, as is evidenced by the U.N. Security Council’s elective use in some situations of post-conflict justice (PCJ) mechanisms without any consistency as to the nature of conflicts and as to the selection of a given PCJ mechanism,16 as described earlier in this 15 See M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 712 (2008). 16 The term post-conflict justice is used herein instead of transitional justice, because the word transitional may imply that it is a modifier of justice, as opposed to the situation which may be transitional and which requires certain specific justice measures. On post-conflict justice generally, see The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (2 vols., M. Cherif Bassiouni ed., 2010) [hereinafter The Pursuit of International Criminal Justice]; Transitional Justice and Development: Making Connections (Pablo de Grieff & Roger Duthie eds., 2010); Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Alexander Laban Hinton ed., 2010); Tricia Olson, Leigh A. Payne, & Andrew G. Reitner, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (2010); Sharanjeet Parmar, Mindy Jane Roseman, & Saudamini Siegrist, Children and Transitional Justice: Truth-Telling, Accountability, and Reconciliation (2010); Localizing Transitional Justice: Interventions and Priorities After Mass Violence (Rosalind Shaw, Lars Waldorf, & Pierre Hazan eds., 2010); Hakeem O. Yusuf, Transitional Justice, Judicial Accountability, and the Rule of Law (2010); Post-Conflict Peacebuilding: A Lexicon (Vincent Chetail ed., 2009); Nir Eisikovits, Sympathizing with the Enemy: Reconciliation Transitional Justice, Negotiation (2009); Reconciliations: Transitional Justice in Postconflict Societies (Joanna R. Quinn ed., 2009); Assessing the Impact of Transitional Justice: Challenges for Empirical Research (Hugo Van Der Merwe, Victoria Baxter, & Audrey R. Chapman eds., 2009); The Chicago Principles on Post-Conflict Justice (International Human Rights Law Institute, DePaul University College of Law, 2008), reprinted in 1 The Pursuit of International Criminal Justice, id., at 41; Building a Future on Peace and Justice: Studies on Transitional Justice (Kai Ambos, Judith Large, & Marieke Wierda eds., 2008); Atrocities and International Accountability: Beyond Transitional Justice (Edel Hughes, William A. Schabas, & Ramesh Thakur eds., 2008); Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Kieran McEvoy & Lorna McGregor eds., 2008); The Politics of Past Evil: Religion, Reconciliation, and the Dilemmas of Transitional Justice (Daniel Philpott ed., 2006); Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006); Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (2004); The Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, U.N. Doc. S/2004/616 (Aug. 23, 2004); Jane Stromseth, Accountability for Atrocities: National and International Responses (2003); Ruti Teitel, Transitional Justice (2002); The Politics of Memory: Transitional Justice in Democratizing Societies (Alexandra Barahona de Brito, Carmen Gonzalez Enriquez, & Paloma Aguilar eds., 2001); Post-Conflict Justice (M. Cherif Bassiouni ed., 2001); Transitional Justice and the Rule of Law in New Democracies (A. James McAdams ed., 1997); Transitional Justice: How Emerging Democracies Reckon with Former Regimes (3 Vols., Neil Kritz ed., 1995). See also Paige Arthur, Identities in Transition: Developing Better Transitional Justice Initiatives in Divided Societies (International Center for Transitional Justice, November 2009); Alexander L. Boraine, Transitional Justice: A Holistic Interpretation, 60 J. Int’l Aff. 17 (2006); Louis Bickford,



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book in Chapters VI, VII, and VIII. Prior to 1992, the Council did not address PCJ issues, deeming them to be beyond the scope of its mandate under Chapter VII of the U.N. Charter, namely, that which directly concerns peace and security as perceived by the Council and its five permanent members. This was essentially a political consideration, as is the fact that the Council has acted so selectively since 1992.17 However, the Council’s inconsistencies are due to its diplomats’ failure to understand the mechanisms of post-conflict justice, and thus inability to develop consistent policies and practices, as described later in this chapter.18 Throughout history ICJ has progressed both as a result of unforeseen opportunistic circumstances and because individuals—whether state decision makers, reformist intellectuals, or activists—were able to bring about progressive developments. There have also been historical periods when state decision makers have caused the regression of ICJ.19 Thus, ICJ has ebbed and flowed with the currents of history, and contemporary gains in ICJ must not be taken for granted. The history of humankind is made of different strands; some are intertwined and even merge with one another, others remain separate and distinguishable threads. The difference between the moral qualities within these strands is not always easily identifiable. To distinguish between what is right from what is wrong, or what is good from what is evil, purely on the basis of what history offers in its various aspects and periods, is a judgmental undertaking. Considering the diversity of values that exists in human societies, it is inevitable that what is considered good or evil by the international community is neither uniformly agreed upon, nor predictably or consistently acted upon. This is evident in the historic pursuit of identifying commonly shared values that can be uniformly applied by and to all states and to all peoples. It is also evident in states’ decisions on ICJ questions, which more often than not reflect states’ concerns for power and wealth rather than concerns for the common good of the international community.20 State policies and practices are, however, made by individuals and Transitional Justice, in The Encyclopedia of Genocide and Crimes Against Humanity 1045 (2004); Eric A. Posner, Transitional Justice as Ordinary Justice, 117 Harv. L. Rev. 761 (2004); Ruti G. Teitel, Transitional Justice in a New Era, 26 Fordham Int’l L.J. 893 (2003). See also the work of the International Center for Transitional Justice in New York, NY, available at http://www.ictj.org (last visited Nov. 11, 2011); as well as the quarterly International Journal of Transitional Justice, edited by the Centre for the Study of Violence and Reconciliation in South Africa and Human Rights Center of the University of California-Berkeley, and published by Oxford Journals. 17 The United Nations Security Council and War: The Evolution of Thought and Practice Since 1945 (Vaughan Lowe, Adam Roberts, Jennifer Walsh, & Dominik Zaum eds., 2010). 18 See also supra Chapter I, section 1. 19 For example, President Omar Al Bashir in the Sudan, or President George W. Bush in the United States. 20 For example, the opposition of the U.S. to the ICC. See The United States and the International Criminal Court: National Security and International Law (Sarah Sewall & Carl Kaysen eds., 2000).

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not by abstract entities, as Robert Jackson noted in his opening statement at the Nuremberg Trials.21 Thus, it is a human factor that most determines the course of history, even though events uncontrolled by individuals sometimes overtake human agency. The cumulative record of history is an indispensable guide to the future, but as time progresses, generational gaps expand and what remains in the collective consciousness of succeeding generations is little more than sound bites which are unlikely to instruct us very much about the lessons of the past, leading the philosopher George Santayana to observe that “those who cannot remember the past are condemned to repeat it.”22 And so it is for that reason so many of the human tragedies and injustices of the past continue to recur. Some lessons have been learned in the pursuit of ICJ, but, as the popular saying goes, the wheel has to be periodically reinvented as if it had never before existed. As Niccolò Machiavelli observed in his sixteenth-century seminal work, The Prince, the most difficult thing to change is change itself.23 ICJ has developed in fits and bursts as compelling needs almost literally forced it out of the constraints of states’ power and wealth interests. These interests have acquired a powerful dimension in the age of globalization,24 and one which is more difficult to assess and to control. The manifestations of ICJ have also been, as discussed below in this chapter, selective, partial, and limited in their application. More importantly, there is no internationally agreed upon theory of ICJ.25 Consequently, what has emerged as being ICJ cannot be measured against an established yardstick to assess its adequacy and effectiveness. At best, we are witnessing the emergence of certain agreed upon modalities of ICJ.26 Even so, there is still too much that is unsettled about the mandatory or optional nature of these modalities, or what combination is to be used in a particular situation.27 21 See the opening statement of Justice Robert H. Jackson from the Nuremberg Trials: Of course, the idea that a state, any more than a corporation commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity. The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. See Trials of the Major War Criminals before the International Military Tribunal, Vol. 2, Proceedings, at 98–101. 22 George Santayana, 1 The Life of Reason: Reason of Common Sense 284 (1905). 23 Niccolò Machiavelli, The Prince (Luigi Ricci trans., 1935) (1532). 24 See generally Strobe Talbott, The Great Experiment, The Story of Ancient Empires, Modern States, and the Quest for a Global Nation (2009). 25 See infra section 8. 26 Such as The Chicago Principles, supra note 16. 27 See infra section 10.



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One way of examining the development of ICJ which is part of the discipline of ICL is to consider the processes of historical evolution of laws and legal systems in different societies. This exercise may lead to the conclusion that ICL and its ICJ component are likely to follow a similar evolutionary path as criminal law and procedure did in different societies. Section 2. Law and Legal Systems in Historical Perspective Legal systems have existed in different forms throughout the past five thousand years, as evidenced by their presence in the world’s forty major civilizations.28 These early codes and legal systems include those of the Egyptian Civilization, as early as 3100 BCE with Pharaoh Menes’ law on the unification of Upper and Lower Egypt; the Mesopotamian law of Urukagina around 2380 BCE, which focused on banning corruption, and the 1790 BCE Code of Hammurabi, which covered a variety of topics; the Assura Code of the Assyrians promulgated in 1075 BCE, which—like their Mesopotamian neighbors’ Code of Hammurabi— covered criminal, civil, and commercial matters; the first written Chinese law code, the Kang Gao, promulgated by King Wu Zhou in the eleventh century BCE; the Greek legal systems that evolved between the fifth and first centuries BCE, and their influence on the Roman law system, whose own evolution led to the Justinian Code of 529 CE; and the Indian Laws of Manu created between 200 BCE and 200 CE. These are only some examples of laws and legal institutions that appeared early on in the history of law. The existence of laws and legal systems for so long does not presuppose that they necessarily reflect certain values embodied in the meaning of justice as perceived in the moral and social values of these systems’ respective civilizations. On the contrary, for most of this five thousand-year history, laws and legal systems have mostly been tools of social control used by those in power to perpetrate their power positions and enhance their followers’ wealth. Whatever margin of social justice that existed in these systems was eventually applied to interpersonal relations in order to give the ruled masses a modicum of justice among themselves. The interests of those in power and the privileges of the ruling elite 28 See Arnold Toynbee, A Study of History (12 vols., 1961); H.G. Wells, The Outline of History (3d ed. 1921). See generally H. Patrick Glenn, Legal Traditions of the World (2d ed. 2004); Charles Freeman, Egypt, Greece, and Rome: Civilizations of the Ancient Mediterranean (1996); René David, Les grands systèmes de droit contemporains (1973); Michael Grant, The Ancient Mediterranean (1969); Jacques-Henri Pirenne, Panorama de l’Histoire Universelle (1963); Jean Imbert et al., Histoires des Institutions et des Faits Sociaux (1956); J.L. Brierly, The Law of Nations (1955); André Aymard & Jeannine Auboyer, L’Orient et la Grèce Antique (1953); John Henry Wigmore, A Panorama of the World’s Legal Systems (1928).

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were otherwise always safeguarded. In fact, rulers and ruling elites have provided some justice, or semblance of it, to the masses as a way of placing themselves above or beyond the reach of the law. Ancient Greece, particularly the city-state of Athens, practiced democracy between the fifth and the first centuries BCE, with some exceptions.29 Then, as now, it was axiomatic that democracy needed a system based on the rule of law to achieve its goals. The Romans, who borrowed certain values and concepts from Greece, developed in their own right an extraordinary legal system based on positive law.30 Specific laws were distinguished by subject-matter categories, and had to be coherent with applicable doctrinal or dogmatic constructs and interpreted in accordance with certain legal methods in order to enhance the certainty of the law and the consistency of its application. Roman law is the historic foundation of more than half the world’s contemporary legal systems, and thus has had a profound impact on ICL. Most contemporary criminal law systems and ICL follow the Roman law principles of legality: nullum crimen sine lege and nulla poena sine lege.31 The linkage between democracy and the rule of law developed by ancient Greece has proven itself throughout the ages and has been rediscovered after the experiences of WWII, and those that ensued to contemporary times.32 Separate and apart from the assumptions that democracy cannot exist without the rule of law, that the rule of law is the foundation of democracy, and that when combined they reduce the opportunities for internal and international conflict, and that by reducing human conflict, peace and justice is advanced, there is the question of how legal systems have developed and produced the rule of law. This is what the history of law is all about.33 What this story reveals, which is instructive to ICL and its ICJ component, is that within every human society for as far and wide as historians and 29 See generally Raphael Sealey, A History of the Greek City States ca. 700–338 B.C. (1976). 30 See Phillipson, supra note 2; see also Cicero, De Officiis, (G.P. Goold ed., Walter Miller trans., 1975). 31 This translates as “no crime without law, no punishment without law.” Jeffrey L. Dunoff, Steven Ratner, & David Wippman, International Law: Norms, Actors, Process (2d ed. 2006). For a discussion of legal philosophy and the principles of legality, see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 89, 123 (2d rev. ed. 1999). The Principles of Legality in International Human Rights Institutions (Bernard G. Ramcharan ed., 1997); Gabriel Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law (2010); Kenneth Gallant, The Principle of Legality in International and Comparative Criminal Law (2008). 32 The Inter-Parliamentary Union, which comprises the parliaments of 155 countries, unanimously recognized the linkages between democracy and the rule of law in a Declaration made in Cairo at its 98th Congress in 1997. The Declaration was prepared by this writer as the IPU’s appointed chair of the drafting committee. See Democracy: Its Principles and Achievement (Inter-Parliamentary Union ed., 1998). 33 See supra note 25.



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anthropologists have recorded, there has always been a struggle for what we, as well as our predecessors, call right, fair, or just. Wherever one’s moral or metaphysical compass points, the facts remain that a perpetual struggle exists between those seeking to preserve or acquire power and wealth at the expense of others, and those seeking the use of power and wealth to achieve certain individual and collective goals of security and well-being. No matter how the struggle is defined, its causes (or roots) identified, and its goals appraised, one factor is constant, namely, the perpetual ongoing nature of the struggle. At one end of the spectrum are certain outcomes which produce human and material harm, and at the other end are outcomes that enhance human interests. There is of course an entire range of outcomes within the two ends of the spectrum. What each one of these ends is associated with in terms of moral values is to some extent not relevant to a social values-oriented inquiry based on human and material harm or on the other extreme, the enhancement of human interests.34 Section 3. The Origins of Justice Values The three Abrahamic faiths of Judaism, Christianity, and Islam have all posited justice as a divine characteristic and a human aspiration. Other faith-belief systems, such as Greek and Roman mythology, have also posited justice as one of their highest values. In the holy scriptures of Abrahamic faiths, the divine is described as a God of Justice, because justice is the basis on which God judges people for their deeds and intentions, and rewards and punishes people both on this Earth and in the hereafter. Even though the divine is characterized by compassion and mercy, as well as love, justice seems primary, if for no other reason than the realization that compassion and mercy follow a justice determination of some sort. The divine prescriptions on justice reveal a higher and deeper meaning of justice than what a literal reading of the Torah, Old Testament, or Qur’an would reveal. This meaning is reflected in the pursuit of certain ultimate values. Theological, philosophical, and juridical interpretations of these holy scriptures reveal over a period of some 3,200 years, starting with the exodus of the Jews from Egypt under Moses’ leadership, a consistent search for the values, meanings, and contents of justice. What these writings also reveal, however, is ambivalence toward the unqualified universal application of these values, meanings, and contents to all, including those who are not of the same faith. The extension of justice values to a universal or cosmopolitan society is a product

34 While material harm is noted as an independent interest separate from the human harm, it is not noted as an independent interest when it comes to enhancement of human interest.

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of the eighteenth century Age of Enlightenment and sees its confirmation in the contemporary era of globalization and the subsequent aspiration for human rights.35 Nevertheless, seldom have legal systems in the past five thousand years evidenced the supremacy of the rule of law in governance and the prevalence of justice and fairness for all in their respective societies. More significantly, legal systems have not reflected the acceptance of a universal concept of justice and fairness applicable to all members of the human race. Though national and international justice goals have been pursued by many constituencies in the last two centuries, they have not yet been attained in most contemporary societies. Despite an evolution over some five thousand years, national justice systems remain a work in progress. Thus, it can hardly be expected that ICJ, which was put into practice less than one hundred years ago, could be anything more than a work in progress itself. Furthermore, if history is instructive, ICJ’s future course may not necessarily be linear, and its growth is likely to be anything but consistent. It is of little wonder that ICJ, as described below, is progressing slowly, unevenly, and in a disorderly way. As with all ideals embodied in norms and enforced through institutions, the currents of history at certain times and places run deep and strong, while at other times and places they are shallow and stagnant. In the fifth century BCE, ancient Greece heralded the values of justice that were later reflected in Roman law and, in turn, in Western legal systems. In time, these values have become universally recognized, albeit not universally applied. They are reflected in such precepts as: equality of the law for all and equality of all before the law; the individualization of criminal responsibility; rejection of revenge-taking; the imperative of a fair trial before an impartial judicial body; and penalties that befit the crime. These justice values were first reflected in Greek mythology. Themis was an oracle at Delphi who became known as the “goddess of divine justice.” The name “Themis” meant that the goddess derived her good counsel from the law of nature rather than from human ordinance, thus acknowledging the existence of a higher and better law than that posited by humans. In 458 BCE, Aeschylus brought out the precept of individual justice in his Oresteia trilogy, where the goddess of justice stands up against the historic custom of collective vengeance, and replaces it with individual accountability.36 This transformative concept of justice was designed to prevent never-ending revenge-taking and continued violence that only resulted in more human suffering. Individual responsibility replaced collective responsibility, the former to be established by an impartial judge on the basis of fair and open proceedings with popular participation. 35 See The Age of Enlightenment: The Eighteenth Century Philosophers 27–29 (Isaiah Berlin ed., 1956); Will Durant & Ariel Durant, The Age of Reason Begins 646–47 (1961). 36 See W.B. Stanford, Introduction to Aeschylus, The Oresteia 21–23 (Robert Fagles trans., 1977).



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The Romans modeled their goddess of justice after the Greeks and referred to her as Iustitia. Her depiction, similar to that of the Greeks, is of a blindfolded woman carrying the scales of justice in one hand and a sword in the other. The blindfold symbolizes the closing of the eyes to favoritism, bias and prejudice, thereby achieving impartiality, equality, and fairness. The sword symbolizes the enforcement of justice’s outcomes. Themis had two daughters, Dika and Astraea, who were also known as goddesses of justice; unlike their mother, however, they were not of divine justice. Astraea was a daughter of Zeus and was deemed to be the last of the immortals living with humans during the Iron Age, which was believed to be the world’s final stage before it entered the utopian Golden Age. This did not occur, however, because the world succumbed to the wickedness of humans. At that point, Astraea ascended to heaven and became the constellation Virgo. The scales of justice, which she carried as her mother’s heir, became the Virgo’s sign. Justice went to the skies because it could not stay on earth, as evil had prevailed over good, which made justice on earth impossible. Yet in the constellation of stars, Virgo with its scales of justice was to remain visible to humans as inspiration. Perhaps when good triumphs over evil, Astraea will leave the skies and return to earth, and justice will be established for all and enforced against all. In the meantime, justice remains a visible and hopeful symbol just outside human reach. ICJ, however, did not develop out of a theory of justice rooted in moral values. Instead, it came out of the human tragedies of war and its devastating effects. It is a human and moral response to the injustices that wars bring about, representing the aspirations of peace and justice. Section 4. Of War and Peace, and of Interests and Values Historically, wars, and in particular total wars, have brought about enormous human devastation and have almost never been followed by any form of postconflict justice. Recently, we have found ourselves in a new generation of warfare,37 37 For the history of warfare, see generally Geoffrey Best, Humanity in Warfare (1980); Geoffrey Best, War and Law Since 1945 (1994); John Keegan, A History of Warfare (1994); John Keegan, The Illustrated Face of Battle (1976); Martin van Creveld, The Transformation of War (1991). Since shortly after the end of World War II, conflicts between states have increasingly involved insurgent groups and non-state actors. In these conflicts, referred to either as conflicts of a non-international character or as purely internal conflicts, the participation of non-state actors seems correlated to the increased number of civilian victims. In some respects, this shows the inability of IHL to induce compliance and deter violations of its norms in conflicts involving non-state actors. See Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, supra note 15. This is not to say, however, that state actors have committed fewer violations than non-state actors, or that state actors as opponents cause less victimization of noncombatants and civilian populations. See, e.g., U.N. Human Rights Council,

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which has also brought an enormous amount of human suffering with very little post-conflict justice, except in the last fifteen years, as described below.38 Humankind, since the Biblical account of Cain’s murder of his brother Abel, has found itself engulfed in violence.39 What started with brother against brother turned to family against family, tribe against tribe, and nation against nation. As the number of those engaged in violence has increased, so have the harmful consequences. Limited war gave way to total war. The term “total war” means war that does not distinguish between combatants and noncombatants, or between civilian property and military targets. Scorched-earth warfare and indiscriminate killing and destruction of all that is perceived as enemy, irrespective of humanitarian considerations, developed almost in tandem with more destructive weaponry, from the cannon to the atomic bomb. But total war originated long before artillery was so devastatingly used during the French Revolution and Napoleonic Wars between 1792 and 1815.40 Alexander (356–323 BCE), Julius Caesar (100–44 BCE), and Hannibal (248–182 BCE), all practiced total war long before Napoleon.41 Rome also practiced total war during its Punic Wars with Carthage (264–241 BCE, 218–201 BCE, 149–146 BCE), which led to Carthage’s total destruction, as the Roman Senator Cato the Elder urged in his oft-repeated statement to the Roman Senate: Carthago delenda est (Carthage must be destroyed). And so it was. Between around 2000 BCE and the fourteenth century CE, total war was sporadically practiced by Persians, Spartans, Romans, Vandals, Goths, Mongols, and Crusaders. During the Middle Ages, spanning the fourteenth to seventeenth centuries, wars were far less devastating in terms of their consequences.42 The French Revolution and Napoleonic Wars brought total war to new heights in terms of casualties, both military and civilian, and the destruction of civilian property. A brief lull followed from 1815 to 1914, until World War I resulted in an estimated twenty million military casualties. It caused such revulsion in Europe that it was dubbed “the war to end all wars.” No sooner had World War I ended in 1919, though, than the winds of war started blowing again, and World War II

Fact-Finding Mission on the Gaza Conflict, Human Rights in Palestine and Other Occupied Arab Territories, ¶¶ 62, 328–64, 1192–98, U.N. Doc. A/HRC/12/48 (Sept. 15, 2009) (detailing the incursions of Israel into Lebanon and Gaza in 2006 and 2009, respectively). 38 See infra section 9. 39 See generally Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies (1999). 40 See David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Warfare as We Know It 7–9, 18 (2007); David G. Chandler, The Campaigns of Napoleon 134–43 (1966); J. Christopher Herold, The Age of Napoleon 45 (1963). See generally Thomas Carlyle, The French Revolution (1837); Frank McLynn, Napoleon (1997). 41 See John A. Lynn, Battle: A History of Combat and Culture 1–27 (2003). 42 See Peace and War in Antiquity (Alexander Souter ed., Augustine FitzGerald trans., 1931) (describing the number of combatants and limited duration of wars during the Middle Ages).



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began in 1939 and ultimately resulted in an estimated forty million casualties and the wholesale destruction of cities, including the Japanese cities of Hiroshima and Nagasaki, where the two atomic bombs killed 200,000 civilians.43 Beyond the scope of anything in history, this was truly total war. The world reacted with shock to the Nazi atrocities and, in particular, to the Jewish Holocaust, which saw the extermination of some six million Jews in the most inhumane ways known to history.44 The world community vowed “never again,” but alas the promise was never fulfilled.45 4.1. Contemporary Post-Conflict Justice In a worldwide study directed by this author, it was ascertained that between 1945 and 2008 there were an estimated 313 conflicts, which collectively resulted in the deaths of an estimated 92 to 101 million persons, excluding other human and material harm.46 This is five times the number of casualties resulting from “the war to end all wars,” and more than twice the casualties of the war that was to be “never again.” These conflicts included wars, insurgencies, ethnic unrest and the repressive actions of authoritarian regimes, have produced enormous human suffering, the majority of whom have been civilians. All the conflicts involved systematic human rights violations, including genocide, crimes against humanity, torture, slavery and slave-related practices, disappearances, rape, and population displacement. Moreover, in general, institutionalized impunity protects perpetrators, while victims’ demands for accountability are ignored. More often than not, justice for past atrocities is sacrificed for political expediency, often as a means to negotiate the end of a conflict. In only a very few cases has the Security Council acted to prevent these conflicts, limit their progress, or bring them to a halt.47 Despite the growing policy significance of post-conflict justice and a steady increase in resources for specific PCJ initiatives,48 the international community remains largely unprepared for each new challenge that presents itself. Somehow governments, particularly those in the Security Council, give the impression that new conflicts occur unpredictably. Perhaps that is why they make sure that the U.N. has no database

43 See Sean L. Malloy, Atomic Tragedy: Henry L. Stimson and the Decision to Use the Bomb Against Japan 138–42 (2008). 44 See Lucy S. Dawidowicz, The War Against the Jews, 1933–1945, at xiii–xviii (1975); Stephan Landsman, Crimes of the Holocaust: The Law Confronts Hard Cases, at ix–xi (2005). 45 See Samantha Power, “A Problem From Hell”: America and the Age of Genocide 503–04 (2002). 46 See Christopher Mullins, Conflict Victimization and Post-Conflict Justice 1945–2008, in 1 The Pursuit of International Criminal Justice, supra note 16, at 67. 47 See The United Nations Security Council and War, supra note 17. 48 See Post-Conflict Peacebuilding: A Lexicon (Vincent Chetail ed., 2009).

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on past conflicts, because it would become a predictor of future conflicts, which could not then be deemed unpredictable. While the U.N. has been at the forefront of trying to advance international criminal justice,49 as mentioned earlier, the Security Council did not address PCJ issues until 1992. Since then, its engagement with post-conflict justice mechanisms typically lacks central coordination, which has led to inefficiency, excessive costs, and poor implementation. The U.N. agencies involved in these processes generally operate with established internal bureaucracies that limit coordination, integration, and the development of a unifying framework. In addition, the Security Council is not well positioned for managing coordinated PCJ mechanisms because successful policies require a sensitive and flexible engagement with local culture and context, including substantial input by NGOs, IGOs, and community representatives. Many countries have implemented their own PCJ strategies in tandem with these international processes, at times independently and at other times with outside support and guidance. These strategies may include domestic prosecutions of both high and low-level perpetrators and a variety of institutional reforms such as new constitutions, judicial reform, and the creation of formal human rights monitoring bodies. Governments in dozens of countries have also implemented truth commissions, a practice unique to the evolution of postconflict justice, as well as vetting policies, systems of reparation, and mechanisms of memorialization. In recent years, PCJ ideas, strategies, and processes have gained substantial momentum. The many practices which have been implemented mark a shift in the way nations and the international community generally understand national reconstruction, peace and democracy. Issues of truth telling, reconciliation, and legal and moral accountability are now viewed as essential elements of peace negotiations and form the foundation of many national reconstruction programs. As a result of the widespread implementation of PCJ policies around the world, it is now possible to draw upon and learn from prior experiences. As global actors continue to strive for consensus in making a commitment to the validity and necessity of post-conflict justice, the pressing need for comparative research and the establishment of clear guidelines such as the Chicago Principles offer an objective and pragmatic basis for addressing the aftermaths of conflicts in a way that enhances peace and reconciliation through modalities of justice.50 The PCJ outcomes of these conflicts have also been selective, and few and far between. The number of amnesty laws issued by states after a given conflict far exceeds the number of prosecutions.51 These de jure or de facto amnesties 49 See supra note 10. 50 See The Chicago Principles, supra note 16. 51 See Louise Mallinder, Amnesties, in The Pursuit of International Criminal Justice, supra note 16, at 793.



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have covered, in whole or in part, almost all of these conflicts. International and national prosecutions have been selective and limited in both number and duration. The symbolic number of those who were prosecuted represent less than one percent of the pool of those who could have been prosecuted for core international crimes.52 The study also shows that less than one percent of the victims of these crimes have received any form of redress or compensation.53 Truth commissions have been established in less than ten percent of these conflicts, and they have operated for short periods of time with limited resources and limited impact. Education, recordation, and memorialization programs have been so few that it is impossible to assess them, let alone measure their importance.54 The conclusion is that the international community and national legal systems have hardly addressed post-conflict justice needs in the contemporary era. Post-conflict justice is premised on an understanding that domestic stability, security and democratic governance in the aftermath of atrocity are strengthened by a commitment to accountability. Openly facing the legacy of past violence is essential for preventing future victimization, achieving peace and reconciliation, and protecting human rights.55 Consequently, whatever the deterring and preventive effects of PCJ mechanisms may be, they have largely been lost. This may well have contributed to the high levels of human and material harm arising out of the various forms of conflicts identified in the study.56 4.2. War, Peace, and Realpolitik War is a dominant feature in the history of humankind, and there have always been those who have advocated war and those who have opposed it. Theologians and philosophers have sought support for their positions in religious beliefs or understandings of the Law of Nature and the Nature of Man. There were those,

52 See Nadia Bernaz & Remy Prouveze, International and Domestic Prosecutions, in The Pursuit of International Criminal Justice, supra note 16, at 269. 53 See M. Cherif Bassiouni & Naomi Roht-Arriaza, On Victims’ Rights, in The Pursuit of International Criminal Justice, supra note 16, at 575–698. 54 Id. 55 For a discussion of why blanket amnesty is contrary to the goals of post-conflict justice, see Monika Nalepa on amnesty laws, in The Pursuit of International Criminal Justice, supra note 16, at 735. See also Leila Nadya Sadat, Exile, Amnesty and International Law, 81 Notre Dame L. Rev. 955 (2006). 56 It is noteworthy that neither the U.N. nor any other international governmental organization has kept a database on world conflicts and their impacts. Moreover, only a few studies by social and behavioral scientists exist on the causes of conflicts and the means to both prevent them and limit their harmful consequences. It is as if some power has been able to keep all of this away from the public’s knowledge. To some, this may seem intentional, because if the general public had knowledge of these conflicts, how they occurred, and what their consequences were, governments would be pressured to act to prevent them. Without such public knowledge, governments have fewer external constraints in deciding when to act or not to act, and how they should behave in situations that disrupt peace and cause human harm.

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like Thomas Hobbes, who believed that it is in the nature of things for war to be a perpetual feature in the affairs of man,57 and those, like Immanuel Kant, who believed that man’s challenge is to reach perpetual peace.58 Between those who believe that war is a permanent feature of international relations interrupted by periods of peace, and those who believe that peace is the permanent feature of humankind interrupted by war, there has been a wide range of views. To resolve the differences between these visions and perceptions of war and peace is impossible. Adding to the difficulty is the intransigence of nations and groups that perceive their beliefs and claims to be exclusive, righteous, and superior to those of others. The debate over the legitimacy of the resort to armed force is intractable. From the Middle Ages to the present, that legitimacy debate has underscored the excesses of unilateralism and the prevalence of exceptionalism.59 The mighty have seldom been persuaded to give up their power only because virtue requires it. The only alternative left, both then and now, has been to try limiting the harm resulting from war. Thus the concept of humanism in the conduct of war emerged and, in time, it was rephrased as humanitarianism in order to lessen the moral overtones of the former nomenclature. This development, with earlier roots, is largely the product of the Age of Enlightenment, which brought about a new and higher level of concern for humanism; however, the dilemma of war and peace persisted. How to address it, and also how to minimize human harm, made the jus ad bellum and the jus in bello a functional tandem. How to open up a legal space for these two concepts in the thick of the supremacy of states’ unilateral political decision making was, and continues to be, a difficult challenge. In international relations, there are no enduring values as in the case of interpersonal relations. For states, there are mostly shifting interests of a passing nature. The states’ goals of power and wealth are in frequent contrast with the human goals of justice and peace aspirations. The protagonists of state interests all too often prevail over those advocating justice and peace. Political realism, however, is not necessarily in contrast with the human goals of justice and peace aspirations. There are situations in which they coincide, 57 See Thomas Hobbes, Leviathan 98–102 (Michael Oakeshott ed., 1997) (1651). 58 See Immanuel Kant, Toward Perpetual Peace and Other Writings on Politics, Peace, and History 67–85 (Pauline Kleingeld ed., David L. Colclasure trans., 2006) (1795). 59 Legitimacy has been the cornerstone of arguments made for and against the “just war” ever since that concept developed with the naturalists in the early Middle Ages. It continues to be an issue in distinguishing between lawful combatants and “terrorists.” See M. Cherif Bassiouni, “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values & Violence: Intangible Acts of Terrorism 233, 248–50 (Ibrahim A. Karawan, Wayne McCormack & Stephen E. Reynolds eds., 2008); M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Assessment, 43 Harv. Int’l L.J. 83, 88–91 (2002); M. Cherif Bassiouni, Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299, 300–03 (2004); see also Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World 20–23 (2003).



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although these are rare and far between. Political realists do not seek peace and justice for their inherent moral and human values, but for what political, social, or economic goals they can enhance. Thus, what distinguishes political realism from other philosophies and approaches to international relations is its purpose. This type of realism reflects a Hobbesian model of international relations as opposed to a Kantian one, although both aspired to higher values. Hobbes profoundly stated, first in De Cive and later in Leviathan, that the state of nature a war of all against all.60 This cosmopolitan observation, which reflected the state of total war that has periodically marred the landscape of humankind, is still relevant to contemporary times. Similarly, when Kant in 1795 argued in Perpetual Peace that commerce was the antidote to war, he was setting the stage for our era of globalization. In that work, he stated: “it is the spirit of trade, which cannot coexist with war.”61 The perennial tug-of-war between realpolitik, which serves states’ interests, and the human values of justice and peace, which serve individuals, has, with few exceptions in history, favored the former over the latter. International criminal justice has historically been resisted by governments, whose goals have invariably been driven by political realism or what is more commonly referred to as realpolitik. The idea that there are higher moral/ethical considerations than the political interests of states is essentially rejected by realpolitik. This does not mean, however, that occasionally there is not a convergence of realpolitik interests and the interests of pursuing international criminal justice. In recent times, realpolitik has found it useful to co-opt ICJ and to use it for its purposes.62 In the last two decades, the trend of political interests superseding ICJ has shifted in the direction of emphasizing justice and peace goals for the international community. This shift reveals a commonality between states’ interests and commonly shared human values. The era of globalization and human rights protections has brought these otherwise conflicting interests and values closer together. Whether for moral or economic reasons, peace is preferable over war, and justice is a better way of governing the affairs of human societies than force.63

60 Thomas Hobbes, On the Citizen 30 (Richard Tuck & Michael Silverthorne eds., 1998); Hobbes, supra note 57, at 100. 61 Kant, supra note 58, at 92 (emphasis in original). 62 See Kingsley Moghalu, Global Justice: The Politics of War Crimes Trials (2008). 63 This approach reveals how a naturalist approach to international criminal justice can be consonant with utilitarianism. See generally Jeremy Bentham, An Introduction to The Principles of Morals and Legislation (J.H. Burns & H.L.A. Hart eds., 1996) (1789); John Stuart Mill, Utilitarianism And the 1868 Speech on Capital Punishment (George Sher ed., 2d ed. 2001) (1863). For a somewhat different perspective, see John Rawls, The Law of Peoples with “The Ideal of Public Reason Revisited” 113–20 (1999); John Rawls, A Theory of Justice 7–17 (1971). For a drastically different perspective, see Lloyd L. Weinreb, Natural Law and Justice 184–224 (1987). For a comparative historical approach, see Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective 206–14 (2d ed. 1963).

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The demand for ICJ has been spurred by international civil society, which has placed moral/ethical considerations above realpolitik. However, that demand has been slowed, and on occasion opposed by governments seeking to achieve their own political goals. This has been advanced as the paradigm of peace versus justice—a false paradigm because peace and justice are not contradictory, nor in conflict with one another. This does not mean that issues of timing are not relevant. The timing of political settlement initiatives may indeed be negatively impacted by the threat or pursuit of international criminal prosecutions, but then the fact that there is a different timing for each is merely a question of good judgment and wisdom.64 All too frequently, proponents of political settlements advance the need to offer amnesties or impunity as a way of achieving peace, thus sacrificing justice. They do so because there are no other countervailing forces to induce those engaging in conflicts by unlawful means to desist from the commission of such crimes as genocide, crimes against humanity, and war crimes. It is not, therefore, the pursuit of justice which is an impediment to peace, but the absence of the political will of states to use force to prevent or stop conflicts. Realpolitik has not given up on controlling the processes of peace and justice. The controlling of the process is now accomplished in contemporary times by indirect methods such as controlling the images and perceptions which have an impact upon public opinion. More importantly, realpolitik is accomplished by politically manipulating the bureaucracies and financial resources of international institutions. Such political manipulations can make it difficult for ICJ institutions to function fairly and effectively, thus achieving realpolitik goals even when the appearance of ICJ is projected as being a functioning reality. In human affairs, there is no such thing as uncompromising peace or absolute justice. Experience indicates that everything is relative and subject to the balancing of competing values and interests. If the assumptions of deterrence/prevention are to have any effect, then the false dichotomy of peace versus justice has to be eliminated once and for all. If not, those who have the ability to carry out violent conflicts will use that ability to enhance their bargaining position to obtain impunity for the cessation of hostilities—and that is counterproductive to deterrence/prevention. With respect to ICJ, the complex question is whether common grounds can be found and a bottom line drawn. This is necessary in order to have some objective parameters likely to enhance fairness, predictability, and consistency of outcomes. Presumably, the contents of the 1948 Universal Declaration of Human

64 This is best characterized by Ecclesiastes 3:1–8 in the New Testament, which posits that there is a time for everything, and that the timing is not necessarily concurrent.



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Rights,65 which reflect human values, articulate the international community’s commonly shared values. As to the bottom line that the international community has also presumably drawn, it is reflected in the criminalization of genocide, crimes against humanity, war crimes, torture, slavery and slave-related practices, and terrorism. Nevertheless, the schism remains wide between these values and the norms that embody them, and their effective enforcement. This is evident in the occasional historic manifestations of ICJ enforcement, which reflect selective enforcement, double standards, and exceptionalism for the benefit of the powerful and wealthy states, as well as their nationals. More recently, it is reflected in the Security Council’s practices concerning matters of peace and security and ICJ. Despite the tensions inherent in balancing the competing goals of peace, justice and reconciliation, it is misleading to assume that countries must choose between political security and a failure to engage past atrocities, and also to counter pose accountability and reconciliation. One of the goals of the movement for post-conflict justice is to demonstrate that peace and justice are complementary. In their application, peace and justice are shaped by political considerations. There are no criteria in weighing the interaction of peace and justice, only points of intersection where one may impact the other. At times, peace enhances justice and at others overrides justice. At times, justice enhances peace and at others overrides it. How and why is always sui generis to a given conflict. Ending hostilities and establishing peace is often a difficult, tenuous process involving protracted negotiations and the intervention and assistance of various governments, the UN and other multinational organizations. Global actors must face several realities that complicate the PCJ process. First, the international community must recognize the perception and reality of double standards in relation to the application of post-conflict justice. The politicization of conflicts also poses a threat to reconciliation. War is the continuation of politics by other means, but politics can also be war by other means as a transition from conflict to reconciliation.66 This transition is an opportunity to set a precedent for establishing peace as an outcome of a conflict, which extends beyond the scope of a ceasefire. More often than not, peace is simply viewed as the absence of war. However, genuine peace requires the creation of a positive foundation for social, political, and economic growth grounded in the respect for fundamental human rights.

65 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948). 66 See Carl Von Clausewitz, On War (1982).

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Impunity for international crimes and serious violations of human rights has been a matter of concern to the world community since the end of World War II.67 Since then, most of the victimization occurred in conflicts of a non-international character—purely internal conflicts and tyrannical regime victimization. In part this is because international humanitarian law has gaps in its normative coverage applicable to these types of conflicts and victimization contexts, most of the perpetrators have evaded international accountability. However, national legal systems, which have sufficient justice and enforcement capabilities, seldom prosecute persons who commit crimes such as genocide, crimes against humanity and war crimes. As a result, perpetrators of these crimes also evade national accountability. Widespread impunity on both the international and national levels may suggest a lack of moral commitment by the international community. Conflicts in the former Yugoslavia and Rwanda have raised world consciousness to new heights, and, in response, the U.N. Security Council established ad hoc international criminal tribunals for those two countries.68 The experience of these tribunals demonstrated both the need and feasibility of establishing a permanent international criminal court, which came into being in Rome in July 1998.69 Since 1999, the U.N. and several states established mixed model tribunals in Sierra Leone, Kosovo, Timor Leste, Cambodia, and Lebanon.70 No matter what the accountability modalities may be, there is no doubt that some form of accountability is necessary as a way of healing the wounds of the past and paving the way toward future reconciliation.71 The progress made by ICJ cannot, however, be underestimated. What was so evident during Robespierre’s Reign of Terror in the French Revolution was

67 See 59 Law & Contemp. Probs. (1996). See United Nations, Agreement for the prosecution and punishment of major war criminals of the European Axis, Aug. 8, 1945, U.N.T.S. 280, Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the Union of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis; United Nations, Charter of the International Military Tribunal—Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, Aug. 8, 1945. 68 For the ICTY, see S.C. Res. 808, U.N. Doc. S/RES/827 (May 25, 1993) and supra note 10. For the ICTR, see S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) and supra note 11. 69 Rome Statute of the International Criminal Court, Art. 8, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]; see also 1–3 The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text (M. Cherif Bassiouni ed., 2005). 70 See supra Chapter VIII. 71 See Mark S. Ellis, International Justice and the Rule of Law: Strengthening the ICC through Domestic Prosecutions, in 1 Hague J. of Int’l. L. 79 (2009) (stating that “justice comes first and foremost through accountability.”); see also ICC Statute, supra note 69, at prmbl. (“[T]he most serious crimes . . . must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. . . .”).



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echoed in the early 1940s by China’s Mao Zedong: “[T]ruth comes out of the barrel of a gun.”72 In contrast, since 1945, some heads of state and other senior government officials who carried out such policies found themselves in front of international criminal tribunals; some were executed and others imprisoned.73 The rule of might is gradually losing ground to the rule of law, and accountability is gaining over impunity. What has changed over time is not that peace and justice goals predicated on their intrinsic moral values have triumphed over states’ interests, but rather that realpolitik has adapted itself to these goals because of its ability to co-opt institutions of peace and justice whenever necessary to serve its purposes. The idea that there are higher moral/ethical considerations than the political interests of states is essentially rejected by realpolitik. This does not mean, however, that occasionally there is not a convergence of realpolitik interests and the interests of pursuing international criminal justice. A cynical French expression refers to this as plus ça change, plus c’est la même chose (the more it changes, the more it is the same thing). An ever more cynical Italian description appears in Giuseppe Tomasi di Lampedusa’s Il Gattopardo, whose character Tancredi states, “[I]f we want things to stay as they are, things will have to change.”74 Consequently, change in international affairs is sometimes ushered in to keep things unchanged. Section 5. The Origins of International Criminal Law It is generally understood that the first internationally recognized crimes were piracy in the seventeenth century, and slavery in the nineteenth century. However, constraints on the means and methods of warfare have been the subject of attention by scholars and experts since the fifth century BCE.75 Between 1815 and 2009, 281 international conventions applicable to 27 categories of international crimes have been adopted.76 In historical terms, what we now call “war crimes” have preceded all other international crimes. Whether inspired by religious values, codes of chivalry as first developed in the Hindu Laws of Manu of the second century BCE77 and later 72 See Albert Parry, Terrorism: From Robespierre to Arafat 224 (1976). 73 See infra section 9.4. 74 Giuseppe Tomasi di Lampedusa, The Leopard 40 (Archibald Colquhoun trans., 1991) (1959). 75 See generally M. Cherif Bassiouni, The Evolution of International Humanitarian Law and Arms Control Agreements, in A Manual on International Humanitarian Law and Arms Control Agreements 1 (M. Cherif Bassiouni ed., 2000). 76 See M. Cherif Bassiouni, International Crimes: The Ratione Materiae of ICL, in 1 International Criminal Law 129 (M. Cherif Bassiouni ed., 3d ed. 2008), at 134. 77 The Laws of Manu, (Georg Bühler trans., Motilal Banarsidass 1964).

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in the Christian European states of the Middle Ages,78 or whether reflected in pragmatism as reflected in Sun Tzu’s The Art of War in the sixth century BCE,79 constraints on the conduct of warfare developed in tandem with constraints on the resort to war. Necessarily, the exigencies of enforcement arose. Those who violated these norms had to be punished if these norms were to have any meaning. This was the beginning of ICJ, the objective of which is prevention through deterrence. The formula of “crimes against the Laws of God and Man” was first developed by theologians and jurists between the twelfth and fourteenth centuries based on a diverse historical background. It originated in natural law with St. Thomas Aquinas, a Frenchman, whose inspiration was St. Augustine of Hipo, a Tunisian. Both Augustine and Aquinas were particularly inspired by Aristotle, a Greek, and his studies regarding what constitutes a just war, as well as his studies exploring ethics. Aquinas’ natural law doctrine as applied to the jus in bello and jus ad bellum were expounded upon between the fourteenth and eighteenth centuries by jurists like Gentili, da Legnano, Baldus, Ayala, Grotius, de Victoria, Pufendorf, and de Vattel, mostly based on the Christian states’ experiences during the three Crusades (1095–1192) and other warring experiences between and among these states.80 The Third Crusade (1187–1192) in particular, had an indelible effect on the European Christian Naturalists, because Salah el-Din el-Ayoubi forced the surrender of the Crusaders besieged in Jerusalem, and gave them all safe-conduct. In 1187, the defeated Crusaders were permitted to leave unscathed from Jerusalem with whatever belongings they could carry, including their weapons. This was quite a contrast to what the Crusaders did to the Jews and Muslims in the Holy Land when the Crusaders came to occupy it.81 On more than one occasion, the Crusaders massacred entire communities and pillaged or burned their property. The Christian rulers at the time considered protection under the “laws of God and Man” applicable only to their own people. Thus, when the Muslims extended their laws of God to others, it was a breakthrough. Earlier in 634 CE, Abu Bakr, the first Caliph to succeed Prophet Muhammad, gave instructions to the troops fighting the Roman Byzantine Empire in what is now Syria and 78 See generally M.H. Keen, The Laws of War in the Late Middle Ages (1965); Peace and War in Antiquity, supra note 42. 79 Sun Tzu, The Art of War 76 (Samuel B. Griffith trans., 1971). 80 See generally Balthazar Ayala, De Jure et Officiis Bellicis et Disciplina Militari Libri III (1582), reprinted in 1 Classics of International Law No. 2 (James Brown Scott & John Westlake eds., John Pawley Bate trans., 1912); Alberico Gentili, De Jure Belli Libri Tres (1612), reprinted in 2 Classics of International Law No. 16 (James Brown Scott ed., John C. Rolfe trans., 1933); Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (1688), reprinted in 1 Classics of International Law No. 17 (James Brown Scott ed., C.H. Oldfather & W.A. Oldfather trans., 1933); Franciscus de Victoria, De Indis et de Ivre Belli Reflectiones (1696), reprinted in Classics of International Law No. 7 (James Brown Scott ed., John Pawley Bate trans., 1917). 81 See generally Amin Maalouf, Crusades Through Arab Eyes (1984).



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Lebanon.82 In this historically unprecedented set of instructions, he admonished the soldiers to spare enemy noncombatants, particularly the aged, women and children, and the combatants’ wounded and sick. He instructed his troops to respect Christian and Jewish places of worship, and prohibited the destruction of fruit-bearing trees and crops. The Muslim laws and practices were subsequently embodied in the writing of al-Shaybani, called the Siyar, which was published in the fourteenth century.83 Some of the writings of the Christian naturalists mentioned above explicitly or implicitly referred to these practices. From then until now, the struggle continues for the universality of international humanitarian law and international human rights law, as well as for their enforcement through ICJ. Many of these norms have become universally accepted, although not universally respected and enforced. International criminal law, which developed so rapidly in the last century, has come to encompass crimes that have an essentially transnational character.84 These are crimes which do not affect international peace and security, nor are they of a nature that shocks the conscience of humankind as do genocide and crimes against humanity. They include drug trafficking, cybercrime, and organized crime, to mention only a few. States enforce these crimes through their domestic criminal justice systems and through the international duty to prosecute or extradite and to provide interstate mutual cooperation in the investigation and prosecution of these crimes. In other words, this international enforcement requires the “indirect enforcement” system, in contrast to the “direct enforcement” system, which pertains to certain international crimes such as genocide, crimes against humanity, and war crimes. ICJ’s contemporary meaning essentially addresses these international crimes. The combination of national and international prosecutions for what has come to be called “core international crimes”—namely, genocide, crimes against humanity, and war crimes—is referred to in the statute of the International Criminal Court (ICC) as “complementarity.”85 The ICC complements national criminal justice systems whenever a given system is “unwilling or unable” to carry out its enforcement obligations.86 82 See Majid Khadduri, War and Peace in the Law of Islam 102 (1955); Hilaire McCoubrey, Humanitarianism in the Laws of Armed Conflict, in International Humanitarian Law: The Regulation of Armed Conflicts 1, 9 (1990) (referring to the humanitarian practices of Abu Bakr and Salah el-Din el-Ayyoubi during the Fourth Crusade); see also Bassiouni, supra note 75, at 9. 83 The cases and practices of Muslim conduct in war were taught by Al-Shaybani in the eighth century and were written in a digest by el-Shahristani, whose first known publication was in Hyderabad in 1335–36. Bassiouni, supra note 75, at 9 n.28. 84 See Bassiouni, supra note 12, at 227–31. 85 See ICC Statute, supra note 69. For a comparison between the ICC and national justice systems, see id. arts. 1, 17; see also Bassiouni, 1 The Legislative History of the International Criminal Court, supra note 69. 86 See ICC Statute, supra note 69, at art. 17.

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There are many issues to be addressed concerning the current functionality of the ICC. States may not fulfill their international obligations to prosecute, extradite to other states willing to prosecute, or simply may not cooperate with the Court. Furthermore, given the high level of victimization produced by conflict and the increased demands placed upon the Court, the ICC is not likely to provide any more than limited selective ICJ services at a high financial cost, and, as it now appears, at a low level of efficiency. An assessment of present capabilities of the ICC indicates that with a staff of some one thousand persons, eighteen judges, and a 2012 budget of nearly $148 million (€111 million), the ICC is capable of handling seven situations, 15 cases and 28 indictments (of which 25 were confirmed). Of the 25 confirmed indictees, one has been convicted, three are at trial, eight are in pre-trial proceedings, two died and two are being held by non-state parties (Libya and Mauritania). In comparison to national criminal justice systems and with certain mixed model tribunals, the ICC cannot be judged an efficiently functioning institution. For sure, U.N. bureaucratic and financial rules which apply to the ICC and political considerations are factors to be taken into account. Will that be the decline of ICJ or maybe even the end of the ICJ that we have come to know so far? Will something new emerge that reflects new realities in a global society? International and national prosecutions of core international crimes such as genocide, crimes against humanity, and war crimes indicate that there is a much greater likelihood of impunity than accountability for the overwhelmingly greater percentage of perpetrators of these crimes. Consider, for example, that in conflicts in the former Yugoslavia and Rwanda, the total estimated number of victims is approximately one million persons, and the total number of persons indicted by the ICTY and ICTR is 250. It is quite clear that those indicted correspond to a small percentage of those who may have committed the crimes that resulted in the death of one million persons. That does not include the number of injured and tortured persons or the number of women and children raped and sexually abused. It also does not include the destruction of public and private property in violation either of international humanitarian law or domestic law. One has to assume that the assumptions of special and general deterrence and their overall effect on general prevention of conflicts and minimization of harm occurring during these conflicts is at best anecdotal. In addition to these considerations, the ICC’s deterrence/prevention impact worldwide is likely to be limited for cost and capacity reasons, as well as other reasons which include the ability of the ICC to effectively investigate conflicts in difficult to reach parts of the world, as well as because of political considerations which prevent it from achieving its prosecutorial goals. Suffice it to mention that Joseph Kony, leader of the Lord’s Resistance Army in Uganda, has effectively evaded arrest by the ICC because of the prospects of his signing a peace agreement with the government, thus ending the conflict. In fact, there was even a



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time when it was public knowledge that Kony refused to sign a peace agreement until the ICC’s indictment and arrest warrant were removed. The government of Uganda is reported to have considered that option. Similarly, the indictment and arrest warrant of Al Bashir of the Sudan has not had been carried out in light of support of the African Union and the Arab states for him and their opposition to the ICC.87 Only South Africa and Botswana, who are state parties to the ICC, have to their credit taken a different position. Nevertheless, one can assume that there is some deterring effect in the issuance of such indictments and arrest warrants, particularly with respect to those individuals who are the subject of these judicial orders. However, such limited and targeted effect cannot be assumed to extend to the rank and file of violators of the three core crimes in connection with ongoing conflicts. The lessons to be drawn from the survey of world victimization and of PCJ modalities are that the ICC should develop a more focused and targeted policy of investigation and prosecution of those persons more likely to be impacted by the threat of potential prosecution. Such persons would necessarily be heads of state, heads of governments, and senior government and military officials. However, that also means that such persons are also likely to wield power and influence likely to shield them from the prospects of prosecution, as in the two examples mentioned above. As time proceeds, and such high level persons are delivered to the ICC and are prosecuted, the practice will become more effective and the likelihood of evading prosecution will be reduced. In the meantime, the difficulties that are and will continue to be encountered by the ICC may exist for the next decade, and are not going to have a positive impact on the deterrence or prevention of conflicts. During that period of time, what the ICC must focus on is enhancing national capacity-building for domestic prosecutions to take place. This is indeed part of the ICC’s mission as reflected in its complementarity principles, as well as its goals enunciated in the preamble of the statute.88 Complementarity must not be viewed in the narrow jurisdictional sense of the term as reflecting the existence of two jurisdictional systems which complement one another. Instead, it should be viewed as a broader concept in which national criminal justice systems are the priority with the ICC as the driving force to enhance national capacity-building, provide technical assistance and support, and to assume jurisdiction in cases where states are “unable or unwilling” to exercise their criminal jurisdiction in connection with any of the crimes within 87 Assembly of the African Union, Thirteenth Ordinary Session July 1–3, 2009, Sirte, Great Socialist People’s Libyan Arab Jamahiriya Assembly/AU/Dec. 243–267 (XIII) Rev.1 Assembly/AU/ Decl.1- 5(XIII); see also Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Al Bashir (March 4, 2009). It should be noted that in September 2009, the Sudan passed legislation in chapter 18 of its criminal code, adding the three crimes within the jurisdiction of the ICC. 88 See ICC Statute, supra note 69.

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the jurisdiction of the court. The ICC has not so far undertaken this dimension of its mission which would require institutionalizing educational and training programs for investigators, prosecutors, judges, and defense counsels in various regions and countries of the world, as well as providing technical legal assistance in the development of national legislation as well as technical assistance and support in conducting investigations and prosecutions of cases which could be deemed to fall within the jurisdiction of the Court. The institutionalization of such programs of technical assistance, support and training should be done by the Registrar’s office of the ICC, in cooperation with the Office of the Prosecutor and the Presidency of the Court. It should also be noted that in order to maximize the effectiveness of postconflict justice, governments, IGOs, and in particular the UN, should integrate PCJ modalities into peacekeeping operations as well as humanitarian assistance programs. Collective decision-making by the Security Council in connection with peacekeeping seldom if ever involves post-conflict justice, and that humanitarian assistance activities which are also separate and apart from peacekeeping operations are also totally divorced from post-conflict justice. The latter is usually placed within the context of human rights operations, but without additional financial resources. On occasion, the Security Council will address a segment of post-conflict justice such as in the case of its establishment of the ICTY and ICTR, as well as in the mixed model tribunals. With the exception of the ICTY and ICTR, the cost of whose extensive budget over the last fifteen years has been borne by the ordinary budget of the General Assembly, the international community has hardly been generous in its financial support of the mixed model tribunals.89 Budgetary concerns probably due to the high costs of the ICTY, ICTR and the ICC, seem to have had a dampening effect on governments and IGOs support for international criminal prosecutions. If that concern continues, and more particularly if the high costs of the ICC continue, then it is likely that its activities will be curtailed. The consequences are likely to reduce the deterrent/prevention effect of the ICC. Section 6. From Tribalism to Supra-Nationalism Six million years ago, when homo sapiens tribes came to Europe from Africa and encountered their European Neanderthal counterparts, they began the journey toward contemporary globalization. As the journey progressed, tribes became nations, some nations became empires, and all had their rise and fall, or their transformation. War, commerce, and other interests brought nations 89 See supra Chapter VIII.



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and peoples together. In time, peoples and nations became more interdependent, and this interdependence, in turn, has brought about the need for an expanded role of ICJ in world affairs. Different concepts emerged in different civilizations to reflect this need. From the ancient Greeks’ vision of the world constituting a single community (albeit only for those who shared their same values of civilization) to the cosmopolitan vision of the Age of Enlightenment,90 followed by an international vision after the Treaty of Westphalia in 1648,91 (which with some exceptions prevails to date), we have reached the era of globalization and supra-nationalism. As this historical process has developed, it was inevitable that ICL norms would be followed by enforcement modalities that relied on national criminal justice systems, an international mechanism, and, whenever needed, international investigatory, prosecutorial, and adjudicating institutions. In the first century BCE, Cicero posited in De Republica the notion that “[t]here is in fact a true law—namely, right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. . . . It will not lay down one rule at Rome and another at Athens.”92 This notion reflected the natural law conception of the Greek stoics who envisioned the world as a single community. Later, the Romans recognized the existence of a civitas maxima, namely, a higher body politic for which they developed the jus cogens, the law binding upon all. Neither one of these conceptions, however, was intended to apply to the human race as a whole. Their universal application encompassed only Romans and those others that Rome recognized as deserving of inclusion. This selective application was also part of the Greek approach. The universal application of Aristotelian natural law was applied to those who shared the values of the Greek civilization. This narrower version of the law’s universality survived until the twentieth century, when the League of Nations Covenant included a definition of international law in the Statute of the Permanent Court of International Justice in 1919 that included “general principles of law recognized by civilized nations.”93 At the time, there were only seventy-four states in existence, and the major Western powers were the arbiters of which nations were deemed “civilized.”94 The exclusion of colonized African and Asian states from that category was intended to

90 See generally The Age of Enlightenment, supra note 35; Durant & Durant, supra note 35. 91 See generally Beyond Westphalia?: State Sovereignty and International Intervention (Gene M. Lyons & Michael Mastanduno eds., 1995); Derek Croxton & Anuschka Tischer, The Peace of Westphalia: A Historical Dictionary (2002); William P. Guthrie, The Later Thirty Years War: From the Battle of Wittstock to the Treaty of Westphalia (2003). 92 Marcus Tullius Cicero, On the Commonwealth 215–16 (George H. Sabine trans., 1929). 93 Statute of the Permanent International Court of Justice art. 38(3), Dec. 16, 1920, 6 L.N.T.S. 379. 94 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768, 768 (1990).

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justify the Western powers’ colonization of other nations. The same language exists in Article 38 of the International Court of Justice’s Statute of 1945,95 but the words “civilized nations” no longer have the selective meaning they once had. Thus, the Roman law concept of jus cogens became universal.96 This was first recognized by the Permanent Court of International Justice, and since then by the International Court of Justice, as that higher source of law whose norms supersede national ones, and that are therefore binding upon all states. A supra-national conception of law necessarily means there is a civitas maxima, a higher body politic than individual states. The civitas maxima, from which jus cogens derives, translates into an international community that has the prerogative of imposing international norms that supersede national ones.97 Roman law’s jus cogens became a universal legal concept applicable to certain international crimes from which no state can derogate. The earlier Roman law concept of a civitas maxima became the source of the contemporary maxim aut dedere aut judicare, which translates into the international obligation to prosecute or extradite for certain international crimes. This latter concept was first developed by Hugo Grotius in 1625 in De Jure Belli ac Pacis.98 It is now the foundation of ICL and ICJ, both of which depend on state cooperation. The institutionalized recognition of the existence of an international community manifested itself in the collective security system of the League of Nations in 1919, followed by the United Nations in 1945, whose Chapter VII gives virtually unlimited powers to the Security Council to act in connection with threats to, and maintenance of, international peace and security. This supra-national role of the Security Council has had a significant effect on ICJ. Recall, for instance, the historically unprecedented decision of the Council to establish the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1994,99 and the International Criminal Tribunal for Rwanda (ICTR) in 1995.100 These institutions, whose establishment was not provided for in the UN Charter, developed 95 Statute of the International Court of Justice art. 38(3), June 26, 1945, 59 Stat. 1031, 33 U.N.T.S. 993. 96 See Gordon Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, 28 Va. J. Int’l L. 585 (1988); Gordon Christenson, The World Court and Jus Cogens, 81 Am. J. Int’l L. 95, 95 (1987). 97 For a discussion of civitas maxima, see M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 28–30 (1995); Gerhard O.W. Mueller, International Criminal Law: Civitas Maxima, 15 Case W. Res. J. Int’l L. 1 (1983). 98 Hugo Grotius, De Jure Belli ac Pacis Libri Tres (Francis W. Kelsey trans., 1925) (1646). 99 See Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159 [hereinafter ICTY Statute]. 100 See Statute of the International Criminal Tribunal for Rwanda, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute].



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through their respective statutes and jurisprudence, based on interpretations of customary international law with respect to the definition and contents of international crimes, elements of criminal responsibility, and criminal procedures. These norms are presumably the international counterpart of national legal systems’ “special part,” “general part,” and “procedural part” of their criminal laws.101 They are derived from “general principles of law.” ICJ is therefore the inheritor of certain national legal concepts and practices. Section 7. The Paradigms of International Law and Their Evolution International law is essentially the product of state actors acting on behalf of their respective states’ interests. Contemporary international law is the counterpart of the Roman law’s jus gentium, the law of all peoples. Unlike Roman law, however, which reflected the interests of the Romans, modern international law is intended to reflect the interests of the international community of states and its peoples. Even in this era of globalization, international law remains under the long shadow of the Westphalian paradigm, which was founded on the legal fiction of coequal state sovereignty, limiting the penetration of international law into national legal systems.102 Thus, states are left with the power of unilateralism. This world order model is characterized by what Thomas Hobbes described in the seventeenth century as a model of chaotic states’ relations, which are essentially guided by interests and limited by unilateral prudent judgment and external constraints left to every state’s discretionary judgment.103 Thus, the state of world affairs is marked by the chaos of self-identified state interests that, with few exceptions, are not subject to collective constraints except as agreed upon by states. This model of world order is characterized by the unilateral resort to force in settling inter-state differences. Nevertheless, progress has been achieved in the last century as states’ interests and the values that their societies embrace have become less divergent. This convergence demanded greater conformity by states to certain human aspirations and also greater conformity to the expectations of the higher good of an international community consisting not only of states, but also of peoples and individuals. This is the premise of the U.N.’s system of collective security entrusted to the authority of the Security Council and the veto power of its five permanent members.

101 See Bassiouni, supra note 12, at 259, 583. 102 See generally The Age of Enlightenment, supra note 35; Durant & Durant, supra note 35. 103 See Hobbes, supra note 57. See generally Keystones of Democracy (2005) (compiling the views of John Locke, Jean Jacques Rousseau, and Thomas Paine on the state of nature, war, and civil government).

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Spurred by contemporary economic globalization, states’ international cooperation in almost all fields, including ICJ, has increased. In some areas, it has given rise to collective decision-making processes, as evidenced in many intergovernmental organizations. Among the developments in which state sovereignty has given way to collective interests and values are those which have occurred in economics and finance, as well as in the fields of human rights and ICL. All of these fields have been driven by ideas reflecting certain values that in time have acquired an incrementally higher level of recognition by more diverse constituencies of the international community. Progress in the fields of human rights and ICL is the result of a process of accretion that has strengthened ideas about human values derived from the experiences of many civilizations. Admittedly, progress in these fields has been slower and more painstaking than in the economic and financial fields, which offer tangible inducements, while ICL offers only intangible ones. History also records that this evolutionary process of ICL and human rights usually starts with the emergence of an idea, which then grows in its acceptance by different constituencies, followed by a stage of prescriptive articulation that eventually leads to the stage of proscriptive normative formulation, ripening into the establishment of enforcement mechanisms. The evolution of an idea from its intellectual inception to its proscriptive and enforcement stages goes through intermediate stages and may even find itself transformed or altered from its original meaning or intended purpose. Chief among the reasons for the transformation or alteration of ideas are a mixture of values and interests whose interaction occasionally favors the one over the other. Equally significant, however, are the imprints of historic events and circumstances and of those individuals whose contributions have impacted the course of human events. During the course of this evolution, there are multiple processes involving diverse participants, operating in different arenas, employing multiple strategies and tactics, and pursuing different value-oriented goals. In postmodern times, the international community, consisting of states, intergovernmental organizations, and international civil society, has played an increasing role in the arena of ICJ by articulating commonly shared values and interests, developing norms, and establishing international institutions intended to accomplish certain goals. It is noteworthy that time and again throughout history, individuals have defied power paradigms and have been able to cause unexpected outcomes. Notwithstanding the inexorable power of historic events, which like turbulent rivers are capable of sweeping away everything in their course, individuals have at times been capable of stopping and even reversing the course of powerful flows. How individuals can make such differences is not only somewhat of a mystery, it is above all a great symbol of hope that the most intractable paradigms can be altered by individuals. This is evidence that there is no such thing as the



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inevitability that state interests will always prevail, and that justice will always be sacrificed at the altar of state interests. Section 8. International Criminal Justice in the Age of Globalization 8.1. Introduction ICJ has played a small part in the events that have shaped the course of history. On occasion, ICJ has appeared on the scene of international relations sometimes like the deus ex machina, which emerges unexpectedly on the scene in Greek tragedies to bring about the right ending. In that role, ICJ is the champion of good over evil, though not necessarily to the exclusion of the attainment of political goals sought by those who have allowed the deus of justice to come onto the scene of international relations. In post-conflict situations, balancing between ICJ and other political goals is always a sui generis exercise, because every conflict is sui generis. Indeed, there is no PCJ modality, or combination of modalities, that can be said to fit all situations. Since there is no “one-size-fits-all” model, the choice of a given modality or combination of modalities of PCJ mechanisms will vary in each situation.104 International criminal prosecutions are not necessarily the most appropriate of the various accountability modalities for all types of conflicts.105 Indeed, there is a range of modalities, used individually or in combination, which may be more appropriate in a given situation. In recognition of the sui generis nature of each conflict, these modalities require coordination in order to maximize their effect on justice and peace. The modality or a combination thereof most appropriate in a given post-conflict situation depends on a variety of factors, such as the ultimate goals of the parties to the conflict, their willingness to reconcile, the extent of the harm done, the duration of the conflict, and other external and internal

104 See Teitel, Transitional Justice, supra note 16, at 6, arguing that legal responses to atrocities are defined in part by the political and historical context of the regime that committed the atrocity. See also Stromseth, Accountability for Atrocities: National and International Responses, supra note 16, exploring the different historical, legal, and political situations surrounding accountability for atrocities committed during armed conflicts. 105 See The Chicago Principles, supra note 16. Post-conflict justice modalities include: international and national prosecutions, truth and reconciliation and other investigatory commissions, victim compensation mechanisms, amnesties, formal apologies, and lustration mechanisms. See Bernaz & Prouveze, International and Domestic Prosecutions, supra note 52; Eric WiebelhausBrahm, Truth Commissions and Other Investigatory Bodies, in 1 The Pursuit of International Criminal Justice, supra note 16, at 477; Bassiouni & Roht-Arriaza on Victims Rights, supra note 53; Mallinder, Amnesties, supra note 51; Mark Gibney, Apologies, in 1 The Pursuit of International Criminal Justice, supra note 16, at 779; Nalepa, Lustration, supra note 55, at 735.

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circumstances that may bring about, in the best of cases, reconciliation, and in the worst cases, partitions of the existing state. The selection of PCJ modalities, and particularly prosecutions—whether by international, mixed model international/national, or national institutions—has almost always been conditioned by non-justice considerations. Among them are the pursuit of peace between states and reconciliation among peoples. While these goals are essentially political, they also reflect values which cannot be underestimated, let alone ignored. ICJ cannot be viewed as a system that functions entirely without consideration for other broader concerns such as peace and reconciliation. ICJ must, therefore, be viewed within the broader goals of justice in response to the needs of certain societies at a given time and place, and also in the context of the common good in a global society. For this reason, it is important to note that the best is sometimes the enemy of the good. In this sense, the perceived best solution in a conflict should not impede the implementation of some models of justice that are most appropriate to different situations. It is sometimes better to do something rather than do nothing, even when what is done is not perfect.106 Some modicum of justice can neither be ignored nor sidestepped in the pursuit of expedient political solutions. To do so would be to merely invite the resumption of conflict. Since justice can dampen the embers of revenge, it is an essential element in the achievement of peace and reconciliation. Justice, however, must be pursued with transparency, impartiality, integrity, political independence and fairness. It should be noted that there is nothing inherently incompatible between politically oriented goals and the achievement of the higher value of justice for the purposes of advancing the common good and, in particular cases, advancing goals pertaining to other positive outcomes, such as peace and reconciliation. As in all matters involving different and sometimes difficult goals, the balance between justice and positive political goals is hard to achieve, if for no other reason than because the former is predicated on certain values which cannot be compromised, while the latter is based on certain interests which can only be based on compromise. To reconcile the two is impossible, but to conciliate between them is possible. If the demands of peace come first, then those of justice can follow. The latter is not compromised, just deferred. This is conciliation. The contradiction arises when the imposition of political settlements removes the options of post-conflict justice. The shortcoming of this approach is that

106 One example is Israel’s announcement of starting proceedings against four military personnel for violations of international humanitarian law committed during the Gaza incursion of December 2008 and January 2009, even though the Goldstone Report contained many more incidents of international humanitarian law violations. See Report of the United Nations Fact Finding Mission on the Gaza Conflict, United Nations Human Rights Council, A/HRC/12/48 (Sept. 15, 2009) (the ‘Goldstone Report’).



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it ignores the lessons of history, which teach that there is ultimately no peace without justice. Human injustices never disappear simply through the achievement of a settlement by political leaders; they continue to exist in a state of limbo that frequently bring these injustices back to the forefront of reality. The consequence is the absence of real peace or renewed conflict. Justice is therefore an essential component of peace. The goals of ICJ, as previously stated, include: prevention through deterrence; retribution through selective prosecution, which is presumed to have some general deterrent effect; and providing victims with a sense of justice and closure. However, these goals are nearly impossible to assess. What is left is the symbolism of selective prosecutions and its presumed impact on peace, or a return to normalcy in war-torn societies. The assumption that international criminal prosecutions are likely to produce a deterrent effect, and therefore prevent further criminal actions, is untested. It is based on the general assumptions of deterrence that exist in domestic criminal justice systems. There is, however, anecdotal data that the prospects of international criminal prosecutions bring about some deterrent effect in a given conflict, as was the case in the conflict in the former Yugoslavia from 1991 to 1995. In all other situations of international prosecutions, however, the deterrent effect was nonexistent because these prosecutions occurred after the given conflict came to an end. Presumably, the cumulative experience of post-conflict prosecutions produces a deterrent effect in connection with future conflicts. This, however, is yet to be scientifically established. One of the most important and yet overlooked goals of ICJ is to bring closure to victims and provide them with redress. However, it was not until 2006 that the General Assembly adopted the resolution, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.107 Because the Principles and Guidelines are relatively new and not mandatory, they have yet to be applied at the international and national levels. The acknowledgement of the Principles and Guidelines is, however, a sign of progress. What is noteworthy is that they provide for ICJ as a victim’s right; however, in the recent history of ICJ, victims’ rights have hardly been addressed.108 ICJ’s other components include the recordation of the harmful consequences of conflicts and the development of measures designed to prevent future con107 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Mar. 21, 2006) [hereinafter Principles and Guidelines]; see also M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203 (2006) (tracing the history of the United Nations’ adoption of the 2006 Resolution, exploring the effects of the Resolution, and highlighting the shortcomings of the Resolution in affording victims meaningful redress). 108 Principles and Guidelines, supra note 107.

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flicts. This is why ICJ has to be viewed in a more comprehensive manner; namely, ICJ should integrate a number of the PCJ mechanisms described above. Moreover, ICJ has to be integrated in the modalities of peacemaking, peacekeeping, and humanitarian assistance, and so far that has not been the case. Political considerations have kept separate that which needs to be integrated. In order to integrate PCJ mechanisms into peacemaking and peacekeeping, it is necessary to understand the nature of the conflicts themselves. The selection of PCJ mechanisms is highly dependent on the processes through which a conflict was brought under control. Some conflicts terminate with the overwhelming victory of one side over another, providing the prevailing force with near-complete control over the management and implementation of national reconstruction. While this may simplify the development of strategies that address past violence, it fosters an imbalance of interests that can negatively impact the creation of fair and effective policies. Other conflicts end through negotiated settlements that often reflect the political demands and needs of the parties, but present their own challenges. Negotiated settlements may involve equality in the power and influence of conflicting parties or substantial disparities. In addition, a variety of external issues and constituencies often play a role in shaping peaceful outcomes. The development of comprehensive PCJ strategies requires that vulnerable groups such as women, children, refugees, the elderly, and disempowered religious or ethnic minorities be provided with special protections and adequate means to engage in the process of addressing the past.109 In particular, programs should be established with a clear understanding of the often gendered nature of political violence and the special needs of women, whether widows, primary caregivers, or community leaders. Post-conflict justice requires great sensitivity to the social and cultural context and a clear understanding of local political interests. Policymakers need to engage in national consultations and seek local input from NGOs, community groups, traditional or tribal leaders, religious organizations and others. The process of rebuilding the justice system should be undertaken with a commitment to adequately accommodating local input and needs. Just as conflicts arise from distinct local issues and involve different types of repression and violence, post-conflict situations which address these and other factors vary significantly. Rebuilding in the aftermath of a conflict differs from reconstruction because of varying internal factors in societies which have experienced conflict. More importantly, there are significantly different circumstances

109 For the U.N. Security Council on the protection of children affected by armed conflict, see S.C. Res. 1612, U.N. Doc. S/RES/1612 (July 26, 2005); on the role of women in armed conflicts, see S.C. Res. 1325, U.N. Doc. S/RES/1325 (Oct. 31, 2000).



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in conflicts of an international or non-international character, and purely internal conflicts These differences have a bearing on the choice of PCJ modalities. The effectiveness of PCJ modalities in attaining the goals of justice, peace, and reconciliation will largely depend on available resources, whether internal or external, and also on the existence of institutions of governance and rule of law in a given society. Thus, PCJ experiences vary in the aftermath of different conflicts.110 It is possible to improve the international community’s response to past violations of human rights and humanitarian law. However, a substantial change in the application of post-conflict justice requires political will, resources and long-term commitments. The approach of the Chicago Principles encourages a comprehensive, integrated approach to addressing past atrocities, involving quick action, long-term planning, national consultations, the participation of diverse constituencies, sensitivity to local context and culture, broad institutional reform, and a domestic and international commitment to linking justice, peace and reconciliation.111 There is an assumption within the international community that PCJ mechanisms will be successful, but determining which modality should be applied for a given conflict, context and region will present difficulties.112 Thus, the characterization of a conflict is essential in understanding how to best respond. As previously mentioned, the characterization of conflicts and the crimes committed does not use a universal language and is often heavily influenced by political factors. Moreover, the characterization of conflicts in legal terms often differs from its characterization in political terms, further complicating the application of PCJ mechanisms. For example, it can be difficult to determine the role of nonstate actors when they act in the manner of state actors. “Other forms of collective group violence by non-state actors,” refers to aberrant conduct having some of the characteristics of “crimes of state,” when committed by non-state actors acting outside the state structure. Both share similar phenomenological characteristics, produce significant human and material harm, and are not adequately controlled by social and legal mechanisms. They differ primarily as to their participants and the institutional means that they control. The suffering arising from repressive authoritarian regimes and violent conflicts—particularly those involving genocide, crimes against humanity, war crimes, mass killing, institutionalized torture, and other severe and systematic human rights violations—is ultimately unanswerable. No true remedy exists for any these brutal acts. However, societies and governments should acknowledge 110 For example, the progress made in Iraq since 2003 is more significant than what was achieved in Afghanistan. 111 See The Chicago Principles, supra note 16. 112 See George P. Fletcher & Jens David Ohlin, Defending Humanity: When Force is Justified and Why 170 (2008).

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past suffering and proactively address claims for justice. Post-conflict justice arises from a profound human need to acknowledge the truth of suffering and to push for accountability as a means of building a foundation for the future. All of the atrocities surveyed in this study have been committed by many perpetrators and have many victims. The obvious conclusion is that the larger the number of persons involved in the mass production of human harm, the greater the resulting harm. It is curious that so many people can be enlisted to participate in mass atrocities. The phenomenon may be explained by two dynamics: the first pertaining to violent group interactions and the second to state-organized violence. Violent group interactions, particularly those on an inter-ethnic or inter-religious basis, tend to create group dynamics that not only remove inhibitions against committing these atrocities, but ultimately creates a collective that encourages them. In state-organized violence, a tyrannical ruler or ruling elite mobilize the state apparatus to engage in collective violence, creating a different operating group dynamic. The essential difference between the two phenomena is that the first arises from the bottom-up and the second descends form the top-down. In a sense, one would expect that individuals might have a greater ability to detach from groups; in reality, we see that the state engenders a great deal of compliance. Another consideration that engenders compliance when a state is mobilized is the ability of head decision-makers to compartmentalize the different aspects of the conflict. In so doing, these persons who are involved in one aspect of the execution of the plan may either not know the master plan or may have some excuse to convince themselves that they do not know.113 This breakdown allows people to disjoint their moral decision from the end result. In some aspects, this process makes many of the compartmentalized acts appear banal.114 As a result, compartmentalization erases the whole picture and diffuses responsibility, increasing the likelihood of compliance. In addition to the large number of people who participate in atrocities, there are those who contribute through passivity, allowing atrocities to occur out of apathy or fear. The source of this passivity may stem from a lack of moral commitment, passive support or indifference/dissociation; the important inference is that those who order mass atrocities seem to rely on the assumption that they will not face opposition precisely because people are apathetic or frightened. It is important to determine the role that this phenomenon plays in understanding why atrocities occur so that it may be controlled. In situations with mass atrocities, memorialization, truth commissions and education may be agents to sensitize people, decrease apathy and increase social opposition. 113 Take the example of Nazi Germany. Those who arrested victims claimed to not know why they were arresting them, those who were told to put victims on a train claimed not know the train’s destination and so on and so forth. 114 See generally Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963).



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Recent history has shown that enhancing accountability and minimizing impunity are important elements for peace and stability, and for building democratic states in the wake of conflict. PCJ modalities are also essential for establishing the rule of law, respecting human rights, honoring the suffering of victims and preventing the recurrence of future violations.115 The essential commitments of post-conflict justice are grounded in the global promises that established the modern human rights system more than sixty years ago. However, the term describes a specific process that represents a significant and relatively recent development whose coherence is now only emerging after two decades of theoretical and practical development. The intellectual roots of post-conflict justice can be traced to the period following World War I, when the emerging international community began to seriously consider the value of seeking justice in the aftermath of conflict, despite taking little substantive action. After World War II, the international community established PCJ institutions, including the International Military Tribunals at Nuremberg and Tokyo, and supported related domestic war crimes prosecutions in Europe and Asia. These initiatives were linked to the birth of the modern human rights system through the creation of the United Nations and the broad acceptance of the 1948 Universal Declaration of Human Rights.116 From the 1950s through the 1980s, human rights commitments continued to develop. However, the Cold War demands of realpolitik and the profound ideological and political divisions of the time prevented the implementation of more substantial policies of accountability and justice. During this time, there were major advances in treaty law, significant development of international institutions and a growing engagement with the substance of human rights obligations. Since the mid-1980s, there has been a surge of interest in post-conflict justice associated with a number of political transitions from authoritarian to democratic regimes. In South and Central America, many countries initiated processes of openly engaging the legacy of past systematic repression. Newly democratic governments implemented domestic prosecutions, truth commissions, reparations policies, and mechanisms of memorialization, often motivated by popular pressure, civil society and local human rights groups. In Eastern and Central Europe, governments created related initiatives involving public debate, 115 In a system where the rule of law prevails, the laws are public knowledge, clear in meaning and apply equally to everyone. Persons and institutions obey the laws in force, consequently leading to an abolishment of the arbitrary use of power. The U.N. General Assembly distinguishes between the rule of law at the national level on the one hand, and at the international level on the other hand, see The Rule of Law at the National and International Levels, U.N. Doc. A/Res/62/70, (Jan. 8, 2008). For the promotion of an internationalized rule of law see André Nollkaemper, The Internationalized Rule of Law, 1 Hague J. Rule of L. 74 (2009). According to Nollkaemper, the rule of law is increasingly defined by the connection and interaction of international and domestic law. 116 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (Dec. 10, 1948).

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memorialization, opening security archives, and instituting administrative sanctions known as lustration or vetting. In general, these PCJ strategies emerged from the bottom up, arising out of popular movements and developing in response to local experiences and local demands. By the mid-1990s, a broad international consensus had developed regarding the need to link justice and reconciliation with the end of conflict and support for democratic transitions. This historic shift grew out of the increasing legitimacy of human rights discourse, the activities of international and domestic NGOs, and a general expansion of a state’s legal commitment to human rights. The international acceptance of post-conflict justice ideas and strategies was also related to expanding UN operations, including peacekeeping and human rights missions as well as a growing institutional recognition of the link between human rights and international development. ICJ has made significant progress since 1994 with the establishment of international and mixed-model institutions of ICJ in the former Yugoslavia,117 Rwanda,118 Sierra Leone,119 Kosovo,120 Timor-Leste,121 Cambodia,122 Bosnia and Herzegovina,123 and Lebanon124 and with the establishment of the ICC.125 Never before in history has so much been achieved in such a short period of time. But by 2014, most of these institutions, as discussed below,126 will come to an end, save for the ICC. When the latter will be the only surviving international criminal judicial institution, the real test of its survivability will begin. Legal outcomes arising out of the changing paradigms described above can be assessed by using different measurements, such as normative developments. For example, between 1815 and 2009, there have been 281 conventions falling within the meaning of ICL.127 However, consider the following: (1) after over sixty years of deliberations, there is no international convention on aggression whose prohibition is in the U.N. Charter;128 (2) there is no international convention on 117 See S.C. Res. 827, ¶ 2, U.N. Doc. S/Res/827 (May 25, 1993). 118 See S.C. Res. 955, ¶ 1, U.N. Doc. S/Res/955 (Nov. 8, 1994). 119 See S.C. Res. 1400, U.N. Doc. S/Res/1400 (Mar. 28, 2002). 120 See S.C. Res. 1244, ¶ 14, U.N. Doc. S/Res/1244 (Jun. 10, 1999). 121 See S.C. Res. 1272, ¶ 2, U.N. Doc. S/Res/1272 (Oct. 25, 1999). 122 See Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea art. 2, Royal Decree No. NS/RKM/1004/006 (2004) (Cambodia). 123 See Singh, supra note 16. 124 See The Secretary-General, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, ¶¶ 6–10, delivered to the Security Council, U.N. Doc. S/2006/893 (Nov. 15, 2006). 125 See generally 1–3 Bassiouni, supra note 69. 126 See infra section 9.3. 127 See Bassiouni, supra note 59. 128 See M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in 1 International Criminal Law 207 (M. Cherif Bassiouni ed., 3d ed. 2008). See generally Yoram Dinstein, War, Aggression and Self-Defence (3d ed. 2001).



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crimes against humanity since that concept arose in 1919 after World War I and was prosecuted at the International Military Tribunal (IMT) and International Military Tribunal for the Far East (IMTFE) after World War II;129 (3) there is no definition of terrorism or a comprehensive convention on the subject since that topic developed in the League of Nations in 1937 and was picked up by the United Nations in 1969;130 and (4) there is no international criminal code since discussions on a U.N. Draft Code of Offences Against the Peace and Security of Mankind began in 1947.131 Instead, we have a hodgepodge collection of some 271 conventions from 1815 to date, addressing 27 categories of international crimes with many overlaps, gaps, inconsistencies, and ambiguities.132 In 1474, the political goal of preserving the Holy Roman Empire by refusing to denounce a fellow head of state was achieved in Breisach. In so doing, the Breisach judges also upheld certain values by denouncing what was done to the helpless civilian population and by prosecuting its chief perpetrator. Thus, a justice goal was achieved.133 129 See Power, supra note 45; Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178 (1946). See generally M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2d rev. ed. 1999); Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d rev. ed. 2002). 130 See International Terrorism: Multilateral Conventions, 1937–2001, at xxv, 5–6 (M. Cherif Bassiouni ed., 2001) (arguing that the United Nations has taken a piecemeal approach to terrorism and has addressed specific acts, such as the use of chemical weapons, instead of formulating a comprehensive and coherent definition of terrorism). 131 See Bassiouni, supra note 75, at 30 (noting that efforts to codify major international crimes started in 1947 and “ended inconclusively” in 1996 as a result of political failures). 132 See M. Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities, 8 Transnat’l L. & Contemp. Probs. 199, 202 (1998) (arguing that “ambiguities and gaps” in norms of international crimes have resulted from the “haphazard evolution of criminal law” and the hesitancy of U.N. member states to risk criminalizing the internal conduct of their own governments). 133 The values upheld in 1474 are now embodied in international humanitarian law, which was developed after Henri Dunant launched his Red Cross movement in Geneva in 1864. This movement, in turn, gave us the most universally recognized of all instruments, the Four Geneva Conventions of 1949 and their two 1977 Additional Protocols (which are less universally accepted). See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 [Geneva Convention I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 [Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Geneva Convention IV]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [Protocol II]. Earlier, however, these humanitarian values were reflected in the 1899 Convention with Respect to the Laws and Customs of War on Land, which was amended in 1907. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 207 Consol. T.S. 277 The latter remains, to date, the foundation of customary international humanitarian law.

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It was not until 1814 that another politicized manifestation of ICJ took place. In 1813 and 1814, the victorious European allies of Austria, England, Prussia, and Russia defeated Napoleon’s forces at Leipzig and a few months later captured Paris. The victorious heads of states were monarchs. While they were resentful of the populist upstart Napoleon who usurped the title of Emperor, they nevertheless sought to pay homage to the title. Moreover, Napoleon had married the daughter of Austria’s Emperor, who was one of the Allies. Consequently, the monarchs could not have Napoleon tried as a common criminal; instead they decided, without convening, to exile him to the island of Elba in the Mediterranean. A few months later, Napoleon escaped, tried to make a comeback, and was again defeated. This time, he was exiled to Saint Helena under the stern guard of England, where he died a few years later, allegedly poisoned by his captors.134 Napoleon was tried politically by the victorious monarchs and given a political sentence, even though he had ordered many acts that today would be called aggression, crimes against humanity, and war crimes. Many of his orders were reminiscent of what Peter did in 1474. While the customary war practices of states in the nineteenth century were far from humane, the excesses—even atrocities—ordered by Napoleon and committed by troops under his command, definitely qualified him for an international criminal prosecution for “crimes against the laws of God and Man.” In this case, however, realpolitik considerations prevailed over those of justice.135 For Napoleon, being exiled and imprisoned under English control was probably a worse penalty than death. The sentence was intended to deprive him of martyr status in the eyes of the French people and to deter a successor from Henri Dunant is one of those individuals who made a difference in the affairs of humankind. What he and others advocated ripened into a unique universal concept that was transformed into binding international legal norms. The progress made since then is not to be underestimated. While their universal application is still far from being achieved, there is no sign that these normative gains are threatened by any effort to reverse them. Regrettably, only the U.S. under the Bush Administration attempted this by arguing that “enemy combatants” in the “war against terror” are not subject to the Geneva Conventions. The U.S. Supreme Court in Hamdan v. Rumsfeld rejected this contention. Hamdan v. Rumsfeld, 548 U.S. 557 (2006); see also Boumediene v. Bush, 128 S. Ct. 2229 (2008) (holding that prisoners held at Guantanamo Bay have a right to habeas corpus under the U.S. Constitution). 134 See Robert Asprey, The Rise of Napoleon Bonaparte 405, 439–41 (2001). See generally Bell, supra note 40; Chandler, supra note 40; Herold, supra note 40; McLynn, supra note 40. 135 The case of Napoleon was the beginning of modern realpolitik, so masterfully articulated by the Austrian Chancellor Metternich at the Congress of Vienna in 1815. Metternich’s disciples and heirs continue along the same line in contemporary times, as evidenced in so many modern and postmodern conflict situations, such as Henry Kissinger, the architect of the political settlement to the Vietnam Conflict signed in Paris in 1973. Neither North Vietnamese nor Americans, except for Lieutenant William Calley, were prosecuted for war crimes, even though so many had occurred on both sides of the conflict. Even Calley, whose guilt was obvious, was subsequently pardoned by President Nixon. See generally Michal R. Belknap, The Vietnam War on Trial: The My Lai Massacre and Court-Martial of Lieutenant Calley (2002); Jordan J. Paust, My Lai and Vietnam: Norms, Myths and Leader Responsibility, 57 Mil. L. Rev. 99 (1972).



reflections on international criminal justice: past and future 1023

plunging Europe into another war. Thus, his exile involved a valid and legitimate peace component. In the end, however, Napoleon did achieve hero status. His remains were buried in Les Invalides in Paris, and he remains, to the present day, the object of veneration by some French. In 1814 and 1815, the goal of the allies was to bring peace and stability to Europe, not to redress the many injustices suffered by those who had been victimized by the Napoleonic Wars. The benefits of impunity also extended to Napoleon’s generals, who had committed atrocious crimes throughout his reign. Only one of these generals was prosecuted for what we would now call war crimes, and this was primarily because he remained loyal to Napoleon. All of the others, who could have been prosecuted for what even then was considered excessive use of force, got a pass. Some were even rewarded with new positions under Louis XVIII, who was restored to the throne in 1814.136 8.2. The Twentieth Century The second historic era started after World War I. The trial of Germany’s Kaiser Wilhelm von Hohenzollern had an almost seamless continuity with the political trial and sentence of Napoleon in 1814. Nevertheless, some things changed, and a step forward was taken. In 1919, the victorious Allies sought to punish Germany and its leaders for initiating World War I and for war crimes committed during the war. There was no question for the Allies that only those from Germany and perhaps Turkey would be prosecuted, even if the Allies had committed identical crimes.137 The 1919 Treaty of Versailles provided in Article 227 for the first time in history that a head of state, Germany’s Kaiser Wilhelm von Hohenzollern, would be tried for what we now call aggression.138 The similarity between the positions of Napoleon and Kaiser Wilhelm is striking. Kaiser Wilhelm was the grandson of Queen Victoria and the cousin of the Russian Emperor Nicholas, much as Napoleon was the son-in-law of the Emperor of Austria. Would the Allies prosecute a sitting head of state? The answer was no, but times had changed. It was no longer possible for heads of state to caucus and decide on political outcomes, as was

136 One of Napoleon’s generals, Jean-Baptiste Bernadotte, Marshal of France, though not known for having committed any of these abuses of force, was invited to become King of Sweden. He established the Royal line, which still provides Sweden with its monarchs today. See generally Alan Palmer, Bernadotte: Napoleon’s Marshal, Sweden’s King (1990). 137 See Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century 62 (2004); M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l L. & Pol’y 244, 253 (2002). 138 Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles) art. 227, June 28, 1919, 2 Bevans 43, 225 Consol. T.S. 188.

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the case with respect to Napoleon’s exile, because heads of state had become somewhat accountable to public opinion. However, realpolitik is adaptable. The device used in 1919 was to draft Article 227 in such an artful manner that it would not be deemed legally enforceable, and yet at the same time, that it would convince public opinion of the serious intentions of the victorious Allies. The crime was defined in Article 227 as “the supreme offence against . . . the sanctity of treaties.”139 To European public opinion, it sounded just right. When the Allies sought to extradite the Kaiser from the Netherlands, however, the Dutch contended that no such crime existed in international law, and for that matter in any national legal system. Even though the Dutch bore the brunt of French and Belgian criticism, they were legally correct. England, however, was satisfied that it had contributed to the effort of ICJ, while ensuring that the favorite grandson of Queen Victoria would not be humiliated.140 Significantly, these efforts preserved the precedent of complete head-of-state immunity, which lasted until 1945. The Treaty of Versailles also posited, in Articles 228 and 229, the prosecution of German war criminals before Allied tribunals; however, these tribunals were never established.141 Instead, in 1920, the Allies agreed not to carry out the provisions of Articles 228 and 229 to establish an Allied war crimes tribunal and passed on the task to Germany. The tribunal chosen was the Supreme Court of Germany, sitting as a trier of facts in the city of Leipzig in 1923.142 The political history of this tribunal is telling. In 1919, the Allies’ Commission to investigate the Responsibility of the Authors of the War and on Enforcement of Penalties had drawn up a list of some twenty thousand Germans to be tried for war crimes.143 The list was subsequently reduced to 875, but Germany balked at this high number. In the end, the Allies agreed to bring that number down to forty-five. Even so, the German Prosecutor General indicted only twenty-two persons, and the Tribunal’s highest sentence was a three-year prison term for one of the defendants.144 More significantly, the 1919 Commission urged the prosecution of Turkish officials for what it called “Crimes Against the Laws of Humanity” for the 1915 mass killing of Armenians in Turkey.145 The U.S. and Japan, both members of the 139 Id. 140 See James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War 57 (1982). 141 See Maogoto, supra note 141; Bassiouni, supra note 107, at 266–68. 142 See Willis, supra note 144, at 174. See generally Gerd Hankel, Die Leipziger Prozesse (2003); Claud Mullins, The Leipzig Trials (1921). 143 See generally Div. of Int’l Law, Carnegie Endowment for Int’l Peace, Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference (Pamphlet No. 32, 1919), reprinted in 14 Am. J. Int’l L. 95, 112–15 (1920). 144 Bassiouni, supra note 107, at 281–82. 145 “Crimes against humanity” is quoted in the Armenian Memorandum presented by the Greek delegation to the 1919 Commission on Mar. 14, 1919. See Schwelb, supra note 129, at 181. See gener-



reflections on international criminal justice: past and future 1025

Commission, objected on the grounds that no such crime existed in positive international law, and that the alleged crime derived from natural law, which they rejected. The Commission’s basis for postulating “Crimes Against the Laws of Humanity” was the preambular language of the 1907 Hague Convention, which stated: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.146

In the short time between 1919 and 1945, when the charter of the IMT was adopted, the victorious Allies of World War II, led by the U.S., formulated in Article 6(c) of the Charter the international category of crimes called “crimes against humanity.”147 The failed precedent of World War I became the legal basis for the newly defined crime. What had changed were the times and the facts. Faced with the Holocaust and other atrocities committed by the Nazi regime, the Allies had no choice but to establish “crimes against humanity” as an international crime under positive international criminal law. The same crime was included in the IMTFE Tokyo statute,148 as well as in Control Council Law No. 10, applicable in Germany by Allied tribunals.149 Later, in 1993 and 1994, this crime was included by the Security Council in the statutes of the ICTY and ICTR, Articles 3 and 5, respectively; and in 1998, it was also included in the ICC’s Article 7. Notwithstanding these precedents, there is to date no international convention on crimes against humanity. The explanation is simply that states are unwilling to have such a convention that would place their heads of state and senior state actors in jeopardy. Although the crime is established in customary international law, the normative basis in conventional ICL for crimes against humanity is lacking. Admittedly, however, customary international law has a less than certain basis, as compared to ICL, with respect to the specificity of the crime’s legal elements and its contents. If nothing else, the situation reveals that ally Vahakn N. Dadrian, German Responsibility in the Armenian Genocide (1997); Vahakn N. Dadrian, The History of the Armenian Genocide (1995). For a Turkish perspective, see Ctr. for Strategic Research, The Armenian “Genocide”: Facts and Figures (2007). 146 Convention Respecting the Laws and Customs of War on Land, supra note 5 (emphasis added). 147 Charter of the International Military Tribunal at Nuremberg art. 6(c), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. 148 Charter for the International Military Tribunal for the Far East art. 5(c), Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. 149 Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, § II(2)(e), Dec. 20, 1945, reprinted in Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10, at 250 (1949).

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states have an interest in preserving legal gaps and ambiguities that allow them the flexibility to argue against the duty to prosecute state actors who commit such crimes, notwithstanding the human harm that continues to be committed in violation of customary international law. Once again, realpolitik prevails over the values and interests of justice. The justice record in the aftermath of World War I, while intrinsically weak, nevertheless set the foundation for the IMT, the IMTFE, Control Council Law No. 10 (which applied to the European Allies in their respective zones of occupation in Germany), and the Allies’ prosecutions under their respective military laws in the Far East. The latter, however, reveals how few selective national prosecutions were conducted, other than for those who had supported the German occupying forces. Between these post-World War II prosecutions and the establishment of the ICTY, ICTR, ICC, and the mixed-model tribunals for Sierra Leone, TimorLeste, Kosovo, Cambodia, Bosnia, and Lebanon, there were only a few symbolic national prosecutions in Canada, France, Australia, the United Kingdom, Italy, and Israel. In total, ten persons were prosecuted. Furthermore, while Germany prosecuted an estimated fifty thousand persons for crimes committed during World War II, Japan, Italy, and Austria prosecuted none of their own citizens. And Japan, after the IMTFE’s judgment in 1947, between 1953 and 1954 released all those who had been convicted by that tribunal. Objective assessment of the post-World War II ICJ experiences is a task that has yet to be undertaken. When that occurs, it is likely to debunk many myths that ICJ needs to preserve. However, turning violators of the jus in bello and jus ad bellum to a justice process was indeed extraordinary. This was a major accomplishment in the history of humankind. As the principal architect of Nuremberg, Justice Robert H. Jackson, in his opening statement before the IMT as the chief U.S. prosecutor: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”150 In so doing, they reclaimed the hopes of Themis and Iustitia. It should be noted that trials cannot always establish the truth or the full record of historic events, as is frequently assumed.151 Establishing the account of a given crime is quite different from establishing the truth about a given conflict. In the Eichmann Trial, the primary goal of the prosecutor was to establish an official account of the events that took place known since then as the Holocaust.152 150 Justice Robert H. Jackson, Opening Address to the International Military Tribunal at Nuremberg, Germany, Nov. 10, 1945. 151 Landsman, Crimes of the Holocaust, supra note 44; M. Cherif Bassiouni, Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299–306 (2004). 152 See generally Arendt, Eichmann in Jerusalem, supra note 114; Gideon Hausner, Justice in Jerusalem (1966).



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This approach differs from the approach taken in the trial of Saddam Hussein, which ultimately proved very little as to the facts and failed to clearly establish the guilt or innocence of the defendant which was not really at issue based on the publicly known facts of his actions.153 Since 1945, much has occurred to correct the deficiencies of the IMT and IMTFE. At the normative levels, genocide and war crimes have been codified, though regrettably crimes against humanity and aggression have not. The latter two, however, have been embodied in customary international law and enforced at the international and national levels. The statutes of the ICTY, ICTR, and ICC satisfy the requirements of the “principles of legality,” which were questionable in the IMT Charter and IMTFE Statute. The procedure of norms reflected in the law and practice of the ICTY, ICTR, and ICC are up to the world’s best standards of fairness and due process, contrary to the practices of the IMTFE and, to some extent, the IMT. The principles of criminal responsibility and other aspects of the “general part” of criminal law have been posited in the statute of these post-1994 international tribunals, and expanded by their respective jurisprudence. No matter how much comparative criminal law experts criticize these norms and that jurisprudence, the justice they represent is equal in standing to that of the best national justice systems of the world—and this is substantial progress for ICJ. To point out the legal and procedural weaknesses of ICJ, as well as its political manipulations, is necessary to those who wish to improve the future of ICJ. However, at this point in its history, ICJ cannot risk being undermined by criticism. Perhaps more importantly, the ICTY and ICTR have demonstrated how well international judicial institutions can function, what high level of integrity can be attained, how impartiality can be consistently respected, and how judges, prosecutors, and registrar staff can work together to bring about working institutions. Despite the initial mistakes or costs, the ICTY and ICTR have made an indelible mark on ICJ. The same can be said of the Sierra Leone Tribunal, which deserves to be placed in that same category of honor,154 followed by the lesser-known, under-funded, and unsupported Bosnia and Herzegovina Court. Not so, however, for what is really a mere pretense of justice, the Cambodia Court.155 The Timor-Leste and Kosovo Courts stand in between these two models. As to the Lebanon Tribunal, it was and still remains a political instru153 See M. Cherif Bassiouni & Michael Wahid Hanna, Ceding the High Ground: The Iraqi High Criminal Court and the Trial of Saddam Hussein, 39 Case W. Res. J. Int’l L. 21–97 (2007); see also Ayman Salama, Mohammad Ayat, Michael Wahid Hanna, & Sinem Taskin, Regional Report on the Arab World, in 2 The Pursuit of International Criminal Justice, supra note 16, at 5. 154 For a comprehensive assessment of the Taylor Trial, its positive impact and its limitations, see Human Rights Watch, Even a “Big Man” Must Face Justice, Lessons From the Charles Taylor Trial (July 2012). 155 For a recent critical assessment of the ECCC, see Stephanie Giry, Necessary Scapegoats? The Making of the Khmer Rouge Tribunal (July 23, 2012), http://www.nybooks.com/blogs/nyrblog/2012/ jul/23/necessary-scapegoats-khmer-rouge-tribunal/.

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ment of U.S. foreign policy; as such, it is a blot on the history of ICJ, no matter how professional and politically neutral its judges, prosecutors, and staff may be. What the legacy of these institutions is likely to be after 2012, particularly with respect to the ICC, can only be speculative. There are, however, some legacies of the IMT and IMTFE that must be corrected, if for no other reason than to expunge certain dark blots from their record. The IMT’s record needs to be corrected by including a corrigendum addendum to the effect that the wholesale slaughter of some twelve thousand Polish officers in the Katyn Forest was not carried out by the German Wehrmacht, but by the Red Army,156 and by disclosing that the U.S.S.R. conspired with Nazi Germany in its invasion of Poland through the Molotov-Ribbentrop secret agreement on dismembering Poland and splitting it between the two states.157 For the IMTFE, the corrigendum addendum should include reference to the failure to address the Emperor Hirohito’s responsibility for the war, the failure to prosecute the Emperor’s uncle for the Nanking atrocities,158 and the failure to properly address those who are still shamefully addressed as the Korean “Comfort Women.”159 In connection with both the IMT and IMTFE, an admission should be made about the one-sided application of justice by excluding Allied crimes, including the firebombing of Dresden, Germany in 1945, which killed an estimated 35,000 civilians, and the American nuclear bombing of the Japanese cities of Hiroshima and Nagasaki in 1945, which killed an estimated 200,000 civilians and later many others as a result of radiation.160 None of these cities were military targets and their populations were protected under the 1907 Hague Convention; however, no one was prosecuted on the victorious Allies’ side. These and other flaws in the foundations of ICJ must be corrected, or at least admitted, in order to lend it credibility and integrity. Otherwise, the flaws will remain, giving validity to the claims of ICJ detractors that double standards and exceptionalism exist. These claims are implicit in the current support by African and Arab states for Sudan’s President Omar Al Bashir, who was indicted by the ICC prosecutor for crimes in Darfur.161 More explicit arguments contend that

156 See J.K. Zawodny, Death in the Forest: The Story of the Katyn Forest Massacre 16–25 (1962). 157 See generally Izidors Vizulis: The Molotov-Ribbentrop Pact of 1939: The Baltic Case (1990). 158 See Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II 172–80 (1997). 159 See generally George L. Hicks, The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War (1997); Yoshiaki Yoshimi, Comfort Women (Suzanne O’Brien trans., 2002). 160 See Genbaku Saigaishi Henshu Iinkai, Hiroshima and Nagasaki: The Physical, Medical, and Social Effects of the Atomic Bombings 113–14 (1981). See generally Malloy, supra note 43. 161 See Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009).



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George W. Bush, as Commander-in-Chief of U.S. forces, caused more Iraqi civilian deaths than the deaths allegedly caused by Al Bashir in Darfur. Spurious as that argument may be, it captures the claim of double-standards. This situation was never referred to the ICC by the Security Council, nor will it ever be. Ergo sum, say those who raise the question of double standards and exceptionalism. In 1948, just a few years after the IMT and IMTFE were established, the Cold War brought ICJ to a halt. ICJ did not recommence until 1992, when the Security Council established, pursuant to Resolution 780, the Commission of Experts to Investigate Violations of International Humanitarian Law in the Former Yugoslavia Between 1991 and 1994.162 Since then, ICJ has progressed farther than it had during the period of 1919 to 1994. The progress made by international criminal justice since the end of WWII, but particularly since 1992 when the Security Council established the Commission of Experts to Investigate Violations of International Humanitarian Law in the former Yugoslavia Pursuant to Resolution 780 (1992) and culminating with the establishment of the ICC in 1998, should not be taken for granted as evidencing irreversible growth. Whether for political reasons, financial costs, or any other reason, ICJ as we have come to know it is not to be taken for granted. New realities in a globalized society may bring about new priorities. Whether climate change or other unknown or unforeseeable circumstances, global society may find itself confronted with new dangers and challenges which would make concerns for ICJ of much lesser significance than what they are today. It could very well be that the need for security in light of expanded terror violence, particularly if weapons of mass destruction are used, may well supersede what would then appear to be legal niceties. In other words, the pursuit of security might well trump some of the values which today are considered to be paramount in the scale of commonly-shared international values. If indeed security becomes paramount, or if natural hazards arising out of cataclysmic events flowing from climate change bring about a transformation in the priority rankings of values and concerns by the international community, ICJ as we know it may wither away or disappear. Such contingencies which may appear remote or unlikely, are not, however, devoid of any foundation in the emerging realities of a globalized society which is consistently enhancing its collective decision-making processes in economic and financial fields. Such progress, however, does not include ICJ. In fact, continued affirmations in what can be called a galloping globalized society of human rights and justice values are not based on any empirical data and do not reveal the emergence of any new institutions designed to strengthen either human rights

162 See U.N. Sec. Council, Comm’n of Experts, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. Doc. S/1994/674 (May 27, 1994).

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or ICJ. One can therefore conclude that at best the international community’s commitment to human rights and ICJ are of a hortatory or aspirational nature, as opposed to being evidenced by the establishment of new institutions or the reinforcement of old ones to strengthen human rights and justice.163 8.3. The Third Stage The third stage will likely begin in January 2015. By then, the two ad hoc tribunals established by the Security Council, the ICTY and ICTR, will have finished their work because the Security Council cuts off their funding that year.164 There will be some residual functions that one or more judges will carry on with a few staffers, but there will be no new cases. By 2014, most of the mixed-model tribunals will also have been shut down. The states that brought about these institutions will have concluded that they have given ICJ enough, and that the beneficial effects of their proceedings are not enough from a cost-benefit standpoint to continue their existence. Admittedly, the costs of contemporary ICJ are high, particularly those of the ICTY, followed by the ICTR and the ICC. That is not the case, however, with respect to the mixed-model tribunals. A quantitative analysis is always fraught with dangers of oversimplification and trivialization. Conducting a cost-benefit analysis of the “price” of justice risks devaluing the importance of ICJ. Perhaps that is one of the relevant ways to approach the quantitative analysis of ICJ. Between 1994 and 2012, the ICTY, ICTR, and ICC indicted 278 persons. At the ICTR 92 individuals were indicted. Of these, 44 were convicted (including one for perjury), 10 were acquitted, three were transferred to national jurisdictions pursuant to Rule 11bis of the Rules of Procedure and Evidence, two indictments were withdrawn by a decision of the prosecutor, and three accused died before being transferred to the ICTY or prior to the conclusion of their trials. Trials are ongoing for three accused, while 18 are on appeal and 1 is in pre-trial proceedings. There are nine indictees at large who will be tried by the International Residual Mechanism for International Courts, following Security Council Resolution 1966.

163 See generally, M. Cherif Bassiouni, International Criminal Justice in the Era of Globalization: Rising Expectations, in The Global Community: Yearbook Int’l L. & Jurisprudence 3–14 (2006); Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in 1 Yearbook Int’l L. & Jurisprudence 5 (2008); Richard W. Mansbach, The Great Globalization Debate, in 1 Yearbook Int’l L. & Jurisprudence 21 (2008). 164 As early as 2003, the U.N. Security Council began calling for the closure of the ICTY and ICTR by 2010. It has now extended the deadline to 2012. See Press Release, Security Council, With 2010 Completion Target for Yugoslavia War Crimes Tribunal Unlikely to be Met, Security Council Calls for ‘Quick and Efficient’ Conduct of Trials, U.N. Doc. SC/9549 (Dec. 19, 2008).



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At the ICTY 161 individuals were indicted. Of these, 64 individuals were convicted, 13 acquitted, 13 transferred to national jurisdictions pursuant to Rule 11bis of the Rules of Procedure and Evidence, 20 indictments were withdrawn by a decision of the prosecutor, and 16 accused died before being transferred to the ICTY or prior to the conclusion of their trials. Trials are ongoing for 16 accused, while 17 are on appeal and two are in pre-trial proceedings. At the ICC 28 individuals have been indicted. The Pre-Trial Chamber refused to confirm the charges against three individuals. Of the 25 individuals for whom charges were confirmed: one has been convicted, three are in trial and eight are in pre-trial proceedings. Of the remaining indictees, 10 are at large, one is in custody in Libya, one is in custody in Mauritania and two are deceased. There are twenty-six judges for the ICTY (seventeen permanent and nine ad litem), twenty-four judges for the ICTR (thirteen permanent and eleven ad litem), and eighteen for the ICC. In 2008 and 2009, the three tribunals employed over 3,200 prosecutors, investigators, registrars, and administrative and security personnel. The approximate cumulative costs through the end of 2011 are as follows: for the ICTY, billion; for the ICTR, $1.7 billion; and for the ICC, $1.1 billion (€830 million). The average approximate cost per indictment for the ICTY is $11.2 million; for the ICTR, $18.5 million; and for the ICC, $39 million (€29.5 million).165 How to qualitatively measure the justice impact of the ICTY, ICTR, and ICC is far from easy. The ICC is much too new to accurately assess its impact. The two others have a longer and better-established record, but still, there are no agreedupon criteria by which to make qualitative assessments of ICJ. How do we assess outcomes, and by what criteria do we compare them with similar international institutions or, for that matter, with the world’s 198 national judicial systems?

165 These costs are estimated per indictment, which includes, among others, individuals who are transferred to local jurisdictions, whose cases are dropped by the prosecution, who are at large or whose charges are not confirmed. If these numbers are factored the approximate costs rise substantially. The costs rise most sharply for the ICC, where a sizable portion of indictees are still at large, and the ICTY, where nearly a third of all indictees where either transferred to national jurisdictions or the indictment was withdrawn due to the death of the accused or on the prosecutor’s motion. There are a number of smaller tribunals of note, including the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL). The SCSL indicted 13 individuals, eight of whom were convicted, one is at trial, two are deceased and one is at large (although presumed dead). The SCSL has had a cumulative budget of approximately $265.5 million, or $20.5 million per indictee. The Investigating Judges of the ECCC have indicted five individuals and are investigating another five unnamed individuals. The trial chamber has convicted one and is trying another three, while the fifth is being evaluated for her competence to stand trial. The ECCC’s Investigating Judges are examining evidence related to another five individuals, although the investigation was been fraught with difficulties between the international and the Cambodian staff, leading to the resignation of successive international investigative judges. The total cost of the ECCC is approximately $143.8 million. The STL has indicted 4 individuas for crimes surrounding the death of Rafik Hariri and launched investigations into three “Connected Cases”. Through the end of 2011 the STL had budgeted $174.1 million.

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Few empirical studies have been undertaken and few sociological or sociopsychological studies have been done to measure impacts and perceptions. We are, therefore, left with general impressions derived from limited facts and selective observations. The costs of prosecutions in national criminal justice systems are usually a small proportion of what is contained in national budgets, usually not more than five percent. Even for states like the U.S., the costs of individual trials is relatively limited. On occasion, there are exceptional cases such as the Oklahoma bombing case, which cost an estimated $82 million; and the special prosecutor’s costs to bring impeachment charges against President Clinton, which cost $45 million. But across the fifty states, as well as within the federal criminal justice system, complex violent crimes cases do not average upwards of $10 million per case, as is the average cost per case before the ICTY, ICTR, and ICC. Governments and legislative bodies in most countries are not likely to see the merits of having an international system of justice that costs so much, particularly in relation to what they are likely to perceive are the positive outcomes of these trials on peace and security. In other words, a cost-benefit analysis is inevitable, as is a comparison between national and international costs, and that would not be favorable to ICJ. Since addressing conflict and the need to minimize human harm is essentially a moral/ethical obligation, it is difficult to address issues of economic costs in connection with the moral/ethical need to prevent human conflict and minimize its human consequences. Nevertheless, addressing the human and economic costs of conflicts are relevant to decision-makers, both in connection with the prevention of conflicts by means of addressing the economic necessities of failed states or states which are about to fail, and eventually the costs of military intervention or eventual prosecution. These costs will necessarily be assessed by governmental decision-makers in relationship to states interests, as well as in comparison to other costs that may arise as a result of non-intervention in the prevention or minimization of a given conflict. The Darfur situation can be used as an example. The crisis which has developed over a decade as a result of expanded desertification in that region of the Sudan. Desertification has meant that herder tribes have significantly reduced access to water and grazing land, which resulted in their encroachment upon the farmers’ lands. While both groups are black African and Muslim, they nonetheless belong to different tribes. However, it is not the tribal distinction that caused the conflict, but rather access to water and grazing land. Thus it was essentially an economic issue. If an emergency economic conflict prevention plan existed a number of wells could have been dug, or other means of obtaining water supply or feed could have prevented the conflict. Assuming for the sake of argument that providing water supply by means of wells or by means of a pipeline even as distant as the Nile, as well as transporting feed via certain cities in the Sudan,



reflections on international criminal justice: past and future 1033

would have cost $100 million, that have been an effective conflict prevention cost in light of the potential human and material costs of the predictable conflict. Moreover, such an economic cost connected to conflict prevention would have been justified in light of the billions that could have been predicted in connection with preserving and maintaining peace after the conflict erupted. All of these considerations are based on purely economic factors, and do not take into account the moral/ethical question of the human cost. If that were the case, one would ask whether a $100 million conflict prevention cost would have been a more effective use of funding than the exposure of the two conflicting groups to what ultimately became an estimated 250,000 people killed and two million refugees. In comparing costs, it is necessary to examine the costs of peacekeeping operations and humanitarian assistance which have averaged an estimated one to six billion dollars a year in the past five years. In addition, it also behooves government to consider, reverting once again to a more prosaic economic cost analysis and cost benefit evaluation, to compare the costs of peacekeeping and the maintenance of peace in relationship to the costs of military intervention for the prevention of conflicts. Using the Darfur conflict as an example, peacekeeping and humanitarian operations costs have exceeded an estimated $6 billion in only the last five years. An examination of the U.N. peacekeeping operations to 2008 reveals an estimated cost in excess of $61 billion, and that does not include an estimated worldwide cost of $50 billion in humanitarian assistance to civilian populations in war-torn or conflict torn areas. Another factor which has to also be assessed in both human terms as well as economic terms is the number of refugees and displaced persons caused by conflict, including internally displaced persons. An estimate for the last two decades reveals that there are between 20–25 million internally displaced persons in the world, and as many as 70 million persons who fall in the category of refugees. Admittedly in these considerations it is difficult to anticipate what the human and economic costs of conflicts may be, but it is also wishful thinking to assume or hope that emerging conflicts will simply wither away. A comprehensive strategic approach involving a variety of techniques is needed. The direct and indirect costs of war, the costs of foreign and universal jurisdiction intervention, humanitarian assistance, and stabilization and reconstruction should become the basis for understanding how to prevent conflicts and bring them to an end more quickly. Chief among these considerations are the economic conditions of Least Developed Countries (LDCs) and failed or failing states and the prospects for conflicts that they represent. These observations reveal what is quite obvious, namely, that there is both a human and economic cost to conflict. Many studies have been undertaken by economists and social scientists showing the different estimations of these costs, yet somehow it seems that decision-makers at the government levels, as well as

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IGOs, are either not well informed of these cost dimensions, or they prefer to ignore them. The emphasis on PCJ modalities must not be a way for government and IGO decision makers to avoid dealing with the human and economic costs of conflicts, with the assumption that post-conflict justice, particularly prosecutions, can serve as effective conflict prevention mechanisms. There are no available studies that can demonstrate either the effectiveness of deterrents or the prevention outcomes of post-conflict justice. The data available is anecdotal, and the conclusions drawn are based on common experience. How can we measure the impact on a victim population of head of state criminal responsibility who stood trial like Kambanda, the Rwandan head of state; Milosevic, the Serb head of state; and Taylor, the Liberian head of state? If in 1950, one would ask how much would it have cost for having ICJ establish head of state international criminal responsibility and bring three brutal ones to trial, what would the answer be? Can anyone put a price tag to it? Most people evaluate ICJ institutions on the basis of common sense. The first question they ask is why the ICTY and ICTR do not have their respective seats in the conflicts’ territories, where they would have had a much greater impact on the interested population. Moreover, their presence in these territories would have enhanced national capacity-building where it would have been most needed. If the ICTY and ICTR had been located in Sarajevo and Kigali instead of The Hague and Arusha, their impact would have been far more significant to the victim populations, and they would have helped promote a greater sense of justice and closure for the victims. Locating these tribunals where the conflicts occurred would have employed locals, whose training and work in these international institutions could have transferred much needed expertise to their national legal systems, and also would have lessened costs. The ICTY, ICTR, and ICC employed in 2008–2009 fifty-six judges and some 3,200 other personnel.166 Cumulatively, an estimated five thousand staff persons and 130 judges have been involved in these institutions. They constitute a pool of individuals who possess some knowledge of ICL and of the functioning of ICJ institutions. If nothing else, these institutions provide for an admittedly expensive international training program. Their benefits include the fact that there is now, more than ever, a constituency for ICJ. This will make a difference in the future because there is a new professional category offering career opportunities. More importantly, let no one underestimate the survival powers of bureaucracies once institutions are established.

166 Statistics about these tribunals can be found on their respective websites: International Criminal Tribunal for the Former Yugoslavia, http://www.icty.org (last visited Nov. 11, 2011); International Criminal Tribunal for Rwanda, http://www.ictr.org (last visited Nov. 11, 2011); International Criminal Court, http://www.icc-cpi.int (last visited Nov. 11, 2011).



reflections on international criminal justice: past and future 1035

Yet there is surely more to it. How can we objectively assess the real and symbolic meaning and impact of seeing the twenty-two major Nazi criminals stand in the dock at Nuremberg,167 and the twenty-eight major Class A criminals stand in the dock at Tokyo?168 How can we assess the impact of what is probably one of the most direct manifestations of ICJ, when the helicopter carrying Charles Taylor on March 29, 2006 flew from Freetown, Sierra Leone, over the city, heading to the site of the Sierra Leone Special Chambers, with throngs of people who had suffered from Taylor’s war walking along the road and chanting beneath his helicopter? When the helicopter landed at the Tribunal’s site, there was a brief moment of silence, followed by an explosion of applause. For the people of Sierra Leone, that was a palpable sign of ICJ. How can we measure the impact on a victim population of trials of heads of states, such as Jean Kambanda, the Rwandan head of state; Slobodan Milošević, the Serb head of state, and Taylor, the Liberian head of state? If in 1950, one asked how much it would cost to establish head-of-state international criminal responsibility and bring three brutal ones to trial, what would the answer be? It would be difficult to put a price on it. International prosecutions have been sporadic, limited in number, high in cost, and selective. More significantly, no one from the five states that are permanent members of the Security Council has ever had to face an international criminal trial. The inference, if not presumption, of exceptionalism is self-evident. However, exceptionalism goes even further. It includes, on occasion, heeding the wishes of these major powers regarding whom to prosecute, on what charges, and when. Thus, it becomes an exercise in political hegemony. For sure, no evidence allowing such exceptionalism or hegemonic influence appears anywhere. There are no fingerprints, but those working in the vineyards of ICJ get the message. If not, they unexpectedly find their work slowed down by bureaucratic entanglements, dried-up funding, and negative media publicity, followed by personal attacks on those who fail to get the message, and the threat of removal from office one way or another. To those who have never been in the system, it is difficult to see why and how certain things happen. They happen in ICJ because there is no transparency or accountability. There are no institutional checks and balances likely to prevent political influence, let alone to correct or redress its excesses. In the area of ICJ, states abuse their power internally and externally, and with much higher expec167 See generally Eugene Davidson, The Trial of the Germans: An Account of the TwentyTwo Defendants Before the International Military Tribunal at Nuremberg (1966); Perspectives on the Nuremberg Trial (Guénaël Mettraux ed., 2008). 168 See generally Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008); Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trials (2001); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008).

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tations of getting away with it. The only factor that can be countervailing is the mass media and the reactions it can engender in world public opinion. However, that is a temporary solution. Those who abuse power in the arena of ICJ only have to wait for any media storm to blow over. Unless the facts disclosed are outrageous, these abuses usually quickly recede from public attention, or someone else is held accountable as a scapegoat. The bottom line is that those who comply with the political wishes of the powerful are more often than not rewarded, and those who do not are surreptitiously punished. There are no rewards for virtue. Those who follow their duty may, at best, be briefly remembered or lauded on their way down and out, after which they are soon forgotten. 8.4. Tokenism, Symbolism, and Head of State Prosecution To prosecute a few for the crimes of many is tokenism and intended only to convey the appearance of justice. It is, however, symbolic and thus meaningful when the selection of the few is representative of the many. At Nuremberg, twentytwo major criminals were tried. They were the leaders of the political, military, economic, and social institutions whose powers were marshaled to bring about the institutionalized capability of Nazi Germany. Millions were in one way or another involved in producing this outcome, but only a few were prosecuted. The representative and leadership roles of these individuals in producing these outcomes made them the appropriate symbols to prosecute. The same occurred at the Tokyo Trials with twenty-eight persons brought to trial. Unlike Nuremberg’s twenty-two defendants, the Tokyo twenty-eight were not all major criminals. Moreover, some who belonged in the symbolic category at Tokyo, such as the Emperor and his uncle, were excluded from prosecution. Where to draw the line between tokenism and symbolism is in large part judgmental, and includes political considerations. However, there is seldom a stronger symbol than the prosecution of a head of state. Equally true is the proposition that there is nothing more politically judgmental than prosecuting a head of state. Experience shows that these prosecutions occur only when the state in question has been defeated and the victorious power decides to prosecute. Even so, that decision depends on how politically useful the head of state may prove to be for post-conflict peace purposes. For example, when World War I came to an end in 1919, Europe’s leaders, who were mostly monarchs, were not about to prosecute one of their own any more than the European monarchs were willing to prosecute Napoleon in 1814 and 1815. The difference one hundred years made was that it became impossible to rule out the possibility of head-of-state prosecution. A mere twenty-six years after the end of World War I, the principle was established in the Nuremberg Charter and Tokyo Statute. The German head of state, Adolf Hitler could not be prosecuted, having committed suicide before the fall of Berlin, but his des-



reflections on international criminal justice: past and future 1037

ignated successor Hermann Goering was prosecuted and convicted.169 In Japan, Emperor Hirohito was spared trial by General Douglas MacArthur, the Supreme Allied Commander in the Far East. The reason was political, but it was couched in terms that for all practical purposes exonerated Hirohito of active criminal responsibility in the initiation of an aggressive war, even though the war could not have been initiated without his tacit consent. The argument was that, since Hirohito was not involved in conducting the war, he could not be deemed responsible for the crimes committed by Japanese forces under the theory of command responsibility.170 This was a far more restrictive interpretation of command responsibility than the U.S. applied to General Yamashita, the Japanese military commander of the Philippines in the last few weeks before the end of the war.171 Thus, the U.S., acting through MacArthur for purely political and personal reasons, shielded the Japanese head of state and distorted the law of command responsibility in the prosecution of one of Japan’s senior generals. Conversely, the Emperor’s uncle, Prince Yasuhiko, who directed the Japanese military invasion of Chinese Manchuria, and who gave the order for the “Rape of Nanjing,” was spared prosecution.172 In that attack, an estimated 250,000 Chinese civilians were killed, thousands of women were raped, and the city was pillaged and destroyed. These were unquestionably war crimes, but MacArthur deemed that protecting the Emperor and his uncle would be more beneficial to the U.S. occupation and pacification of Japan than to prosecute these two symbols of popular reverence, even though they were also symbols of “crimes against peace,” “crimes against humanity,” and “war crimes,” as specified in the Tokyo Statute. Things did not change much over the ensuing years, as the Cold War brought a halt to ICJ and the prosecution of heads of state. However, a breakthrough 169 Goering committed suicide in his cell the night before he was to be executed. See Davidson, supra note 167, at 96. 170 See generally L.C. Green, Superior Orders in National and International Law (1976); William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 5 (1973). 171 Token prosecutions also served political interests after World War II. The case in point occurred in 1946 when General MacArthur had Japanese General Yamashita tried before a U.S. Military Commission in the Philippines. Yamashita v. Styer, 327 U.S. 1 (1946). Yamashita was charged for war crimes under the doctrine of command responsibility. Troops under his command had committed atrocities against Philippine civilians. However, Yamashita neither ordered these atrocities, nor was he aware of their commission. Even if he was aware of their occurrences, he had no effective control over the troops that committed them. He was found guilty by the U.S. Commission, whose members were acting under the command influence of MacArthur. The novel theory, never used since, was that “he should have known.” Yamashita was executed. His appeal to the U.S. Supreme Court was rejected over the strong principled dissents of Justices Murphy and Rutledge. The punishment of Yamashita was simply retribution by MacArthur for his 1942 defeat by the Japanese in the Philippines. Like Peter von Hagenbach in 1474, Yamashita was a political scapegoat. See generally A. Frank Reel, The Case of General Yamashita (2d ed. Octagon Books 1971) (1949). 172 See Chang, supra note 158.

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occurred in the statutes of the ICTY (1994) and the ICTR (1995). Even so, many suspect that in the 1995 Dayton Accords that brought an end to the conflict in the former Yugoslavia, Richard Holbrooke, the U.S. peace negotiator, offered the heads of state of Serbia (Milošević), Croatia (Franjo Tuđman), and Bosnia (Alija Izetbegović), de facto immunity. Most assuredly Milošević should have been prosecuted by the ICTY, but there was not even an active investigatory file opened until May 1999, when he started an ethnic cleansing campaign in Kosovo.173 That is when the presumed Dayton deal was off, and Milosevic was surrendered to the ICTY for trial. He later died during the proceedings. Another case was the disgraceful Lomé Agreement, which ended the war in Liberia and Sierra Leone. The war was initiated in Liberia by Charles Taylor, who plunged two countries into devastating human destruction for his personal enrichment.174 Since the major Western powers did not want to send their military forces to stop the war and remove Taylor’s criminal organization from power, the only inducement was to offer Taylor immunity. Part of the deal was for him to receive asylum in Nigeria and for the proceeds of his blood diamonds to be spent on the “development of the people of Sierra Leone.”175 It was only in September 2003, when the international community’s opposition to this blatantly illegal and immoral deal increased and Taylor could no longer have a negative impact on peace in Liberia and Sierra Leone, that he was surrendered by Nigeria and brought to trial before the Special Court of Sierra Leone in March 2006. Another example, which is rarely addressed by scholars or experts, is the case of General Raoul Cédras, the de facto head of state of Haiti from 1991 to 1994. The U.S. sent in troops to restore the legitimately-elected president, Jean-Bertrand Aristide, who was deposed by Cédras. To avoid American casualties, then President Clinton sent former President Jimmy Carter and General Colin Powell, the Chairman of the Joint Chiefs of Staff, to negotiate the voluntary departure of Cédras to Panama, where he received asylum. Cédras still lives there, with an

173 Even though this author, as Chairman of Security Council Commission 780, concluded in his report that there was enough material to indict or at least further investigate Milošević for his command responsibility in military activities in Bosnia and Croatia between 1991 and 1994, the first two ICTY prosecutors did not follow up on that material. It was only after Serbia’s ethnic cleansing attack on Kosovo that the third prosecutor first indicted Milošević for the Kosovo attack and subsequently expanded the indictment to include previous conduct between 1991 and 1994. See generally Prosecutor v. Milosevic, Case No. IT-99-37, Indictment (May 22, 1999); Carla del Ponte with Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (2008). 174 See Greg Campbell, Blood Diamonds: Tracing the Deadly Path of the World’s Most Precious Stones 89–94 (2002). 175 Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone art. VII, July 7, 1999, annex to Letter Dated 12 July 1999 from the Chargé D’Affaires Ad Interim of the Permanent Mission of Togo to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/1999/777 (July 12, 1999).



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undisclosed financial settlement. In this case, as in others, criminal responsibility was sacrificed for political expediency. Political punishment has historically been preferred over prosecutions of heads of state, and this phenomenon remains extant, notwithstanding some token prosecutions of former heads of state. Contemporary post-conflict justice practices attest to the present viability of this approach for senior leaders of regimes who have committed international crimes. Lustration is one of these mechanisms. Traditionally meaning a ceremonial offering or purification, modern lustration consists of widespread disqualification from governmental positions of those individuals associated with the previous regime. It was used after 1989 in several Eastern and Central European states instead of prosecutions.176 The few token prosecutions that did occur after 1989 in these countries were intended to provide de facto impunity for the perpetrators of many atrocities that had been committed in these communist regimes under the U.S.S.R.’s hegemony from 1945 to 1989. Such was the case in Germany after its reunification, with the token prosecutions of three East German border guards who killed a few civilians trying to escape East Germany and of some leading politicians of the Democratic Republic of Germany.177 That was the extent of prosecutions for years of violent repression and torture in the Communist East German regime. Another example is Romania after the fall of the Ceauşescu Communist regime. That tyrannical ruler was tried and executed, but no one else in this repressive regime was ever tried for the many crimes committed between 1945 and 1989.178 This tokenism is no stranger to the practice of ICJ since the end of World War II. It is the fig leaf cover that conveys to the public the perception of justice, while in fact allowing the many who should have been prosecuted to benefit from impunity. Above all, the token prosecutions serve as a way of cleansing societies from their collective responsibility. The French collaborationist government of Vichy during World War II was cleansed after only three post-World War II prosecutions of Barbie and Papon. In contrast, many European countries occupied by Nazi Germany conducted prosecutions for collaboration with the occupier. These prosecutions seldom extended to international crimes, as did the prosecutions at Nuremberg and before the Allied tribunals pursuant to Control Council Law No. 10, which allowed each of the four major Allies to prosecute Germans in

176 See Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, in Post-Conflict Justice, supra note 16, at 345; Monika Nalepa, Lustration, in The Pursuit of International Criminal Justice, supra note 16, at 735. 177 See Peter E. Quint, The Border Guard Trials and the East German Past—Seven Arguments, 48 Am. J. Comp. L. 541, 542 (2000). 178 See Giuliano Vassalli, Formula di Radbruch e Diritto Penale [The Radbruch Formula and Criminal Law] 224–75 (2001) (describing post-World War II prosecutions in Germany and in East Germany).

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their respective zones of occupation. Germany, to its credit, prosecuted many of its citizens who committed international crimes during World War II. Even though the substantive immunity of heads of state was overturned by the IMT’s Charter, temporal immunity survives today and has been confirmed by the International Court of Justice’s 2002 decision in Congo v. Belgium.179 There, the Court noted that the ICC’s Article 27 removes this immunity, but the lingering effects of head-of-state immunity still exist, as evidenced by the Al Bashir case.180 Al Bashir was the Sudanese head of state, whom the ICC Prosecutor, in 2008, charged with “crimes against humanity” and “war crimes” in Darfur. He received support from most African and Arab heads of state on the basis of their interpretation of head-of-state immunity. Understandably, most of these heads of state obtained their positions through undemocratic processes, and most of them engage in serious and consistent human rights violations. Thus, they have every interest in protecting a notion that also inures to their mutual benefit. To their credit, South Africa and Botswana, who are state parties to the ICC, announced that they would arrest Al Bashir and surrender him to the ICC if he entered their respective territories. Paradoxically, the pro-Al Bashir campaign by African and Arab states make the ICC better known in these countries, and this may lead in the future to the domestication of international crimes and to national prosecutions, as is the case in some Latin American countries like Argentina and Chile. It is not only African and Arab heads of state who are concerned about being prosecuted internationally. One has only to recall the great lengths that the United Kingdom and Chile went to in order to save Augusto Pinochet from extradition to Spain in 2000.181 The opposition of the U.S., Russia, China, and India to 179 See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14); see also M. Cherif Bassiouni, Universal Jurisdiction Unrevisited: The International Court of Justice Decision, in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 12 Palestine Y.B. Int’l L. 27, 27–48 (2002–03). 180 The position of Sudanese President Omar Al Bashir and his government is that temporal head of state immunity applies to him, even though Article 27 of the ICC statute removes it, because the Sudan is not a state party to the statute. Since the situation of the Sudan was referred to the ICC by the U.N. Security Council, that referral should have been made on the basis of the applicability of customary international law, which recognizes the temporal immunity of sitting heads of states. 181 See R v. Bow St. Metro. Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte (No. 1), [2000] 1 A.C. 61 (H.L. 1998); Christine M. Chinkin, United Kingdom House of Lords, (Spanish Request for Extradition): Regina v. Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), 93 Am. J. Int’l L. 703, 704 (1999); see also R v. Bow St. Metro. Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 225–29 (H.L. 1999). What is more telling about the crimes committed under the Pinochet regime is the relatively low number of victims—three thousand. Yet in Chile, there is a political will expressed by the people to pursue justice. In comparison, this will does not exist in the Sudan, where in Darfur some 250,000 persons are estimated to have been killed, two million or more have become refugees, and many women have been raped. ICJ is always best served when the demand for it comes from the bottom up. When the people in a given society demand justice, it is more likely to happen. What constitutes the difference among societies is the value they place on justice and their levels of indignation toward injustice.



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the ICC is in no small measure due to these countries’ concerns for their heads of state—present and past—and for their senior military and civilian leaders. Section 9. Assessment From both an ethical and moral perspective, there is no price tag for doing what is right; there is no utilitarian test that can measure the objective outcomes of doing the right thing. To curtail impunity for core international crimes and to have enhanced accountability, no matter by what margins, is an accomplishment that the international community should herald. Sometimes even what appears to be a failure can still have some successful outcomes. Pinochet was not extradited to Spain and he was not tried in Chile, but the hue and cry produced ultimately resulted in the September 2009 arrest by the Chilean Prosecutor General of 129 officers who carried out that country’s dirty war. The rejection by African and Arab states of the ICC’s arrest warrant of Sudanese President al-Bashir caused all of those states and their populations to become more aware of the ICC and the crimes it prosecutes. In September 2009, the Sudanese Parliament adopted a revision to Chapter 18 of its Criminal Code, adding the three crimes within the ICC’s jurisdiction in order to use that law for eventual national prosecutions. It is unlikely that the Sudanese regime’s goal is to carry out prosecutorial responsibilities under the ICC’s complementarity regime, but rather to use it as a shield to avoid surrendering its senior officials. No matter what today’s manipulative purpose may be, however, this law may one day become effectively and fairly applied. After all, the failures of ICJ in the aftermath of World War I ripened into what developed after World War II. These are the ways in which ICJ progresses. This recent phase in ICJ’s history saw the establishment of new institutions and the development of norms and jurisprudence. Above all, this phase witnessed normalization (in the French sense of normalité) of ICJ. It is no longer exceptional, and it is increasingly seen as simply another dimension of ordinary criminal justice practiced at the international level. Another significant result of recent experiences with ICJ is the fact that there is now an experienced constituency of judges, prosecutors, investigators, and administrators of ICJ who can staff new institutions and also their own national justice institutions. This experienced pool of ICJ operators is likely to make “complementarity” between national and international justice institutions a reality. Another important constituency is the generation of young jurists who study ICL, a subject taught in law schools all over the world. Generations of jurists in all countries have not only become knowledgeable of ICJ, but supportive of it. Academics and their writings have given the subject greater recognition and acceptance. ICJ is no longer the utopian topic of only forty years ago, when the

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author began teaching ICL in 1971. At that time, the author was the third U.S. law professor to do so, after Gerhard O.W. Mueller at New York University and Edward M. Wise at Wayne State University. Today, there are courses on ICL in at least fifty U.S. law schools, and all international law courses include a component of ICJ. Legal education and publications on ICJ have expanded exponentially in the past decade, and these developments are not likely to be reversed. New constituencies have also developed, such as the more than 1,200 non­ governmental organizations (NGOs) that are part of the Coalition for the ICC, and the more than 5,000 NGOs registered with the U.N. Economic and Social Council who represent human rights groups. It will be through these constituencies that ICJ will continue to grow. Its effectiveness, however, will depend on how fast domestic criminal justice systems will assume prosecutions of international crimes. The future of ICJ will not be with the ICC, but with national criminal justice systems. The struggle for ICJ is still a work in progress, and how it develops and evolves is something history will record. But, as stated above, the biggest inroads made by ICJ is that domestic criminal justice systems are undertaking prosecutions under national laws embodying international criminal law. Today, few recall that national laws on slavery and drug trafficking derive from international treaties. Those who are prosecuted daily in almost every country for drug trafficking are prosecuted because international treaty obligations defining various aspects of drug trafficking have been embodied in national law. When genocide, crimes against humanity, and war crimes are embodied in the national laws of most states, and domestic prosecutions for these crimes take their ordinary course in national tribunals, ICJ will have met one of its primary goals. It is somewhat deceiving to advance ICJ as the international counterpart of domestic criminal justice. The assumptions about deterrence and enforcement are substantially different, as are other factors regarding capacity. International prosecutions and their numbers will always be more restricted than their counterparts in national contexts. ICJ can only aim for symbolic prosecutions of heads of state. Yet, as stated above,182 these prosecutions are the ones most fraught with political considerations, and thus are difficult to pursue. Reliance on national criminal justice systems is indispensable but, in that context, political considerations also have their own weight. ICJ is more likely to develop through national legal systems than through international institutions. The latter’s most effective role is to enhance the prospects of domestication of ICJ by acting as a catalyst and by providing technical assistance and support. Only through sustainable national capacity-building can ICJ truly progress. ICJ will always have a tortuous and painstaking path, consisting of the mutually reinforcing and complementary

182 See supra Chapter IX.



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processes of justice at the international and national levels. How effective that process will be is yet to be ascertained. If war prevention failed, though admittedly some wars were prevented through the collective security system of the U.N., and if the humanization of war failed, even though progress was made under the international humanitarian law regime, what would be left? For many, the answer is ICJ, the basic assumption being that the effective threat of criminal prosecution and punishment will engender a deterrence effect. And, if that does not work, then punishment tout court is deserved. After all, retributive punishment has its own merit as evidenced by the Torah, the Old Testament, and the Qur’an prescription of “an eye for an eye and a tooth for a tooth.”183 Moreover, Talion Law punishment is also presumed to assuage the revenge impulses of individuals and groups who were victimized, though one can hardly point to any evidence that revenge prevents future conflicts—the contrary is more often the case. A glimpse at the state of world conflicts, and the PCJ mechanisms that have been used, reveals the selectivity of ICJ and its insufficient capability of responding to the contemporary needs of justice. The blame for the weaknesses of ICJ rests on states, inter-governmental organizations, and operators of ICJ institutions, for the excessive costs and low efficiency of these institutions. In large part, this blame falls on the United Nations, which administers these institutions in accordance with its own inefficient bureaucratic rules and costly financial standards. If ICJ is to have a hope for success, it will need to free itself from the U.N. bureaucratic and financial system. ICJ is a part of post-conflict justice, applying to conflicts of an international and non-international character alike. Conflicts of a non-international character typically bring about the highest levels of victimization, but the lowest levels of justice modalities, because ICJ does not adequately address the problem of nonstate actors. The significance of this is that these types of conflicts, with such a high volume of victimization and perpetrators, are increasing, while conflicts of an international character are decreasing. Because of this, it is unlikely that ICJ as we know it will be able to address these issues. The era of Nuremberg and Tokyo is over. What, then, is the future of ICJ? When we look at the ICTY and the ICTR over the past fifteen years, handling approximately 170 cases, and the ICC over twelve years handling four cases, how can ICJ cope with a potential thirty to forty conflicts in the world at one time with thousands of victims? The ICJ system is simply unable to deal with such a volume.

183 Exodus 21:23–25 (“[I]f there is serious injury, you are to take . . . eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”) In the Qur’an, “We ordained for them, a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and a [similar] retribution for wounds; but he who shall forgo it out of charity will atone thereby for some of his past sins.” Surah 5:45, The Message of the Qur’an 177 (Muhammad Asad trans., 2003).

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Consequently, the international community needs to focus more on strategies of conflict prevention and to address the issues that give rise to conflict—extreme poverty, poor governance, corruption, and climate change, just to name a few. If more states fall prey to these problems, we will witness more conflicts, and thus more victims and human suffering. The greater the volume of conflicts, the less likely it will be that the ICJ system can adequately address them. The increased willingness of the international community, acting in one form or another, to intervene to stop conflicts is another encouraging sign. This includes collective military action that had never occurred before in history. These are encouraging signs for the reduction of collective violence. A current manifestation of the positive development is the emerging concept of the “Responsibility to Protect” enunciated by the World Summit of Heads of State that took place at the United Nations in 2005.184 However, the current debates of 2009 at the General Assembly reveal a deep cleavage between the Western developed states and Latin America, and states from Africa, Asia, and the Middle East, who claim that this emerging concept is a potential excuse for foreign intervention in their domestic affairs. Moreover, these states claim that double standards and exceptionalism belie claims of universalism and universality.185 They point to the ICC’s exclusive prosecution of Africans and to the Security Council’s only referral to the ICC—the Sudan. The U.N. Human Rights Council’s referral of the Goldstone report on the winter 2009 war in Gaza notwithstanding, there is no sign that the Security Council will refer that situation to the ICC.186 There is also no indication that the U.S. or other states will address the institutionalization of torture under the George W. Bush administration.187 The ICC should prioritize this function in order to make complementarity a reality. In the future, the ICC should address exceptional situations, and certainly should not become a substitute for national justice systems. Above all, the international community must embrace ICJ as an indispensable component of world order. By 2014, the ICTY, ICTR and most of the mixed model tribunals will have come to an end. The ICC will be the only institution of international criminal justice that is left in existence. Whether other institutions as those 184 See Richard W. Williamson, Policy Analysis Brief: Sudan and the Implications for Responsibility to Protect (Stanley Foundation, 2009). See generally Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (2008); Responsibility to Protect: The Global Moral Compact for the 21st Century (Richard H. Cooper & Juliette Voinov Kohler eds., 2009). 185 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81, 137 (2001). See generally Princeton Univ. Program in Law and Pub. Affairs, The Princeton Principles on Universal Jurisdiction (2001). 186 See generally Neil MacFarquhar, U.N. Council Endorses Gaza Report, N.Y. Times, Oct. 17, 2009, at A4. 187 See M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 Case W. Res. J. Int’l L. 389 (2006); see also M. Cherif Bassiouni, The Institutionalization of Torture in the U.S.: Is Anyone Responsible? (2010).



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mentioned above will be created in the future is a matter of speculation. The success of the ICC is therefore a matter of paramount importance to the future of international criminal justice. This success is not likely to be dependent on the number of cases it will handle, for that will always be limited, but rather on its ability to generate complementarity in national legal systems. This may well mean that the primary mission of the ICC should shift to enhancing national capacity in adopting legislation, undertaking prosecutions, and becoming more effective in inter-state cooperation concerning investigations and prosecutions of the ICC’s crimes. A new world order188 in the era of globalization must be based on the following: (1) respect for, and observance of, international and regional human rights, which reflect the international community’s commonly shared values on the dignity of humankind as a whole, and of each and every person in particular; (2) the elimination of conflicts by collective security action based on the “Responsibility to Protect;” (3) economic development to prevent the failure of states; and (4) international measure to enhance the rule of law and support democracy. As expressed in ancient Chinese and Arabic proverbs, “The longest journey begins with the first step.” That first step has been taken by ICJ, and other steps will surely follow. The exigency of justice is part of humankind’s social values, and its course is inexorable. How far and how fast we progress on this journey will depend on individual and collective commitments to attain this laudable goal in which we all have a stake, and in which we all have a role to play. Every one of us can bring a grain of sand to the hill and can thus contribute to the overall result.

188 See Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in 1 The Global Community: Yearbook of International Law and Jurisprudence 2007, at 5 (Giuliana Ziccardi Capaldo ed., 2008); Richard W. Mansbach, The Great Globalization Debate, in The Global Community: Yearbook of International Law and Jurisprudence 2007, supra, at 21. Both of these analyses examine the present state of globalization, noting its impact on collective decision making. These and other writings on globalization accept the assumption that human rights and ICJ are foundational to the processes and values of globalization, yet the studies in the field present no tangible commitment by governments and IGOs to the effective advancement of ICJ. See M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in The Pursuit of International Criminal Justice, supra note 16, at 1; see also M. Cherif Bassiouni, International Criminal Justice in the Era of Globalization: Rising Expectations, in 6 The Global Community: Yearbook of International Law and Jurisprudence 2005, at 3–14.

CHAPTER TWELVE

A Historical Review and Quantitative Analysis of International Criminal Justice Section 1. The Historical Stages of International Criminal Justice ICJ made its way into international practice in several stages. The first period ranges from 1268 until 1815, effectively from the first international criminal prosecution of Conradin von Hohenstaufen in Naples through the end of World War I. The second stage begins with the signing of the Treaty of Versailles and ranges from 1919 until 2014, when it is expected that all of the existing direct and mixed model tribunals will have closed, leaving only the International Criminal Court (ICC). The third impending stage will begin in January 2015, when the ICC will be the primary international criminal tribunal. 1.1. The Early Historic Period—Thirteenth to Nineteenth Centuries The first period, which could prosaically be called the early historic period, is characterized by three major events occurring in 1268, 1474, and 1815, respectively. In 1268, the trial of Conradin von Hohenstaufen, a German nobleman, took place in Italy when Conradin was sixteen years of age.1 He was tried and executed for transgressing the Pope’s dictates by attacking a fellow noble French ruler, wherein he pillaged and killed Italian civilians at Tagliacozzo, near Naples. The killings were deemed to constitute crimes “against the laws of God and Man.” The trial was essentially a political one. In fact, it was a perversion of ICJ and demonstrated how justice could be used for political ends. The crime— assuming it can be called that—was in the nature of a “crime against peace,” as that term came to be called in the Nuremberg Charter’s Article 6(a), later to be called aggression under the UN Charter. Conradin, of the German Hohenstaufen Dynasty, succeeded his father, Conrad IV, at the age of two as the titular Duke of Swabia, King of Jerusalem, and King of Sicily. The Kingdom of Sicily at the time included Naples, and was frequently referred to as the Kingdom of the Two Sicilies. The Italian Pope Clement IV, who strongly disliked the German Hohenstaufens, offered Sicily to the French

1 See Steven Runciman, The Sicilian Vespers: A History of the Mediterranean World in the Later Thirteenth Century 115–16 (1958).

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Charles d’Anjou. Conradin rebelled against the papal decision and led his German troops across the Alps seeking to regain the Kingdom of the Two Sicilies, which greatly displeased the Pope. It was at Tagliacozzo that Conradin’s army engaged in plunder and ultimately lost the battle. He was betrayed and captured by his inner circle and sold to Charles, who brought him to Naples, the capital of the Kingdom of the Two Sicilies, and tried him for treason, as well as for the plunder and killings of civilians at Tagliacozzo. Conradin was charged with lèse majesté for his defiance of the Pope and was consequently excommunicated. He was then beheaded along with his companion, Frederick of Baden, the titular Duke of Austria, as well as a number of his German followers. Conradin’s defense, conducted by a Neapolitan jurist, was that, because he was a legitimate contender to the throne of the Kingdom of the Two Sicilies, he should not be considered as having acted in a sacrilegious manner against the will of the Pope, and that he should be considered a prisoner of war, which would free him from responsibility for the plunder and murder. Of the four judges, only one ordered the death penalty while the other three remained silent. It was clearly a political trial: the Pope and Charles sought to justify the removal of the Kingdom of the Two Sicilies from the suzerainty of a German noble family to the Bourbons, who were French and Spanish. This arrangement sat better with the Italian Pope who, like the Bourbons, was a Mediterranean. The second trial of this historic period was that of Peter von Hagenbach in 1474 in Breisach, German.2 Peter was a Dutch condottiere—the equivalent of a modern mercenary leader who was hired by the Duke of Burgundy to raise an army to occupy the city of Breisach and exact taxes from its population. The Duke had acquired the city in exchange for services rendered to the Holy Roman Empire. Uninterested in the fate of the distant German townspeople, the French Duke ordered Peter to collect massive exactions. When the townspeople rebelled, the Duke ordered Peter to sack, pillage, rape, and burn the city. Peter obeyed his superior’s orders, as was expected of subordinates at the time.3 The attack on Breisach was so horrendous that the news spread throughout the empire, bringing about an uncommon consensus that this situation was a “crime against the laws of God and Man.” The leaders of the twenty-six member states of the Holy Roman Empire, either in person or through representatives, acted as international judges to prosecute Peter, a Dutchman, for crimes 2 See Howard S. Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders, 30 Revue de Droit Militaire et de Droit de la Guerre 183, 185, 193 (1991). See generally Amable-Guillaume-Prosper Bruguière de Barante, Histoire des Ducs de Bourgogne de la Maison de Valois, 1364–1477 (1854). 3 It was only under Article 8 of the Nuremberg Charter in 1945 that the defense of obedience to superior orders was eliminated in ICL. See generally Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (1965); Ekkehart Muller-Rappard, L’Ordre Supérieur Militaire et la Responsabilité Pénale du Subordonné (1965).



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committed in Germany on the order of a French head of state. For all practical purposes and in accordance with contemporary standards, this established the first international criminal tribunal. At the trial, Peter sought to exhibit the written orders of the Duke of Burgundy, but the judges refused to allow him to do so. Allowing this evidence would have conveyed the impression that subordinates in Peter’s position should not execute the orders of their superiors when those orders are manifestly “against the laws of God and Man.” The court declined to articulate this possibility, and, in fact, this duty of conscience would not emerge in ICL for another 471 years, when the IMT Charter was adopted in London in 1945. Accordingly, the court’s refusal to accept Peter’s defense shielded the Duke from responsibility. Peter was sentenced to be drawn and quartered, a particularly brutal method of inflicting death. Peter’s trial and punishment served multiple purposes. Peter’s punishment was deserved, since he should have known the limits of the “laws of God and Man.” Being, in effect, “employed” to commit such deeds was no excuse by any moral standards. Was the defense of superior orders a valid legal excuse? Morally, no, but that was man’s law at the time. Weighing these considerations, the Breisach judges may have intended to uphold morality over law because morality, in some situations, outweighs human concepts of legality.4 Their decision also served other purposes. In 1474, the political goal of preserving the Holy Roman

4 In 1947, some 473 years after Peter’s trial, the same dichotomy arose in the American trials held at Nuremberg and conducted pursuant to Control Council Law No. 10. The two cases, United States v. Alstötter and United States v. Brandt, are commonly referred to as The Justice Case and The Medical Case, respectively. See 3 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 at 3 (1948) (discussing The Justice Case); id. at 3 (1949) (discussing The Medical Case). A total of six American state court judges found the operators of the Nazi justice system guilty of justifying discriminatory laws against the Jews, and found the Nazi doctors who had performed inhuman medical experimentations on Jews, gypsies, and the mentally ill guilty of “crimes against humanity.” See The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation 4 (George J. Annas & Michael A. Grodin eds., 1992). The unarticulated basis for their convictions was that jurists and doctors could not violate their higher ethical laws under the cover of positive law. See 3 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, id., at 979; The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation, id., at 104. Doctors take the Hippocratic Oath that they will save lives, not destroy them. Lawyers also take an oath to uphold the law, meaning the higher purposes of the law. These jurists stretched the interpretation of Nazi laws to such extremes that they made lawful that which they had to know was unlawful. Thus, they violated the very essence of law, general legal principles, and legal norms that existed in Germany until the Nazi regime revoked them. In no case since then have the higher ethical laws of the legal and medical professions been deemed superior to positive law. However, these higher principles could well be applied to the Bush Administration lawyers whose advice led to the violation of the Constitution, international treaties, and the laws of the U.S. by justifying torture and “extraordinary rendition” practiced by the Central Intelligence Agency.

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Empire by refusing to denounce a fellow head of state was achieved in Breisach. In so doing, the Breisach judges also upheld certain values by denouncing what was done to the helpless civilian population and by prosecuting its chief perpetrator. Thus, a justice goal was achieved.5 It was not until 1814 that another politicized manifestation of ICJ took place. In 1813 and 1814, the victorious European allies of Austria, England, Prussia, and Russia defeated Napoleon’s forces at Leipzig and a few months later captured Paris. The victorious heads of states were monarchs. While they were resentful of the populist upstart Napoleon who usurped the title of Emperor, they nevertheless sought to pay homage to his title. Moreover, Napoleon had married the daughter of Austria’s Emperor, who was one of the Allies. Consequently, the monarchs could not have tried Napoleon as a common criminal; instead they decided, without convening, to exile him to the island of Elba in the Mediterranean. A few months later, Napoleon escaped, tried to make a comeback, and was again defeated. This time, he was exiled to Saint Helena under the stern guard of England, where he died a few years later, perhaps poisoned by his captors.6

5 The values upheld in 1474 are now embodied in international humanitarian law, which was developed after Henri Dunant launched his Red Cross movement in Geneva in 1864. This movement, in turn, gave us the most universally recognized of all ICL instruments, the Four Geneva Conventions of 1949 and their two 1977 Additional Protocols (which are less universally accepted). See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 [Geneva Convention I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 [Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Geneva Convention IV]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [Protocol II]. Earlier, however, these humanitarian values were reflected in the 1899 Convention with Respect to the Laws and Customs of War on Land, which was amended in 1907. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 207 Consol. T.S. 277. The latter remains, to date, the foundation of customary international humanitarian law. Henri Dunant is one of those individuals who made a difference in the affairs of humankind. What he and others advocated ripened into a unique universal concept that was transformed into binding international legal norms. The progress made since then is not to be underestimated. While their universal application is still far from being achieved, there is no sign that these normative gains are threatened by any effort to reverse them. Regrettably, only the U.S. under the Bush Administration attempted this by arguing that “enemy combatants” in the “war against terror” are not subject to the Geneva Conventions. The U.S. Supreme Court in Hamdan v. Rumsfeld rejected this contention. Hamdan v. Rumsfeld, 548 U.S. 557 (2006); see also Boumediene v. Bush, 128 S. Ct. 2229 (2008) (holding that prisoners held at Guantanamo Bay have a right to habeas corpus under the U.S. Constitution). 6 See Robert Asprey, The Rise of Napoleon Bonaparte 405, 439–41 (2001). See generally David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Warfare as



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Napoleon was tried politically by the victorious monarchs and given a political sentence, even though he had ordered many acts that today would be called aggression, crimes against humanity, and war crimes. Many of his orders were for acts reminiscent of Peter von Hagenbach’s in 1474. While the customary war practices of states in the nineteenth century were far from humane, the excesses—even atrocities—ordered by Napoleon and committed by troops under his command, definitely qualified him for an international criminal prosecution for “crimes against the laws of God and Man.” In this case, however, realpolitik considerations prevailed over those of justice.7 For Napoleon, being exiled and imprisoned under English control was probably a penalty worse than death. The sentence was intended to deprive him of martyr status in the eyes of the French people and to deter a successor from plunging Europe into another war. Thus, his exile involved a valid and legitimate peace component. In the end, however, Napoleon did achieve hero status. His remains were buried in Les Invalides in Paris, and he remains, to the present day, the object of veneration by some French. In 1814 and 1815, the goal of the allies was to bring peace and stability to Europe, not to redress the many injustices suffered by those who had been victimized by the Napoleonic Wars. The benefits of impunity also extended to Napoleon’s generals, who had committed atrocious crimes throughout his reign. Only one of these generals was prosecuted for what we would now call war crimes, and this was primarily because he remained loyal to Napoleon. All of the others, who could have been prosecuted for what even then was considered excessive use of force, got a pass. Some were even rewarded with new positions under Louis XVIII, who was restored to the throne in 1814.8

We Know It 7–9, 18 (2007); David G. Chandler, The Campaigns of Napoleon 134–43 (1966); J. Christopher Herold, The Age of Napoleon 45 (1963); Frank McLynn, Napoleon (1997). 7 The case of Napoleon was the beginning of modern realpolitik, so masterfully articulated by the Austrian Chancellor Metternich at the Congress of Vienna in 1815. Metternich’s disciples and heirs continue along the same line in contemporary times, as evidenced in so many modern and postmodern conflict situations, such as Henry Kissinger, the architect of the political settlement to the Vietnam Conflict signed in Paris in 1973. Neither North Vietnamese nor Americans, except for Lieutenant William Calley, were prosecuted for war crimes, even though so many had occurred on both sides of the conflict. Even Calley, whose guilt was obvious, was subsequently pardoned by President Nixon. See generally Michal R. Belknap, The Vietnam War on Trial: The My Lai Massacre and Court-Martial of Lieutenant Calley (2002); Jordan J. Paust, My Lai and Vietnam: Norms, Myths and Leader Responsibility, 57 Mil. L. Rev. 99 (1972). 8 One of Napoleon’s generals, Jean-Baptiste Bernadotte, Marshal of France, though not known for having committed any of these abuses of force, was invited to become King of Sweden. He established the Royal line, which still continues in Sweden. See generally Alan Palmer, Bernadotte: Napoleon’s Marshal, Sweden’s King (1990).

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The second historic era started after World War I. The attempted prosecution of Germany’s Kaiser Wilhelm von Hohenzollern had an almost seamless continuity with the political trial and sentence of Napoleon in 1814. Nevertheless, some things changed, and a step forward was taken. In 1919, the victorious Allies sought to punish Germany and its leaders for initiating World War I and for war crimes committed during the war. There was no question for the Allies that only those from Germany and perhaps Turkey would be prosecuted, even if the Allies had committed identical crimes.9 The 1919 Treaty of Versailles provided in Article 227 for the first time in history that a head of state, Germany’s Kaiser Wilhelm von Hohenzollern, would be tried for what we now call aggression.10 The similarity between the positions of Napoleon and Kaiser Wilhelm is striking. Kaiser Wilhelm was the grandson of Queen Victoria and the cousin of the Russian Emperor Nicholas, much as Napoleon was the son-in-law of the Emperor of Austria. The Allies did not want to prosecute a sitting head of state, but times had changed. It was no longer possible for heads of state to caucus and decide on political outcomes, as was the case with respect to Napoleon’s exile, because heads of state had become somewhat accountable to public opinion. However, realpolitik is adaptable. In 1919 the method for avoiding responsibility was to draft Article 227 in such an artful manner that it would not be deemed legally enforceable, and yet at the same time, that it would convince public opinion of the serious intentions of the victorious Allies. The crime was defined in Article 227 as “the supreme offence against . . . the sanctity of treaties.”11 To European public opinion, it sounded just right. When the Allies sought to extradite the Kaiser from the Netherlands, however, the Dutch contended that no such crime existed in international law, and for that matter in any national legal system. Even though the Dutch bore the brunt of French and Belgian criticism, they were legally correct. England, however, was satisfied that it had contributed to the effort of ICJ, while ensuring that the favorite grandson of Queen Victoria would not be humiliated.12 Significantly, these efforts preserved the precedent of complete head-of-state immunity, which lasted until 1945.

9 See Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century 62 (2004); M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l L. & Pol’y 244, 253 (2002). 10 Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles) art. 227, June 28, 1919, 2 Bevans 43, 225 Consol. T.S. 188. 11 Id. 12 See James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War 57 (1982).



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The Treaty of Versailles also posited, in Articles 228 and 229, the prosecution of German war criminals before Allied tribunals; however, these tribunals were never established.13 Instead, in 1920, the Allies agreed not to carry out the provisions of Articles 228 and 229 to establish an Allied war crimes tribunal and passed on the task to Germany. The tribunal chosen was the Supreme Court of Germany, sitting as a trier of facts in the city of Leipzig in 1923.14 The political history of this tribunal is telling. In 1919, the Allies’ Commission to investigate the Responsibility of the Authors of the War and on Enforcement of Penalties had drawn up a list of some twenty thousand Germans to be tried for war crimes.15 The list was subsequently reduced to 875, but Germany balked at this high number. In the end, the Allies agreed to bring that number down to forty-five. Even so, the German Prosecutor General indicted only twenty-two persons, and the Tribunal’s highest sentence was a three-year prison term for one of the defendants.16 More significantly, the 1919 Commission urged the prosecution of Turkish officials for what it called “Crimes Against the Laws of Humanity” for the 1915 mass killing of Armenians in Turkey.17 The U.S. and Japan, both members of the Commission, objected on the grounds that no such crime existed in positive international law, and that the alleged crime derived from natural law, which they rejected. The Commission’s basis for postulating “Crimes Against the Laws of Humanity” was the preambular language of the 1907 Hague Convention, which stated: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.18

13 See Maogoto, supra note 9; Bassiouni, supra note 9, at 266–68. 14 See Willis, supra note 12, at 174. See generally Gerd Hankel, Die Leipziger Prozesse (2003); Claud Mullins, The Leipzig Trials (1921). 15 See generally Div. of Int’l Law, Carnegie Endowment for Int’l Peace, Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference (Pamphlet No. 32, 1919), reprinted in 14 Am. J. Int’l L. 95, 112–15 (1920). 16 Bassiouni, supra note 9, at 281–82. 17 “Crimes against humanity” is quoted in the Armenian Memorandum presented by the Greek delegation to the 1919 Commission on Mar. 14, 1919. Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178, 181 (1946). See generally Vahakn N. Dadrian, German Responsibility in the Armenian Genocide (1997); Vahakn N. Dadrian, The History of the Armenian Genocide (1995). For a Turkish perspective, see Ctr. for Strategic Research, The Armenian “Genocide”: Facts and Figures (2007). 18 Convention Respecting the Laws and Customs of War on Land, supra note 5 (emphasis added).

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In the short time between 1919 and 1945, when the charter of the IMT was adopted, the victorious Allies of World War II, led by the U.S., formulated in Article 6(c) of the Charter the international category of crimes called “crimes against humanity.”19 The failed precedent of World War I became the legal basis for the newly defined crime. What had changed were the times and the facts. Faced with the Holocaust and other atrocities committed by the Nazi regime, the Allies had no choice but to establish “crimes against humanity” as an international crime under positive international criminal law. The same crime was included in the IMTFE Tokyo statute,20 as well as in Control Council Law No. 10, applicable in Germany by Allied tribunals.21 Later, in 1993 and 1994, this crime was included by the Security Council in the statutes of the ICTY and ICTR, Articles 3 and 5, respectively; and in 1998, it was also included in the ICC’s Article 7. Notwithstanding these precedents, there is to date no international convention on crimes against humanity. The explanation is simply that states are unwilling to have such a convention that would place their heads of state and senior state actors in jeopardy. Although the crime is established in customary international law, the normative basis in conventional ICL for crimes against humanity is lacking. Admittedly, however, customary international law has a less than certain basis, as compared to ICL, with respect to the specificity of the crime’s legal elements and its contents. If nothing else, the situation reveals that states have an interest in preserving legal gaps and ambiguities that allow them the flexibility to argue against the duty to prosecute state actors who commit such crimes, notwithstanding the human harm that continues to be committed in violation of customary international law. Once again, realpolitik prevails over the values and interests of justice. The justice record in the aftermath of World War I, while intrinsically weak, nevertheless set the foundation for the IMT, the IMTFE, Control Council Law No. 10 (which applied to the European Allies in their respective zones of occupation in Germany), and the Allies’ prosecutions under their respective military laws in the Far East. The latter, however, reveals how few selective national prosecutions were conducted, other than for those who had supported the German occupying forces. Between these post-World War II prosecutions and the establishment of the ICTY, ICTR, ICC, and the six mixed-model tribunals for Sierra Leone, TimorLeste, Kosovo, Cambodia, Bosnia, and Lebanon, there were only a few symbolic national prosecutions in Canada, France, Australia, the United Kingdom, Italy, 19 Charter of the International Military Tribunal at Nuremberg art. 6(c), Aug. 8, 1945, 59 Stat.1544, 82 U.N.T.S. 279. 20 Charter for the International Military Tribunal for the Far East art. 5(c), Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. 21 Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, § II(2)(e), Dec. 20, 1945, reprinted in Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10, at 250 (1949).



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and Israel. Furthermore, while Germany investigated well over 100,000 persons for crimes committed during World War II, Austria prosecuted only very few, and Japan and Italy prosecuted none of their own citizens. And Japan released all those who had been convicted by the IMTFE in 1953 and 954. A complete assessment of the post-World War II ICJ experiences has yet to be undertaken, although a preliminary overview is provided below. When that occurs, it is likely to debunk many myths that ICJ needs to preserve. However, turning violators of the jus in bello and jus ad bellum to a justice process was indeed extraordinary. This was a major accomplishment in the history of humankind. As the principal architect of Nuremberg, Justice Robert H. Jackson, said in his opening statement before the IMT as the chief U.S. prosecutor: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”22 In so doing, they reclaimed the hopes of Themis and Iustitia. It should be noted that trials cannot always establish the truth or the full record of historic events, as is frequently assumed.23 Establishing the account of a given crime is quite different from establishing the truth about a given conflict. In the Eichmann Trial 15 years later, the primary goal of the prosecutor was to establish an official account of the events that took place in what has come to be known as the Holocaust.24 This approach differs from the approach taken in the trial of Saddam Hussein, which ultimately proved very little as to the facts and failed to clearly establish the guilt or innocence of the defendant which was not really at issue based on the publicly known facts of his actions.25 Since 1945, much has occurred to correct the deficiencies of the IMT and IMTFE. At the normative levels, genocide and war crimes have been codified, though regrettably crimes against humanity and aggression have not. The latter two, however, have been embodied in customary international law and enforced at the international and national levels. The statutes of the ICTY, ICTR, and ICC satisfy the requirements of the “principles of legality,” which were questionable in the IMT Charter and IMTFE Statute. The procedures reflected in the law

22 Justice Robert H. Jackson, Opening Address to the International Military Tribunal at Nuremberg, Germany, Nov. 10, 1945. 23 Stephan Landsman, Crimes of the Holocaust: The Law Confronts Hard. Cases (2005); M. Cherif Bassiouni, Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299–306 (2004). 24 See generally Hannah Arendt, Eichmann in Jerusalem (1963); Gideon Hausner, Justice in Jerusalem (1966). 25 See M. Cherif Bassiouni & Michael Wahid Hanna, Ceding the High Ground: The Iraqi High Criminal Court and the Trial of Saddam Hussein, 39 Case W. Res. J. Int’l L. 21–97 (2007); see also Ayman Salama, Mohammad Ayat, Michael Wahid Hanna and Sinem Taskin, Regional Report on the Arab World, in 2 The Pursuit of International Criminal Justice 1, 5 (2010).

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and practice of the ICTY, ICTR, and ICC are up to the world’s best standards of fairness and due process, contrary to the practices of the IMTFE and, to some extent, the IMT. The principles of criminal responsibility and other aspects of the “general part” of criminal law have been posited in the statute of these post-1994 international tribunals, and expanded by their respective jurisprudence. No matter how much comparative criminal law experts criticize these norms and that jurisprudence, the justice they represent is equal in standing to that of the best national justice systems of the world—and this is substantial progress for ICJ. To point out the legal and procedural weaknesses of ICJ, as well as its political manipulations, is necessary to those who wish to improve the future of ICJ. However, at this point in its history, ICJ cannot risk being undermined by criticism. Perhaps more importantly, the ICTY and ICTR have demonstrated how well international judicial institutions can function, what high level of integrity can be attained, how impartiality can be consistently respected, and how judges, prosecutors, and registry staff can work together to bring about working institutions. Despite the initial mistakes or costs, the ICTY and ICTR have made an indelible mark on ICJ. The same can be said of the Sierra Leone Tribunal, which deserves to be placed in that same category of honor,26 followed by the lesser-known, underfunded, and unsupported Bosnia and Herzegovina Court. Not so, however, for what is really a mere pretense of justice, the Cambodia Court.27 The Timor-Leste and Kosovo Courts stand in between these two models. As to the Lebanon Tribunal, it was and still remains a political instrument of U.S. foreign policy; as such, it is a blot on the history of ICJ, no matter how professional and politically neutral its judges, prosecutors, and staff may be. The legacy of these institutions, particularly with respect to the ICC, can only be speculated upon at this point. There are, however, some legacies of the IMT and IMTFE that must be corrected, if for no other reason than to expunge certain dark blots from their record. The IMT’s record needs to be corrected by including a corrigendum addendum to the effect that the wholesale slaughter of some twelve thousand Polish officers in the Katyn Forest was not carried out by the German Wehrmacht, but by the Red Army,28 and by disclosing that the U.S.S.R. conspired with Nazi Germany in its invasion of Poland through the Molotov-Ribbentrop secret agreement on dismembering Poland and splitting it between the two states.29 For the IMTFE, 26 For a comprehensive assessment of the Taylor trial, its positive impact and its limitations, see Human Rights Watch, “Even a ‘Big Man’ Must Face Justice”: Lessons from the Trial of Charles Taylor (July 2012). 27 For a recent critical assessment of the ECCC, see Stéphanie Giry, Necessary Scapegoats? The Making of the Khmer Rouge Tribunal (http://www.nybooks.com/blogs/nyrblog/2012/jul/23/ necessary-scapegoats-khmer-rouge-tribunal/). 28 See J.K. Zawodny, Death in the Forest: The Story of the Katyn Forest Massacre 16–25 (1962); see also William Schabas Unimaginable Atrocities 153–56 (2012). 29 See generally Izidors Vizulis: The Molotov-Ribbentrop Pact of 1939: The Baltic Case (1990).



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the corrigendum addendum should include reference to the failure to address the Emperor Hirohito’s responsibility for the war, the failure to prosecute the Emperor’s uncle for the Nanking atrocities,30 and the failure to properly address those who are still shamefully addressed as the Korean “Comfort Women”.31 In connection with both the IMT and IMTFE, an admission should be made about the one-sided application of justice by excluding Allied crimes, including the firebombing of Dresden, Germany in 1945, which killed an estimated 35,000 civilians, and the American nuclear bombing of the Japanese cities of Hiroshima and Nagasaki in 1945, which killed an estimated 200,000 civilians and later many others as a result of radiation.32 None of these cities were military targets and their populations were protected under the 1907 Hague Convention; however, no one was prosecuted on the victorious Allies’ side. These and other flaws in the foundations of ICJ must be corrected, or at least admitted, in order to lend it credibility and integrity. Otherwise, the flaws will remain, giving validity to the claims of ICJ detractors that double standards and exceptionalism exist. These claims are implicit in the current support by African and Arab states for Sudan’s President Omar Al Bashir, who was indicted by the ICC prosecutor for crimes in Darfur.33 Similar arguments can be made about the indictment of Muammar al-Qaddafi, which was not balanced by an investigation of the conduct of the Transitional National Council34 or NATO.35 More explicit arguments contend that George W. Bush, as Commander-in-Chief of U.S. forces, caused more Iraqi civilian deaths than the deaths allegedly caused by Al Bashir in Darfur. Spurious as that argument may be, it captures the claim of doublestandards. This situation was never referred to the ICC by the Security Council, nor will it ever be. Ergo sum, say those who raise the question of double standards and exceptionalism. In 1948, just a few years after the IMT and IMTFE were established, the Cold War brought ICJ to a halt. ICJ did not recommence until 1992, when the Security Council established, pursuant to Resolution 780, the Commission of Experts 30 See Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II 172–80 (1997). 31 See generally George L. Hicks, The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War (1997); Yoshiaki Yoshimi, Comfort Women (Suzanne O’Brien trans., 2002). 32 See Genbaku Saigaishi Henshu Iinkai, Hiroshima and Nagasaki: The Physical, Medical, and Social Effects of the Atomic Bombings 113–14 (1981). See generally Sean L. Malloy, Atomic Tragedy: Henry L. Stimson and the Decision to Use the Bomb Against Japan (2008). 33 See Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009). 34 See generally, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, U.N. Doc. A/HRC/17/44 (June 1, 2011). 35 See generally, Human Rights Watch, Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya (2012).

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to Investigate Violations of International Humanitarian Law in the Former Yugoslavia Between 1991 and 1994.36 Since then, ICJ has progressed farther than it had during the period of 1919 to 1994. 1.3. The Third Stage The third stage will likely begin in January 2015. By then, the two ad hoc tribunals established by the Security Council, the ICTY and ICTR, will have finished their work because the Security Council cuts off their funding that year.37 There will be some residual functions that one or more judges will carry on with a few staffers, but there will be no new cases. By January 2015 most of the mixed-model tribunals will also have been shut down. The states that brought about these institutions will have concluded that they have given ICJ enough, and that the beneficial effects of their proceedings are not enough from a cost-benefit standpoint to continue their existence. Section 2. Quantitative Analysis of International Criminal Prosecutions from World War II to 2012 2.1. Introduction As described above, ICJ began after World War II for all practical purposes, although there were a few prosecutions in 1921 before the German Supreme Court in Leipzig for persons charged with war crimes committed during World War I. This section provides a quantitative analysis of international criminal prosecutions after WWII. The theme connecting most of the international prosecutions since WWII is the way in which they target the defeated. Beginning in WWII, internationally established investigatory commissions and tribunals addressed overwhelmingly the crimes of the Germans in WWI and the Germans and Japanese in WWII. This pattern has continued through the modern period at the ICTY and ICTR, as well as the newly established ICC, and the mixed-model tribunals, namely the SCSL, the ECCC, the Special Panels for Serious Crimes in East Timor, the Regulation 64 Panels in Kosovo, the War Crimes Chamber in Bosnia and Herzegovina, and

36 See U.N. Sec. Council, Comm’n of Experts, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. Doc. S/1994/674 (May 27, 1994). 37 As early as 2003, the U.N. Security Council began calling for the closure of the ICTY and ICTR by 2010. It has now extended the deadline to 2012. See Press Release, Security Council, With 2010 Completion Target for Yugoslavia War Crimes Tribunal Unlikely to be Met, Security Council Calls for ‘Quick and Efficient’ Conduct of Trials, U.N. Doc. SC/9549 (Dec. 19, 2008).



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the STL. The statutes of these tribunals, especially the ICTY and the ICTR, do not feature limiting clauses as did those of the IMT and IMTFE, but in practice they have focused on particular groups for particular reasons. As described in the two preceding chapters, prosecutions for international crimes arising out of conflicts have been limited in number and selective, and this is borne out in the quantitative analysis in this chapter. Realpolitik has always been a factor in how ICL is applied. Even in contemporary times, when the international community professes to be committed to fair and even handed accountability for international crimes, the practice before international and mixed-model tribunals and national courts does not evidence this commitment. Not only is the record of ICJ far from being satisfactory on account of its diminished deterrent capacity, it is far from satisfactory because of its unequal and application to all perpetrators. The data in this section evidences this unfortunate reality. Nevertheless, for those who believe in the incremental progress of ICJ, there is no doubt that prosecutions for international crimes—whether before international and mixed-model tribunals or national courts—has been on the rise. If seen on a spectrum from the Leipzig Trials at the end of WWI and the situation today, the international community can be encouraged by the growth of ICL and ICJ, especially since the early 1990s. Understandably, the Cold War which prevailed between East and West retarded the codification of ICL and in the pursuit of ICJ. To borrow an analogy from Winston Churchill, an Iron Curtain of impunity descended upon ICL and ICJ in the 1940s and was only raised in 1992 when the Security Council established a Commission of Experts to investigate war crimes in the former Yugoslavia, which this writer had the honor of Chairing.38 The work of that Commission39 prompted the Security Council to establish the ICTY in 1993, a revolutionary moment in the history of ICL and ICJ.40 From at point on the incremental development of ICJ is apparent in the establishment of the ICTR, the six mixed-model tribunals, the ICC, and national prosecutions. Starting in 1993 there has also been an increase in the prosecution of heads of states and the affirmation of the nonapplicability of immunity of heads of states for jus cogens crimes.41 In order to reinforce the importance of ICJ and support its incremental development in the face of continuing political, economic and other challenges,42 it 38 See U.N. Sec. Council, Comm’n of Experts, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. Doc. S/1994/674 (May 27, 1994). 39 Id. See especially Annexes II through XII. 40 S.C. Res. 808, U.N. Doc. S/RES/827 (May 25, 1993). 41 The exception to this trend was the ICJ’s decision in Congo v. Belgium, which upheld temporal immunity for heads of state. Article 27 of the ICC statute removes such immunity. It is now binding on 121 State Parties. 42 The progress made by international criminal justice since the end of WWII, but particularly since 1992 when the Security Council established the Commission of Experts to Investigate

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is essential that we understand the extent of its implementation and perhaps especially the extent to which it has a deterrent effect. There has never been any empirical study of the deterrent capacity of ICJ to prevent the future commission of international crimes. It is an uncomfortable truth that the increase in prosecutions at the international and domestic levels has not had, in and of itself, an apparent deterrent effect on potential perpetrators of international crimes. One can make the same argument about deterrence for domestic crimes, but common sense suggests that some deterrence must arise out of enforcement. But there are so many variables to deterrence—from the historical and material context of the crimes, to the personalities of the protagonists, to the response of the victims, to the role of the international community—that the deterrence hypothesis is simply impossible to prove with the level of certainty we want. What is clear, however, is that for deterrence to work there must be a reasonable possibility for the perpetrators of international crimes to face prosecution. As the quantitative analysis in this chapter makes plain, that precedent requirement for a serious appraisal of deterrence is lacking. Assuming that the variables identified above can be isolated and accounted for, the sample size would still be too small to make any determination. In the ideal case, for deterrence to work there would have to be the reasonable possibility that every perpetrator will face criminal prosecution, and that every perpetrator knew of that possibility. Neither of these conditions is satisfied at present. This section nonetheless attempts to identify all of the prosecutions for ICL since WWII. Within the second phase of ICL identified above, three periods can be identified: first, the WWII related trials; second, the Cold War era when prosecutions for ICL were rare; and third, the current era after the establishment of the ICTY in 1993, when ICJ re-emerged. This section provides an overview of the ICJ prosecutions after WWII. The total number of individuals prosecuted for ICL since

­Violations of International Humanitarian Law in the former Yugoslavia Pursuant to Resolution 780 (1992) and culminating with the establishment of the ICC in 1998, should not be taken for granted as evidencing irreversible growth, and is at risk for political reasons, financial costs, and other reason. New realities in a globalized society may bring about new priorities. Whether climate change or other unknown or unforeseeable circumstances, global society may find itself confronted with new dangers and challenges which would make concerns for ICJ of much lesser significance than what they are today. It could very well be that the need for security in light of expanded terror violence, particularly if weapons of mass destruction are used, may well supersede what would then appear to be legal niceties. In other words, the pursuit of security might well trump some of the values which today are considered to be paramount in the scale of commonly-shared international values. If indeed security becomes paramount, or if natural hazards arising out of cataclysmic events flowing from climate change bring about a transformation in the priority rankings of values and concerns by the international community, ICJ as we know it may wither away or disappear. See generally, M. Cherif Bassiouni, International Criminal Justice in the Era of Globalization: Rising Expectations, in The Global Community: Yearbook Int’l L. & Jurisprudence 3–14 (2006); Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in 1 Yearbook Int’l L. & Jurisprudence 5 (2008); Richard W. Mansbach, The Great Globalization Debate, in 1 Yearbook Int’l L. & Jurisprudence 21 (2008).



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WWII is not clear. The numbers are known for the largest and most prominent tribunals, such as the IMT or the ICTR. Conversely, records are incomplete for trials under Control Council Law Number 10 in the Soviet Zone, and more recently at some of the smaller mixed-model tribunals such as the Special Panels for Serious Crimes in East Timor. Among the least well documented are the purges and lustrations occurring throughout Europe in the aftermath of WWII. 2.2. The World War II Cases The two primary international tribunals formed at the conclusion of WWII are the IMT43 and the IMTFE,44 which were tasked with prosecuting the major Axis defendants in Europe and the Far East, respectively. This section evaluates the prosecutions in Europe first, beginning with the IMT, followed by trials of the Major Allies under Control Council Law 10 (CCL 10) and finally domestic prosecutions. Thereafter it outlines the prosecutions at the IMTFE of Class A Criminals, followed by the trials of Class B and C criminals by the other victorious allies. The prosecutors at the IMT indicted 24 “major war criminals”, with Herman Göring as the lead defendant.45 The trial itself ran from November 1945 to October 1946, with convictions being entered against 19 of the defendants, while three were acquitted, one was found unfit for trial and another committed suicide before the start of the trial. 43 John Appleman, MILITARY TRIBUNALS AND INTERNATIONAL CRIMES (1954); Robert Conot, Justice at Nuremberg (1993); Eugene Davidson, Nuremberg fallacy: Wars and War Crimes Since World War II (1973); Whitney Harris, Tyranny on Trial (1954); Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1993); Ann Tusa and John Tusa, The Nuremberg Trial (2010); Robert Jackson, The Nürnberg Case (1947); Robert Jackson, The Case Against the Nazi War Criminals (1946). 44 The Tokyo War Crimes Trial (Chihiro Hosoya, Nisuke Andō, Yasuaki Onuma and Richard Minear, eds., 1986); Arnold Brackman, The Other Nuremberg: The Untold Story of the Other War Crimes Trials (1987); R. John Pritchard, The Tokyo Major War Crimes Trial (1998); Richard Minear, Victors’ Justice: The Tokyo War Crimes Trial (2001); Robert Cryer and Neil Boister, Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments (2008); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2009); R. John Pritchard, The International Military Tribunal for the Far East and the Allied National War Crimes Trials in Asia, in 3 International Criminal Law: Enforcement (M. Cherif Bassiouni, ed., 2d ed., 1998). 45 The IMT indictees were, in order of their appearance in the indictment: Hermann Göring, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Julius Streicher, Walter Funk, Hjalmar Schacht, Gustav Krupp, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Saukel, Alfred Jodl, Martin Bormann, Franz von Papen, Artur Seys-Inquart, Albert Speer, Constantin von Neurath and Hans Fritzsche. Of these, Krupp never faced trial as he was found unfit to stand trial and Ley committed suicide in his cell prior to the commencement of the trial. Borman, who was never found, was tried in absentia and sentenced to death. Göring, von Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Saukel, Jodl and Seys-Inquart were found guilty and sentenced to death. Hess, Fuck and Raeder were found guilty and sentenced to life in prison. Dönitz, von Schirach, Speer and von Neurath were found guilty and sentenced between 10 and 20 years. Schacht, von Pappen and Fritsche were acquitted.

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In addition to the IMT in Nuremberg, the Control Council of the Four Major Allies issued CCL10, which empowered the U.S., U.K., France and the U.S.S.R. to try lower level Germans in their respective Occupation Zones, which all did under the auspices of CCL10 and largely employing their domestic military law. In total it is estimated that the U.S. tried and convicted 1,814 Germans in its Occupation Zone, while the U.K. tried 1,085 and France 2,107 in their respective Occupation Zones. The numbers are much less clear for the Soviet Occupation Zone, but perhaps as many as 45,000 Germans were prosecuted by the U.S.S.R.46 The German “Central Office of the Judicial Authorities for the Investigation of National Socialist Crimes” estimates that in all 5,000 Germans were prosecuted by the U.S., U.K. and France, and an additional 12,000 by the U.S.S.R. In addition, the U.S.S.R. is estimated by the Central Office to have prosecuted 16,000 Germans in courts established in Poland and Czechoslovakia, and another 1,000 in other Eastern European countries.47 Another study calculated that altogether 60,000 Germans and Austrians were prosecuted from crimes committed during the Nazi period, primarily by the U.S.S.R.48 General Telford Taylor, the lead prosecutor in the American Occupation Zone estimated that by 1950 approximately 10,000 had been prosecuted for war crimes in Europe,49 although this likely excludes trials by the U.S.S.R. The most well-known known trials conducted under CCL10 were carried out by the U.S., and were referred to by the U.S. as the “Subsequent Nuremberg Proceedings”. These Proceedings consisted of 12 individual trials against 185 German officials and civilians at Nuremberg for crimes including crimes against humanity and crimes against peace, and resulted in 150 convictions and 35 acquittals. The U.S. also conducted trials for war crimes, primarily at the Dachau Concentration Camp, in which 1,672 individuals were indicted, of which 1,416 were convicted in 489 separate trials. However, unlike against Germany, there is no record of investigations or prosecutions against Italians by the Four Major Powers for crimes committed during WWII by Italy, whether within Italy or for its conduct abroad. In the aftermath of

46 See M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 158 (2011). 47 Central Office of the Judicial Authorities for the Investigation of National Socialist Crimes, Information Sheet, available at: http://www.zentralestelle.de/servlet/PB/show/1262505/Informations blatt-ZSt_Dez10-en.pdf. Under CC10 the U.S., U.K., U.S.S.R. and France each conducted trials in their respective Occupation Zones. 48 Dick de Mildt and Dirk. W. de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany: the “Euthenasia” and the “Aktion Reinhard” Trial Cases 22 (1996). 49 Telford Taylor, Nuremberg and Vietnam: An American Tragedy 28 (1970). See also Robert H. Jackson, The Nurnberg Case (1971); Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (1949); Taylor, supra note 43.



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WWII, Ethiopia, France, Greece, the U.S., the U.K. and Yugoslavia considered proceedings or agitated for the prosecution of crimes committed by Italy,50 and the United Nations War Crimes Commission identified 750 Italians for prosecution for ICL violations. In Ethiopia, Greece and Yugoslavia the crimes arose in the course of the Italian occupation of the respective countries,51 and those states filed repeated extradition requests which Italy and the U.S. ignored. The role of Field Marshall Pietro Badoglio and General Rodolfo Graziani for crimes committed in Libya and Ethiopia is well known, as are those of Generals Vittorio Ambrosio and Mario Roatta in the Balkans. Altogether it is estimated that more than a million people died in Ethiopia and Libya in the 1920s and 1930s during the Italian colonial period, where colonial policies often foreshadowed Axis conduct in Europe. While Graziani and Roatta were prosecuted after the end of the war for non-descript crimes, essentially for collaboration with the Nazis, they were released without serving a substantial sentence. Badoglio was spared prosecution by the Allies and rehabilitated as a bulwark against the ascendant Italian Communist Party, which was thought to be able to win the post-war elections and allow for the expansion of communism into Western Europe. Domestic prosecutions were also carried out for crimes committed in Europe, either against Germans for crimes committed in the countries they occupied or against collaborators. Prosecutions were carried out in including Belgium, Czechoslovakia, France, Italy, Hungary, the Netherlands, Norway, Poland and Romania, primarily for the former, and in France and Greece for the latter.52 John Appleman estimates that in the wake of WWII, domestic prosecutions were carried out in several countries, including at least 541 in the U.K., 271 in France, 275 in Australia, 35 in The Netherlands, 25 in Poland, 11 in Norway, 5 in Canada, 2 in China, and 1 in Greece.53 R. John Pritchard reports slightly different numbers, concluding that Belgium tried 75 Germans, Denmark 80, Luxembourg 68, the Netherlands 204 and Norway 80.54 Notable domestic prosecutions include the Italian prosecution of three Germans—Erich Priebke, Karl Hass and Herbert

50 See Bassiouni, supra note 46 at 715–16. 51 See Effie Pedaliu, Britain and the Hand-Over of Italian War Criminals to Yugoslavia, in 30 J. Contemp. Hist. 503 (2004); George Baer, Sanctions and Security: The League of Nations and the Italian-Ethiopian War, 1935–1936, 27 Int’l Org. 165 (1973); Lidia Santarelli, Muted violence: Italian war crimes in occupied Greece, 9 J. Modern Italian Stud. 280 (2004); H. James Burgwyn, General Roatta’s war against the partisans in Yugoslavia: 1942, 9 J. Modern Italian Stud. 314 (2004); James Walston, History and Memory of the Italian Concentration Camps, 40 Historical J. 169 (1997). 52 Bassiouni, supra note 46 at 157. 53 Appleman, supra note 43. 54 R. John Pritchard, The International Military Tribunal for the Far East and the Allied National War Crimes Trials in Asia, in 3 International Criminal Law: Enforcement 109, 134 n 40 (M. Cherif Bassiouni, ed. 2d ed., 1999).

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Kappler—for the killing of 335 Italians in the Ardeantine Caves.55 France conducted three famous trials of Klaus Barbie, Paul Trouvier, and Maurice Papon; Barbie was German, while Trouvier and Papon were French members of the Vichy government. Touvier’s conviction marks the first conviction of a Frenchman in France for crimes against humanity.56 Finally, in 1947 Polish authorities prosecuted 41 SS members for crimes committed at Auschwitz, although it is not clear whether these trials are among those counted as having occurred in the Soviet zones identified above. Prosecutions for WWII era crimes by Germans and their allies were also carried out outside of Europe. Israel conducted proceedings against two individuals for Nazi crimes, Adolf Eichmann and John Demjanjuk. In 1961 Israel tried and convicted Eichmann for crimes against humanity, crimes against the Jewish people and war crimes. On appeal the conviction was upheld and Eichmann was executed. Demjanjuk was extradited from the U.S., and tried and convicted in 1993, but his conviction and death sentence were overturned on appeal. He was later extradited to Germany and tried there. In Canada prosecutors indicted Imre Finta, a Hungarian immigrant accused of assisting German forces in deporting Jews to concentration camps. On appeal the Canadian Constitutional Court held that prosecutions were constitutionally barred under the country’s Criminal Code due to an “unreasonable delay” in bringing the charges in the 1980s. Domestic prosecutions were also carried out in Germany and Austria. Several of the IMT defendants were Austrian, and in the period immediately following May 1945 investigations and prosecutions were carried out in both countries, which continue in Germany to this day, but quickly subsided in Austria. In Germany various newly constituted agencies began investigating Nazi crimes as early as 1945, leading by 1965 to 61,000 investigations, 13,000 indictments by public prosecutors and 6,100 convictions.57 However, given jurisdictional problems stemming from the German Code of Criminal Procedure only 55 See generally, Alessandro Portelli, The Order Has Been Carried Out: History, Memory and Meaning of a Nazi Massacre in Rome (2003). 56 See Leila Nadya Sadat, The French Experience, in 3 International Criminal Law 329 (M. Cherif Bassiouni, ed., 3d ed. 2008). In addition, in France the Épuration légale or “legal purge” was carried out in which the High Court of Justice tried more than 100 high ranking French collaborators, and it is estimated that more than 55,000 individuals were tried before ordinary courts, resulting in more than 48,000 convictions, although many of these resulted in an administrative or civil sanction. French civilians also carried out vigilante justice against alleged collaborators, including lynching men and shaving the heads of women who slept with German soldiers. See generally, Henry Rousso, L’épuration en France une histoire inachevée, 33 Revue d’histoire 78 (1992). 57 Central Office of the Judicial Authorities for the Investigation of National Socialist Crimes, Information Sheet, available at: http://www.zentralestelle.de/servlet/PB/show/1262505/Informations blatt-ZSt_Dez10-en.pdf. See also, Fritz Weinschenk, Nazis Before German Courts: The German War Crimes Trials, 10 Int’l Law 517 (1976), cited in Michael Wahid Hanna, A Historical Overview of Nation Prosecutions for International Crimes, in 3 International Criminal Law: International Enforcement (3d ed., M. Cherif Bassiouni, ed., 2008).



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suspects physically present in the relevant prosecutor’s district could be tried by him/her, leading to logistical problems. In 1958 the Central Office of the Judicial Authorities for the Investigation of National Socialist Crimes was established to investigate and submit dossiers to the relevant prosecution offices to coordinate investigations and facilitate the process of prosecuting Nazi crimes. In January 2009, the German Ministry of Justice reported that since May 1945 106,496 individuals had been investigated by German authorities, resulting in 6,498 convictions58 Andreas Eichmüller of the German Institut für Zeitgeschichte calculated there to have been significantly more investigations, determining that through 2005, 172,294 individuals had been investigated as part of 36,393 official investigations, which resulted in 16,740 charges culminating in 6,656 convictions (4,667 between 1945 and 1949; 1,426 between 1950 and 1958; and 563 since 1958), 5,184 acquittals and 2,101 instances in which prosecutions were terminated.59 In Austria, after the end of the war, the Provisional Government established Volksgerichte (or People’s Courts), consisting of two professional judges and three lay judges to try Austrias. Between 1945 and 1955 the Volksgerichte conducted 28,000 trials which resulted in 13,000 convictions (roughly 137,000 individuals had been investigated)60 under the Kriegsverbrechergesetz (War Criminals Law) of June 1945. Initially the proceedings were primarily conducted in the Soviet Zone, and it was not until March and April 1946 that proceedings began in the Occupation Zones of the other Major Powers. In 1957 a Nazi amnesty law was passed, after which criminal jurisdiction was transferred to regular courts, which could only apply the Austrian criminal code and nullified the Kriegsverbrechergesetz; thereafter only 46 Austrians were tried for Nazi era crimes, largely individuals mentioned in the Eichmann trial in Israel, resulting in 18 convictions.61 In the Far East, the IMTFE indicted 80 individuals, but notably did not include Emperor Hirohito or members of the Royal Family.62 Of the 80 indictees, 28 were 58 Central Office of the Judicial Authorities for the Investigation of National Socialist Crimes, Information Sheet, available at: http://www.zentralestelle.de/servlet/PB/show/1262505/Informations blatt-ZSt_Dez10-en.pdf. 59 Andreas Eichmüller, Die Strafverfolgung von NS-Verbrechen durch westdeutsche Justizbehörden seit 1945: Eine Zahlenbilanz, 56 Vierteljahreshefte für Zeitgeschichte 621 (2008); Das Bundesarchiv, Bilanz der Strafverfolgung wegen NS-Verbrechen (Westzonen und Bundesrepublik, 1945–2005), available at: http://www.bundesarchiv.de/imperia/md/content/dienstorte/ ludwigsburg/strafverfolgungsbilanz.pdf. 60 Siegfried Beer, Aspekte der britischen Militärgerichtsbarkeit, in Keine “Abrechnung”: NSVerbrechen, Justiz und Gesellschaft in Europa nach 1945 (Claudia Kuretsidis-Haider and Winfried R. Garscha, eds., 1998) 61 Winfried R. Garscha and Claudia Kuretsidis-Haider, War Crime Trials in Austria, talk at the 21st Annual Conference of the German Studies Association (GSA) in Washington, September 25th– 28th, 1997, available at: http://www.doew.at/thema/thema_alt/justiz/nachkriegforsch/warcrime .html. 62 The IMTFE indictees were, in order of their appearance on the indictment: Sadao Araki, Kenji Dohihara, Kingorō Hashimoto, Shunroku Hata, Kiichirō Hiranuma, Kōki Hirota, Naoki Hoshino, Seishirō Itagaki, Okinori Kaya, Kōichi Kido, Heitarō Kimura, Hukiaki Koiso, Iwane

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selected for prosecution initially. The trial ran from May 1946 to November 1948, and resulted in the conviction of 25, while two died during the proceedings and one was declared unfit for trial. Thereafter the remaining 42 “Class A” indictees were released and were never tried. The Japanese government paroled the last of the 18 surviving accused from the IMTFE in 1956 and terminated supervision by 1958.63 Only the senior most leaders, categorized as Class A criminals, were tried at the IMTFE in Tokyo. “Lesser” Class B and C criminals were tried before tribunals of the various Allies, including Australia, China, France, the Netherlands, the Philippines, the U.S., and the U.K. at 49 locations across the region between October 1945 and April 1956.64 All told the Allies tried an estimated 5,700 class B and C criminals in these tribunals,65 including 5,379 Japanese, 173 Taiwanese and 148 Koreans. Of these, an estimated 4,300 were convicted with nearly 1,000 sentenced to death.66 In particular, the U.S. is estimated to have tried and convicted 1,229 Japanese primarily at Yokohama and Manilla, but also in China and across the Pacific;67 Chinese trials convicted 504 at various location, including Nanjing; British trials convicted 777 at various locations, including Hong Kong, Singapore and Malaysia; Dutch trials convicted 969; French trials convicted 198; Philippine trials convicted 133; and Australian trials convicted 844 in trials at Amboina, Dutch East Indies, and at Rabaul, New Britain.68 The U.S.S.R. also conducted trials at Khabarovsk against 12 members of the Japanese Kwangtung Army. The foundation of ICL is built upon the victory of the Major Allies over the Axis powers, which explains the almost exclusive prosecution of Germans and Matsui, Yosuke Matsuoka, Jirō Minami, Akire Mutō, Osami Nagano, Takasumi Oka, Shumei Ōkawa, Hiroshi Ōshima, Kenryō Satō, Mamoru Shigemitsu, Shigetarō Shimada, Toshio Shiratori, Teiichi Suzuki, Shigenori Tōgō, Hideki Tōjō and Yoshijirō Umezu. Of these, Matsuoka and Nagano died during the trial. Ōkawa never faced trial, as he was declared unfit for trial. Dohihara, Hirota, Itagaki, Kimura, Matsui, Mutō and Tōjō were found guilty and sentenced to death. Araki, Hashimoto, Hata, Hiranuma, Hoshino, Kaya, Kido, Koiso, Minami, Oka, Ōshima, Satō, Shimada, Shiratori, Suzuki, Tōjō and Umezu were found guilty and sentenced to life in prison. Shigemitsu and Tōgō were found guilty and sentenced to 7 and 20 years imprisonment, respectively. 63 Edward Drea et al, Researching Japanese War Crimes Records: Introductory Essays 6–7 (2006) 64 Id. at 6. 65 Pritchard, supra note 54 at 135. 66 Drea et al., supra note 63, at 7. 67 The U.S. trials were held in various locations, most notably the Yokohama trials at the headquarters of the Eighth Army but also in the Philippines, most notably against General Tomoyuki Yamashita. U.C. Berkeley War Crimes Center, Case Synopses Judge Advocate’s Reviews: Yokohama Class B and C Trials, available at: http://socrates.berkeley.edu/~warcrime/Japan/ Yokohama/Reviews/PT-yokohama-index.htm; Brackman, supra note 44; PHILIP R. PICCIGALLO, THE JAPANESE ON TRIAL: ALLIED WAR CRIMES OPERATIONS IN THE EAST, 1945–1951 (1979). 68 Drea et al., supra note 63, at 6–7; Brackman, supra note 44, at 52–53; John Pritchard, The Gift of Clemency Following British War Crimes Trials in the Far East, 1946–1947, 7 Crim L.F 15, 18 (1996); M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish an International Criminal Court, 10 Harv. Hum. Rts. J. 11 (1997).



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Japanese. From the beginning, however, the process of identifying and prosecuting war criminals was built upon careful selection. This means that the western Allies prosecuted some Germans, but did not press for the prosecution Austrians and Italian, primarily for realpolitik reasons tied to the Cold War. After the unification of Austria the western Allies resisted trials of Nazis and war criminals as a mechanism for preventing the spread of communism into Austria, which extended well into eastern Europe. Similarly, the prosecution of Italian fascists and war criminals, which were initially favored, were ultimately avoided in the name of defeating the rising popularity of the Italian Communist Party, as explained above. The western Allies chose political expedience over justice, an unfortunate choice that recalls Allied practice toward Turkey after the end of WWI, where known war criminals were left in place as a bulwark against the spread of Communism from the newly formed Soviet Union, which lay just across the Black Sea. The U.S.S.R., for its part, used the guise of ICL to punish alleged collaborators in a cynical attempt to eliminate all opposition to their de facto takeover of Eastern Europe. Both the western Allies and the U.S.S.R. used ICL, either by applying it or by ignoring it, to further their political agendas. The same realpolitik is evident in the implosion of ICJ during the Cold War, when belligerents across the world were effectively free to do as they liked. Another glaring omission in the construction of the foundation of ICL is the lack of prosecutions against the Four Major Allies for crimes committed throughout the course of WWII. The drafters of the IMT Charter did not include provisions for the prosecution of Allied Crimes, and similarly disallowed the tu quoque defense, although this was legally speaking correct as the criminality of another is not, in itself, a defense.69 But beyond the careful drafting of the IMT and IMTFE Charters to target only Axis conduct in WWII, the Allies also failed to look at the sizable evidence of their own misconduct. History has largely forgotten the criminality of the Allied firebombing campaigns which in the Far East destroyed most Japanese cities, including Tokyo, Yokohama, Osaka and Nagoya, killing as many as 900,000 Japanese; and in Europe destroyed most German cities, including Berlin, Munich and Hamburg, causing substantial casualties there as well. Perhaps the most notorious of these conventional firebombings was Dresden, an effectively defenseless city where an estimated 25,000 civilians perished. Similarly, Allied firebombings in Tokyo are estimated to have killed 100,000, a staggering number despite the cities defenses. The most infamous Allied crimes belong to the bombings of Hiroshima and Nagasaki in August 1945, when the

69 But consider Karl Dönitz’s defense at the IMT, which argued that his tactics mirrored those of the Allies, suggesting not that the Allies had dirty hands and therefore could not prosecute him, but that the rule criminalizing his conduct had ceased to existing as a binding norm.

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U.S. dropped a single nuclear bomb on each city, causing perhaps as many as 250,000 casualties. One of the more curious and unfortunate incidents from WWII was the Katyn Massacre, where more than 20,000 Polish soldiers were killed by the Soviets, who in turn blamed the Germans and successfully prosecuted the Nuremberg defendants for allegedly causing the deaths. Nazi Germany, aware of the legal implications of the belligerents’ conduct WWII, established the Wehrmacht War Crimes Bureau, which investigated crimes committed by the Allies, including the Katyn Massacre.70 This evidence, which was available to the Allies immediately following the war, was only publicized by researchers thirty years later. The Bureau provides extensive detail of crimes committed by the Allies, especially the Soviets. The Four Major Allies, however, disregarded this evidence and chose not to subject themselves to the same ICL standards they imposed on the defeated Germans. As detailed in Chapter VI, the standard imposed by the American court in Yamashita would have imposed a high burden on the Allies as well, irrespective of the information they could have easily gathered from the Bureau. The realpolitik of selective criminal prosecutions for violations of ICL is a persistent undercurrent of today’s conflicts as well. This is apparent in the criticisms of some that the ICC’s caseload suggests that its name should be changed to the African Criminal Court to more appropriately describe the court’s work. Criticisms also apply to the selectivity with which the ICC pursues particular interests within particular conflicts. Consider the prosecution of Muammar alQaddafi, the former Libyan head of state who was referred to the ICC by the Security Council. While it is clear that his regime committed horrible offences during the Libyan civil war in 2011, it is clear that the rebel National Transitional Council also committed crimes which fall within the jurisdiction of the ICC, and yet those crimes have not been examined by the court or the international community. Similarly, in Côte d’Ivoire, the ICC indicted Laurent Bagbo to great fanfare and international support, but ignored the crimes committed by Alassane Ouattara and his supporters during the Ivorian civil war. 2.3. The Cold War With the exception of WWII related cases, there were very few prosecutions for core international crimes until the 1993 with the establishment of direct enforcement and mixed-model tribunals. The few trials that were held during the cold war were in Argentina, Bangladesh, Cambodia, Ethiopia and France. The first prosecutions for ICL during the Cold War occurred in 1972, when Bangladesh passed legislation permitting the prosecution of Pakistani military 70 Alfred-Maurice de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945 (1989).



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forces for crimes committed during Bangladesh’s struggle for independence, and in 2009 the Bangladesh International Crimes Tribunal issued four arrest warrants.71 Seven years later, in August 1979, the Khmer Rouge leaders Pol Pot and Ieng Sary were tried and sentenced to death in absentia by the Vietnamese backed government which ousted them,72 but these convictions were not recognized by the ECCC or deemed to have triggered the proscription against ne bis in idem trials. In 1985 Argentinian prosecutors initiated the Jucio a las Juntas Militares (“Trial of the Military Juntas”) for crimes committed during the military rule in the late 1970s and early 1980s. The Argentinian court found five generals and admirals, and two former presidents guilty, and acquitting four generals and admirals. Much later, Spain investigated and prosecuted two Argentinians, Ricardo Miguel Cavallo and Adolfo Scilingo, for crimes committed during the Junta.73 In Romania in the waning days of the Cold War the head of state Nicolae Ceauşescu was deposed in December 1989 and subsequently captured. After a brief “show trial” for genocide and corruption and along with his wife was executed by a hastily assembled firing squad.74 In the years immediately preceding the establishment of the ICTY and the beginning of the current phase of ICL, several domestic prosecutions were undertaken. In Ethiopia the government established a Special Prosecutor’s Office in 1992 to investigate crimes committed by the Mengitsu regime, and in 1994 indictments were issued. To date approximately 1,018 individuals have been prosecuted, while another 6,426 (including 3,000 in exile) await trial.75 In France, Georges Boudarel, a French teacher in Vietnam who joined the Viet Minh in 1949, was accused of torturing French prisoners of war was put on trial. Boudrel was prosecuted in the early 1990s, but acquitted on account of a general amnesty.76 The tale of ICL in the Cold War is almost more famous for what was not prosecuted than for what was. American conduct was never examined in Latin America, especially the training courses held at the notorious School of the Americas, 71 Arrest Order for 1971 Genocide, The Daily Star, July 27, 2010. See also Human Rights Watch “Letter to the Bangladesh Prime Minister regarding the International Crimes (Tribunals) Act” (May 18, 2011). For a historical review, see Jordan Paust and Albert Blaustein, War Crimes Jurisdiction and Due Process: The Bangladesh Experience, 11 Vand. J. Transnat’l L. 1 (1978). 72 See Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Howard J. De Nike et al. eds., 2000). 73 Richard Wilson, Spanish Supreme Court Affirms Conviction of Argentine Former Naval Officer for Crimes Against Humanity, 12 Am. Soc. Int’l L. Insights (Jan. 30, 2008), available at: http://www .asil.org/insights080130.cfm. 74 See Alex Kozinski, Death, Lies & Videotape—The Ceausescu Show Trial and the Future of Romania, 77 Am. Bar Ass’n J. 70 (1991). 75 Julie Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act, 9 Emory Int’l L. Rev. 553, 557–59 (1995); Firew Kedebe Tiba, The mengitsu Genocide Trial in Ethiopia, 5 Int’l Crim. Just. 513, 515 (2007). 76 See Yves Beigbeder, Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005) 73–74 (2006).

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the arming of death squads across the region or the mining of Nicaraguan ports. Similarly, the substantial crimes committed by U.S. forces in Vietnam were never investigated or prosecuted except for William Calley and Ernest Medina, of whom only the former was found guilty, and then only to a short period of house arrest. The Soviets, for their part, were never prosecuted for their crimes in Afghanistan or for internal repression of dissidents. The crimes of French forces in Algeria, which has only recently been acknowledged by some of the perpetrators,77 was equally disregarded by competent national authorities, ironically as they prosecuted Barbie, Trouvier, Papon and later Boudarel; the confessors, including Brigadier General Paul Aussaresses, continue to advocate the use of torture but have yet to face any criminal sanction. 2.4. The Reemergence of ICL With the end of the Cold War ICL quickly re-emerged. In 1993 the ICTY was established to investigate and prosecute crimes committed in the Balkans, and the following year the ICTR was established to investigate crimes committed during the Rwandan Genocide. The establishment of these two tribunals signalled the re-emergence of ICJ and ICL.78 Since 1993 the ICTY issued indictments against 161 individuals. Proceedings against 126 of these have concluded, either through conviction, acquittal, death or transfer to a national jurisdiction via so-called 11bis procedures, while 35 individuals are still at trial before the tribunal. Of the 126 concluded cases, 64 resulted in conviction, 13 in acquittal, 13 with a transfer to a national jurisdiction per Rule 11bis, and 36 in instances the case was dropped on account of a motion by the prosecution or the death of the accused. Of the 35 indictees still on trial, 17 are on appeal, 17 at trial and 1 is in pre-trial.79 Since 1994 the ICTR issued indictments against 91 individuals.80 Of the 91 individuals tried, 43 were convicted, 10 acquitted, 3 were transferred to a national jurisdiction, and 4 were dropped on account of a motion by the prosecution or the death of the accused. Of the ongoing cases, 18 are on appeal, 3 at trial and 1 in pre-trial proceedings. Nine indictees are still at large.

77 See Paul Aussaresses, Services spéciaux, Algérie 1955–1957 (2001). 78 See ch. VI. 79 International Criminal Tribunal for the Former Yugoslavia, Key Figures and Cases, Jan. 11, 2012, available at: http://www.icty.org/x/file/Cases/keyfigures/key_figures_120302_en.pdf. See also Bartram Brown, The International Criminal Tribunal for the Former Yugoslavia, in 3 International Criminal Law 69 (M. Cherif Bassiouni, ed., 3d ed. 2008). 80 Another individual was indicted for giving false testimony, but is not considered an indictee for the purposes of ICL. See Roman Boed, The International Criminal Tribunal for Rwanda, in 3 International Criminal Law 103 (M. Cherif Bassiouni, ed., 3d ed. 2008).



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At the ICC, the prosecution has issued indictments against 28 individuals, of which 25 were confirmed by the Pre-Trial Chamber. Of the 25 confirmed indictments, 10 individuals are at large, 8 are in pre-trial stages, 3 are in trial, 1 has been convicted, 2 have died, 1 is in custody in Libya and 1 is in custody in Mauritania.81 In addition to the direct enforcement mechanisms identified above, there have been six mixed-model tribunals established with jurisdiction over international crimes, namely the Special Panels for Serious Crimes (East Timor), the Regulation 64 Panels (Kosovo), the SCSL, the ECCC, the STL and the War Crimes Chamber in the Courts of Bosnia and Herzegovina.82 The Special Panels for Serious Crimes (East Timor) issued indictments for 392 individuals, including members of the Indonesian army, police and civil service. Of these 392, 87 individuals were tried in 5 distinct trials. The remaining 305 are at large, and presumed to be in Indonesia.83 In Kosovo, through the end of 2009 the OSCE reports that 37 individuals were prosecuted for war crimes by The Regulation 64 Panels (Kosovo). The European Union Rule of Law Mission in Kosovo (EULEX), which assumed responsibility from the U.N., was investigating 50 cases with another 1,009 cases inactive at the time of the takeover. Some of the cases are multi-accused.84 The SCSL indicted 13 individuals,85 of which eight have been convicted and sentenced, while one more is on appeal, one is at large (but presumed dead), and three died in custody. At the ECCC, five individuals have been indicted by the Co-Investigating Judges indicted five individuals and another five are under investigation. Of the first group of five, one case has been completed and is on appeal, three are at trial and one is still in pre-trial proceedings to determine her mental competence.86 The War Crimes Chamber of the Court of Bosnia and Herzegovina has completed 87 trials and an additional 54 are on appeal,87 with approximately an additional 50 pending.88 The Investigating Judge of the Special Tribunal for Lebanon indicted four individuals for the 81 See ch. VII. 82 See ch. VIII. 83 Nicholas Koumjian, Preface, in 16 Annotated Leading Cases of International Criminal Tribunals: Timor Leste the Special Panels for Serious Crimes 2003–2005, 13 (Andre Klip and Goran Sluiter, eds. 2009); see also Suzannah Linton, East Timor and Accountability for Serious Crimes, in 3 International Criminal Law 257 (M. Cherif Bassiouni, ed., 3d ed. 2008). 84 Organization for Security and Cooperation in Europe Mission in Kosovo, Kosovo’s War Crimes Trials: An Assessment Ten Years On 1999–2009, available at: http://www.osce.org/kosovo/68569. 85 Another eight were indicted for contempt of court, but were not indicted for the purposes of the enforcement of ICL. See generally, David Crane, The Special Court for Sierra Leone, in 3 International Criminal Law 195 (M. Cherif Bassiouni, ed., 3d ed. 2008). 86 See generally David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law 219 (M. Cherif Bassiouni, ed., 3d ed. 2008). 87 Court of Bosnia and Herzegovina, Verdicts of Section I, available at: http://www.sudbih.gov .ba/?opcija=sve_presude&odjel=1&jezik=e. 88 Amnesty International, World Report 2011: Bosnia and Herzegovina (2011).

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killing of Rafic Hariri, with an unconfirmed number under investigation for other incidents. None of the accused are in custody.89 Unlike the internationalized War Crimes Chamber in Bosnia and Herzegovina, Rwandan domestic courts have responded to the 1994 genocide by establishing purely domestic mechanisms. The most prominent of these are the so called Gacaca Courts, which one expert has dubbed a system of “justice without lawyers”.90 In the aftermath of the genocide, the victorious Rwandan Patriotic Front (RPF) rounded up and detained an estimated 130,000, many of whom were funneled into the so called Gacaca system in which members of the alleged perpetrator’s community sat in judgment of the accused. The most serious perpetrators were dealt with in traditional courts, however, and according to the Rwandan government 283 individuals have been tried in such courts for crimes related to the Genocide,91 of which 36 were held between 2006 and 2010 at the trial level, and 61 were heard on appeal by the Supreme Court between 2006 and 2008.92 In addition, in 2011 the ICTR referred the case of Jean Uwinkindi to Rwanda for prosecution under Rule 11bis, and the case is expected to start in 2012.93 In addition to these prosecutions by the Mixed-Model tribunals and Rwandan domestic courts, the national courts of several countries have prosecuted individuals for crimes committed in a number of the situations identified above. In Canada, under the Crimes Against Humanity and War Crimes Act of 2000 two individuals have been prosecuted for crimes committed in Rwanda, namely Désiré Munyaneza, who was convicted in 2009, and Jacques Mungwarere, who is currently on trial.94 In Belgium, a domestic court tried Bernard Ntuyahaga, a Rwandan accused of killing Rwandan Prime Minister Agathe Uwilingiyimana, the Belgian Peacekeepers guarding her and Rwandan civilians. In 2007 he was convicted of the deaths of the Belgian soldiers and Rwandan citizens and sentenced to 20 years imprisonment.95 Belgium is currently embroiled in a dispute with Senegal over the former’s attempted prosecution of Hissène Habré, the former President of Chad, who is currently held by the latter. Under the ICJ’s July 2012 ruling on the matter, Senegal has an obligation to try Habré under the CAT which supersedes Belgium’s extradition attempts.96 Belgium has also 89 Special Tribunal For Lebanon, The Cases, available at: http://www.stl-tsl.org/en/the-cases. 90 Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (2010). 91 Brief of the Government of Rwanda Brief, Prosecutor v. Jean Uwinkindi, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, Case No. ICTR-2001-75-R11bis (June 28, 2011), at ¶¶ 118–120. 92 Id. at 123. 93 Prosecutor v. Jean Uwinkindi, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, Case No. ICTR-2001-75-R11bis (June 28, 2011). 94 War Crimes Accused Opts for Judge-Only Trial, CBC News, Apr. 30, 2012. 95 Rwanda Major Guilty of UN Murders, BBC News, July 4, 2007. 96 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ (July 20). See also, Human Rights Watch, The Case Against Hissène Habré, an “African



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sought criminal cases against Israelis, including former Prime Minister Ariel Sharon and General Amos Yaron; Iraqis including the now deceased Saddam Hussein; and Fidel Castro of Cuba.97 In 2001 Belgium courts also convicted four Rwandans, including two nuns, for their role in the genocide in 1993.98 Norway has prosecuted a Bosnian member of the Croatian Defense Forces militia at the Dretelj prison camp, where Serb detainees were tortured, raped and murdered.99 In 2000, Indonesia adopted a law on Human Rights Courts granting these courts jurisdiction over crimes committed by Indonesians, but was formatted in such a way as to prevent the military and police from being subject to criminal sanction. The Human Rights Court for Indonesia eventually tried 18 individuals. Of these only one, Eurico Gutteres, an East Timorese militia leader, was convicted and sentence to ten years, of which he served five.100 France has tried several Rwandans for crimes committed in Rwanda in 1994 on cases referred under the ICTR’s Rule 11bis procedure, namely Wenceslas Munyeshyaka and Laurent Bucyibaruta. In 1999, a Swiss military court convicted the Rwandan Fulgence Niyoteze of war crimes, and was deported after completing his sentence.101 While many of the national prosecutions for ICL have been carried out in support of the ICTY and ICTR mandates, others have focused on incidents for which no international mechanism exists. Most of these are related to political transitions, mostly in Europe in the aftermath of the end of the Cold War and in Latin America after the fall of repressive regimes. In 2005 Latvia convicted Nikolay Tess, a Russian employee of the Ministry of State Security, for deportations of 138 Latvians between 1941 and 1949 to various parts of the U.S.S.R.102 In 2001, a Hungarian court convicted János Korbely for crimes committed during the 1956 Hungarian Revolution.103 On appeal to the European Court of Human Rights, the conviction was reversed as a violation of the nullul crimen sine lege provision of Article 7 of the European Charter.104 In the 1990s, after German unification, a number of East German border guards

Pinochet”, available at: http://www.hrw.org/node/93175. For a detailed discussion of the ICJ’s ruling, see supra Chapter II. 97 See Eric David, The Belgian Experience, in 3 International Criminal Law 359 (M. Cherif Bassiouni, ed., 3d ed. 2008). 98 Nuns jailed for genocide role, BBC News, June 8, 2001. 99 The Public Prosecutor v. Mirsad Repak, Case No. 08-108985MED-OTIR/08, Judgment (Dec. 2 2008). 100 See Linton, supra note 83. International Center for Transitional Justice, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor (2005); International Central for Transitional Justice, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (2005); Human Rights Watch, Indonesia’s Court for East Timor a “Whitewash” (2002). 101 Luc Reydams, Niyonteze v. Public Prosecutor, 96 Am. J. Int’l L. 231 (2002). 102 N.T. v. Latvia, SK-01-162/05 (Apr. 19, 2005). 103 Korbeley v. Hungary, App. No. 9174/02 (Sept. 19, 2008), at ¶ 36. 104 Korbeley v. Hungary, App. No. 9174/02 (Sept. 19, 2008).

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were prosecuted and convicted for having shot civilians attempting to flee to the west.105 Latin America has been particularly active in national prosecutions for violations of ICL. In Chile investigations and prosecutions of Pinochet-era crimes began in 1998, resulting in the conviction of dozens of police officers and military officials. Augusto Pinochet, the notorious former head of state, was eventually indicted but died before his trial could begin. Pinochet had been embroiled in a public legal battle over head of state immunities when Spain sought his extradition from the UK to face trial in Spain, although he successfully evaded accountability on grounds of ill-health.106 Between 2000 and 2010 292 Chilean agents were convicted for crimes committed during the Pinochet regime. By August 2010 Chilean authorities had initiated more than 300 cases against 800 regime officials.107 In Peru, former President Alberto Fujimori established a bunch of criminal tribunals in the 1990s to try Shining Path rebels and other opponents, while simultaneously giving the police and military amnesty for their crimes. Eventually, Fujimori was deposed for gross human rights violations and was later extradited back to Peru, and in 2009 he was convicted for crimes against humanity.108 In Uruguay state prosecutors and investigating judges have been investigating crimes during the right wing military rule between 1973 and 1985, which resulted in the conviction of former President Juan Maria Bordaberry in 2010.109 Subsequent cases in Uruguay have targeted high ranking police and military officials, resulting in several long term sentences. However, unlike Argentina, Chile, Peru and Uruguay, attempted prosecutions in Brazil for crimes committed during military rule have been thwarted.110 In the Netherlands, attempts to prosecute ICL first arose in the early 1980s, but stalled before returning to the fore in 2004. The first attempts concerned the responsibility of Desiré Delano Bouterse for the killing of 15 individuals in Suriname in 1982, but the Amsterdam Court of Appeal issued an Advisory Opinion in 2000 concluding that Dutch authorities were not obligated to seek Bouterse’s extradition for trial.111 In 2004 Dutch courts began trying and convicting 105 See Rudolf Geiger, The German Border Guard Cases and International Human Rights, 9 Eur. J. Int’l L. 540 (1998); Peter Quint, The Border Guard Trials and the East German Past—Seven Arguments, 48 Am. J. Comp. L. 541 (2000). 106 See ch. II. 107 Human Rights Observatory, Human Rights Trials in Chile and the Region (2010). 108 Rory Carroll, Former Peruvian president Alberto Fujimori sentenced to 25 years, Guardian, Apr. 7, 2009. 109 See Pablo Galain Palermo, The Prosecution of International Crimes in Uruguay, 10 Int’l Crim. L. Rev. 601 (2010). 110 See Ministério Público Federal [Office of the Prosecutor], Herzog, Vladimir, Promogao de arquivamento no 1.34.001.001574/2008–17, Proceedings to file case, 12 September 2008. 111 Decision of the Court of Appeal of Amsterdam in the case of Desi Bouterse, 20 November 2000, in 12 Yearbook of Int’l Humanitarian L. 677 (2010); see also Ward Ferdiandusse, The Dutch Experience, in 3 International Criminal Law 385 (M. Cherif Bassiouni, ed., 3d ed. 2008).



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individuals for various offences committed in the Congo and Afghanistan, and also proceeded against Dutch citizens for the sale of chemicals to Iraq which were used to gas Kurds.112 Similarly, in France a complaint was filed by victims against a Mauritanian military officer, Ely Ould Dah, for torture and various other violations of ICL. Dah was initially arrested while in France to attend a training course, but escaped, and was subsequently tried in absentia and found guilty.113 Finally, Iraq prosecuted various members of the Ba’ath regime at the Iraqi Special Tribunal, which was established in December 2003. The Iraqi Special Tribunal conducted two cases against high ranking Ba’ath Party members, including Saddam Hussein. The first case indicted Hussein and seven others for violations tied to the Al Dujail massacres in 1982. The second case indicted Hussein and six others for crimes committed in connection to the al-Anfal campaign against the Kurds in the late 1980s. Both trials were seriously flawed by political interference and due process violations.114 More than a decade earlier, Kuwait had prosecuted various “collaborators” of the Iraqi invasion in 1990, but these trials were nothing more than show trials that lacked all pretense of legitimacy. In the subsequent Gulf War ICL violations were clearly committed by both sides, including U.S. bombing campaigns and the use of human shields by Iraq, but the belligerents’ conduct did not result in any known investigations and prosecutions.115 In the current period, as with the previous periods, realpolitik considerations have derailed ICJ and ICL for the some of the most significant transgressions. The most notable example of this is the U.S. failure to investigate or prosecute violations stemming from the practice of “extraordinary rendition” in which individuals are kidnapped, disappeared and tortured. Where individuals have been prosecuted in Iraq and Afghanistan for war crimes, such as the notorious case involving Lynndie England, they have focused on low level perpetrators while ignoring the larger problem.116 The U.K. and the U.S. Similarly, there has been no investigation into Russian conduct in its war with Georgia or in Chinese.

112 Ward Ferdiandusse, supra note 111, at 385. 113 International Federation for Human Rights, Ely Ould Dah convicted after six years of proceedings. Our perseverance paid off! (Dec. 10, 2008), available at: http://www.fidh.org/Ely-Ould-Dahconvicted-after-six. See also Bassiouni, supra note 55, at 355–56. 114 M. Cherif Bassiouni, Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, 38 Cornell Int’l L. J. 327 (2005); Bassiouni and Hanna, supra note 25, at 21. 115 Bassiouni, supra note 46, at 718. 116 See M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 Case W. Res. J. Int’l L. 389 (2006); see also M. Cherif Bassiouni, The Institutionalization of Torture in the U.S.: Is Anyone Responsible? (2010).

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chapter twelve Section 3. Deterrence and the Value of ICL

Based on this quantitative study it is difficult, if not impossible, to extrapolate what deterrent effect the prosecution of core international crimes has had since WWII. It is difficult to determine precisely because prosecutions have been so few and far between. A true calculation of deterrence requires a substantially larger set of data than this to provide any real answers about the deterrent value of ICL; at present the sample size is simply too small to draw any real conclusions. Since WWII between 92 and 101 million people have died as a result of armed conflict.117 As is evident from the above survey, most violations go uninvestigated and unpunished. Both the afflicted states and the international community find reasons not to go forward with prosecutions for cynical realpolitik reasons.118 While lip-service is always given to the horrors of war, only rarely is anything actually done about those horrors, and almost universally the victims are forgotten. Even where there is public outcry, as with the case of U.S. “extraordinary renditions” the matters are ignored or swept under the carpet. For instance, while Spain119 and Italy120 launched investigations, and in the case of the former entered convictions against the accused, the result has been minimal and without any promise of enforcement, reflecting again the power of realpolitik when dealing U.S. conduct. An assessment of the deterrent value of ICL also requires some consideration of the costs of investigating and prosecution international crimes in order to determine whether that money might be more efficiently and effectively spent elsewhere. Admittedly, the costs of contemporary ICJ are high, and tribunals have consumed large amounts of resources, particularly the ICTY, followed by the ICTR and the ICC. That is not the case, however, with respect to the mixedmodel tribunals. A quantitative analysis is always fraught with dangers of oversimplification and trivialization. But conducting a cost-benefit analysis of the “price” of justice risks devaluing the importance of ICJ and the other values it

117 M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 3, 11 (M. Cherif Bassiouni, ed., 2010). 118 See M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l L. 269 (2010); M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 Ga.St.U.L.Rev. 541 (2006); M. Cherif Bassiouni, Justice and Peace: The Importance of Choosing Accountability Over Realpolitik, 35 Case W. Res. J. Int’l L. 191 (2003); M. Cherif Bassiouni, Searching for Justice in the World of Realpolitik, 12 Pace Int’l L. Rev. 213 (2000). 119 In Spain Baltasar Garzon opened an investigation against U.S. officials for alleged torture at Guananemo Bar by the U.S., with the suspects including Alberto Gonzalez. Giles Tremlett, Spanish court opens investigation of Guantánamo torture allegations, Guardian, Apr. 29, 2009. 120 In Italy, a Milan court convicted in absentia 23 members of the CIA and U.S. military for the kidnapping of Osama Moustafa Hassan Nasr. John Hooper, Italian court finds CIA agents guilty of kidnapping terrorism suspect, Guardian, Nov. 4, 2009.



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represents. Perhaps that is one of the relevant ways to approach the quantitative analysis of ICJ. As mentioned in Chapters VI, VII and VIII, the approximate cumulative costs through the end of 2011 for the ICTY, the ICTR and ICC are as follows: for the ICTY, billion; for the ICTR, $1.7 billion; and for the ICC, $1.1 billion (€830 million). The average approximate cost per indictment for the ICTY is $11.2 million; for the ICTR, $18.5 million; and for the ICC, $39 million (€29.5 million). Among the smaller tribunals the numbers range: the SCSL has had a cumulative budget of approximately $265.5 million, or $20.5 million per indictee; the ECCC has had a cumulative budget of approximately $143.8 million for five publicly indicted individuals and another 5 whose names are still sealed, or $14.4 million per indictee; the STL has had a budget of approximately $174.1 million for four indictees for the Hariri murder and an unknown additional number for the related cases.121 The numbers for the Regulation 64 Panels, the War Crimes Chamber in Bosnia and Herzegovina and the Special Panels for Serious Crimes cannot be ascertained with any measure of exactitude. How to qualitatively measure the justice impact of these tribunals is far from easy. The ICC is much too new to accurately assess its impact. The ICTY and ICTR have a longer and better-established record, but still, there are no agreedupon criteria by which to make qualitative assessments of ICJ. How do we assess outcomes, and by what criteria do we compare them with similar international institutions or, for that matter, with the world’s 198 national judicial systems? Few empirical studies have been undertaken and few sociological or sociopsychological studies have been done to measure impacts and perceptions. We are, therefore, left with general impressions derived from limited facts and selective observations. The costs of prosecutions in national criminal justice systems are usually a small proportion of what is contained in national budgets, usually not more than five percent. Even for states like the U.S., the costs of individual trials is relatively limited. On occasion, there are exceptional cases such as the Oklahoma bombing case, which cost an estimated $82 million; and the special prosecutor’s costs to bring impeachment charges against President Clinton, which cost $45 million. But across the fifty states, as well as within the federal criminal justice system, complex violent crimes cases do not average upwards of $10 million per case, as is the average cost per case before the ICTY, ICTR, and ICC. Governments and 121 These costs are estimated per indictment, which includes, among others, transfers to local jurisdictions by the ICTY and ICTR, cases which are dropped by the prosecution, cases where the indictee is at large or whose charges are not confirmed. If these numbers are factored the approximate costs rise substantially. The costs rise most sharply for the ICC, where a sizable portion of indictees are still at large, and the ICTY, where nearly a third of all indictees where either transferred to national jurisdictions or the indictment was withdrawn due to the death of the accused or on the prosecutor’s motion.

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legislative bodies in most countries are not likely to see the merits of having an international system of justice that costs so much, particularly in relation to what they are likely to perceive are the positive outcomes of these trials on peace and security. In other words, a cost-benefit analysis is inevitable, as is a comparison between national and international costs, and that would not be favorable to ICJ. Since addressing conflict and the need to minimize human harm is essentially a moral/ethical obligation, it is difficult to address issues of economic costs in connection with the moral/ethical need to prevent human conflict and minimize its human consequences. Nevertheless, addressing the human and economic costs of conflicts are relevant to decision-makers, both in connection with the prevention of conflicts by means of addressing the economic necessities of failed states or states which are about to fail, and eventually the costs of military intervention or eventual prosecution. These costs will necessarily be assessed by governmental decision-makers in relationship to states interests, as well as in comparison to other costs that may arise as a result of non-intervention in the prevention or minimization of a given conflict. The Darfur situation can be used as an example. The crisis which has developed over a decade as a result of expanded desertification in that region of the Sudan. Desertification has meant that herder tribes have significantly reduced access to water and grazing land, which resulted in their encroachment upon the farmers’ lands. While both groups are black African and Muslim, they nonetheless belong to different tribes. However, it is not the tribal distinction that caused the conflict, but rather access to water and grazing land. Thus it was essentially an economic issue. If an emergency economic conflict prevention plan existed a number of wells could have been dug, or other means of obtaining water supply or feed could have prevented the conflict. Assuming for the sake of argument that providing water supply by means of wells or by means of a pipeline even as distant as the Nile, as well as transporting feed via certain cities in the Sudan, would have cost $100 million, that have been an effective conflict prevention cost in light of the potential human and material costs of the predictable conflict. Moreover, such an economic cost connected to conflict prevention would have been justified in light of the billions that could have been predicted in connection with preserving and maintaining peace after the conflict erupted. All of these considerations are based on purely economic factors, and do not take into account the moral/ethical question of the human cost. If that were the case, one would ask whether a $100 million conflict prevention cost would have been a more effective use of funding than the exposure of the two conflicting groups to what ultimately became an estimated 250,000 people killed and two million refugees. In comparing costs, it is necessary to examine the costs of peacekeeping operations and humanitarian assistance which have averaged an estimated one to six billion dollars a year in the past five years.



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In addition, it also behooves government to consider, reverting once again to a more prosaic economic cost analysis and cost benefit evaluation, to compare the costs of peacekeeping and the maintenance of peace in relationship to the costs of military intervention for the prevention of conflicts. The General Assembly’s approved budget for peacekeeping operations for 2011–2012 is nearly 7.85 billion dollars, which does not account for the massive reconstruction budgets and humanitarian assistance required by civilian populations in war-torn or conflict torn areas.122 Another factor which has to also be assessed in both human terms as well as economic terms is the number of refugees and displaced persons caused by conflict, including internally displaced persons. According to the Office of the United Nations High Commissioner for Refugees there were 10.5 million refugees of concern for the organization in 2011,123 and that as of 2010 there are 27.5 million Internally Displaced People globally.124 Admittedly in these considerations it is difficult to anticipate what the human and economic costs of conflicts may be, but it is also wishful thinking to assume or hope that emerging conflicts will simply wither away. A comprehensive strategic approach involving a variety of techniques is needed. The direct and indirect costs of war, the costs of foreign and universal jurisdiction intervention, humanitarian assistance, and stabilization and reconstruction should become the basis for understanding how to prevent conflicts and bring them to an end more quickly. Chief among these considerations are the economic conditions of Least Developed Countries (LDCs) and failed or failing states and the prospects for conflicts that they represent. These observations reveal what is quite obvious, namely, that there is both a human and economic cost to conflict. Many studies have been undertaken by economists and social scientists showing the different estimations of these costs, yet somehow it seems that decision-makers at the government levels, as well as IGOs, are either not well informed of these cost dimensions, or they prefer to ignore them. The emphasis on PCJ modalities must not be a way for government and IGO decision makers to avoid dealing with the human and economic costs of conflicts, with the assumption that post-conflict justice, particularly prosecutions, can serve as effective conflict prevention mechanisms. There are no available studies that can demonstrate either the effectiveness of deterrents or the

122 United Nations General Assembly, Approved resources for peacekeeping operations for the period from 1 July 2011 to 30 June 2012, U.N. Doc. A/C.5/66/14 (Jan. 13, 2012). 123 UNHCR, Refugee Figures, available at http://www.unhcr.org/pages/49c3646c1d.html (last reviewed May 30, 2012). 124 UNHCR, Refugee Figures, available at: http://www.unhcr.org/pages/49c3646c23.html (last reviewed May 30, 2012).

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prevention outcomes of post-conflict justice. The data available is anecdotal, and the conclusions drawn are based on common experience. How can we measure the impact on a victim population of head of state criminal responsibility who stood trial like Kambanda, the Rwandan head of state; Milosevic, the Serb head of state; and Taylor, the Liberian head of state? If in 1950, one would ask how much would it have cost for having ICJ establish head of state international criminal responsibility and bring three brutal ones to trial, what would the answer be? Can anyone put a price tag to it? Most people evaluate ICJ institutions on the basis of common sense. The first question they ask is why the ICTY and ICTR do not have their respective seats in the conflicts’ territories, where they would have had a much greater impact on the interested population. Moreover, their presence in these territories would have enhanced national capacity-building where it would have been most needed. If the ICTY and ICTR had been located in Sarajevo and Kigali instead of The Hague and Arusha, their impact would have been far more significant to the victim populations, and they would have helped promote a greater sense of justice and closure for the victims. Locating these tribunals where the conflicts occurred would have employed locals, whose training and work in these international institutions could have transferred much needed expertise to their national legal systems, and also would have lessened costs. The ICTY, ICTR, and ICC employed in 2008–2009 fifty-six judges and some 3,200 other personnel125 but these numbers have fallen significantly over the last few years as the tribunals downsize in anticipation of their closing. Cumulatively, approximately five thousand staff persons and 130 judges have been involved in these institutions. They constitute a pool of individuals who possess some knowledge of ICL and of the functioning of ICJ institutions. If nothing else, these institutions provide for an admittedly expensive international training program. Their benefits include the fact that there is now, more than ever, a constituency for ICJ. This will make a difference in the future because there is a new professional category offering career opportunities. More importantly, let no one underestimate the survival powers of bureaucracies once institutions are established. Yet there is surely more to it. How can we objectively assess the real and symbolic meaning and impact of seeing the twenty-two major Nazi criminals stand in the dock at Nuremberg,126 and the twenty-eight major Class A criminals stand 125 Statistics about these tribunals can be found on their respective websites: International Criminal Tribunal for the Former Yugoslavia, http://www.icty.org (last visited Nov. 11, 2011); International Criminal Tribunal for Rwanda, http://www.ictr.org (last visited Nov. 11, 2011); International Criminal Court, http://www.icc-cpi.int (last visited Nov. 11, 2011). 126 See generally Eugene Davidson, The Trial of the Germans: An Account of the TwentyTwo Defendants Before the International Military Tribunal at Nuremberg (1966); Perspectives on the Nuremberg Trial (Guénaël Mettraux ed., 2008).



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in the dock at Tokyo?127 How can we assess the impact of what is probably one of the most direct manifestations of ICJ, when the helicopter carrying Charles Taylor on March 29, 2006 flew from Freetown, Sierra Leone, over the city, heading to the site of the Sierra Leone Special Chambers, with throngs of people who had suffered from Taylor’s war walking along the road and chanting beneath his helicopter? When the helicopter landed at the Tribunal’s site, there was a brief moment of silence, followed by an explosion of applause. For the people of Sierra Leone, that was a palpable sign of ICJ. How can we measure the impact on a victim population of trials of heads of states, such as Jean Kambanda, the Rwandan head of state; Slobodan Milošević, the Serb head of state, and Taylor, the Liberian head of state? If in 1950, one asked how much it would cost to establish head-of-state international criminal responsibility and bring three brutal ones to trial, what would the answer be? It would be difficult to put a price on it. International prosecutions have been sporadic, limited in number, high in cost, and selective. More significantly, no one from the five states that are permanent members of the Security Council has ever had to face an international criminal trial. The inference, if not presumption, of exceptionalism is self-evident. However, exceptionalism goes even further. It includes, on occasion, heeding the wishes of these major powers regarding whom to prosecute, on what charges, and when. Thus, it becomes an exercise in political hegemony. For sure, no evidence allowing such exceptionalism or hegemonic influence appears anywhere. There are no fingerprints, but those working in the vineyards of ICJ get the message. If not, they unexpectedly find their work slowed down by bureaucratic entanglements, dried-up funding, and negative media publicity, followed by personal attacks on those who fail to get the message, and the threat of removal from office one way or another. To those who have never been in the system, it is difficult to see why and how certain things happen. They happen in ICJ because there is no transparency or accountability. There are no institutional checks and balances likely to prevent political influence, let alone to correct or redress its excesses. In the area of ICJ, states abuse their power internally and externally, and with much higher expectations of getting away with it. The only factor that can be countervailing is the mass media and the reactions it can engender in world public opinion. However, that is a temporary solution. Those who abuse power in the arena of ICJ only have to wait for any media storm to blow over. Unless the facts disclosed are outrageous, these abuses usually quickly recede from public attention, or someone

127 See generally Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008); Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trials (2001); Totani, supra note 44.

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else is held accountable as a scapegoat. The bottom line is that those who comply with the political wishes of the powerful are more often than not rewarded, and those who do not are surreptitiously punished. There are no rewards for virtue. Those who follow their duty may, at best, be briefly remembered or lauded on their way down and out, after which they are soon forgotten. Section 4. Tokenism, Symbolism, and Head of State Prosecution To prosecute a few for the crimes of many is tokenism and intended only to convey the appearance of justice. It is, however, symbolic and thus meaningful when the selection of the few is representative of the many. At Nuremberg, twentytwo major criminals were tried. They were the leaders of the political, military, economic, and social institutions whose powers were marshaled to bring about the institutionalized capability of Nazi Germany. Millions were in one way or another involved in producing this outcome, but only a few were prosecuted. The representative and leadership roles of these individuals in producing these outcomes made them the appropriate symbols to prosecute. The same occurred at the Tokyo Trials with twenty-eight persons brought to trial. Unlike Nuremberg’s twenty-two defendants, the Tokyo twenty-eight were not all major criminals. Moreover, some who belonged in the symbolic category at Tokyo, such as the Emperor and his uncle, were excluded from prosecution. Where to draw the line between tokenism and symbolism is in large part judgmental, and includes political considerations. However, there is seldom a stronger symbol than the prosecution of a head of state. Equally true is the proposition that there is nothing more politically judgmental than prosecuting a head of state. Experience shows that these prosecutions occur only when the state in question has been defeated and the victorious power decides to prosecute. Even so, that decision depends on how politically useful the head of state may prove to be for post-conflict peace purposes. For example, when World War I came to an end in 1919, Europe’s leaders, who were mostly monarchs, were not about to prosecute one of their own any more than the European monarchs were willing to prosecute Napoleon in 1814 and 1815. The difference one hundred years made was that it became impossible to rule out the possibility of head-of-state prosecution. A mere twenty-six years after the end of World War I, the principle was established in the Nuremberg Charter and Tokyo Statute. The German head of state, Adolf Hitler could not be prosecuted, having committed suicide before the fall of Berlin, but his designated successor Hermann Goering was prosecuted and convicted.128 In Japan, Emperor Hirohito 128 Goering committed suicide in his cell the night before he was to be executed. See Davidson, supra note 126, at 96.



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was spared trial by General Douglas MacArthur, the Supreme Allied Commander in the Far East. The reason was political, but it was couched in terms that for all practical purposes exonerated Hirohito of active criminal responsibility in the initiation of an aggressive war, even though the war could not have been initiated without his tacit consent. The argument was that, since Hirohito was not involved in conducting the war, he could not be deemed responsible for the crimes committed by Japanese forces under the theory of command responsibility.129 This was a far more restrictive interpretation of command responsibility than the U.S. applied to General Yamashita, the Japanese military commander of the Philippines in the last few weeks before the end of the war.130 Thus, the U.S., acting through MacArthur for purely political and personal reasons, shielded the Japanese head of state and distorted the law of command responsibility in the prosecution of one of Japan’s senior generals. Conversely, the Emperor’s uncle, Prince Yasuhiko, who directed the Japanese military invasion of Chinese Manchuria, and who gave the order for the “Rape of Nanjing,” was spared prosecution.131 In that attack, an estimated 250,000 Chinese civilians were killed, thousands of women were raped, and the city was pillaged and destroyed. These were unquestionably war crimes, but MacArthur deemed that protecting the Emperor and his uncle would be more beneficial to the U.S. occupation and pacification of Japan than to prosecute these two symbols of popular reverence, even though they were also symbols of “crimes against peace,” “crimes against humanity,” and “war crimes,” as specified in the Tokyo Statute. Things did not change much over the ensuing years, as the Cold War brought a halt to ICJ and the prosecution of heads of state. However, a breakthrough occurred in the statutes of the ICTY (1994) and the ICTR (1995). Even so, many suspect that in the 1995 Dayton Accords that brought an end to the conflict in the former Yugoslavia, Richard Holbrooke, the U.S. peace negotiator, offered 129 See generally L.C. Green, Superior Orders in National and International Law (1976); William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 5 (1973). 130 Token prosecutions also served political interests after World War II. The case in point occurred in 1946 when General MacArthur had Japanese General Yamashita tried before a U.S. Military Commission in the Philippines. Yamashita v. Styer, 327 U.S. 1 (1946). Yamashita was charged for war crimes under the doctrine of command responsibility. Troops under his command had committed atrocities against Philippine civilians. However, Yamashita neither ordered these atrocities, nor was he aware of their commission. Even if he was aware of their occurrences, he had no effective control over the troops that committed them. He was found guilty by the U.S. Commission, whose members were acting under the command influence of MacArthur. The novel theory, never used since, was that “he should have known.” Yamashita was executed. His appeal to the U.S. Supreme Court was rejected over the strong principled dissents of Justices Murphy and Rutledge. The punishment of Yamashita was simply retribution by MacArthur for his 1942 defeat by the Japanese in the Philippines. Like Peter von Hagenbach in 1474, Yamashita was a political scapegoat. See generally A. Frank Reel, The Case of General Yamashita (2d ed. Octagon Books, 1971). 131 See Chang, supra note 30.

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the heads of state of Serbia (Milošević), Croatia (Franjo Tuđman), and Bosnia (Alija Izetbegović), de facto immunity. Most assuredly Milošević should have been prosecuted by the ICTY, but there was not even an active investigatory file opened until May 1999, when he started an ethnic cleansing campaign in Kosovo.132 That is when the presumed Dayton deal was off, and Milosevic was surrendered to the ICTY for trial. He later died during the proceedings. Another case was the disgraceful Lomé Agreement, which ended the war in Liberia and Sierra Leone. The war was initiated in Liberia by Charles Taylor, who plunged two countries into devastating human destruction for his personal enrichment.133 Since the major Western powers did not want to send their military forces to stop the war and remove Taylor’s criminal organization from power, the only inducement was to offer Taylor immunity. Part of the deal was for him to receive asylum in Nigeria and for the proceeds of his blood diamonds to be spent on the “development of the people of Sierra Leone.”134 It was only in September 2003, when the international community’s opposition to this blatantly illegal and immoral deal increased and Taylor could no longer have a negative impact on peace in Liberia and Sierra Leone, that he was surrendered by Nigeria and brought to trial before the Special Court of Sierra Leone in March 2006. Taylor was convicted by the SCSL in May 2012 and sentenced to 50 years. Another example, which is rarely addressed by scholars or experts, is the case of General Raoul Cédras, the de facto head of state of Haiti from 1991 to 1994. The U.S. sent in troops to restore the legitimately-elected president, Jean-Bertrand Aristide, who was deposed by Cédras. To avoid American casualties, then President Clinton sent former President Jimmy Carter and General Colin Powell, the Chairman of the Joint Chiefs of Staff, to negotiate the voluntary departure of Cédras to Panama, where he received asylum. Cédras still lives there, with an undisclosed financial settlement. In this case, as in others, criminal responsibility was sacrificed for political expediency.

132 Even though this author, as Chairman of Security Council Commission 780, concluded in his report that there was enough material to indict or at least further investigate Milošević for his command responsibility in military activities in Bosnia and Croatia between 1991 and 1994, the first two ICTY prosecutors did not follow up on that material. It was only after Serbia’s ethnic cleansing attack on Kosovo that the third prosecutor first indicted Milošević for the Kosovo attack and subsequently expanded the indictment to include previous conduct between 1991 and 1994. See generally Prosecutor v. Milosevic, Case No. IT-99-37, Indictment (May 22, 1999); Carla del Ponte with Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (2008). 133 See Greg Campbell, Blood Diamonds: Tracing the Deadly Path of the World’s Most Precious Stones 89–94 (2002). 134 Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone art. VII, July 7, 1999, annex to Letter Dated 12 July 1999 from the Chargé D’Affaires Ad Interim of the Permanent Mission of Togo to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/1999/777 (July 12, 1999).



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Political punishment has historically been preferred over prosecutions of heads of state, and this phenomenon remains extant, notwithstanding some token prosecutions of former heads of state. Contemporary post-conflict justice practices attest to the present viability of this approach for senior leaders of regimes who have committed international crimes. Lustration is one of these mechanisms. Traditionally meaning a ceremonial offering or purification, modern lustration consists of widespread disqualification from governmental positions of those individuals associated with the previous regime. It was used after 1989 in several Eastern and Central European states instead of prosecutions.135 The few token prosecutions that did occur after 1989 in these countries were intended to provide de facto impunity for the perpetrators of many atrocities that had been committed in these communist regimes under the U.S.S.R.’s hegemony from 1945 to 1989. Such was the case in Germany after its reunification, with the token prosecutions of three East German border guards who killed a few civilians trying to escape East Germany and of some leading politicians of the Democratic Republic of Germany.136 That was the extent of prosecutions for years of violent repression and torture in the Communist East German regime. Another example is Romania after the fall of the Ceauşescu Communist regime. That tyrannical ruler was tried and executed, but no one else in this repressive regime was ever tried for the many crimes committed between 1945 and 1989.137 This tokenism is no stranger to the practice of ICJ since the end of World War II. It is the fig leaf cover that conveys to the public the perception of justice, while in fact allowing the many who should have been prosecuted to benefit from impunity. Above all, the token prosecutions serve as a way of cleansing societies from their collective responsibility. The French collaborationist government of Vichy during World War II was cleansed after only three post-World War II prosecutions of Barbie and Papon. In contrast, many European countries occupied by Nazi Germany conducted prosecutions for collaboration with the occupier. These prosecutions seldom extended to international crimes, as did the prosecutions at Nuremberg and before the Allied tribunals pursuant to Control Council Law No. 10, which allowed each of the four major Allies to prosecute Germans in their respective zones of occupation. Germany, to its credit, prosecuted many of its citizens who committed international crimes during World War II. 135 See Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, in The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 345 (M. Cherif Bassiouni, ed., 2010); Monika Nalepa, Lustration, in The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 735 (M. Cherif Bassiouni, ed., 2010). 136 See Peter E. Quint, supra note 105, at 542. 137 See Giuliano Vassalli, Formula di Radbruch e Diritto Penale [The Radbruch Formula and Criminal Law] 224–75 (2001) (describing post-World War II prosecutions in Germany and in East Germany).

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Even though the substantive immunity of heads of state was overturned by the IMT’s Charter, temporal immunity survives today and has been confirmed by the International Court of Justice’s 2002 decision in Congo v. Belgium.138 There, the Court noted that the ICC’s Article 27 removes this immunity, but the lingering effects of head-of-state immunity still exist, as evidenced by the Al Bashir case.139 Al Bashir was the Sudanese head of state, whom the ICC Prosecutor, in 2008, charged with “crimes against humanity” and “war crimes” in Darfur. He received support from most African and Arab heads of state on the basis of their interpretation of head-of-state immunity. Understandably, most of these heads of state obtained their positions through undemocratic processes, and most of them engage in serious and consistent human rights violations. Thus, they have every interest in protecting a notion that also inures to their mutual benefit. To their credit, South Africa and Botswana, who are state parties to the ICC, announced that they would arrest Al Bashir and surrender him to the ICC if he entered their respective territories. Paradoxically, the pro-Al Bashir campaign by African and Arab states make the ICC better known in these countries, and this may lead in the future to the domestication of international crimes and to national prosecutions, as is the case in some Latin American countries like Argentina and Chile. It is not only African and Arab heads of state who are concerned about being prosecuted internationally. One has only to recall the great lengths that the United Kingdom and Chile went to in order to save Augusto Pinochet from extradition to Spain in 2000.140 The opposition of the U.S., Russia, China, and India to

138 See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14); see also M. Cherif Bassiouni, Universal Jurisdiction Unrevisited: The International Court of Justice Decision, in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 12 Palestine Y.B. Int’l L. 27, 27–48 (2002–03). 139 The position of Sudanese President Omar Al Bashir and his government is that temporal head of state immunity applies to him, even though Article 27 of the ICC statute removes it, because the Sudan is not a state party to the statute. Since the situation of the Sudan was referred to the ICC by the U.N. Security Council, that referral should have been made on the basis of the applicability of customary international law, which recognizes the temporal immunity of sitting heads of states. 140 See R v. Bow St. Metro. Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte (No. 1), [2000] 1 A.C. 61 (H.L. 1998); Christine M. Chinkin, United Kingdom House of Lords, (Spanish Request for Extradition): Regina v. Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), 93 Am. J. Int’l L. 703, 704 (1999); see also R v. Bow St. Metro. Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 225–29 (H.L. 1999). What is more telling about the crimes committed under the Pinochet regime is the relatively low number of victims— three thousand. Yet in Chile, there is a political will expressed by the people to pursue justice. In comparison, this will does not exist in the Sudan, where in Darfur some 250,000 persons are estimated to have been killed, two million or more have become refugees, and many women have been raped. ICJ is always best served when the demand for it comes from the bottom up. When the people in a given society demand justice, it is more likely to happen. What constitutes the difference among societies is the value they place on justice and their levels of indignation toward injustice.



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the ICC is in no small measure due to these countries’ concerns for their heads of state—present and past—and for their senior military and civilian leaders. Section 5. Assessment From both an ethical and moral perspective, there is no price tag for doing what is right; there is no utilitarian test that can measure the objective outcomes of doing the right thing. To curtail impunity for core international crimes and to have enhanced accountability, no matter by what margins, is an accomplishment that the international community should herald. Sometimes even what appears to be a failure can still have some successful outcomes. Pinochet was not extradited to Spain and he was not tried in Chile, but the hue and cry produced ultimately resulted in the September 2009 arrest by the Chilean Prosecutor General of 129 officers who carried out that country’s dirty war. The rejection by African and Arab states of the ICC’s arrest warrant of Sudanese President al-Bashir caused all of those states and their populations to become more aware of the ICC and the crimes it prosecutes. In September 2009, the Sudanese Parliament adopted a revision to Chapter 18 of its Criminal Code, adding the three crimes within the ICC’s jurisdiction in order to use that law for eventual national prosecutions. It is unlikely that the Sudanese regime’s goal is to carry out prosecutorial responsibilities under the ICC’s complementarity regime, but rather to use it as a shield to avoid surrendering its senior officials. No matter what today’s manipulative purpose may be, however, this law may one day become effectively and fairly applied. After all, the failures of ICJ in the aftermath of World War I ripened into what developed after World War II. These are the ways in which ICJ progresses. This recent phase in ICJ’s history saw the establishment of new institutions and the development of norms and jurisprudence. Above all, this phase witnessed normalization (in the French sense of normalité) of ICJ. It is no longer exceptional, and it is increasingly seen as simply another dimension of ordinary criminal justice practiced at the international level. Another significant result of recent experiences with ICJ is the fact that there is now an experienced constituency of judges, prosecutors, investigators, and administrators of ICJ who can staff new institutions and also their own national justice institutions. This experienced pool of ICJ operators is likely to make “complementarity” between national and international justice institutions a reality. Another important constituency is the generation of young jurists who study ICL, a subject taught in law schools all over the world. Generations of jurists in all countries have not only become knowledgeable of ICJ, but supportive of it. Academics and their writings have given the subject greater recognition and acceptance. ICJ is no longer the utopian topic of only forty years ago, when the

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author began teaching ICL in 1971. At that time, the author was the third U.S. law professor to do so, after Gerhard O.W. Mueller at New York University and Edward M. Wise at Wayne State University. Today, there are courses on ICL in at least fifty U.S. law schools, and all international law courses include a component of ICJ. Legal education and publications on ICJ have expanded exponentially in the past decade, and these developments are not likely to be reversed. New constituencies have also developed, such as the more than 1,200 nongovernmental organizations (NGOs) that are part of the Coalition for the ICC, and the more than 5,000 NGOs registered with the U.N. Economic and Social Council who represent human rights groups. It will be through these constituencies that ICJ will continue to grow. Its effectiveness, however, will depend on how fast domestic criminal justice systems will assume prosecutions of international crimes. The future of ICJ will not be with the ICC, but with national criminal justice systems. The struggle for ICJ is still a work in progress, and how it develops and evolves is something history will record. But, as stated above, the biggest inroads made by ICJ is that domestic criminal justice systems are undertaking prosecutions under national laws embodying international criminal law. Today, few recall that national laws on slavery and drug trafficking derive from international treaties. Those who are prosecuted daily in almost every country for drug trafficking are prosecuted because international treaty obligations defining various aspects of drug trafficking have been embodied in national law. When genocide, crimes against humanity, and war crimes are embodied in the national laws of most states, and domestic prosecutions for these crimes take their ordinary course in national tribunals, ICJ will have met one of its primary goals. It is somewhat deceiving to advance ICJ as the international counterpart of domestic criminal justice. The assumptions about deterrence and enforcement are substantially different, as are other factors regarding capacity. International prosecutions and their numbers will always be more restricted than their counterparts in national contexts. ICJ can only aim for symbolic prosecutions of heads of state. Yet, as stated above, these prosecutions are the ones most fraught with political considerations, and thus are difficult to pursue. Reliance on national criminal justice systems is indispensable but, in that context, political considerations also have their own weight. ICJ is more likely to develop through national legal systems than through international institutions. The latter’s most effective role is to enhance the prospects of domestication of ICJ by acting as a catalyst and by providing technical assistance and support. Only through sustainable national capacity-building can ICJ truly progress. ICJ will always have a tortuous and painstaking path, consisting of the mutually reinforcing and complementary processes of justice at the international and national levels. How effective that process will be is yet to be ascertained.



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If war prevention failed, though admittedly some wars were prevented through the collective security system of the U.N., and if the humanization of war failed, even though progress was made under the international humanitarian law regime, what would be left? For many, the answer is ICJ, the basic assumption being that the effective threat of criminal prosecution and punishment will engender a deterrence effect. And, if that does not work, then punishment tout court is deserved. After all, retributive punishment has its own merit as evidenced by the Torah, the Old Testament, and the Qur’an prescription of “an eye for an eye and a tooth for a tooth.”141 Moreover, Talion Law punishment is also presumed to assuage the revenge impulses of individuals and groups who were victimized, though one can hardly point to any evidence that revenge prevents future conflicts—the contrary is more often the case. A glimpse at the state of world conflicts, and the PCJ mechanisms that have been used, reveals the selectivity of ICJ and its insufficient capability of responding to the contemporary needs of justice. The blame for the weaknesses of ICJ rests on states, inter-governmental organizations, and operators of ICJ institutions, for the excessive costs and low efficiency of these institutions. In large part, this blame falls on the United Nations, which administers these institutions in accordance with its own inefficient bureaucratic rules and costly financial standards. If ICJ is to have a hope for success, it will need to free itself from the U.N. bureaucratic and financial system. ICJ is a part of post-conflict justice, applying to conflicts of an international and non-international character alike. Conflicts of a non-international character typically bring about the highest levels of victimization, but the lowest levels of justice modalities, because ICJ does not adequately address the problem of nonstate actors. The significance of this is that these types of conflicts, with such a high volume of victimization and perpetrators, are increasing, while conflicts of an international character are decreasing. Because of this, it is unlikely that ICJ as we know it will be able to address these issues. The era of Nuremberg and Tokyo is over. What, then, is the future of ICJ? When we look at the limited caseload of the ICTY, ICTR, and the ICC, how can ICJ cope with a potential thirty to forty conflicts in the world at any one time with thousands of victims? The ICJ system is simply unable to deal with such a volume. Consequently, the international community needs to focus more on

141 Exodus 21:23–25 (“[I]f there is serious injury, you are to take . . . eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”) In the Qur’an, “We ordained for them, a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and a [similar] retribution for wounds; but he who shall forgo it out of charity will atone thereby for some of his past sins.” Surah 5:45, The Message of the Qur’an 177 (Muhammad Asad trans., 2003).

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strategies of conflict prevention and to address the issues that give rise to conflict—extreme poverty, poor governance, corruption, and climate change, just to name a few. If more states fall prey to these problems, we will witness more conflicts, and thus more victims and human suffering. The greater the volume of conflicts, the less likely it will be that the ICJ system can adequately address them. The increased willingness of the international community, acting in one form or another, to intervene to stop conflicts is another encouraging sign. This includes collective military action that had never occurred before in history. These are encouraging signs for the reduction of collective violence. A current manifestation of the positive development is the emerging concept of the “Responsibility to Protect” enunciated by the World Summit of Heads of State that took place at the United Nations in 2005.142 However, the current debates of 2009 at the General Assembly reveal a deep cleavage between the Western developed states and Latin America, and states from Africa, Asia, and the Middle East, who claim that this emerging concept is a potential excuse for foreign intervention in their domestic affairs. Moreover, these states claim that double standards and exceptionalism belie claims of universalism and universality.143 They point to the ICC’s exclusive prosecution of Africans and to the Security Council’s only referral to the ICC—the Sudan. The U.N. Human Rights Council’s referral of the Goldstone report on the winter 2009 war in Gaza notwithstanding, there is no sign that the Security Council will refer that situation to the ICC.144 There is also no indication that the U.S. or other states will address the institutionalization of torture under the George W. Bush administration.145 The ICC should prioritize this function in order to make complementarity a reality. In the future, the ICC should address exceptional situations, and certainly should not become a substitute for national justice systems. Above all, the international community must embrace ICJ as an indispensable component of world order. By the end of 2014, the ICTY, ICTR and most of the mixed model tribunals will have come to an end. The ICC will be the only institution of

142 See Richard W. Williamson, Policy Analysis Brief: Sudan and the Implications for Responsibility to Protect (Stanley Foundation, 2009). See generally Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (2008); Responsibility to Protect: The Global Moral Compact for the 21st Century (Richard H. Cooper & Juliette Voinov Kohler eds., 2009). 143 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81, 137 (2001). See generally Princeton Univ. Program in Law and Pub. Affairs, The Princeton Principles on Universal Jurisdiction (2001). 144 See generally Neil MacFarquhar, U.N. Council Endorses Gaza Report, N.Y. Times, Oct. 17, 2009, at A4. 145 See Bassiouni, The Institutionalization of Torture Under the Bush Administration, supra note 116; see also Bassiouni, The Institutionalization of Torture in the U.S.: Is Anyone Responsible?, supra note 116.



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international criminal justice that is left in existence. Whether other institutions as those mentioned above will be created in the future is a matter of speculation. The success of the ICC is therefore a matter of paramount importance to the future of international criminal justice. This success is not likely to be dependent on the number of cases it will handle, for that will always be limited, but rather on its ability to generate complementarity in national legal systems. This may well mean that the primary mission of the ICC should shift to enhancing national capacity in adopting legislation, undertaking prosecutions, and becoming more effective in inter-state cooperation concerning investigations and prosecutions of the ICC’s crimes. A new world order146 in the era of globalization must be based on the following: (1) respect for, and observance of, international and regional human rights, which reflect the international community’s commonly shared values on the dignity of humankind as a whole, and of each and every person in particular; (2) the elimination of conflicts by collective security action based on the “Responsibility to Protect;” (3) economic development to prevent the failure of states; and (4) international measure to enhance the rule of law and support democracy. As expressed in ancient Chinese and Arabic proverbs, “The longest journey begins with the first step.” That first step has been taken by ICJ, and other steps will surely follow. The exigency of justice is part of humankind’s social values, and its course is inexorable. How far and how fast we progress on this journey will depend on individual and collective commitments to attain this laudable goal in which we all have a stake, and in which we all have a role to play. Every one of us can bring a grain of sand to the hill and can thus contribute to the overall result.

146 See Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in 1 The Global Community: Yearbook of International Law and Jurisprudence 2007, at 5 (Giuliana Ziccardi Capaldo ed., 2008); Mansbach, supra note 42, at 21. Both of these analyses examine the present state of globalization, noting its impact on collective decision making. These and other writings on globalization accept the assumption that human rights and ICJ are foundational to the processes and values of globalization, yet the studies in the field present no tangible commitment by governments and IGOs to the effective advancement of ICJ. See Bassiouni, supra note 117.

List of Court Cases A. and Others v. the United Kingdom 815 n. 147 A.B. v. Slovakia 819 n. 162 Abebe-Jira v. Negewo 950 n. 190 Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide 243 n. 236, 245 n. 246, 246 n. 251 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of Genocide 229 n. 175 Aguinda v. Texaco, Inc. 100 n. 199, 949 n. 188 Aksoy v. Turkey 803 n. 88, 977 n. 314 Al Adsani v. Kuwait 948 n. 175 Al-Adsani v. United Kingdom 79 n. 84, 977 Albert & LeCompte v. Belgium 810 n. 127 Aleksandra Dmitriyeva v. Russia 801 n. 79 Algür v. Turkey 811 n. 127 Al-Khawaja and Tahery v. the United Kingdom 813 n. 141 Allan v. The United Kingdom 808 n. 112 Aloeboetoe et al. Case 798 n. 60, 803 n. 88 Al-Skeini and Others v. the United Kingdom 797 n. 60 Am. Isuzu Motors v. Ntsebeza 104 n. 224 Amekrane v. United Kingdom 525 n. 170 Amin v. State 440 n. 679 Amlon Metals, Inc. v. FMC Corp. 899 n. 199 Androcicou & Constantinou v. Cyprus 797 n. 60 Anguelova v. Bulgaria 801 n. 79 Ankerl v. Switzerland 815 n. 147 Anzualdo Castro Case 206 n. 119, 800 n. 70 Application of the Convention on the Prevention and Punishment of the Crime of Genocide 468 n. 839 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 43 (Feb. 26) 468 Ari v. Turkey 811 n. 127 Artico v. Italy 818 n. 156 Assenov and Others v. Bulgaria 977 n. 314 Asylum Case (Colombia v. Peru) 250 n. 268 At.a and others v. Turkey 811 n. 127 Averill v. The United Kingdom 819 n. 162 Axen v. the Federal Republic of Germany 813 n. 141 Aydin v. Turkey 803 n. 88

Baena Ricardo et al. Case 831 n. 206 Baldeón-García Case 798 n. 60 Bámaca Velásquez Case 800 n. 70 Bano v. Union Carbide Corp. 100 n. 200 Barbera et al. v. Spain 810–11 n. 127 Barcelona Traction, Light and Power Company, Limited (Belg. v. Sp.) 114 n. 269, 127 n. 337, 244–45 n. 244, 934 n. 119 Barreto Leiva Case 807 n. 127, 822 n. 166, 826 n. 186 Barrios Altos Case 975 n. 305 Beanal v. Freeport-McMoran, Inc. 100 n. 199 Beaumartin v. France 810 n. 127 Beckles v. The United Kingdom 808 n. 112 Belilos v. Switzerland 811 n. 127 Bell Atlantic v. Twombly 101 nn. 206, 208 Belziuk v. Poland 818 n. 156 Benthem v. The Netherlands 811 n. 127 Benton v. Maryland 829 n. 195 Berlin Democratic Club v. Rumsfeld 524–25 n. 168 Bertuzzi v. France 815 n. 147 Biba v. France 819 n. 162 Bilgin v. Turkey 801 n. 79 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 809 n. 121 Blake Case 798 n. 60, 801 n. 79 Blockburger v. United States 829 n. 196 Blume & others v. Spain 801 n. 79 Böhmer v. Germany 806 n. 110 Bouamar v. Belgium 812 n. 133 Boumediene v. Bush 1022 n. 133, 1050 n. 5 Boyce et al. Case 798 n. 60 Bozano v. France 525 n. 170, 812 n. 133 Brennan v. The United Kingdom 819 n. 162 Brozicek v. Italy 814 n. 146 Buchberger v. Austria 815 n. 147 Bulut v. Austria 815 n. 147 C.R. v. The United Kingdom 831 n. 206 Caballero Delgado and Santana Case 798 n. 60 Cabrera Garcia and Montiel Flores Case 811 n. 127 Caesar v. Trinidad and Tobago 803 n. 88 Cakici v. Turkey 801 n. 79, 803 n. 88 Cantoni v. France 831 n. 206 Cantoral Benavides Case 813 n. 139, 830 n. 197 Capeau v. Belgium 806 n. 110

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list of court cases

Case Concerning East Timor (Port. v. Austl.)  641 n. 450 Case Concerning East Timor (Port. v. Austl.)  641 n. 450 Case Concerning Questions of Interpretations and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.; Libya v. U.K.) 81 n. 104; 220 n. 159; 239 nn. 202, 205; 490 n. 11; 772 n. 304 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belg.) 7 n. 1, 73 n. 56; 74 nn. 58, 60; 77; 78 n. 80; 79 n. 89; 83 nn. 117, 119, 124; 84 nn. 128, 130–131; 89 n. 163; 90 n. 165; 230 n. 189; 231 n. 189; 315 n. 92; 372; 373 n. 347; 1040 n. 177; 1059 n. 41; 1086 n. 138 Case of 19 Merchants vs. Colombia 815 n. 147 Case of Children’s Rehabilitation vs. Paraguay 801 n. 79 Case of Herrera-Ulloa vs. Costa Rica 828 n. 191 Case of Lori Berenson Mejía vs. Perú 806 n. 110, 811 n. 127, 828 n. 191, 831 n. 206 Case of the Ricardo Canese vs. Paraguay 831 n. 206 Case of Tibi vs. Ecuador 801 n. 79, 806 n. 110 Castillo Páez Case 798 n. 60, 801 n. 79, 803 n. 88 Castillo Petruzzi et al. Case 811 n. 127, 822 n. 166 Cherokee Nation v. Georgia 47 n. 196 Chevrol v. France 808 n. 112 Cicek v. Turkey 797 n. 60, 801 n. 79 Coëme and Others v. Belgium 811 n. 127 Colozza v. Italy 818 n. 156 Conka v. Belgium 814 n. 146 Constitutional Court Case 811 n. 127 Cooley v. Weinberger 510 n. 108 Cuscani v. The United Kingdom 824 n. 179 Cyprus v. Turkey 797 n. 60 Da Costa Cadogan Case 798 n. 60 Daktaras v. Lithuania 806 n. 110 Daud v. Portugal 824 n. 179 De Cubber v. Belgium 811 n. 127 De Jong, Baljet & Van Den Brink v. The Netherlands 801 n. 79 De Salvador Torres v. Spain 814 n. 146 Del Latte and Del Latte v. the Netherlands 806 n. 110 Deputy General Prosecutor for Serious Crimes v. Wiranto 393 n. 468 Diennet v. France 813 n. 141 Dikme v. Turkey 803 n. 88, 819 n. 162

DMD GROUP, a.s. v. Slovakia 811 n. 127 Dmitriyev v. Russia 801 n. 79 Doe I v. Islamic Salvation Front 949 n. 181 Doe I v. Unocal 949 n. 182 Doe v. Exxon Mobile Corp. 102 n. 213 Dombo Beheer B.V. v. The Netherlands 840 n. 262 Dunshirn v. Austria 815 n. 147 Eastman Kodak v. Kavlin 949 n. 185 Ecer and Zeyrek v. Turkey 831 n. 206 El Amparo Case 798 n. 60, 803 n. 88 Eliazer v. The Netherlands 818 n. 156 Entleitner v. Austria 813 n. 141 Ergi v. Turkey 797 n. 60 Escobedo v. Illinois 809 n. 121 Escué-Zapata Case 811 n. 127 Estate of Ahuva Amergi, Amergi v. The Palestine Authority 102 n. 213 Ezeh and Connors v. the United Kingdom 822 n. 166 F.C.B. v. Italy 818 n. 156 Fairen Garbi and Solis Corrales Case 798 n. 60, 803 n. 88 Fatullayev v. Azerbaijan 806 n. 110 Fermín Ramírez Case 831 n. 206 Filartiga v. Pena-Irala, 630 F.2d 876 101 n. 286; 126 n. 331; 949 n. 183, 951 n. 203 Flomo v. Firestone Natural Rubber Co. 102 n. 213 Flores v. S. Peru Copper 100 n. 199 Fogarty v. United Kingdom 79 n. 84 Forti v. Suarez-Mason 949 n. 184 Frasier v. State 440 n. 679 G. v. France 831 n. 206 G. v. Turkey 818 n. 156 Gangaram Panday Case 798 n. 60, 803 n. 88 García-Asto and Ramírez-Rojas Case 801 n. 79, 803 n. 88, 831 n. 206 Garrido and Baigorria Case 798 n. 60, 801 n. 79, 803 n. 88, 814 n. 146, 825 n. 186 Geerings v. the Netherlands 806 n. 110 Gelman Case 798 n. 60, 800, n. 70 General Prosecutor of the United Nations Transitional Administration in East Timor v. Sarmento 393 n. 470 Genie Lacayo Case 798 n. 60 Georgios Papageorgiou v. Greece 815 n. 147 Giuliani and Gaggio v. Italy 797 n. 60 Goddi v. Italy 818 n. 156 Godínez Cruz Case 798 n. 60, 803 n. 88 Göktan v. France 830 n. 197 Gregg v. Georgia 804 n. 98



list of court cases

1095

Gulec v. Turkey 797 n. 60 Güngör v. Germany 824 n. 179 Gurov v. Moldova 811 n. 127

Krombach v. France 818 n. 156, 828 n. 192 Kucera v. Austria 818 n. 156 Kurt v. Turkey 801 n. 79

Hamdan v. Rumsfeld 1022 nn. 133, 135; 1050 n. 5 Heaney and McGuinness v. Ireland 806 n. 110 Hermi v. Italy 814 n. 146, 818 n. 156, 824 n. 179 Hilaire, Constantine and Benjamin et al. Case 798 n. 60 Hilton v. Guyot 250 n. 269 Hirsch v. Israel 948 n. 175 Hissène Habré v. Senegal 80 n. 95 Homma v. United States 562 n. 124 Hopfijinger v. Austria 815 n. 147 Hrdalo v. Croatia 815 n. 147 Hugh Jordan v. United Kingdom 797 n. 60 Hugo Rodriguez v. Uruguay 977 n. 312 Huntington v. Attrill 509 n. 103 Husain v. Italy 824 n. 179 Hyde v. Melvin 417 n. 580

La Cantuta Case 800 n. 70 Labita v. Italy 476 n. 875 Lamanna v. Austria 813 n. 141 Larissis v. Greece 831 n. 206 Las Palmeras Case 798 n. 60 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 245 n. 248 Letelier v. Republic of Chile 312 n. 88 Linda R.S. v. Richard D. 948 n. 172 Little v. Barrone 417 n. 579 Litwa v. Poland 801 n. 79 Loayza Tamayo Case 801 n. 79, 830 n. 197 López Álvarez Case 806 n. 110, 822 n. 166, 825–826 n. 186 Luedicke, Belkacem and Ko. v. Federal Republic of Germany 824 n. 179

IIT v. Vencamp 104 n. 224 Ilaşcu and Others v. Moldova and Russia 803 n. 88 Ilhan v. Turkey 803 n. 88 In right of Passage Over Indian Territory (Port. v. India) 245 n. 248 Intercontinental Hotel Corp. (Puerto Rico) v. Golden 509 n. 103 Ipsilanti v. Greece 825 n. 186 Israel v. Eichmann 428 n. 630 Ituango Massacres Case 803 n. 88

Mac Gee v. France 808 n. 112 Malhous v. The Czech Republic 813 n. 141 Mamatkulov & Abdurasolovic v. Turkey 476 n. 875, 799 n. 88 Manuel Cepeda Vargas Case 206 n. 119 Manzoni v. Italy 801 n. 79 Mapiripán Massacre Case 205 n. 112 Mapp v. Ohio 809 n. 121 Martin v. Mott 417 n. 580 Martinez v. City of Los Angeles 949 n. 185 Marziano v. Italy 808 n. 112 Matijašević v. Serbia 806 n. 110 Mattoccia v. Italy 814 n. 146 McCann v. United Kingdom 797 n. 60 McElhinney v. Ireland 79 n. 84 McShane v. U.K. 797 n. 60 Meftah and Others v. France 823 n. 170 Megrahi v. Her Majesty’s Advocate 499 n. 50 Miailhe v. France (no. 2) 815 n. 147 Military and Paramilitary Activities (Nicar. v. U.S.) 243 n. 234, 250 n. 268, 555 n. 80, 672 n. 103, 673 n. 104, 934 n. 119 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) 934 n. 119 Minelli v. Switzerland 806 n. 110 Miranda v. Arizona 809 n. 121 Mitchell v. Harmony 418 n. 583 Mitchell v. United States 508 n. 91 Mižigárovaá v. Slovakia 797 n. 60 Monell v. Dept. of Social Services of City of N.Y. 810 n. 122

Jimenez v. Aristeguieta 87 n. 119 Josef Prinz v. Austria 818 n. 156 Jota v. Texaco 100 n. 199 Judgment of June 27 Concerning the Applicability of the Third Geneva Convention XXX 241 n. 222 K.-H.W. v. Germany 831 n. 206 Kadic v. Karadzic 101 n. 207, 126 n. 331, 949 n. 180, 951 n. 202 Kamasinski v. Austria 814 n. 146 Karakasis v. Greece 813 n. 141 Karako. and others v. Turkey 811 n. 127 Kaya v. Turkey 797 n. 60 Khulumani v. Barclay Nat’l Bank, Ltd. 104 n. 224 Kiobel v. Royal Dutch Petroleum Co. 101 n. 209, 102 n. 212 Kolk and Kislyiy v. Estonia 6 n. 1 Kremzow v. Austria 806 n. 110, 823 n. 170

1096

list of court cases

Monetary Gold Removed from Rome in 1943 (It. v. U.S., U.K. & Fr.) 641 n. 450 Monroe v. Pape 810 n. 122 Mooren v. Germany 825 n. 186 Murray v. UK 805 n. 102 Mushikiwabo v. Barayagwiza 951 Nall v. Commonwealth 440 n. 680 Nelson v. Saudi Arabia 948 n. 174 North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.) 250 n. 268 Nulyarimma v. Thompson 946 n. 165 O’Halloran and Francis v. the United Kingdom 806 n. 110 Ocalan v. Turkey 797 n. 60, 801 n. 79, 803 n. 88, 822 n. 166 Odilla Mutaka Mwani v. Osama Bin Ladin 127 n. 332 Ofner v. Austria 815 n. 147 Oliveira v. Switzerland 830 n. 197 Opuz v. Turkey 797 n. 60 Orak v. Turkey 803 n. 88 Osman v. United Kingdom 797 n. 60 Othman (Abu Qatada) v. the United Kingdom 803 n. 88 Öztürk v. Federal Republic of Germany 824 n. 179 Palamara-Iribarne Case 811 n. 127, 813 n. 139, 815 n. 147, 822 n. 166 Papon v. France 828 n. 192 Peers v. Greece 476 n. 875, 802 n. 110 Pelladoah v. The Netherlands 818 n. 156 Pfeifer v. United States Bureau of Prisons 508 n. 91 Pham Hoang v. France 823 n. 169 Philips v. U.K. 806 n. 110 Presbyterian Church of Sudan v. Talisman Energy, Inc. 100 n. 201 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus 698 n. 206 Prosecutor v. Ademi and Norac 737 n. 90 Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd‑Al‑Rahman (“Ali Kushayb”) 698 n. 206 Prosecutor v. Akayesu 803 n. 88, 830 n. 197, 847–848 n. 332, 851 n. 332, 856 n. 353 Prosecutor v. Al Bashir 1028 n. 159, 1057 n. 33 Prosecutor v. Alagic et al. 819 n. 163 Prosecutor v. Aleksovski 361 n. 281; 819 n. 163; 828 n. 192; 839 n. 252; 840 n. 261; 840 n. 263; 854 n. 343; 864 nn. 433, 434; 867 n. 452

Prosecutor v. Bagambiki and Imanishimwe 852 n. 332 Prosecutor v. Bagilishema 325 n. 142, 843 n. 279 Prosecutor v. Bagosora et al. 436 n. 667, 802 n. 85, 807–08 n. 112, 818 n. 156, 821 n. 163, 826 n. 186, 827 n. 190, 842–43 n. 279, 843 n. 279, 844 n. 280, 850 n. 329, 852–53 n. 332 Prosecutor v. Barayagwiza 814 n. 146, 820 n. 163, 841 nn. 273&275, 853 n. 332, 841 n. 275, 861 n. 406 Prosecutor v. Barayagwiza 819 n. 163 Prosecutor v. Bikindi 376 n. 367, 804 n. 110 Prosecutor v. Bizimungu et al. 807 n. 112, 843 n. 279, 849 n. 317, 853 n. 332 Prosecutor v. Blagojević et al., Case No. IT-02-60-T 365 n. 307, 329 n. 157, 806 n. 110, 808 n. 112, 819 n. 163, 822 n. 166, 826 n. 186, 842–43 n. 279, 858 n. 379, Prosecutor v. Blaskic 323 n. 133; 324 n. 135; 817 n. 153; 837 n. 238; 842 n. 279; 860 nn. 395–97 Prosecutor v. Bobetko 801 n. 79 Prosecutor v. Bockarie 392 n. 465 Prosecutor v. Bralo 435 n. 659 Prosecutor v. Brdanin 323 n. 131, 330 n. 157, 374 n. 352, 801 n. 79, 808 n. 114, 811 n. 127, 812 n. 133, 814 n. 146, 816 n. 147, 817 n. 153, 819 n. 163, 841 n. 273, 842 n. 279, 851 n. 332, 858 n. 379 Prosecutor v. Brima et al (AFRC case) 323 n. 131, 330 n. 160, 392 n. 465, 742 n. 122, 750 n. 168 Prosecutor v. Callixte Mbarushimana 122 n. 306 Prosecutor v. Delalic et al. 329 n. 157, 479 n. 897, 484 n. 935, 811 n. 127, 842 n. 279 Prosecutor v. Erdemović 435 nn. 660, 663; 449 n. 732, 480 n. 901, 484 n. 936 Prosecutor v. Fofana and Kondewa (CDF Case) 330 n. 160, 392 n. 465, 750 n. 169 Prosecutor v. Frans van Anraat 102 n. 215, 103 n. 218 Prosecutor v. Furundzija 803 n. 88, 811 n. 127, 828 n. 191, 842 n. 279 Prosecutor v. Gacumbitsi 325 n. 144, 327 n. 151, 852 n. 332 Prosecutor v. Galić 328 n. 153, 826 n. 186, 842 n. 279 Prosecutor v. Gombo 122 n. 306, 698, 716 Prosecutor v. Gotovina 381 n. 397 Prosecutor v. Guus Kouwenhoven 102 n. 216 Prosecutor v. Hadzihasanovic et al. 366 n. 314, 801 n. 79, 819 n. 162, 820 n. 163, 826 n. 186, 831 n. 206



list of court cases

Prosecutor v. Halilović 361 n. 281, 806 n. 110, 819 n. 163, 858 n. 379 Prosecutor v. Haradinaj 377 n. 373, 390 n. 448, 850 n. 327, 730 n. 52, 866 n. 448 Prosecutor v. Jelisic 808 n. 112, 826 n. 186, 828 n. 191 Prosecutor v. Kadzihasanovic, Alagic, and Kubura 819 n. 163 Prosecutor v. Kaing Guek Eav alias Duch 769 n. 287 Prosecutor v. Kajelijeli 325 n. 144, 802 n. 85, 819 n. 162, 823 n. 169, 828 n. 190, 843 n. 279, 852 n. 332 Prosecutor v. Kambanda 50 n. 217, 76 n. 69, 91 n. 149, 331 n. 167, 372 n. 342 Prosecutor v. Kamuhanda 325 n. 144 Prosecutor v. Kanu 392 n. 465 Prosecutor v. Kanyabashi et al. 820 n. 163, 828 n. 190, 843 n. 279, 848 n. 312, 850 n. 324, 851 n. 332, 852 n. 332, 856 n. 356, Prosecutor v. Karadžić 92 n. 155, 861 n. 407 Prosecutor v. Karemera et al. 808 n. 112, 843 n. 279, 844 n. 279, 847 n. 306, 850 n. 329, 851 n. 329 Prosecutor v. Karera 326 n. 147, 814 n. 146, 841 n. 273, 843 n. 279, 853 n. 332 Prosecutor v. Katanga & Chui 122 n. 306, 397 n. 499, 401 n. 513, 694 n. 176, 695 n. 184, 698 n. 206 Prosecutor v. Kayishema & Ruzindana 806 n. 110, 838 n. 247, 840 n. 264, 843 n. 279, 851 n. 332, 862 n. 414 Prosecutor v. Khieu Samphan 847 nn. 300–01 Prosecutor v. Knezevic 822 n. 166 Prosecutor v. Kony et al. 129 n. 237, 130 n. 359, 698 n. 206 Prosecutor v. Kordić & Čerkez 323 n. 131, 325 n. 142, 361 n. 281, 816 n. 147, 826 n. 186, 841 n. 269, 843 n. 279, 859 n. 391, 864 n. 437 Prosecutor v. Kordic & Cerkez 806 n. 110, 824 n. 179, 840 n. 260 Prosecutor v. Koroma 392 n. 465 Prosecutor v. Kovacevic 841 n. 274 Prosecutor v. Krajisnik & Plavsic 807 n. 112, 808 n. 115, 811 n. 127, 820 n. 163, 824 n. 178, 841 n. 274, 817 n. 153, 818 n. 156 Prosecutor v. Krnojelac 329 n. 157, 814 n. 146, 841 n. 273 Prosecutor v. Krstić, Case No. IT-98-33, Case No. IT-98-33 323 n. 131, 386 n. 423, 388 n. 435, 734 n. 76, 851 n. 332 Prosecutor v. Kubura 819 n. 163 Prosecutor v. Kunarac et al. 324 n. 134, 329 n. 157, 481 n. 912, 807 n. 112, 813 n. 141, 814 n. 146, 822 n. 166, 826 n. 186, 841 n. 273, 862 n. 413

1097

Prosecutor v. Kupreškić et al. 463 n. 811, 479 n. 897, 823 n. 169, 842 n. 277, 855 n. 347, 856 n. 352, 867 nn. 456–57 Prosecutor v. Kvočka et al. 361 n. 281, 364 n. 302, 388 n. 434, 814 n. 146, 819 n. 163, 841 n. 273, 863 n. 426 Prosecutor v. Limaj et al. 325 n. 143, 469 n. 843, 730 n. 52, 806 n. 110, 858 n. 379, 866 n. 449 Prosecutor v. List et al. 459 n. 778 Prosecutor v. Lubanga Dyilo 121 n. 306; 693 n. 175; 694 nn. 176, 178; 695 nn. 182, 185; 698 n. 206; 716 n. 291; 803 n. 89; 806–07 n. 110; 811 n. 127, 816 n. 147, 819 n. 163, 827 n. 190, 842 n. 279, 846 n. 296, 851 n. 332 Prosecutor v. Martić 375 n. 364; 464 nn. 815, 817; 819–820 n. 163; 822 n. 166 Prosecutor v. Meakic et al. 820 n. 163 Prosecutor v. Milosevic 91 n. 153, 372 n. 344, 384 n. 418, 730 n. 52, 807 n. 112, 819 n. 163, 820 n. 163, 823 nn. 170, 172, 842 n. 279, 843 n. 279, 851 n. 332, 853 n. 333, 1038 n. 175, 1084 n. 132 Prosecutor v. Milutinovic et al. 330 n. 157, 820 n. 163, 840 n. 266 Prosecutor v. Mpambara 814 n. 146, 391 n. 458, 451 n. 744, 841 n. 273, 853 n. 332 Prosecutor v. Mrda 451 n. 744 Prosecutor v. Mrkšić et al. 842 n. 279, 851 n. 332 Prosecutor v. Muammar Mohammed Abu Minyar Gaddafiji, Saif Al-Islam Gaddafiji and Abdullah Al-Senussi 94 nn. 172–73 Prosecutor v. Mucić et al. (Čelebići) 361 n. 280, 859 n. 297, 800 n. 70, 811 n. 127, 858 n. 379, 867 n. 458 Prosecutor v. Mugiraneza 826 n. 186, 849 n. 323, 850 n. 325 Prosecutor v. Muhimana 326 n. 147; 330 n. 158; 807 n. 112; 814 n. 146; 841 n. 273; 845 nn. 290–91; 852 n. 332 Prosecutor v. Multinović et al. 375 n. 357 Prosecutor v. Musema 325 n. 144, 372 n. 341, 834 n. 220, 863 n. 421 Prosecutor v. Musliu 820 n. 163 Prosecutor v. Muvunyi 324 n. 155, 808 n. 112, 814 n. 146, 821 n. 163, 841 n. 273, 851 n. 332 Prosecutor v. Nahimana et al. 155 n. 63; 325 n. 143; 328 n. 170; 811 n. 127; 837 n. 270; 816 n. 147; 818 nn. 147, 156; 819 n. 162; 852 n. 332, 821 n. 163, 852 n. 332 Prosecutor v. Naletilic & Martinovic 807 n. 112, 824 n. 179, 855 n. 350 Prosecutor v. Nchamihigo 814 n. 146, 841 n. 273 Prosecutor v. Ndindabahizi 326 n. 159, 810 n. 146, 841 n. 273

1098

list of court cases

Prosecutor v. Ndindiliyimana 807 n. 112 Prosecutor v. Ngeze and Nahimana 828 n. 190 Prosecutor v. Ngeze 820 n. 163 Prosecutor v. Ngirumpatse 856 n. 355, 860 n. 399 Prosecutor v. Nikolic 806 n. 110, 803 n. 88, 808 n. 112, 827 n. 190, 856 n. 355, 858 n. 379, 860 n. 399 Prosecutor v. Nkatirutimana & Nkatirutimana 391 n. 456, 814 n. 146, 822 n. 166 Prosecutor v. Norman 393 n. 466 Prosecutor v. Nsabimana and Nteziryayo 844 n. 279, 852 n. 332 Prosecutor v. Nsengiyumva 827 n. 190 Prosecutor v. Nshogoza 847 n. 304 Prosecutor v. Ntagerura et al. 327 n. 150, 367 n. 327, 820 n. 163, 826 n. 186, 852 n. 332, 852 n. 332 Prosecutor v. Ntakirutimana & Ntakirutimana 826 n. 186, 841 n. 273 Prosecutor v. Ntuyahaga 827–28 n. 190 Prosecutor v. Nyirahasuhuko and Ntahobali 807 n. 112, 820–821 n. 163, 823 n. 170, 826 n. 186, 821 n. 163, 843–44 n. 279, 852–53 n. 332 Prosecutor v. Nzirorera et al. 820 n. 163, 821 n. 163, 843 n. 279, 852 n. 332, 854 n. 338, 855 n. 344 Prosecutor v. Nzirorera et al. 821 n. 163 Prosecutor v. Omar Hassan Ahmad Al Bashir 698 n. 206, 1007 n. 87 Prosecutor v. Orić 366 n. 320; 366 nn. 319, 321; 367 nn. 322, 324; 820 n. 163; 840 n. 266 Prosecutor v. Plavsic 480 n. 906, 801 n. 79 Prosecutor v. Prlić et al. 840 n. 266 Prosecutor v. Refijic Saric 946 n. 165 Prosecutor v. Rukundo 852 n. 332 Prosecutor v. Rutaganda 816 n. 147, 820 n. 163, 843 n. 279, 852 n. 332 Prosecutor v. Rutaganira 451 n. 745 Prosecutor v. Rwamakuba 391 n. 455, 853 n. 332 Prosecutor v. Šainović et al. 374 n. 352, 387 n. 429 Prosecutor v. Semanza 802 n. 85, 814 n. 146, 828 n. 191, 841 n. 273, 843 n. 279, 852 n. 332, 852 n. 415, Prosecutor v. Seromba 325 n. 144, 327 n. 151, 808 n. 112 Prosecutor v. Serugendo 853 n. 332 Prosecutor v. Sesay et al. (RUF Case) 392 n. 465, 750 n. 170 Prosecutor v. Seselj 819 n. 163, 824 n. 178 Prosecutor v. Sikirica et al. 481 n. 910 Prosecutor v. Simatovic 820 n. 163

Prosecutor v. Simba 329 n. 155; 814 n. 146; 841 n. 273; 845 nn. 290–91 Prosecutor v. Simić et al. 330 n. 157, 386 n. 424, 801 n. 79, 836 n. 228, 851 n. 332 Prosecutor v. Sljivancanin 820 n. 163 Prosecutor v. Stakić 323 n. 131, 325 n. 144, 807 n. 112 Prosecutor v. Stankovic 737 nn. 89, 92; 842 n. 279 Prosecutor v. Strugar 327 n. 151, 362 n. 286, 806 n. 110, 842 n. 279, 858 n. 379 Prosecutor v. Tadić 376 n. 368, 480 n. 905, 484 nn. 935–36, 743 n. 124, 816 n. 147, 819 n. 163, 839 n. 257, 840 n. 260, 841 n. 272, 851 n. 332, 854 n. 341, 855 n. 351, 864 n. 433, 867 n. 456, 938 n. 139 Prosecutor v. Taylor 92 n. 161; 372 n. 345; 392 n. 464; 747 n. 156; 748 n. 158; 749 nn. 164–165 Prosecutor v. Todorovic 479 n. 895 Prosecutor v. Vasiljević 329 n. 157, 374 n. 352 Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang 94 n. 153 Prosecutor v. Zigiranyirazo 326 n. 147, 806 n. 110, 842 n. 278, 843 n. 279, 844 n. 279, 850 n. 329, 854 n. 335 Pueblo Bello Massacre Case 205 n. 112 Quaranta v. Switzerland 823 n. 169 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) 73 n. 57, 80 n. 94, 81 n. 103, 82 n. 108, 86 nn. 115–116 Quinn v. France 801 n. 79 Quinn v. Ireland 806 n. 110 R v. Bow St. Metro. Stipendiary Magistrate & Others 1040 n. 179, 1086 n. 140 R.I. Recreation Center, Inc. v. Aetna Casualty and Surety Co. 440 n. 680 Radio France and Others v. France 806 n. 110 Rantsev v. Cyprus and Russia 797 n. 60 Rasmussen v. Denmark 800 n. 70 Raxcacó Reyes Case 798 n. 60 Regina v. Bartle & the Comm’r of Police for the Metropolis & others Ex Parte Pinochet 239 n. 210 Regina v. Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte 50 n. 219, 78 n. 81, 653 n. 10, 1040 n. 179, 1086 n. 140 Regina v. Dudley and Stevens 442 Regina v. Finta 448 n. 722, 946 n. 165 Regina v. Smith 418 n. 586 Reid v. Covert 524 n. 168



list of court cases

Rein v. Socialist People’s Libyan Arab Jamahiriya 127 n. 331 Rekvenyi v. Hungary 812 n. 133 Republic of Philippines v. Marcos 87 n. 120–21 Reynolds v. the United Kingdom 797 n. 60 Riepan v. Austria 813 n. 141 Riggs v. State 417 n. 582 Right of Passage Over Indian Territory (Port. v. India) 135, 245 n. 248 Right v. Might 555 n. 80 Ringvold v. Norway 806 n. 110 Romero v. Drummond Co. 101 n. 208 Rosado v. Civiletti 508 n. 93 Rozmarynowski v. Poland 801 n. 79 Rufo v. Simpson 126 n. 328 Sailer v. Austria 830 n. 197 Sakhnovskiy v. Russia 822 n. 166, 823 n. 169 Salabiaku v. France 806 n. 110 Salduz v. Turkey 811 n. 147, 822 n. 166 Salman v. Turkey 803 n. 88 Salomonsson v. Sweden 813 n. 141 Saramaka People Case 800 n. 70 Sarei v. Rio Tinto PLC 100 n. 199 Saunders v. UK 805 n. 102 Sawhoyamaxa Indigenous Community Case 798 n. 60, 800 n. 70, 815 n. 147 Scalise v. Meese 508 n. 94 Scalise v. Thornburg 508 n. 94 Schenk v. Switzerland 806 n. 110 Schenk v. Switzerland 809 n. 121 Sejdovic v. Italy 806 n. 110 Selmouni v. France 977 n. 316, 972 Selmouni v. France 803 n. 88 Selmouni v. France 977 n. 313 Sergey Zolotukhin v. Russia 830 n. 197 Shamayev and Others v. Georgia and Russia  797 n. 60 Shanon v. United States 440 n. 680 Siderman de Blake v. Argentina 948 n. 175 Slimane-Kaid v. France 815 n. 147 Soering v. the United Kingdom 476 n. 875, 806 n. 100, 977 n. 314 Sosa v. Alvarez-Machain 101 n. 210 South West Africa Cases (Preliminary Objections) (Eth. v. S. Afr.; Liber. v. S. Afr.)  246 n. 252 Sovtransavto Holding v. Ukraine 811 n. 127 Soysal v. Turkey 797 n. 60 Stanev v. Bulgaria 825 n. 186 State v. Ellis 440 n. 680 State v. Migliorino 440 n. 679 State v. Myers 440 n. 679 Streletz, Kessler and Krenz v. Germany 831 n. 206 Stroek v. Belgium 819 n. 162

1099

Tanli v. Turkey 797 n. 60 Tas v. Turkey 797 n. 60 Taveras v. Taveras 100 n. 200 Taxquet v. Belgium 811 n. 127 Tekin v. Turkey 797 n. 60 Telfner v. Austria 806 n. 110 Tel-Oren v. Libyan Arab Republic 126 n. 331 Terry v. Ohio 810 n. 123 Textile Traders Limited v. Portugal 825 n. 186 The Case of the S.S. “Lotus” (Fr. v. Turk.) 245 n. 249, 252 n. 277, 322 n. 125 Theraube v. France 808 n. 112 Thirty Hogsheads of Sugar v. Boyle 250 n. 269 Timurtas v. Turkey 797 n. 60 Torres v. Southern Peru Copper 100 n. 199 Trujillo Oroza Case 798 n. 60 Underhill v. Hernandez 948 n. 173 United States of America v. Tomoyuki Yamashita 341 n. 195, 563 n. 128 United States v. Alstötter 1049 n. 4 United States v. Bailey et al. 440 n. 679 United States v. Barker 297 n. 36 United States v. Bevans 417 n. 578 United States v. Brandt 1049 n. 4 United States v. Bright 417 nn. 579–580 United States v. Calley 297 n. 36, 352 n. 243, 429 n. 637, 460 n. 789 United States v. Dotterweich 401 n. 515 United States v. Dotterwich 371 n. 338 United States v. Egan 525 n. 168 United States v. Flick et al. 446 United States v. Holmes 442 n. 694 United States v. Jackson 805 n. 105 United States v. Jones 417 n. 580 United States v. Kinder 419 n. 587 United States v. Krupp et al. 446 United States v. Lira 524 n. 168 United States v. May 440 n. 679 United States v. Medina 352 n. 242 United States v. Nickels 440 n. 679 United States v. Noriega 88 n. 131 United States v. Parks 371 n. 338 United States v. Schultz 428, 429 n. 636 United States v. Stevison 440 n. 680 United States v. Toscanino 524 n. 168 United States v. Verdugo-Urquidez, 524 n. 167 United States v. Von Leeb (The High Command Case) 345 n. 209 United States v. Von Weizsäcker et al. 467 n. 832 United States v. Wilhelm List et al. (The Hostages Case) 347 n. 215

1100

list of court cases

United States v. Williams 525 n. 168 U.S. Diplomatic and Consular Staff in Teheran (U.S. v. Iran) 241 n. 222 Usón Ramírez Case 811 n. 127 Valle Jaramillo et al. Case 206 n. 119 Van der Leer v. The Netherlands 814 n. 146 Van Geyseghem v. Belgium 818 n. 156 Van Orshoven v. Belgium 815 n. 147 Van Realte v. The Netherlands 800 n. 70 Varnava and Others v. Turkey 797 n. 60 Vaudelle v. France 814 n. 146 Veeber v. Estonia (no. 2) 831 n. 206 Velasquez Rodriguez Case 204 n. 116, 798, 964 n. 256, 974 n. 297, 798 n. 60, 803 n. 88 Vélez Loor Case 801 n. 79 Venezia v. Ministero Di Grazia E Guistizia, Corte cost. 510 n. 110 Viera v. Eli Lilly & Co. 102 n. 213 Villagrán Morales et al. Case (the “Street Children” Case) 798 n. 60 Vo v. France 797 n. 60 Voisine v. France 823 n. 170

Von Dardel v. Union of Soviet Socialist Republics 948 n. 175 Vostic v. Austria 806 n. 110 W.F. v. Austria 830 n. 197 Waixelbraun v. Austria 806 n. 110 Ware v. Hylton 250 n. 270 Weeks v. United States 809 n. 121 Xákmok Kásek Indigenous Community Case 800 n. 70 Xuncax v. Gramajo 126 n. 331, 949 n. 186 Yagmurdereli v. Turkey 811 n. 127 Yakis v. Turkey 811 n. 127 Yakye Axa Indigenous Cmty. v. Paraguay 798 n. 60 Yamashita v. Styer 1037 n. 169 Yolcu v. Turkey 822 n. 166 Yvon Neptune Case 801 n. 79, 826 n. 186 Zielinski and Pradal and Gonzalez and others v. France 815 n. 147

INDEX Abebe‑Jira v. Negewo 126 n. 331, 960 n. 190 Accountability Accountability mechanisms 652 n. 9, 653, 781, 786, 919, 926, 935 n. 117, 937, 953–955, 968–969, 970 n. 282 Policy considerations 247, 292, 334, 406, 915, 957 Balancing factors 814 Enhancing accountability 786, 910, 1019 Few war criminals are brought to justice 495, 974 Goals of 927, 978 Impunity and 1, 786 International prosecutions 935 n. 127, 939, 1058, 1081, 1088 Need for accountability for perpetrators of crimes against humanity 19, 23, 50 n. 216, 399, 465, 619, 649, 760, 775, 779, 804, 1051, 1054–1055, 1062, 1064, 1074, 1088 Realpolitik 1051, 1054, 1059, 1067–1068, 1075–1076 Retributive justice 652, 779–780, 782, 925 Accused actus reus 323 nn. 131–133, 323 n. 135, Rights of at trial 83 n. 110, 252, 685, 688, 693, 694 n. 175, 746, 774 n. 317, 805, 806 n. 110, 808, 813, 820 n. 163, 823, 825–826, 833, 835 n. 225, 837–841, 846–850, 851 n. 331, 853–854, 857–859, 861 n. 408, 895 Act of State Doctrine 18, 310, 402 n. 519, 951 n. 201 Administration of justice Offenses against 661 n. 50, 689, 830 Admissibility and inadmissibility 682 Adversarial method not suitable 792 Afghanistan 127, 704 n. 223, 717, 724, 782, 791, 911, 971, 1017 n. 110, 1070, 1075 African Charter of Human and Peoples’ Rights Article 7 800, 821 African Commission on Human and Peoples’ Rights 113 n. 262, 321 Aggression ICC and 628 n. 363, 629–630, 634 n. 404, 635–636, 636 n. 413, 654 n. 17, 658, 668 n. 79, 665, 692, 699, 705–712 Category of international crime 168, 220, 617 n. 324 Defining aggression 77, 140 n. 15, 150, 152, 221 n. 169, 554 n. 79, 582 n. 204, 583,

632–634, 637–638, 639 n. 438, 654 n. 17, 668, 670–671, 674, 675 n. 115, 678, 1022–1023, 1047, 1051–1052 ICL Conventions 24–26, 143, 217, 219, 249, 251 n. 273, 254, 255, 286, 296, 474–475, 484, 535 n. 3 Aguinda v. Texaco 100 n. 199, 949 n. 188 Aircraft Unlawful Acts Against International Air Safety 127, 144, 149, 225, 233, 274, 579 n. 187 ICL Conventions 24–26, 210, 212–213, 242, 247, 282, 292, 470–471, 480, 531 n. 3 Aksoy v. Turkey, 735 803 n. 88, 977 n. 314 Al Adsani v. Kuwait, 716 948 n. 175 Al Adsani v. UK, 735 79 n. 84, 977 Alien Tort Claims Act (ATCA) 101 n. 205, 102 n. 213, 104 n. 224, 126 n. 329, 949 n. 178 Allied Control Council Law (CCL), Legal basis comparison, 420–421 234, 359, 375, 406, 433, 449, 494, 543, 550, 561, 637, 669, 767, 905, 1022, 1050 n. 21 Amekrane v. UK 525 n. 170 American Convention on Human Rights (AMCHR) Article 994 n. 167, 95, 300, 620, 659, 665 American Service Members’ Protection Act (ASPA) 703 Amin, Idi 978 Amnesty ICHR decisions on 975 n. 305 International criminal justice and 196, 591 n. 261, 606, 756, 800 n. 99, 933, 972 Andean Countries 527 Apartheid Convention Apartheid 48, 59 n. 2, 77, 144, 148, 157, 165, 201, 218, 223, 226 n. 169, 270, 296, 404, 434 n. 657, 584 Article 3 77, 141 n. 40, 181, 187, 189, 327 n. 167, 391 n. 484, 569, 613, 614 n. 326, 658 n. 56, 660, 669, 706, 739, 770 n. 317, 793, 960 Appeal ICC 90 n. 146, 1067 Right to 795, 827–829, 867, 895 Appellate proceedings Evidence in 867 Armenian genocide 542 n. 16 Articles of Military Laws to be Observed in the Wars 296, 336, 565, 1026

1102

index

Assembly of States-Parties to the ICC (ASP)  628, 629 n. 367, 629 n. 375, 630 n. 377, 630 nn. 379–382, 634 n. 405, 669 n. 82, 684 n. 143, 707–708, 710 Aggression, definition of 150 n. 44, 152, 256, 258, 555 n. 79, 582–583, 632–634, 637–638, 639 n. 438, 654 n. 17, 668, 671, 674, 675 n. 115, 678 Assenov et al v. Bulgaria, 735 977 n. 314 Attorney General of Israel v. Eichmann 428 n. 630 Aquinas, Thomas 32, 1004 Arafat, Yasser 89 Arbitrary arrest and detention Right to be free from 795 n. 50, 800–802, 804, 832, 870, 901 Argentina 88, 210 n. 133, 595, 625 n. 349, 628, 648 n. 481, 712 n. 260, 714, 782, 898, 936, 939 n. 140, 943, 945 n. 164, 948, 961 n. 243, 976, 1040, 1068, 1074, 1086 Armed conflict Number of in 20th century 651, 1076 Regulation of 141, 167, 207–208, 219–220, 221 n. 165, 222–223, 225, 301, 309–310, 333–334, 370, 452, 454, 465 Ranking and classification of international crimes 227 Assets Confiscation of 511, 513–514 Freezing and seizing of 15, 487, 500, 510– 513, 516, 518, 519 n. 145, 529, 533 Third parties and 482, 518 Australia 387 n. 429, 521, 522 n. 158, 559 n. 103, 560 n. 107, 562, 563, 594 n. 258, 595, 648 n. 481, 714, 753 n. 188, 966 n. 269, 1026, 1054, 1063, 1066 Austria 44 n. 185, 210 n. 133, 261, 262, 529 n. 185, 595, 648 n. 481, 710 n. 246, 711 n. 246, 715, 898, 1022–1023, 1026, 1050, 1055, 1064–1065, 1067 aut dedere aut judicare Nature and content of the obligation 12, 496 Origin and rationale 487 Baltic States 527 Banjul Charter 112 n. 260, 113 n. 262, 114 n. 275, 799, 804, 809, 811–812, 821–822, 823, 825–826, 828 n. 193, 903 Banking and financial institutions Freezing and seizing of assets 15, 487, 500, 510–514, 519 n. 145, 529, 533 Money laundering 56, 88, 514–515, 517, 520–521, 913 Barcelona Traction, L. & P. Co (Belg. V. Spain)  114 n. 269, 127, 245 n. 244, 246 nn. 253, 256, 934 n. 119 Barrios Altos case 975 n. 305, 976 n. 309

Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of 33, 83 n. 110, 111, 116, 117 n. 289, 118, 123 n. 308, 692 n. 169, 911 n. 8, 951, 953 n. 208, 958, 1015 n. 107 Violations of International Human Rights and 33 n. 133, 83 n. 110–111, 116, 118, 123 n. 308, 125, 911 n. 8, 951 n. 204, 953, 954 n. 8, 1015 n. 107 Humanitarian Law, (“Basic Principles on Victim Redress”) 33, 116–117, 122, 123 nn. 308, 311, 124 n. 314, 125 nn. 316, 318, 131 Principle 8 122 Principle 12 124 Principle 15 125 n. 318 Principle 16 125 n. 320 Principle 17 125 n. 321 Principle 18 125 n. 322, 966 n. 372 Basic Principles of Justice for Victims of Crime and Abuse of Power 33 n. 133, 115, 116 n. 289, 123, 132 n. 366, 532 n. 196, 621 n. 339, 692 n. 169, 809 n. 119, 952 n. 207 Beccaria, Cesare 490 n. 9, 914 n. 23, 931 n. 111 Belgium Prosecution of individuals 75, 339, 477, 542–543, 547–548, 550, 557, 563–565, 1023, 1026, 1036, 1039–1040, 1052–1053, 1064, 1085 n. 137 Benelux countries 523 Benton v. Maryland 829 n. 195 Berlin Democratic Club v. Rumsfeld 524 n. 168 Bivens v. Six Unknown Named Agents . . . 809 n. 121 Blockburger v. U.S. 829 n. 196 Bonaparte, Napoleon 29 n. 100, 1022 n. 134, 1050 n. 6 Bormann, Martin 1061 n. 45 Bozano v. France Eur. Ct. H.R. 525 n. 170, 812 n. 133 Bribery Officials 93, 97, 136, 138, 142, 209, 211, 219, 229, 279, 313 n. 102, 576 n. 187 ICL Conventions on 284 Brigadefohrer Kurt Meyer case 350 Bulgaria 210 n. 133, 261–262, 714, 898, 946, 947 n. 171 Burlamaqui, Jean-Jacques 32, 408 Bush, George W. 703, 978 n. 320, 985 n. 12, 987 n. 19, 1029, 1044, 1057, 1046 n. 5, 1090 Cambodia Group of Experts 761 n. 237, 762 n. 246, 763 n. 247, 764 International criminal justice in 760 Khmer Rouge 394 n. 475, 654 n. 15, 726 n. 28, 761 n. 240, 762 n. 241, 763 nn. 247, 252, 764 n. 256, 765, 767–768, 1069



index

Mixed UN-Cambodian tribunal 763 Pol Pot 761, 767, 1069 UN Transitional Authority in (UNTAC)  762 Canada 76 n. 67, 115, 130, 351 n. 237, 387 n. 427, 448, 505, 507, 521, 522 n. 158, 559 n. 103, 563 n. 125, 566 n. 139, 594–595, 602, 648 n. 481, 712 n. 259, 824, 898, 946 n. 165, 966 n. 269, 1026, 1054, 1063–1064 1072 Canadian War Crimes Regulations 350 Caribbean Financial Action Task Force (CFATF) 514 Carnegie Endowment for International Peace 338 n. 185, 419 n. 589, 542 n. 15, 543 n. 20, 544 n. 25, 1053 n. 15 Castro, Fidel 88–89, 1073 Cedras 782, 945 n. 164, 978, 1038, 1084 Celebici Appeals Judgment 361 nn. 280–281, 362 nn. 288, 292, 363 n. 295, 364 n. 298, 471 n. 854, 472 n. 857, 479 n. 900 Central Intelligence Agency (CIA) 520 n. 147, 1049 n. 4, 1072 n. 120 CIA-Mossad cooperation 523 n. 159 Charter of the IMT Article 6(c) 67, 71, 158, 634, 1022, 1050 Charter of the IMTFE 425, 834, 1054, 1061, 1065–1067, 1083 Children Use of to commit crimes 745 n. 137 Chile 78, 82 n. 110, 312, 401, 595, 653 n. 10, 715, 782, 898, 936, 943, 962 n. 243, 964, 978, 1040–1041, 1074, 1086–1087 Cicero 31 n. 111, 32 n. 123, 137 n. 4, 138 n. 6, 411 n. 554, 932, 990 n. 30, 1009 Civil remedies see Remedy Civilian population Attack on 159–166, 173, 190, 317 n. 107, 459, 465, 661–662, 743–744, 757 n. 212, 1050 civitas maxima 21, 36–37 n. 155, 39, 491, 492 n. 18, 494, 495 n. 34, 496, 500, 529, 531, 534, 1009–1010 Code of Offences Against the Peace and Security of Mankind 17 n. 50, 67, 68 n. 39, 108, 139 n. 12, 140 nn. 19–20, 141 n. 22, 150, 154, 158, 209, 244 n. 241, 248, 257–259, 264, 275, 288 n. 14, 355, 358, 432 n. 651, 433, 576 n. 182, 579, 580 n. 190, 583, 586 see also Draft Code of Crimes Draft Code 108, 132, 288 n. 13, 433, 579 n. 187, 583, 625, 634 Cold War 38, 55, 140, 523 n. 159, 555, 565–566, 580, 670 n. 91, 671 n. 98, 762 n. 241, 780, 985, 1019, 1029, 1037, 1057, 1059–1060, 1067–1066, 1073, 1083 Columbian‑Peruvian Asylum Case 250 n. 268

1103

Command responsibility Civilian command responsibility 370 Evolution of 336 Indices to evaluate 357 Military criminal responsibility and 335, 1081, 1083 n. 130 Obedience to a superior order 407, 413, 429 Reasonableness standard 292, 309, 336 Responsibility for acts of subordinates 354 “Should have known” test 333, 346 Subordinate actor’s responsibility 335 Commission of Experts see United Nations. Security Council Commission on Human Rights 33 n. 133, 113, 116, 127, 204, 622 n. 339, 692 n. 169, 724 n. 17, 754 n. 192, 941 n. 154, 953 Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties (1919)  338 n. 185, 537 n. 12, 541 n. 20, 1021 Common law Civil law and as to distinguishing between crimes 147 n. 37 Evidence 687, 789 Principle of legality 244 Commonwealth of Nations 746 Commonwealth Secretariat Subregional organizations 527 Communication satellites 216 Complementarity Definition 19 n. 57, 633 ICC and 20–21, 25–26, 119, 623, 631, 655–656, 679, 704, 714–715, 941, 1005, 1044, 1087, 1090–1091 Jurisdictional concept 20–21 Compulsory process, right to 816 n. 149, 817, 888 Congo 89, 237 n. 203, 696, 704 n. 223, 714–717, 719, 782, 1075 Congo v. Belgium 77, 89 n. 133, 372, 1040, 1086 Congress of Vienna 44 n. 185, 141, 270, 1022 n. 135, 1055 n. 39, 1082 Conspiracy Concept of 61, 98 Constitutions List of used in text 795 n. 55, 984 n. 9 Control Council Law No. 10 144, 158, 257, 259, 262, 369, 550, 557, 1025–1026, 1039, 1049 n. 4, 1054, 1085 Convention Against Torture and Other Forms of Cruel Inhuman and Degrading Treatment 114, 475–476, 795 n. 50, 802 Convention on the Elimination of all Forms of Racial Discrimination 114 n. 272, 127, 201 n. 96, 270, 795 n. 54, 869, 959

1104

index

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity  77, 91, 259, 263, 348, 355, 372, 376, 443, 448, 452, 476, 627, 669, 742 n. 119, 748, 756, 786 Article II 158, 241 n. 224, 304, 369, 390 n. 449, 425, 557, 561, 565, 761 n. 239 Convention on the Rights of the Child 114, 960 Conventions see also specific conventions and topics, such as Torture 77, 79, 115, 127, 150, 272, 434, 970 Characteristics of ICL conventions 143, 219 Confusion in drafting 220 Correlation factor Naivety of drafters 219 No identifiable link between categories 223 Penal characteristics of ICL conventions  143 Categories of 149 Characteristics per category of crimes  145 List of 143, 465, 561 Number of penal characteristics 144–145 Source of international crimes 16 Cooley v. Weinberger 510 n. 108 Corporal punishment 475–476, 502, 916–917 Corporate criminal responsibility 61, 98, 102, 371, 401 Council of Europe (CE) Committee of Experts 107, 203, 530 n. 188, 532 n. 196, 585, 586 n. 226 Counsel Right to counsel of one’s choice 822 Right to appointment of counsel in case of indigency 822, 893 Right to assistance of 795 n. 50, 817–818, 821, 824, 832, 846, 887, 891, 895 Right to presence of counsel at all times  112 Right to self-representation 823–824, 853, 894 Counterfeiting, falsification and ICL Conventions on Crimes Elements of (ICC) 711, 869, 1010, 1043, 1050–1054, 1064, 1082–1084, 1087 Crimes against humanity Different interpretations in documents ICL Conventions 19, 23, 26, 1055 State action or policy 72, 1051, 1054–1055, 1062, 1064, 1072, 1074 State doctrine not applicable 18, 310, 951 n. 201, 1079, 1082, 1084

Criminal code Model international criminal code 532, 1064–1065, 1087 Development of 13 Criminal justice systems Bureaucratic nature of 1081, 1089 New mixed models of international criminal justice 721, 785 n. 6 see specific country, such as Sierra Leone Criminal organizations 317, 387, 559 n. 103 Criminal proceedings Transfer of 15, 500, 510–511, 529, 533, 699 Criminal responsibility see also International criminal responsibility, and specific topics 13, 60, 63–64, 96, 109, 117, 133, 332, 786, 1080–1081 Charter of ICC General Part and 10, 217, 253, 294, 300, 1052 Command responsibility 12, 60, 65, 285, 287–289, 297, 303, 314, 316, 318–319, 332–333, 335–336, 339, 345–346, 358, 362, 364, 368, 371, 401, 403, 485, 1083–1084 Civilian command responsibility 370 Evolution of 336 General considerations 289 General Part 285 Application to IMT, IMTFE 210, 285–286, 288–289, 293–296, 303, 318, 475, 1028–1029 Conclusion 474 Elements of 302 Enormity of harm element 319 Ignored so as not to confuse proceedings ICL penalties and sentencing 474 ICC 482–484 ICTY and ICTR 471, 478–480, 484 IMT and IMTFE 476–478, 484 Introduction 73 Mental element 300, 304–305, 308, 318, 615 National legal standards and their relevance to ICL 296 Principles of General Part 285 Subjects of 49 n. 209 Criminalization International criminalization 139 Introduction 216 Custom From custom to treaty 249 n. 266 Source of international crimes 16 Customary law National judicial decisions and 250 Principles of legality and 9, 12–13, 19, 65, 69, 107, 140, 217, 237, 243, 246–247, 251–254, 292, 302, 307, 313, 321–322, 324,



index

396, 475, 480, 484–485, 553, 565, 665, 673, 788, 830, 990, 1027 Czech and Slovak Republics 946 de facto impunity 652 n. 9, 957–958, 972, 1039, 1085 de jure impunity 652 n. 9 Death penalty 475–476, 480–481, 483, 497 n. 44, 502, 506, 574, 691, 798–799, 804, 916, 917, 1048 Decisions and orders (ICC) 689 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 33 n. 133, 115, 809 Article 13, 99 90 n. 167, 91, 248, 296, 609 n. 301, 616, 636, 658, 661 Declaration of German Atrocities 151, 261 Declaration on the Rights of Man 800 n. 76, 831 n. 205 Director of Public Prosecutions v. Lamb Diamond trade 740 n. 108, 980 n. 328 Direct enforcement system International Criminal Court Coming into being 835, 1002 see also ICC 836 Establishing of 575 see also ICC 536 n. 8 International and national truth commissions 943 International criminal investigations and prosecutions 535, 540 see also specific investigations such as Leipzig Trials and other topics 305, 409, 419, 421, 547–548 Introduction 474 Discipline of ICL 53, 69, 989 Documents Documentary and forensic evidence 863 Right of translation 846 Doe I v. Islamic Salvation Front 949 n. 181 Dombo Beheer B. V. v. The Netherlands 840 n. 262 Double jeopardy Right to be protected from 829 Draft Basic Principles and Guidelines on the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms 111, 116 Draft Code of Crimes Against the Peace and Security of Mankind see also Code of Offenses 139–140, 432, 433, 579, 1021 Article 2 67 Article 4 358

1105

Article 5 358 Article 6 358 Article 7 358 Article 12 355 Article 13 248 Draft Principles on Justice for Victims of Crime and Abuse of Justice 128 Draft Principles on State Responsibility Article 19 63 Duvalier, “Baby Doc” 87 Drugs Execution of foreign sentences and 506 Freezing and seizing of criminal assets 15, 487, 500, 510–516, 518, 519 n. 145, 529 Psychotropic substances 212, 278, 511 Unlawful traffic in and related drug offenses 144, 149, 212, 218, 234 ICL Conventions 214, 217, 219 Due process Fifth and Fourteenth Amendments 809 n. 116 International cooperation and 528 Procedural 531, 1056 East Timor CAVR two-year mandate to conduct inquiries, etc. 760 n. 230 Indonesian invasion and killings 758 n. 222 Memorandum of Understanding (MOU)  756 Prosecution of serious crimes 756, 1058, 1061, 1071, 1077 Serious Crimes Unit 755–756 UN Mission of Support in East Timor (UNMISET) 755, 757 UN Transitional Administration in East Timor (UNTAET) 393, 754 Eastman Kodak v. Kavlin 949 n. 185 Economic Community of West African States (ECOWAS) 80, 746 El Salvador 541 n. 12, 673, 781–782, 943, 947, 976 Elements of Crimes 12, 163–164, 288 n. 11, 295, 300–301, 304, 312, 318, 320, 591, 609 n. 301, 616, 618 n. 342, 619, 620, 657–658, 663, 665, 711, 978, 1011 Enforcement regimes (modality) Direct enforcement system 22, 28 Historical evolution of 28, 30 Eight modalities 24 n. 85, 487, 529, 533 Indirect enforcement system 22, 487–488 Historic evolution of 34 English Bill of Rights 797, 800, 802, 804 n. 98 Environment Unlawful acts against 136, 145, 208, 214, 280, 579 n. 187 ICL Conventions on 267, 268, 274

1106

index

Equal Protection of the law Right to Recognition Before the Law and 795 n. 50, 799, 832, 870 Equality of arms, right to 815–817, 839–841 Escobedo v. Illinois 809 n. 121 Estate of Ferdinand Marcos, In re 126 n. 331 Ethiopia 88 n. 126, 558, 715, 782–783, 943, 945 n. 164, 946, 950, 971, 978, 1063, 1068–1069 European Arrest Warrant and Surrender Procedures . . . 34 n. 140 European Commission 113 n. 262, 594 No longer exists 113 n. 262 European Commission on Human Rights (EcomHR) 113 n. 262, 815 n. 147, 840 Protocol 11 113 n. 230 European Convention for the Protection of Human Rights and Fundamental Freedoms 114, 321, 960 European Convention on Human Rights 112 n. 260, 247 n. 261, 518, 522, 809, 960 n. 231 Article 7 104 n. 228, 247 n. 261 European Court of Human Rights (ECHR)  1073 List of equal protection cases 799 n. 70 List of impartial and independent tribunal cases 810 n. 127 List of presumed innocent cases 806 n. 109 List of right to a fair trial cases 807 n. 112 List of right to a public trial/hearing cases 813 n. 141 List of right to appointment of counsel in case of indigency cases 819 n. 162 List of right to be protected from double jeopardy cases 180 n. 197 List of right to be protected from ex post facto laws cases 831 n. 206 List of right to be tried in one’s own presence cases 818 n. 156 List of right to counsel of one’s choice cases 822 n. 166 List of right to self-representation cases  823 n. 170 European Union (EU) 34, 62 n. 20, 104 n. 223, 526–527, 645 n. 471, 704 ex post facto laws 830, 832 Right to be protected from 897 Evidence Appellate proceedings 867 Collection of 556, 566, 568, 836, 868 Conclusion 566, 689, 942 Equality of arms 817, 839 Evidence gathering 621 n. 335 Exclusionary rules 810 Expeditious trial, right to 694 n. 175, 850 Disclosure of evidence prior to trial 844, 1049

Documentary and forensic evidence 863, 1063 Expert evidence 861–862, 1089 Fair trial rights and evidence 839 Historical aspects 985 International criminal proceedings and 11, 13, 834, 867–868, 1055, 1064 International criminal prosecutions Peculiarities of 868, 1077 Introduction 849 Languages used at trial 846 National legal systems 656, 941 n. 153 Oral testimony 865 Peculiarities of international criminal prosecutions 868 Promptly informed of charges 814 n. 145, 842 Protection of national security and 884 Range of evidentiary questions 792 Remedies for infringement of rights 861 Right to the inadmissibility of certain evidence 809, 874 Right to translated documents 846–847 Rights surveyed ICC comparison chart 900–908 List of rights 870–897 Self-incrimination and right to remain silent 859 Suspects, rights of 848, 861 Trial Right to be present at and public trial  746, 817, 850–851, 853, 890 Value-oriented goal of 791 Witnesses and protective measures  857–858, 873, 878 Experimentation, Unlawful Human ICL Convention 48, 144, 148, 202, 204–205, 218, 223, 216–217, 232, 579 n. 187, 1045 n. 4 Explosives ICL Convention 136, 138, 141, 204, 227 Extradition Bilateral treaties 10, 15, 19, 501, 507, 511–513, 529, 530 n. 189, 533, 704, 1070, 1082 Model bilateral treaty 503 Multi-lateral treaties 10, 15, 501, 503–505, 519 n. 145, 529, 530 n. 189, 531, 533, 570, 608, 616, 620, 624, 633, 1059 Fair trial Evidence and 838 Right to 390, 518, 694, 795 n. 50, 807–808, 810, 815 n. 147, 822, 824, 832, 838–839, 846, 857, 857, 867, 874 Filartiga v. Pena‑Irala 101, 126 n. 331, 949 n. 183, 951 n. 203 Financial Action Task Force (FATF) Money laundering 514–515



index

Force Threat and Use of Force Against Internationally Protected Persons 144, 149, 209, 223, 225, 233, 579 n. 187, 1047 ICL Conventions Foreign penal judgments 15, 24 n. 85, 487, 500, 507–511, 529, 539 Foreign Sovereign Immunities Act (FSIA) 948 n. 174, 949 n. 189 Forti v. Suarez‑Mason 949 n. 184 French legal system 619 Fujimori, Alberto 88, 373, 1074 Full faith and credit 509 n. 103 Funk, Walther 306 n. 75, 422 n. 601, 1061 n. 45 General principles of law 9–14, 52, 236, 243, 246, 251, 253–254, 286, 288–289, 295, 304, 310, 312, 356, 409–410, 424, 444, 478, 544, 553, 570, 622, 656–657, 790, 796, 833, 864, 913 n. 19, 1009, 1011 General Treaty for Renunciation of War as an Instrument of National Policy (KelloggBriand Peace Pact or Pact of Paris) 151, 256 Geneva Conventions (1949) Article 158 251 n. 272 Law of Geneva 168, 229 Protocol I 332, 354, 462–463, 544 n. 25, 618 n. 326, 664, 1021 n. 133, 1050 n. 5 Protocol II 573, 618 n. 326, 664, 743, 1050 n. 5 Genocide Article I 59 n. 2 Article 4 77 Convention (1948) 72, 154, 220, 225–226, 430 n. 640, 584, 617, 761 n. 239 ICL Conventions 19, 23, 26, 140, 218, 240, 243, 291, 298, 661 Germany 17, 75, 79, 109–111 151, 210 n. 133, 249 n. 266, 255, 257, 259, 261–262, 264, 269, 338 n. 186, 339–340, 350, 369, 386 n. 427, 403 n. 520, 408, 419, 423, 425 n. 620, 437, 447–448, 457–458, 468, 477, 529 n. 185, 542, 543 n. 19, 547–548, 550, 554 n. 76, 555, 557, 562–565, 576, 581 n. 199, 595, 605 n. 289, 629 n. 369, 648 n. 481, 710 n. 246, 712 n. 259, 714, 836, 859 n. 386, 898, 973, 1018 n. 113, 1023–1026, 1028, 1039, 1040, 1049, 1052–1055, 1057, 1062, 1064, 1082, 1085 German legal system 814 n. 145, 821 n. 163 German Supreme Court 29 n. 99, 339, 1058 Glaser, Stefan 304 Globalization ICJ in the age of 909, 912, 920–921, 980, 988, 992, 999, 1009, 1013, 1045 Grotius, Hugo 32, 40 n. 166, 42 n. 175, 138, 295 n. 33, 408, 488, 490 n. 11, 492–495, 1004, 1010

1107

Group of Ten (G10)  515 Groups or organizations International criminal responsibility  96–97, 313, 1080–1081 Guatemala 210 n. 133, 543 n. 20, 595, 781–782, 805 n. 107, 898 Habre, Hissene 50 n. 219, 73, 79–81, 89, 373, 653 n. 10, 778, 974, 1072 Hagenbach, Peter von 29 n. 99, 416, 1037 n. 169, 1048, 1051, 1083 n. 130 Hague Convention (1899) Law of the Hague 168, 229 Hague Convention (1907) Article 1 338 n. 184, 1049, 1953 Haiti 87, 543 n. 20, 704 n. 223, 781–782, 946, 978, 1038, 1084 Heads of state Absolute immunity factor 18, 60, 73–76, 78, 87, 90 n. 145, 91, 93, 95, 302, 315, 351, 372, 402, 744, 1020, 1040, 1059, 1086 Criminal responsibility of Historical evolution of 28, 30, 139, 217, 989, 1077, 1079–1081 Irrelevance of official capacity 77, 289 n. 20 Practice of states 46, 78, 238, 249, 302, 410, 492, 496, 633, 659, 773, 1046, 1048, 1050, 1055, 1083–1084 Herodotus 31 High Command Case 345–346, 352, 368, 426, 427 n. 625, 461, 467 Hilton v. Guyot 250 n. 269 Hirsch v. Israel 948 n. 175 Hitler, Adolf 75, 309 n. 81, 340, 348, 369, 422–423, 426, 431, 457, 548–549, 551, 1036, 1082 Hohenstaufen, Conradin von 29 n. 99, 1047 Holmes, Oliver Wendell 38 Holocaust Jewish claims for compensation and reparation 30, 131, 995, 1050–1051 Homma v. U.S. 562 n. 124 Hostage Case 343 n. 205, 353 n. 154 Hostages Taking of civilian hostages 144, 149, 209, 210, 218, 223, 234, 275, 580 n. 187 ICL Conventions 139, 143, 141, 576 n. 187 hostes humani generis 137–138 Human rights law Five stages from values to penal proscriptions 217 Incorporated in ICL 11, 14, 46, 52, 217, 253 Human Rights Watch 72 n. 54, 595 n. 261, 610, 664 n. 60, 732 n. 68, 733 n. 71, 742 n. 119, 745 n. 137 Humanitarian protection during armed conflicts

1108

index

Ranking and classification of international crimes 227 Huntington v. Attrill 509 n. 103 ignorantia iuris neminem scusat 306 Impartial and independent tribunal, right to  810, 828, 879 Indictments 88 n. 126, 318, 374 n. 352, 380, 381 n. 393, 384 n. 416, 385–386 n. 424, 393, 498, 571, 572 n. 161, 643, 653, 656, 705, 731, 752, 758, 841, 845, 1006–1007, 1030–1031, 1038 n. 171, 1064, 1069–1071 Indigent Right to appointment of counsel 821, 889 Indirect enforcement system Assessment of 528–533 Weaknesses of 530 aut dedere aut judicare 12, 21, 60, 83, 133, 487–488, 491, 493, 496–497, 500, 510, 530–531, 534, 909, 926, 1010 see also aut dedere aut judicare Bilateralism over multilateralism 528 Conclusions 322, 566, 591, 689, 758, 790, 942, 1034, 1076, 1080 Due process and 207 n. 121, 528, 805 Execution of foreign sentences 506, 529 Extradition 15, 24 n. 85, 26, 73, 75, 78, 80–83, 220–222, 239, 476 n. 875, 487–495, 497–506, 508–510, 529, 530 n. 189, 531, 533, 539, 546, 557–558, 699–700, 802, 804 n. 100, 949, 1040, 1063, 1074, 1086 Freezing and seizing of assets 15, 487, 500, 510–513, 516, 516, 519 n. 145, 525, 529, 533 Information gathering and sharing 15, 24 n. 85, 519, 521, 525, 533 International cooperation in penal matters 10, 15, 20, 22, 217, 487, 488, 492, 499, 510–512, 527–529, 531–534, 784, 909–910, 919, 920 n. 53 Introduction 55, 444, 849, 915 Legal assistance 24, 35, 487, 500, 504–505, 511–514, 516 n. 139, 519 n. 145, 529, 530 n. 189, 531, 533, 536, 539, 581 n. 195, 687, 714, 756 n. 209, 817, 848, 886–889, 891, 892–894, 935, 1008 Modalities of 10, 15, 20, 34, 217, 487–488, 495, 499 506 n. 86, 519, 528–530, 532, 534, 692 n. 169, 693, 988, 996, 1013, 1016, 1079, 1089 Recognition of foreign penal judgments  15, 24 n. 85, 487, 500, 507, 509–510, 529, 539 Regional and sub-regional judicial space 15, 24 n. 85, 487, 500, 526, 529 Transfer of criminal proceedings 15, 24 n. 85, 487, 500, 510–511, 529, 699

Individual criminal responsibility see also International criminal responsibility of individuals 59–60, 133 Direct and indirect 313, 360, 695, 926, 1033, 1079 Non-state actors Immunities 133–34 Palestinian suicide bombers 72 n. 54 Victimization of civilians 70 Widespread or systematic 72, 134, 159–166, 314, 617, 662, 664, 743, 757 n. 212 Information-gathering and informationsharing Computerized data bases 521 Fallibility of 523 ECHELON Interception System 521 n. 158 Extra-territorial activities 524 Mutual legal assistance treaties 505, 519, 817 Terrorism and money laundering and  520–21 Inter-American Commission of Human Rights (IACHR) 14, 104 n. 230, 127, 849, 974 Inter-American Court of Human Rights (IACtHR) List of cases on amnesty and human rights 326 Intercontinental Hotel Corp. v. Golden 509 n. 103 Intergovernmental organizations 59, 220, 503, 533, 600 n. 278, 1012 International Committee for the Red Cross (ICRC) 430, 876–877 International cooperation Recommendations to increase 936, 971 Treaties relating to cxii, 62 n. 20 International Court of Justice (ICJ) Article 389, 1009 n. 93, 1010 n. 95 International Covenant on Civil and Political Rights (ICCPR) Article 15 246 n. 259 International Covenant on the Elimination of All Forms of Racial Discrimination 114, 962 n. 247 International crime Use of the term 181, 192, 219, 444, 618 International crimes (ratione materiae) Categories of 48, 95, 104, 134, 144 n. 270, 302, 499, 579 n. 187, 933 n. 117, 1003, 1147 see also specific headings, such as Piracy, Torture Characteristics of ICL Conventions 143, 219 Codification of ICL 139, 140, 148, 244, 253, 289, 1059 Conclusion 52, 133, 253, 437, 474, 484, 533, 648, 719, 778, 832, 867



index

Criteria for international criminalization  47, 139, 142 Lack of agreement as to 142 Lack of technical expertise 247 Evolution of the process of international criminalization 216 see also specific headings, such as Aggression Hierarchy of international crimes 147 International infractions 149 n. 41 Listing of 130 n. 360, 211 n. 134, 879 n. 69 Ranking and classification of 227 International crimes or transnational crimes 9, 12–16, 19–21, 24–26, 28, 29 n. 99, 34–35, 36 n. 149, 37, 39 n. 161, 48, 50, 60, 63, 67, 70, 75–76, 78, 80, 90, 95–96, 98, 104, 106, 133, 137, 139, 141, 142, 144, 146–149, 167, 210, 212, 216–218, 220, 227, 230–232, 236–237, 240, 242, 246, 251 n. 273, 252–254, 285, 289, 298–299, 302, 306–307, 311, 314–315, 317–318, 374, 377, 396, 402, 474–476, 479, 488–489, 491–492, 495–497, 499–500, 521, 524, 534, 541, 576, 579 n. 187, 582, 585, 588, 617 n. 324, 631–632, 652, 65, 661, 663, 719, 742, 770, 780–782, 784, 786, 856, 909–911 n. 8, 912–913, 916–920, 921, 922, 925–926, 931–933, 935–937, 944–945, 946 n. 65, 969, 972–974, 978–980, 997, 1002–1003, 1005–1006, 1010–1011, 1021, 1039–1042 International criminal justice (ICJ) Conclusion 989 Few responsible for crimes are brought to justice 1058 Introduction 721 Mixed models of 721 see specific country such as Cambodia Retributive and restorative justice 779 International Criminal Court (ICC) actus reus Failure to mention in Statute 288, 678–79 Appeals, trial, and pre-trial division 705 Applicable law 656–657 Article 1 59 n. 2, 338, 569, 654, 974, 976 Article 2 67, 142 n. 26, 303 n. 64, 434, 617 n. 319, 704 773, 774 n. 317, 776 n. 332 Article 3 71–72, 77, 187, 192, 573, 617–618 n. 326, 662 n. 56, 664, 673, 710, 743, 774 n. 317, 797, 965 Article 4 71–72, 77, 108, 358, 432, 573 n. 174, 710 Article 5 77, 152, 248, 432–434, 482, 584, 617, 654, 661, 677, 680, 745, 801–802 Article 6 67–68, 75, 302 n. 57, 306, 311, 334, 425, 432, 553, 557, 584, 617, 662, 665, 744, 761 n. 239, 815 n. 147, 817 n. 156

1109 Article 7 71–72, 75, 134–135, 158, 183, 192, 288, 295, 304, 313, 334, 356, 358, 432, 498, 513, 522 n. 158, 617, 623 n. 342, 662–664, 745, 800 n. 76, 974, 976, 1025, 1054, 1073 Article 8 421–424, 428–429, 431, 444, 463, 498, 510 n. 110, 522 n. 158, 555, 615, 618–619, 631, 664–665, 805 n. 107, 976, 1048 n. 3 Article 9 96 n. 183, 97, 300, 620, 658, 665 Article 10 96 n. 183, 350, 656–657, 742 Article 11 660 n. 40 Article 12 355, 570, 614 n. 310 Article 13 248, 609 n. 301, 636, 675 Article 14 827 Article 15 246–251, 396 n. 486, 682, 717 Article 16 67, 570, 676, 703, 708–709, 805 n. 107 Article 17 25, 86, 684, 686 Article 18 701 Article 19 63, 107–109, 141, 859 Article 20 248, 304, 839 Article 21 295, 304, 312–312, 464, 620 n. 333, 657–658, 839, 875 Article 22 211, 248, 292, 620 n. 333 Article 23 249, 293, 340, 621 Article 24 249, 293, 660 n. 40 Article 25 17, 26, 60–61, 64–70, 72 n. 53, 104–105, 107, 109–112, 227, 288, 290 n. 21, 291, 294, 295 n. 33, 300, 310, 313, 316, 324–325, 334, 355–356, 362, 371, 392–393, 569, 573, 574 n. 174, 678–679, 744, 916, 947, 976 Article 26 660 Article 27 74, 77, 90, 93, 117, 289, 455, 638 n. 431, 1040, 1059 n. 41, 1086 Irrelevance of official capacity 77, 289 n. 20 Article 28 290 n. 20, 338, 455, 679 Article 29 395 n. 484, 558 Article 30 312–313, 665, 669–670 Article 36 705 Article 38 9, 15, 250 n. 268, 656–657, 1010 Article 39 677–678, 708, 880 Article 41 881–882 Article 42 881–882 Article 43 885, 888 Article 46 336 Article 48 706 Article 50 689, 710 Article 51 301, 672–674 Article 53 241 n. 222, 681, 686 Article 54 879 Article 55 428 n. 633, 687, 885, 887–888, 891–894 Article 56 687 Article 57 686, 689, 693

1110

index

Article 58 94 n. 172, 682, 687, 827 n. 190, 870, 872, 882, 889 Article 59 687, 870 Article 61 882–885, 889–891 Article 66 609 n. 301, 688 Article 67 434, 688, 839, 876, 882, 885–889, 891–895 Article 68 62 n. 20, 118, 886, 889 Article 69 688, 875, 884 Article 70 661, 689, 897 Article 71 241 n. 222, 337, 513, 690, 873, 878 Article 72 689, 701 Article 73 689 Article 74 689, 716 n. 291, 895 Article 75 129, 692–693, 697, 895 Article 76 482, 895 Article 77 482–483, 690 Article 78 125, 482 Article 79 615 n. 314, 692 Article 80 483, 691 Article 81 690, 896 Article 82 681, 690, 896–897 Article 84 455 Articles 86–99 699 Article 86 539, 699, 702 Article 87 354 Article 88 539, 700 Article 89 539, 870 Article 90 539, 701 Article 91 700 Article 93 701, 872, 877 Article 94 540, 702 Article 95 682–684, 702 Article 98 90 n. 145, 93, 659, 702–704 Article 103 677 Article 110 482, 691 Article 112 628, 658, 707 Article 121 615 n. 314, 639–641, 643, 709 Article 122 709 Article 124 615 n. 314, 631, 660 Article 126 660 Assembly of states-parties 152 n. 55, 155 n. 65, 301, 590 n. 247, 622–623, 625 n. 349, 626 n. 351, 627–628, 628 nn. 363–364, 629 n. 367, 629 nn. 374–375, 630, 631 n. 385, 631 nn. 387–388, 634 nn. 404–405, 636 n. 413, 668 n. 78, 669 n. 82, 674 n. 113, 678, 684, 700, 707, 708 n. 235, 710, 711 n. 248, 712 n. 258, 712 nn. 261–262, 713, 718, 790, 880, 886, 889 Assessing the progress from 1989–1998  589 Binds only its state-parties 288 Characteristics of 23, 39, 53, 70, 72, 168, 219, 222, 229, 633 n. 394, 654, 834, 916, 923, 931 n. 112, 1017 Comparison chart of rights surveyed 900

Complementarity with national legal systems 1045, 1091 Court Cooperation, requests by court for Exceptions to obligation to cooperate  702 Operation of 625 n. 351, 705, 710 Organization and operation of 705 Criminal responsibility and, see also Criminal responsibility Draft statute 569, 576, 580–587, 589–590, 592–593, 596–598, 601–603, 605–606, 609 n. 301, 611, 612 n. 304, 741 n. 114 Enforcement modalities 10, 52, 65, 202, 298, 698–699, 1009 Establishment of 68 n. 39 140, 256, 481 n. 914, 537 n. 8, 549, 551, 552 nn. 62, 64, 586–589, 591–593, 596–597, 598 n. 265, 599 n. 272, 600 n. 278, 606 n. 295, 615 n. 315, 625 n. 351, 626, 628, 631, 634 n. 406, 637 n. 424, 648–649, 654 n. 16, 653, 711–712, 719, 721, 722 n. 7, 723, 725, 726 nn. 28, 29, 729–730, 734–735, 737, 741 n. 114, 742, 748, 755 nn. 198, 200, 758 n. 222, 760, 763, 764 nn. 254, 256, 765 n. 261, 765, 768 n. 279, 770–773, 774 n. 318, 778, 780, 785 n. 9, 786, 812, 836, 842 n. 279, 886, 889, 915, 920, 938, 944, 953, 955, 971, 984, 996, 1008, 1010, 1012, 1020, 1026, 1029–1030, 1041, 1054, 1059–1060, 1068–1070, 1087 Fair trials and evidence see, in general, specific rights, such as Right to be informed of charges Foreign legal system, not a 699 General Part and 10, 217, 253, 294–295, 300, 318, 1011 History of Informal inter-sessional meetings 294, 594 Like-minded states 595, 610, 692, 637 NGO community 610, 621 Political aspects 222 Rome Diplomatic Conference 117 see also Rome Diplomatic Conference Signing of 751, 1047 Vote on 615 International prosecutions by 112, 299, 549, 552, 557, 642, 652 n. 9, 919 n. 45, 935 n. 127, 939–941, 944, 954, 957, 1005, 1015, 1031, 1035, 1042, 1058, 1081, 1088 Judges Impartiality and independence of 706 Jurisdiction 643, 658–661, 704, 714, 940, 1007 n. 87 see also Jurisdiction (ICC) 1068, 1087 Exercise of 90 n. 145, 93 n. 166, 609 n. 301, 636, 658, 674, 677, 685, 909



index

Invoking jurisdiction 680 Ratione temporis 660 Legislation National implementing 19, 26, 534, 623, 714, 920 n. 52 Nature of 654–655 Need for 651–654 Obligation to cooperate 539, 699–700 Exceptions 702 Penalties and sentencing 690–691 Preparatory Committee on the Establishment of Rules of Procedure and Evidence (PrepCom) 123, 663, 684–685 see also Rules of Procedure and Evidence (ICC) Presidency 705 Prosecutor and office of prosecutor Proprio motu initiation of an investigation 682 Registry 705, 707, 884–885 Rome Statute  Article 98 93, 703 Rules of Procedure and Evidence (ICC) Article 51 301, 685 n. 149 Rule 40 689 Rule 65 860 Rule 79 846 Rule 85 118–119, 128, 692 Rule 145 483 Statute Amending 709 Surrender of individuals and judicial assistance Not extradited 699 U.S. opposition to Immunity from ICC jurisdiction 30, 55, 703 UN, relationship to 708 Victim compensation and reparation Trust fund for 696–697, 713 Victims and Witnesses Unit 693, 707 International criminal justice (ICJ) Accountability Enhancing 910, 969 Mechanisms 937, 942, 945, 953–956, 958 n. 220, 968–969, 970 n. 282 see also Accountability Amnesty 972–978 Commission of Experts Great leap forward in 780 Conclusion 989 Globalization and 909–910, 912, 920–921, 980, 988, 992, 999, 1008–1009, 1011–1012, 1013, 1045, 1091 Introduction 1013–1023 Jus cogens international crimes 921–922, 926, 931–933, 937, 972–974, 978

1111

Philosophy of punishment see Punishment Mixed models of 721 National criminal justice systems Distinctions between ICL and 925 Enforcing ICL norms 915–917 Need to harmonize systems 21, 35, 919 Philosophy of Four value-oriented goals 979 International criminal investigations and prosecutions see also specific examples such as Leipzig Trials 547–548 Ad hoc investigations 541–542 Commission of Experts 566–569, 571–572, 587 Comparison of legal bases for 564 Control Council Law No. 10 557 ICTR 536, 539, 573–575, 587 n. 231, 588, 617, 621, 642–646, 648 ICTY 536, 539, 569, 570, 572–575, 587 n. 231, 588, 617, 621–622, 642–646, 648, 654 IMT 536, 549–550, 552, 555–557, 559, 560 n. 107, 564–565, 570, 632 IMTFE 536, 550, 557, 559–560, 562–565, 570, 581 Instrument of Surrender of Italy 557–558 International and national commissions  943 Leipzig Trials 547–549 1919 Commission . . . Authors of War and Enforcement of Penalties 537 n. 12, 538, 542–545 Peculiarities of international criminal prosecutions 868 Political, rather than investigative, nature of 558 Rwanda Commission of Experts 572–573 Treaty of Versailles 545–547, 554 UN War Crimes Commission 549 Versailles to Rome 540 International criminal law (ICL) ad hoc approaches to 144 Assessing the sources of 15 Changing nature of international law and ICL 44 Codification of 139–140 Components of 1, 9, 21, 35, 53 Decision-makers 61, 64, 104–105, 107, 252, 291 Lower strata people and 288 Senior executors, distinction between  64 Different sources of law and 13 Doctrinal dilemma of 307 Doctrinal framework of 15, 52–53

1112

index

Enforcement regimes 22, 33 Evolution of ICL Norm-development 30 Five necessary approaches to 56 General principles of law and 9, 12, 52, 243, 246, 251, 253–254, 288–289, 310 ICL Conventions 24–26, 217, 219, 249, 254, 286, 296, 474–475, 484 see also under name of Convention or subject matter, such as Aggresion Indirect enforcement system 11, 22, 24–26, 28, 34–35, 55, 66, 69, 218 253, 474, 487–488, 499, 528, 530, 534, 925 n. 87, 926, 971, 1005 see also Indirect enforcement system Judgments to be followed as to 15, 23–24, 34 Knowledge element 175, 347 National criminal law distinguished 1 Ordinary, reasonable person 252, 300, 309, 439, 792 Policies and values of 27 Presumptions 11 Principles of legality in Ratione materiae of ICL 246 Procedural part 10–11, 13, 294 see also specific topics such as Evidence, International criminal procedure Introduction 785 ratione materiae of 11, 13, 65, 246, 248, 251, 253 Rules of conduct and 299 Sanctions part 14, 254 Sources of 1, 11, 13, 249 254 System or sporadic experience 29, 54 Uncertainty element 617–618 Underlying concept of ICL enforcement 35 Victim and 124, 129, 845, 873, 878 International criminal proceedings Adversary-accusatorial model not suited for 792 Evidence 11, 13, 835–841, 844–846, 848, 854–858, 860–868 see also Evidence More important than criminal procedure  791, 796 International criminal procedure Introduction 793 International instruments surveyed 869 Introduction 793 Rights and clusters of rights 796 see specific right such as Arbitrary arrest, Right to life, etc. International criminal responsibility of groups and organizations Conspiracy element 12, 61, 97–98, 288–290, 295, 313–314 Guilt by association and 97, 387 n. 427

International criminal responsibility of individuals Basis of responsibility 64, 66, 69, 105 Customary practice of states 78, 302, 410, 659 Heads of state 60, 73–76, 315, 339 n. 188, 355, 362 ICJ’s 2002 ruling on immunities 77, 83 Non-state actors 70–72, 132–135, 291 n. 22 International Criminal Tribunal Draft Code  108, 289 n. 17 International Criminal Tribunal for Rwanda (ICTR) Article 3 71–72, 573, 617, 662 n. 56, 743 Article 6(2) 92 Commission of Experts 721, 780, 787, 1057, 1058 n. 36, 1059 Great leap forward in international criminal justice 780 Criminal responsibility and 67, 72 n. 53, 288, 296–297, 318, 320, 322, 324–325, 392, 433, 573, 1027, 1034, 1056, 1080–1081, 1083–1084 see also Criminal responsibility History of 1025, 1056, 1059 Penalties and sentencing 690 Procedural and evidentiary rules 787–788, 867 see also specific topics Rule 89 837 International Criminal Tribunal for Yugoslavia (ICTY) Article 4 71–72 Article 7(2) 91, 362, 372 Commission of Experts 27 n. 97, 587, 780, 787, 1059 Criminal responsibility and 285, 365 n. 306, 322, 1027, 1035, 1056, 1080–1081, 1083 see also Criminal responsibility History of 1027, 1059 Penalties and sentencing 474, 690 Procedural and evidentiary rules 787–788, 867 see also specific topics Rule 89 837 n. 239 Statute 67, 71–72, 85, 103 n. 222, 120–124, 152–153, 285–288, 324–325, 361–362, 365, 374–376, 432, 450, 478, 568 n. 144, 573 n. 168, 617, 692 n. 169, 743 n. 124, 747 n. 148, 759, 859, 939 n. 144, 1010 n. 99, 1054–1055, 1059, 1083 International delicts, Categories of 106 International human rights law (IHRL)  59–60, 111, 113, 521 n. 153, 568, 911 International humanitarian law (IHL) 32, 43 n. 182, 110–111, 113, 664 n. 60, 733, 952,



index

958, 959–960, 970, 982, 986, 993 n. 37, 1002, 1005–1006, 1014 n. 106, 1021 n. 133, 1043, 1050 n. 5, 1058, 1060 n. 42, 1085 International infractions Characteristics of 927 n. 112 International Labour Organization (ILO) 202, 221, 224 International law Changing nature of 44 Increased international cooperation State sovereignty eroded 46, 59 Victim in 126 Voluntary compliance 46, 525 International Law Commission (ILC) Codification of ICL 139–140, 148, 244, 253, 289, 1059 Conventions, breakdown of 605 Draft Article 63, 106, 107–108, 141, 149 n. 41 Draft Code of Offenses 432, 579 Recognition of Nuremberg Tribunal 76, 158, 257, 259, 264, 421 n. 599, 429, 579 Summary of Nuremberg Principles 421 n. 599, 431–432, 435 International Military Tribunal at Nuremberg (IMT) Article 6(c) “Crimes against Humanity,”  71–72, 157–158, 302, 303 n. 64, 311, 428, 458, 553, 564–565, 617, 662, 1025, 1054 see also Charter of the IMC Article 7 158, 288, 295, 304, 313, 334, 356, 358, 432 Article 9 96 n. 183, 97, 300, 620, 658, 665 Article 10 96 n. 183, 350, 656–657, 742 Charter 17, 49 n. 209, 59, 67, 71, 75–76, 91, 96–97, 144, 151, 157–158, 288, 294, 302, 402 n. 519, 421, 424, 429, 431, 475, 476 n. 876, 484, 552, 555, 557, 564–565, 633–634, 672 n. 99, 785 n. 2, 834 n. 219, 846 n. 295, 858 n. 371, 1025, 1027, 1040, 1049, 1054–1055, 1067, 1056 Command responsibility and 285, 287–289, 297, 300 n. 48, 303, 318–319, 314, 316, 318–319, 332–333, 334 n. 176, 335–336, 339–340 Criminal responsibility and 17, 49 n. 209, 59, 67, 70, 96, 440, 786, 1027, 1056 see also Criminal responsibility Evidence, use of 839 History of London Agreement 552, 555, 633 n. 396, 672 Legal basis comparison 564 Penalties and sentencing Goering, et al 75, 556, 1037 Post-IMT/IMTFE developments 59

1113

Procedural and evidentiary rules 552 n. 66, 787–788, 835 see also specific topics International Military Tribunal for the Far East (IMTFE) Article 5(c)  157, 564 Article 6 67–68, 75, 302 n. 57, 306, 311, 334, 358, 425, 432, 553, 557, 584, 617, 654, 662, 665, 744, 761 n. 239, 815 n. 147, 817 n. 156 Criminal responsibility and 49 n. 209, 59, 70, 786, 1027 see also Criminal responsibility Defendant selection 558 History of Far Eastern Commission (FEC) 541 n. 13, 558–559, 653 n. 11, 941 n. 154 Politics, role of 635 U.S. and Soviet Union and opposing roles 559 Legal basis comparison 240 Penalties and sentencing 474 Post-IMT/IMTFE developments 59 Procedural and evidentiary rules 787–788, 867 see also specific topics Statute of 76, 143 n. 31, 557, 1027 Internationalization of crimes Five elements of 146 Introduction 137 Jus cogens international crimes 12, 25, 35, 36 n. 153, 39 n. 161, 50, 133, 144, 203, 496–497, 500, 780–782, 921–922, 926, 931–934, 937, 972–974, 978 Penal characteristics of ICL Conventions  143 Principles of legality in international crimes Introduction 107 National and international Post-IMT/IMTFE developments 59 Principles of legality in contemporary ICL 35, 98 Principles of legality in ICL 665, 673, 691 n. 165 Ratione materiae of ICL 253, 1003 n. 76 World’s major criminal justice systems 13, 107, 253, 293, 299–300, 302, 306–308, 322, 324, 334, 370–371, 402, 410, 438, 474, 679 n. 132, 916 see also specific countries Ranking and classification of 227 Specificity lacking in defining crimes 1024 Interpreter Right to an 824, 846–847, 895 Interstate cooperation 34, 511, 514, 518, 519 n. 145 Investigation process 686, 695

1114

index

Investigatory commissions International and national 652 n. 9, 935 n. 127, 939, 941, 1009 n. 105 Iran Air Flight 665 360 Iraq 49 n. 212, 105 n. 225, 135 n. 379, 615 n. 315, 675 n. 115, 781, 898, 911, 946, 978, 1017 n. 110 Islamic criminal justice system Principles of legality 307, 321–322, 324, 396, 437, 475, 480, 484–485, 553, 565, 617, 665, 673, 788, 830, 1027 Israel Report of the Kahan Commission 358 Italian legal system 270 61 n. 14 Italy Instrument of Surrender of Italy 263, 557, 558 Jackson, Robert 29, 423, 551, 556, 922 n. 65, 988, 1026 Jimenez v. Aristeguieta 87 n. 119 Judges Different legal traditions 983 Judicial assistance 15, 143, 145, 220–222, 504, 686–687, 698–700, 944, 970 Judicial space Concept of 15, 24 n. 85, 487, 500, 526, 528–529, 534 Jurisdiction see also as subheading to other topics 643, 658–661, 663–665, 667–668, 674–677, 680, 685, 711 n. 256 Court’s exercise of 609 n. 301, 685 Investigation process 686 n. 150, 695 Jurisdiction of ICC 640 n. 446, 665 n. 67, 675, 681 Procedural due process 685, 814 Precondition to exercise of 658 n. 28 Ratione materiae 661 Ratione personae 660 Ratione temporis 660 Trial Appeal 367 n. 324, 376, 384 n. 436, 394, 396, 450, 643, 685, 695 n. 182, 767, 820 n. 163, 823 n. 170, 172, 827–828, 832, 845, 848, 854 n. 338, 867, 895–896, 1030 Decision and orders 801 n. 80 Evidence 388–389, 688, 838, 846 n. 293, 867 Offenses against administration of justice 661 n. 50, 689, 830 Protection of national security 688, 884 Protection of victims and witnesses 133, 688, 857 n. 367 Rights of accused 252, 434, 685, 686, 693–694, 770 n. 317, 808, 820 n. 163, 833, 835, 842 n. 279, 847, 849, 861, 868, 882, 887, 895 When ICC may exercise jurisdiction 680

jus ad bellum and jus in bello 32, 998, 1004, 1026 jus cogens Crimes that rise to level of 235 International crimes and 499–500, 932 Meaning of 239, 661 Principles of legality 236, 243 Prosecutions that reflect 240, 242, 944 Punishment and 931, 972 Shock the conscience of humankind  241–242 jus gentium 137–138, 1011 Justice International criminal justice 1, 13, 28 n. 97, 29–30, 32–34, 41 n. 169, 47, 50–51, 55–56, 140, 476, 527, 535, 539, 541, 548, 631, 638, 642–649, 653–654, 669, 719, 721, 780–781, 784, 787, 791, 909, 920–921, 922 n. 65, 925–926, 971–973, 979, 996, 999, 1003, 1029, 1044–1045, 1059 n. 42, 1091 see also specific country such as Kosovo  728 n. 41 Mixed model of 23, 73–74, 642–643, 722, 752, 770, 784, 837, 909, 984, 1002, 1006, 1008, 1014, 1020, 1026, 1030, 1044 Kadic v. Karadzic 101, 126 n. 331, 949 nn. 180, 191 Kaiser Wilhelm 75, 151, 334, 338, 403 n. 520, 542, 546–547, 554, 973, 1023–1024, 1052 Kambanda, Jean 73, 76, 91, 372, 479, 647, 821 n. 163, 1034–1035, 1080–1081 Karadzic, Radovan 56, 92–93, 384, 572, 653 n. 10, 730 n. 52, 950–951 Kelsen, Hans 411 n. 556, 552 n. 90 Khadafi, Muammar 78, 87, 90 n. 146, 94, 716, 1057, 1068 Knowledge Presumption of 306–309 Kosovo Humanitarian tragedy 726 Kosovo War and Ethnic Crimes Court (KWECC) 725, 729, 785 NATO bombing campaign, 553, 726, 730 UN Interim Administration Mission in Kosovo (UNMIK) 727, 729 n. 48, 731 nn. 59, 62 UN Resolutions 773 Krupp, Alfred 446 Labita v. Italy 476 n. 875 Law of the Charter 302 n. 57 League of Arab States 503, 505, 526–527, 530 n. 189, 533 Least Developed Countries (LDC) 590, 594, 627, 911, 971, 1033, 1079 Legal aid (assistance, mutual legal assistance) 595 n. 261, 819 n. 163



index

Legal education 533, 647, 1042, 1088 Legal entities Common law systems and 61 Criminal responsibility and 61–64, 316, 1056 Leipzig trials 305, 409, 419, 421, 541 n. 14, 547 n. 34, 548, 1059 Letelier v. Republic of Chile 312 n. 88 Letters Rogatory Commission Rogatory 505 Lex specialis 657 Liberia 71, 92, 210 n. 133, 372, 540 n. 20, 549 n. 43, 653 n. 10, 722, 722 n. 7, 740, 747–749, 782–783, 898, 980 n. 328, 1038, 1084 Lieber Code 337, 455 Libya 78, 81, 90 n. 146, 94–95, 105 n. 225, 126 n. 331, 135 n. 379, 498–499, 558, 615 n. 315, 719, 898, 1006, 1031, 1063, 1071 Libyan Arab Jamahiriya v. UK 497 n. 43 Linda R.S. v. Richard D. 948 n. 172 Lithuania 714, 898, 946 Lockerbie case 8 n. 1, 220 n. 159, 497 London Charter of 1945 Article 7 75, 330 London International Assembly (UA) 551 n. 58 Lustration 652 n. 9, 935 n. 127, 939, 946–948, 954, 1013 n. 105, 1020, 1039, 1061, 1085 MacArthur, Douglas 341, 425, 535 n. 2, 559–561, 562 n. 122, 563, 565, 590 n. 247, 1037, 1083 Mafia 72 n. 54, 133 n. 374, 664, 740 Magna Carta 797, 800, 812 Mail Universal Postal Union 210–211, 276–277 Member countries 211 n. 134 Unlawful use of 144, 138, 149, 218, 226, 234, 235, 580 n. 187 ICL Conventions 210–213 Mapp v. Ohio 809 n. 121 Marcos, Ferdinand 87, 126 n. 331 Maritime navigation ICL Conventions 211–212 Unlawful acts against 144, 138, 149, 208, 218, 219, 233, 268, 579 n. 187 Safety of platforms on the high seas 144, 149, 208, 233, 579 n. 187 Martens Clause 544 Martinez v. City of Los Angeles 949 n. 185 Mass media 225, 598, 1036, 1081 Megrahi v. Her Majesty’s Advocate  499 n. 50 Mengitsu 782, 978, 1069 Mental element 254, 287, 291, 300, 303–305, 308–309, 312, 315, 318, 328 n. 152, 329, 330 n. 159, 356, 409, 434, 473, 618–620, 665, 669–670, 679, 776 Mercenarism ICL Convention 146 n. 56

1115

Milosevic, Slobovan 50 n. 218, 73, 76, 91, 363, 372, 384, 572, 647, 653 n. 10, 728 n. 45, 730 n. 52, 733–734, 768 n. 279, 823, 853, 973, 978, 1080–1081, 1084 Miranda v. Arizona 809 n. 121 Mitchell v. U.S. 508 n. 91 Monell v. Dept of Social Services of NYC 810 n. 122 Money laundering 56, 88, 513–515, 517, 520–521, 913 Monroe v. Pape 810 n. 122 Montesquieu, Charles de 27 n. 95 Moscow Declaration 256, 551 Multilateralism Bilateralism and 529 Mushikiwabo v. Barayagwiza 951 Mutual Legal Assistance Treaty (MLAT) 505, 519, 817 National civil remedies 948 National criminal justice systems Distinction between ICJ and 24, 245 Enforcing ICL norms 11, 915 Need for national prosecutions 540, 935 n. 127, 937, 939, 944–945, 948 Need to harmonize ICJ with 21, 919 National criminal law see also specific countries Deficiencies of 247 ICL distinguished from 13–15 International aspects of 10 Not a bar to criminal responsibility 742 National legal standards see also specific countries Relevance to ICL 296 National legal systems Complementarity of ICC and 19–20, 25–26, 119, 655–656, 704, 714, 936, 941, 944, 1005, 1007, 1041, 1044–1045, 1087, 1090 Lawyers not prepared for international matters 52 Legislation implementing ICC 19, 26, 534, 623, 714 States party to the treaty 675 National lustration 939, 946 National security Evidence and protection of national security 688, 884 National treasures Destruction and/ or threat to 136, 145, 149, 213, 223, 235, 279, 580 n. 187 ICL Conventions on 219 Nazis Nazi doctors 1018 n. 136, 1049 n. 4 ne bis in idem 12, 21, 122, 303–304, 666, 684–685, 700, 702, 829–830, 897, 1069 Nelson v. Saudia Arabia 948 n. 174

1116

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New Zealand 321 n. 116, 521, 522 n. 158, 559 n. 103, 595, 629 n. 368, 648 n. 481, 710 n. 246, 714 Nicaragua v. U.S. 243, 672 n. 103, 673 n. 104, 934 n. 119 Nigeria Biafra massacres 782 1919 Commission on the Responsibilities of the Authors of War and on Enforcement of penalties 338, 541 n. 12, 653 n. 11, 941 n. 154, 1024, 1053 n. 17 non bis in idem 249, 593 Non-retroactivity ratione personae 249, 289 Non-governmental organization (NGO) ICC and 595 Reparations for racist policies 131 Role in ICL 472 Noriega, Manuel 88 North American Treaty Organization (NATO) 56, 89 n. 139, 527, 726, 727 n. 33, 728, 730 n. 52, 732, 734, 1057 North Sea Continental Shelf case 250 n. 268 Nuclear materials Nuclear weapons first use 137, 162, 194, 223 Theft of 137, 229 ICL Conventions 136 nulla poena sine judicio 65, 240, 242, 288, 289, 471, 617, 826, 986 nulla poena sine lege 65, 246, 249, 292–293, 475, 621, 830, 990 nullum crimen sine lege 65, 244, 246, 248, 285, 292, 387, 395, 620 n. 333, 622, 623 n. 342, 830, 990 Nulyarimma v. Thompson 946 n. 165 Nuremberg see International Military Tribunal Nyon Arrangement 208, 273 obligato erga omnes Scope of 244–245, 933 n. 119 Obscene materials International traffic in 145–146, 149, 214– 215, 218, 226, 234, 282, 580 n. 187 ICL Conventions on 277 Officials Bribery of ICL Conventions on 279 Organization of African Unity 526 Organization of American States (OAS) Suppress flow of illicit drugs 514 Organized crime ICL Convention on 217, 273, 521–522 OSCE 527, 726 n. 30, 1071 Outer space 45 n. 189, 46 n. 192, 216, 265, 281 Pakistan Bangladesh massacres 782 Palestine resistance groups 664 n. 60

Paquete Habana 250 n. 269 Paramilitary groups Criminal responsibility of 70–71, 243, 250, 333, 356, 365, 370, 374 n. 354, 670, 939 n. 141, 945 n. 164 Pardon 109 n. 262, 478, 540, 561, 740, 747 n. 151, 759 n. 229, 926–927, 937, 938 n. 134, 945, 955, 973 Pascal, Blaise 29, 55 Peace, protection of Ranking and classification of international crimes 136, 138–141, 227, 224–225, 227–229 Peers v. Greece 476 n. 875, 806 n. 110 Penal aspects of international law 9–10 Penal sanctions Enforcement of 10, 14–15, 24, 34, 56, 128–129, 151, 217, 252, 470–471, 480, 487–488, 511 International cooperation in 10, 15, 22, 24, 28 n. 97, 34, 55 n. 235, 217, 487–488, 492, 499–500, 510–512, 527–529, 531–533, 784, 909–910, 919, 1002 n. 71 Penalties and sentencing ICC 481–483 ICTY and ICTR 478–480 IMT and IMTFE 476–477 Introduction 470–471 Permanent Court of International Justice (PCIJ) 243, 245, 302 n. 55, 963, 1009–1010 Pfeifer v. u.s. Bureau of Prisons 508 n. 91 Pinochet, ex parte 50 n. 219, 78 n. 81, 82 n. 109, 239, 653 n. 10, 1040 n. 179, 1086 nn. 138, 140 Pinochet, Augusto 50 n. 219, 78, 239, 653 n. 10, 1040, 1074, 1086, 1070, 1082 Piracy ICL Conventions 136–137, 201, 266–267 Portugal v. India 239 n. 245 Post-conflict justice Failure of 645, 721–722, 779, 781–783, 911, 925 n. 83, 952, 986–987, 995, 1079–1080, 1082, 1085, 1089 Potsdam Conference 262–263 Presumed innocent, right to be 795 n. 50, 805–806, 832, 874 Presumptions Rebuttable 306–309 Principles of legality 9, 12–13, 19, 65, 69, 107, 140, 158, 217, 237, 243, 246–248, 251–254, 292, 302, 307, 313, 321–322, 324, 396, 437, 475, 480, 484–485, 522 n. 158, 553, 565, 617, 665, 673, 691 n. 165, 788, 830, 990, 1027, 1055 see also International crimes Prize Cases, The 250 n. 267 Procedure Conclusions 790, 942 International criminal proceedings 11, 13, 785–868



index

see also International criminal proceedings and other topics Summary of protected procedural rights  832 Propaganda 551, 969 Prosecutions International prosecutions 112, 299, 549, 552 n. 62, 557, 642, 652 n. 9, 919 n. 45, 935 n. 127, 939–941, 944, 954, 957, 1005, 1015, 1035, 1042, 1058, 1081, 1088 National prosecutions 25–26, 352, 428 n. 630, 937 n. 134, 1054, 1059, 1073–1074, 1086–1087 Peculiarities of international criminal prosecutions 15, 22–26, 33, 217, 307, 868 Prosecutor and Office of Prosecutor (ICC)  93–94, 301, 315 n. 92, 372, 625 n. 349, 628, 636, 643, 656, 676, 680–684, 686–687, 690, 699–700, 702, 705–707, 709, 710 n. 245, 711–712, 715–719, 791–792, 870–871, 873, 875, 877–886, 890–894, 896, 1028, 1040 Proprio motu initiation of an investigation 656, 675, 676, 680, 940 Prosecutor v. Akayesu 326 n. 144, 484 n. 935, 803 n. 88, 830 n. 197, 851 n. 332, 856 n. 353 Prosecutor v. Aleksosvski 329 n. 157, 361 n. 281, 372 n. 341, 819 n. 163, 828 n. 192, 839 n. 252, 840 n. 261, 864 n. 433 Prosecutor v. Barayagwiza 820 n. 163 Prosecutor v. Blaskic 817 n. 153, 837 n. 238, 842 n. 279, 860 nn. 395–396 Prosecutor v. Brdjanin 801 n. 79, 811 n. 127, 812 n. 133, 814 n. 146, 816 n. 147, 817 n. 153, 841 n. 273 Prosecutor v. Delacic et ai 484 n. 935, 811 n. 127 Prosecutor v. Erdemovic 435 n. 660, 663, 449 n. 732, 480 n. 901, 484 n. 936 Prosecutor v. Karadzic and Mladic 85 n. 139, 861 n. 407 Prosecutor v. Kayishema & Ruzindara 806 n. 110, 838 n. 247, 840 n. 264, 843 n. 279, 851 n. 332 Prosecutor v. Kordic & Cerkez 323 n. 131, 325 n. 142, 361 n. 281, 816 n. 147, 826 n. 186, 841 n. 269, 843 n. 279, 859 n. 391, 864 n. 437 Prosecutor v. Kovacevic 841 n. 274 Prosecutor v. Krajisnik & Plavsic 817 n. 153 Prosecutor v. Kunarac et ai 324 n. 134, 329 n. 156, 481 n. 912, 807 n. 112, 813 n. 141, 810 n. 145, 822 n. 166, 826 n. 186, 841 n. 273, 862 n. 413 Prosecutor v. Kupreskic et ai 463 n. 811, 479 n. 897, 823 n. 168, 856 n. 352 Prosecutor v. Kvocka et ai 361 n. 281, 364 n. 302, 388 n. 434, 819 n. 163, 863 n. 426

1117

Prosecutor v. Musema 325 n. 144, 372 n. 341, 834 n. 220, 863 n. 421 Prosecutor v. Naletilic & Martinovic 824 n. 179, 855 n. 350 Prosecutor v. Plavsic 480 n. 906, 801 n. 79 Prosecutor v. Saric 946 n. 165 Prosecutor v. Sikirica et al 481 n. 910 Prosecutor v. Tadic 376 n. 368, 480 n. 905, 484 nn. 935–936, 743 n. 124, 816 n. 147, 819 n. 163, 839 n. 257, 851 n. 332, 854 n. 341, 855 n. 351, 864 n. 433, 938 n. 139 Prosecutor v. Talic 814 n. 146, 841 n. 273 Prosecutor v. Todorovic 479 n. 895 Protection against terror-violence Ranking and classification of international crimes 227, 229, 231, 234 Protection of communications means Ranking and classification of international crimes 219, 229, 522 n. 158, 810 Protection of cultural interests Ranking and classification of international crimes 235 Protection of economic interests Ranking and classification of international crimes 236 Protection of fundamental human rights Ranking and classification of international crimes 230, 532 Protection of human interest 150, 153, 208 Protection of social and cultural interests Ranking and classification of international crimes 150, 212 Protection of the environment Ranking and classification of international crimes 229, 235 Puffendorf, Samuel von 32 n. 120 Public corruption 62 n. 20 Public hearing, right to 83 n. 110, 746, 813–814, 828, 882 Public officials Bribery of 93, 97, 136, 138, 142, 209–211, 216, 218, 226, 236, 284, 580 n. 187, 685 Public trial Right to be present at public trial and to a public trial 813 n. 139, 141, 854, 857–858 Punishment Deterrence and rehabilitation 927, 931 Distinction between ICJ and national criminal justice 917–919, 921–922, 925, 927 Historic premise of punishment 927 Just desert 914, 918, 927–929, 930 nn. 108–109, 974 Moral and social philosophy 926 Philosophical considerations 921 Philosophy of 921–922, 925–926 Punishment of jus cogens international crimes 931

1118

index

Talion law 117, 118 n. 294, 927, 929, 1043, 1089 Universal justice for jus cogens international crimes 932 Ratione materiae see also International crimes Principle of legality and 11, 13, 65, 92, 137, 246, 248, 251, 253, 661 n. 45 Ratione personae Apportioning responsibility between individual and state 60–61, 65, 660 Doctrinal considerations 61 ICL and 11–13, 16, 59–61, 134, 286–287 International criminal responsibility of individuals 59–60, 66, 133 Basis of responsibility 66 Customary practice of states 78, 302, 410 659 Heads of state 60, 73–74, 76, 87–85 ICJ’s 2002 ruling on immunities 89–90 Non-state actors 70–72, 132–135, 291 n. 22 International criminal responsibility of groups and organizations 96 International criminal responsibility of states 104 Introduction 59 Victim as subject of ICL 111 Realpolitik 22, 44 n. 185, 540–541, 649, 651, 779–781, 920, 926–927, 934, 956, 985 n. 12, 997, 999–1000, 1003, 1019, 1022 n. 135, 1024, 1026, 1051 n. 7, 1052, 1054, 1059, 1067–1068, 1076 Regina v. Bow Street Metropolitan Stipendiary Magistrate 50 n. 219, 78 n. 81, 1040 n. 179, 1086 n. 140 Regina v. Evans et al 653 n. 10 Regina v. Finta 448 n. 722, 946 n. 165 Regional and sub-regional judicial space 15, 24 n. 85, 487, 500, 526, 529 Reid v. Covert 524 n. 168 Remedy National civil remedies 948 Right to 107–108, 110, 117, 857, 929 n. 105, 949, 958–961, 961 n. 243, 962, 976 Reparation Colonial, slavery and racist past 131 Financial means for 132, 627, 688–689, 949 German and Austrian industries 131 Jewish claims for 123 Right to 33 n. 133, 105, 108, 114, 116, 617 n. 339, 627, 954–955 Victim’s right to 33 n. 133, 105, 108, 113, 116–117, 125–126, 133, 617 n. 339, 692, 929 n. 105, 951, 952 n. 208, 958 see also Victim

Report of the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance 117 n. 290 Republic of Philippines v. Marcos 87 n. 120 Restatement Third, of Foreign Relations Law Section 102(2) 249 Rhodesia 105 n. 225 Right to be informed of the charges 814–815, 845, 882 Right to have procedures established by law 812, 882 Right to life, liberty and security of the person 795 n. 50, 797, 799, 870 Right to remain silent 805 n. 102, 848, 858–859 Right to Restitution, Compensation and Rehabilitation . . . 116, 621 n. 339 Rights see also specific right Rights surveyed 870 Summary of protected procedural rights,  832 Rights of Man of 1789 800 n. 76 Rodriguez v. Uruguay 977 n. 312 Rome Diplomatic Conference Computer use 603 n. 283 Courmayeur meeting 600–601 Final stage 613, 993 Flow of texts to the Drafting Committee  605 Legal methods and techniques 616 Negotiating process 602, 609, 611–612 PrepCom’s Draft Organization of Work  600 n. 278 Signing of 740 n. 111 Vote on 614 Rosado v. Civiletti 508 n. 93 Rufo v. Simpson 126 n. 328 Rule of law 37–39, 44 n. 185, 133, 228 n. 173, 407, 549, 731–732, 739, 751, 768, 797, 984 n. 11, 990, 992, 1003, 1017, 1019, 1045 Rumsfeld, Donald H. 79 n. 83, 978 n. 320 Rwanda Genocide as world looked on 27 n. 97, 1066, 1072–1073 S.S. Lotus (Fr. v. Turk) 302 n. 55 Sabra and Shatila massacre 359 Saddam Hussein 102, 373, 946, 978, 1027, 1055, 1073, 1075 San Francisco Peace Treaty 477 Sankoh, Foday 740, 747, 748 Scalise v. Meese 508 n. 94 Scalise v. Thornburg 508 n. 94 Scandinavia 527 Schengen Agreement 527 Schenk v. Switzerland 806 n. 110



index

Scholarly writing on ICL 1 Scotia, The 250 n. 269 Self-incrimination, privilege against 746, 804–805, 810, 858–859 Self-representation, right to 823–824, 853 Selmouni v. France 977 Sentencing see also Penalties and Sentencing 474, 690 Execution of foreign sentences 506, 529 n. 183 September 11, 2001 135, 515, 520–521, 524, 533, 664, 669, 912, 920, 980 Sharon, Ariel 89, 359, 946 n. 165, 1073 Shaw v. Director of Public Prosecutions 419 Shocking to the conscience of humankind 47 Siderman de Blake v. Argentina 948 Sierra Leone Child combatants 745 Lome Peace Accord 740, 742 Revolutionary United Front (RUF) 653 n. 10, 739–740, 1038 n. 173, 1084 n. 134 Special Court 92, 297, 323, 330, 361, 372, 392, 653 n. 10, 725, 729, 740–752, 753 n. 185, 764, 781, 785, 792 n. 39, 837 n. 235, 1031 n. 163, 1038, 1084 Truth and Reconciliation Commission 723, 741, 750–751, 781, 937 UN Mission in Sierra Leone (UNAMSIL)  741 Slavery and slave-related practices ICL Conventions 48, 913 Soering v. UK 977 n. 314 South Africa 105 n. 225, 201, 231, 570 n. 158, 714, 759, 781–782, 937, 943, 957, 1007, 1040, 1086 South West Africa Cases (Eth. v. S.Afr.; Liber. v. S. Afr) 246 Soviet criminal justice system Principle of legality and 244, 521 n. 158 Speedy trial, right to 746, 795 n. 50, 802, 813, 817, 825–826, 828, 848, 850 St. Augustine 32, 412 n. 557, 1004 State criminal responsibility Abstract nature of state 65, 67 Draft Article 19 of ILC 63 Sanctions, use of 135 Victim compensation and 117, 621, 622, 953 Status of Forces Agreement (SOFA) 704 Sub-Commission on the Prevention of Discrimination and Protection of Minorities 116, 952 Submarine cables, international ICL Convention on 216, 218, 226, 235, 283, 580 n. 187 Sun Tzu 30, 31, 336, 1004

1119

Supreme Commander for the Allied Powers (SCAP)  67 n. 33, 425, 559 Suspects, rights of 848, 861 Swiss banks 131 Switzerland 87, 386 n. 427, 519 n. 145, 529 n. 185, 595, 605 n. 289, 648 n. 481, 715 Tel‑Oren v. Libyan Arab Republic 126 n. 331 Terrorism Financing 144, 149, 211, 234, 273, 277, 512, 515 ICL Convention on 193 Terry v. Ohio 810 n. 123 Thirty Hogsheads of Sugar v. Boyle 250 n. 269 Tokyo Charter see also IMTFE 66, 67 n. 33, 425, 834 Article 6 334 Tokyo trials see IMTFE Torture (and other Forms of Inhuman and Degrading Treatment), Convention Article 4 77 Article 12 77 Right to freedom from torture and cruel, inhuman and degrading treatment or punishment 795 n. 50, 802, 901 Torture Victim Protection Act (TVPA) 101, 949 Treaties see also specific treaties and as sub-topic  10, 18–19, 35, 46, 75, 98–100, 102 n. 212, 103, 124, 150, 217, 220, 237, 241, 249, 286, 295, 304, 312, 321, 338, 357, 434, 465, 470, 491–492, 495–496, 499, 501, 503–507, 511–513, 519, 529, 530 n. 189, 533, 546, 554, 620, 622 n. 342, 624, 633, 656–657, 704, 777, 789, 795, 817, 854 n. 339, 943, 1024, 1042, 1049 n. 4, 1052, 1088 Treaty and custom 250 Treaty of Mutual Guarantee (Treaty of Locarno) 151, 256 Treaty of Versailles Allies failure to prosecute 547, 1052 Article 227 75, 334, 538, 546, 554, 1023, 1052 Article 228 334, 419, 545–546, 1024, 1053 Article 229 539, 1024, 1053 Trial Appeal 685, 827, 1064, 1070–1074, 1083 n. 130 Decisions and orders 689 Evidence and national security 688–689 Offenses against administration of justice  661, 689, 830 Protection of victims and witnesses 133, 688, 701, 857 n. 367 Rights of accused at 685–686, 688, 693–694, 804, 774 n. 317, 809 n. 116, 820

1120

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n. 163, 833, 835, 838–839, 842 n. 279, 846–851, 853–854, 857–858, 868, 879, 887, 895 Tribunal Right to an impartial and independent tribunal 810, 828 Truth commissions International and national 939, 943–944, 954, 997 tu quoque 319, 402, 465–469, 1067 Underhill v. Hernandez 949 n. 173 United Kingdom 78, 261–262, 321 n. 116, 478 n. 875, 497 n. 44, 498–499, 559 n. 103, 594, 605 n. 289, 710 n. 246, 714, 831, 977, 1026, 1040, 1055, 1086 United Nations (UN) Crimes against UN and associated personnel 209, 218, 579–580 n. 187 ICL Conventions 217, 219, 254 Relationship of ICC to 708 United Nations. Charter Chapter VII 69, 150, 498, 536, 539, 674–677, 680, 703, 708, 741, 770–772, 940, 987 United Nations. Commission on Human Rights 118, 204 n. 106, 221, 272, 532 n. 196, 724, 953, 972 n. 286 United Nations. General Assembly Affirmation of the Nuremberg Principles 431–432 Peparatory Comm. On the Est. of an ICC 140, 589, 598 United Nations. Security Council (UNSC) 56, 90 n. 146, 94, 128 n. 339, 105 n. 225, 127–128, 635–636, 642, 668, 672, 673 n. 104, 675, 677, 680 n. 137, 715–716, 726, 735, 760, 770–771, 835, 920 n. 51, 986, 1002, 1016 n. 109, 1030 n. 162, 1040 n. 178, 1058 n. 37, 1086 n. 139 Commission of Experts (former Yugoslavia)  55, 140, 541 n. 12, 566, 572, 587, 721, 729 n. 50, 734, 923 n. 70, 1057 Critique of 762 Establishment of 721 Final Report 568, 572, 1059 n. 36 Relationship of ICC to 591, 623, 627, 629, 655, 674, 677, 680 nn. 136, 137, 708 Resolution 780 27 n. 97, 463 n. 808, 541 n. 12, 542 n. 15, 566, 568, 569 n. 145, 571 n. 160, 587, 622, 787, 942, 1030, 1057, 1058 n. 36, 1059 nn. 38 Resolution 808 27 n. 97, 569, 587, 735 Resolution 827 119 n. 307, 128 n. 339, 132, 568–570, 729, 747 n. 148, 785 n. 3 Resolution 935 541 n. 12, 572, 653 n. 11, 941 n. 154

Resolution 1373 515–516, 920 n. 51 Resolution 1422 703, 709 United Nations. Standard Minimum Rules for the Treatment of Prisoners (SMRTP) 272, 476 n. 874, 795 n. 54, 799, 869 United Nations. Sub–Commission on Prevention of Discrimination and Protection of Minorities 221, 972 n. 286 United Nations. War Crimes Commission (UNWCC) 350, 549, 1063 United States (US) 29, 46, 55, 81, 99–104, 126–127, 130, 206, 243, 249, 261–263, 268, 286, 312, 337, 341, 343, 345–346, 352–353, 369, 379, 401, 404–406, 416–417, 428, 442, 446, 460, 463, 465–466, 477, 498–499, 505, 507–508, 518, 520–521, 523, 544, 548, 550–551, 553–554, 557–559, 562, 565, 574, 580, 612–613, 615, 621, 645, 647, 669, 672–674, 703–705, 709, 734, 740, 754, 761–762, 767, 772, 780, 784, 793, 824, 899, 949, 963, 978, 980, 1024, 1027, 1029, 1037–1038, 1042, 1044, 1049 n. 4, 1050 n. 5, 1053–1057, 1062–1064, 1066, 1068, 1070, 1075–1077, 1083–1084, 1086, 1088, 1090 Advisory Board on Clemency for War Criminals 477 Articles of War 337 Bills of attainder 554 Due process clauses of fifth and 14th Amendments 809 n. 116 Eighth Amendment 802, 804 n. 98 Execution of foreign sentences 506, 529 n. 183 Fifth Amendment 805, 829 n. 195 Fourteenth Amendment 829 n. 195 Fourth Amendment 524 n. 168 Freedom of Information Act (ForA) 523 Freezing and seizing of assets 15, 487, 500, 510–513, 516, 518, 529, 533 ICC and 703 American Service-Members’ Protection Act (ASPA) and 703 Bilateral agreements s to jurisdiction  703–704 Immunity from ICC jurisdiction 703 non-state party 703 Ratification issue 703 Reliance on Article 98 704 Legal system 814 n. 145, 983 Peace and security, threat to 709 President 29, 345, 1051 n. 7, 1077, 1084 Principle of legality 244 Privacy Act 523 Sixth Amendment 813 United States v. Barker 297 n. 36 United States v. Calley 293 n. 36, 352 n. 243, 429 n. 637, 460 n. 789



index

United States v. Dotterwich 371 n. 338 United States v. Egan 525 n. 168 United States v. Iran 241 n. 222 United States v. Jackson 805 n. 105 United States v. Medina 352 n. 242 United States v. Noriega 88 n. 131 United States v. Parks 371 n. 338 United States v. Tomoyuki 341 n. 195 United States v. Verdugo‑Urquidez 524 n. 167 United States v. Wilhelm von Leeb 347 n. 215 United States v. Yamashita 1037 n. 169 United States ex reI. Lujan Gangler 520 n. 168 Universal Declaration of Human Rights (UDHR) 114–107, 321, 960, 1019 Article II, para. 2 112 n. 260, 247 n. 261, 831 nn. 206–208 Article 8 115 n. 280, 1048 n. 3 Universal jurisdiction 24, 34, 77, 79–80, 89–90, 219, 236, 490–491, 743, 755–756, 909–910, 935, 1033, 1079 Vassalli, Giuliano 9 n. 1, 34 n. 140, 137 n. 4, 296 n. 34, 300 n. 50, 503 n. 70, 537 n. 8, 576 n. 183, 1036 n. 180, 1085 n. 137 Vattel, Emmerich de 32 n. 122 Velasquez‑Rodriguez case 205 Vengeance 437, 839, 914, 926–929, 931–932, 970, 992, 1026, 1055 see also Punishment Victim 91, 91, 101, 109–111, 113–133, 142, 146, 161, 168–169, 183, 189, 192–193, 205–207, 238, 253, 376, 378, 445, 453, 459–460, 480–483, 488, 525, 532, 562, 574, 617, 621–622, 628–629, 660, 682, 686, 689, 692–698, 701, 711–713, 719, 740, 746, 749, 751, 761, 766, 769, 782, 792–793, 808–809, 813, 836, 839, 845, 856–857, 871, 873–878, 882, 884, 887, 895, 911, 919, 928–929, 932, 936, 939, 945, 948–953, 955, 957, 963–967, 969–973, 975–976, 979–980, 995, 997, 1006, 1015, 1018–1019, 1034–1035, 1043–1044, 1060, 1075–1076, 1080–1081, 1082 n. 138, 1089–1090 see also as subhead to other topics Abuse of power by the state 809 Claim by one state against another 809, 112 Discretionary matter 112 Compensation and reparation 111, 113–114, 116, 118–119, 124–126, 128–129, 131–133, 482, 621–622, 928, 945, 953, 963–965, 971, 976 Crimes committed by other individuals  837 Defining the term “Victim” 122 Economic and political considerations 130 Evolution of rights in international law  111

1121

Final Report (Cherif Bassiouni) 942 n. 155 Fund for benefit of 129, 628, 692, 711–712 International criminal law and 69, 113 Municipal law matter 109 Normative framework of right to reparation  113 Protection of at trial 124 Reparation, right to 116 Mechanisms for obtaining 126 National methods 126 Regional mechanisms 127, 936 Right to remedy 111, 118, 958 Right to prosecute on their own 1055 Rights of 61, 113, 121–122, 124, 129, 693, 809, 857, 972 Significance of being categorized as a victim 123 State’s obligations that effect victim 124 Torture, arbitrary arrest or property confiscation 123 Types of victims 123 Victims and Witnesses Unit 129, 693, 707, 971 Vienna Convention on the Law of Treaties 82, 656–657, 704 Vietnam War 352, 428 Von Dardel v. USSR 948 n. 175 War crimes 19, 23, 26, 48, 56, 71, 76–77, 80, 89, 91–93, 95, 119, 137, 141–142, 144, 147–148, 152, 155, 158, 167–169, 199, 201, 204–205, 207–209, 218, 221–225, 227–232, 240, 242, 246, 259, 289, 297, 317, 340, 342, 348–349, 354–355, 357, 361, 372, 376, 393, 399, 405, 419, 438, 443, 447–448, 450, 452, 458, 463, 469, 476, 495, 543, 545, 548–550, 553, 556–557, 560–564, 618–619, 627, 632–633, 649, 652, 654, 660–661, 664, 666, 669, 716, 723–725, 729, 733–736, 738–739, 747–748, 750, 755–756, 763, 779–781, 786, 793, 913, 915, 918, 920, 922, 934, 937, 939–940, 944–945, 949, 956, 1000–1003, 1005–1006, 1017, 1019, 1022–1024, 1027, 1037, 1040, 1042, 1051–1053, 1054 n. 21, 1055, 1058–1059, 1062–1064, 1071, 1073, 1075, 1083, 1086, 1088 ICL Conventions 26 Ranking and classification as international crime 227 Ware v. Hylton 250 n. 270 Weapons 102, 144, 148, 153, 168, 181–183, 197–200, 214, 221, 223–224, 229–232, 406, 470, 618, 631, 664, 667, 674, 740, 749, 913, 1004, 1029, 1060 n. 42 Control of 228 Ranking and classification of international crimes 227

1122

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Unlawful possession, use and emplacement of 144, 148, 199, 223–224, 229–232, 264, 579 n. 187 ICL Conventions 264–69 Weeks v. Ohio 809 n. 121 Weimar Constitution of 1919 547 Westphalia 42, 111, 138, 1009 Peace of Westphalia 42 Treaty of Westphalia 138, 1009 Witnesses 124–125, 129, 133, 341–342, 390, 525, 555, 574–575, 686–689, 693, 695, 707, 719, 746, 748–749, 751, 776, 792, 808, 813, 817, 825, 833, 838, 844–846, 854–860, 862, 865–866, 967, 971 Credibility of 855 Protection of at trial 688 World public opinion 47, 209, 588, 786, 1036, 1081 World Trade Organization 707 World War I 17, 29, 74–75, 134, 151, 305, 338–339, 409, 419, 452, 456, 540, 542, 548, 554, 614, 648, 651, 653, 719, 920, 994, 1019,

1021, 1023, 1025–1026, 1036, 1041, 1047, 1052, 1054, 1058, 1082, 1087 conflict to end all wars—a dream 548, 651 Number of armed conflicts since See Chapter XII World War II 30, 47, 54, 59, 66, 70–72, 74, 76, 110–112, 114, 131, 151, 154, 230, 321–322, 329, 339–340, 361, 368, 375, 377–379, 387, 396, 403, 405–406, 409, 411, 428, 437, 448, 456–457, 460–461, 469, 528, 540, 548–549, 555, 558, 560, 562, 565, 576, 580, 584, 587, 632, 651, 654, 721, 735, 781, 785, 787, 835–836, 964, 994, 1002, 1019, 1021, 1025–1026, 1039–1041, 1054–1055, 1058, 1061, 1085, 1087 Atrocities of 112, 549, 651 World Zionist Organization 131 Xuncax v. Gramajo 126 n. 331, 949 n. 186 Yamashita, In re 341 n. 194, 343, 365 n. 305, 562 n. 124, 564 n. 130, 793 n. 42