♦ ♦ ♦ ♦
The discussion then turned to the legacy of the Nuremberg and Tokyo trials. It seemed that the global community had come to the realization of the need for permanent mechanisms and modalities in dealing with mass atrocities resulting from human rights and humanitarian violations in peacetime or in war, during internal armed conflicts or international armed conflicts. For decades there were discussions and position papers on the need to establish a permanent international criminal court, and of course on what law and procedure it would apply. This was a rather Herculean task when considering that a general consensus needed to be reached by the drafters who were jurists, academics and diplomats from all over the globe, from different legal traditions, with different agendas—all while the Cold War was being waged psychologically and by proxy—with no end in sight.
What emerged from Nuremberg—referred to as the Nuremberg Principles—continue to be controversial today. [1] What exactly did in fact emerge and to what extent did it then, or at some later point, or even today, express binding customary international law? With the establishment of the United Nations, significant global and purportedly universal legislation was passed in the form of conventions, as well as other internationally recognized legal instruments. But no international court. Aside from Nuremberg, there were trials at the State level dealing with atrocities committed by the Nazis and Japanese, including the Eichmann trial in Israel, which, for all its limitations, has in fact contributed to the advancement of international criminal justice.[2]
Creating a permanent international criminal court remained an elusive dream to those who truly wanted one. Looking back it is doubtful whether the US was ever really committed to the concept of an international court where US military and political leaders could potentially be sitting in the dock. For that matter, I would say the same for the USSR / Russia and China. After all, who could blame the Soviets during the Cold War? In 1952 a committee of the US Congress investigated the well-known (and currently acknowledged) massacre of Polish officers and political leaders at Katyń, recommending that those responsible be tried before the International World Court of Justice.[3] As Professor Schabas notes, discussions were “tinged with Cold War rhetoric” and “if Nuremburg had left the Soviets with any lingering taste for the international criminal justice project, that was quickly dampened by the initiatives like those of the United States Congress concerning Katyń.”[4]
The fact is that many States simply did not (and do not) trust such international institutions to be fair and objective, particularly when there is little if any oversight and lots of space for abuse and disparate treatment. Not to mention the highly subjective selection process in international prosecutions. No wonder it took nearly 50 years to establish the ICC, despite the relatively concerted efforts by the UN International Law Commission (ILC) in drafting an international criminal code—the Draft Code of Offences Against the Peace and Security of Mankind.[5]
In 1989 the General Assembly—perhaps because of the fall of the Berlin wall and the end of the Cold War and breakup of the Soviet Union—encouraged the ILC to finalize a criminal code for an international criminal court to be established.[6] But it would take another war—in the heart of Europe no less—with more atrocities, more condemnations from the international community, and the establishment of the ICTY by the UN Security Council to revive the imperative for a permanent international criminal court.[7]
In 1998, 160 countries gathered in Rome to negotiate the Statute for the ICC, which had been completed three years earlier.[8] When it was put to vote, 120 countries voted for it, with the United States, China, Israel, and others voting against it and twenty-one abstentions.[9] The Rome Statute entered into force on 1 July 2002 after 60 countries ratified, accepted or acceded to it.[10] It would take another year or so to select the judges and prosecutors and for the ICC to be operational. It would take another twelve years to complete the sum total of two trials.[11]
By the time the ICC was ready for business, the ICTY had been steadily advancing—though not always in the right direction—international criminal law and procedure. There were other tribunals as well, such as the ICTR, Special Panels for Serious Crimes at the District Court of Dili (East Timor),[12] the Special Court for Sierra Leone (SCSL) and shortly thereafter the Extraordinary Chambers in the Courts of Cambodia (ECCC),[13] followed by the Special Tribunal for Lebanon (STL),[14] a court that I suspect will not fare well in time to come, it being a real anomaly.[15] A body of international criminal law and procedure began to emerge, on which, presumably, the ICC would capitalize.[16] Thus, any examination of the ICC cannot ignore or gloss over the fact that it did not have to re-invent the wheel: it had a considerable body of law and procedure, and administrative practices that it could draw from the other tribunals.
But the ICC was going to be different—or so it was thought. It would have its own detailed statute where the crimes were clearly listed with their specific elements—thus no need to scurry about to figure out what constitutes a particular crime, and whether the elements are identified unquestionably reflective of customary international law. The ICC would also learn—or at least so it was thought—from the mistakes made by the ad hoc tribunals. It would be circumspect when deciding whether to launch an investigation and whether to charge. It would not just take on any case even from one of the members of the Assembly of State Parties; complementarity would come into play. The ICC would serve as the Court of Last Resort: if a state was unable or unwilling to investigate and prosecute then it would intervene, and then, only rarely.[17]
With this as the backdrop, it was time to consider whether, after being in operation for twelve years, it was too soon or fair to evaluate whether the ICC was living up to the expectations of its founders. Since the focus of the lecture was on whether the ICC was proving to be the court of last resort, the question as to what sort of jurisprudence the ICC was generating was not addressed.
To familiarize the students with the jurisdiction of the ICC and how a case generally gets to the ICC, I briefly walked them through Article 13 of the Rome Statute, which lays out three ways in which the ICC can exercise jurisdiction over a case:
(a) referral of a situation by a state party;
(b) a referral by the Security Council acting under Chapter VII of the UN Charter; and
(c) The prosecutor initiating an investigation proprio motu.
For a State party to refer a case to the ICC, or for the prosecutor to initiate an investigation proprio motu: (i) the accused person needs to be a national of a State party, or (ii) the conduct must have occurred in a State party.
I also discussed complementarity in a very cursory fashion, explaining that the ICC was intended as a court of last resort, investigating and prosecuting only where national courts have failed. The principle of complementary, which places limits on what cases may be admissible to the ICC, is set out in Article 17, which provides:
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.
With the history and legal framework in mind, it was time for the vignettes I had selected which would hopefully lead to questions, comments and reflection.
[1] See G.A. Res. 488(V), U.N. Doc. A/RES/488(V) “Formulation of the Nuremberg Principles” (12 December 1950); International Law Commission, Report of the International Law Commission to the General Assembly, A/1316 (July 1950) (“Spiropoulos Report”) 367–73; Report of the International Law Commission on its Second Session, 5 June to 29 July 1950, Official Records of the General Assembly, Fifth Session, Supp. No. 12, U.N. Doc A/1316 (1950). Resolution 488(V) provides that “The international law commission has formulated certain principles recognized according to the Commission, in the charter and the judgment of the Nuremberg Tribunal.” However, the Nuremberg principles formulated by the ILC, and set out by the Spiropolous Report, and reinforced by the Second ILC report, do not include common plan liability for war crimes and crimes against humanity. While they do for other principles, no mention is made of common plan liability for crimes against humanity and war crimes; See also Machteld Boot, Genocide, Crimes Against Humanity, War Crimes 461 (Intersentia, 2002). “From the views expressed by governments after the adoption of the Nuremberg Principles by the UN General Assembly, it appears that much difference of opinion existed about the formulation of ‘crimes against humanity’ and its relation with the crime of genocide, Brazil, for example, stated that the acts constituted international crimes only when committed in connection with other crimes falling within the category of crimes against peace or war crimes.”; See also Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 626 (Little, Brown & Co. 1992). Telford Taylor, American counsel for the Prosecution at Nuremburg, reflecting on the Nuremberg trials remarked that what was done in Nuremburg was “revolutionary” in the sense that its makers adopted several novel criminal principles.
[2] For an excellent, yet controversial analysis of the Eichmann trial see Hannah Ardent, Eichmann in Jerusalem: A Report on the Banality of Evil 2 (Penguin, 2006). An example of one of Ardent’s controversial views was that “Ben-Gurion’s intentions from the beginning when he ordered Eichmann kidnapped and brought to trial in Israel and in his public statement afterward certainly gave credence to the view that it was indeed a show trial.” The Eichmann trial, in which Adolf Eichmann was kidnapped from Argentina, continues to be discussed in modern international criminal law relating to extraterritorial jurisdiction. See also Danielle Ireland-Piper, Does the Long Arm of the Law Undermine the Rule of Law?, 13 Melb. J. Int’l L. 122, 125 (2012).
[3] Select Committee to Conduct an Investigation and Study of the Facts, Evidence, and Circumstances on the Katyń Forest Massacre, H.R. Rep. No. 2505 (1952).
[4] William Schabas, Unimaginable Atrocities, Justice, Politics, and Rights at the War Crimes Tribunals 13 (Oxford 2002).
[5] Draft Code of Offences against the Peace and Security of Mankind, 1954, Yearbook of the International Law Commission, vol. II. (1954).
[6] G.A. Res. 44/32, U.N. Doc. A/RES/44/32 (4 December 1989).
[7] United Nations, The Statute of Rome, Overview (1989), available at http://legal.un.org/icc/general/overview.htm.
[8] See Judge Sang-Hyun Song, President of the International Criminal Court, The International Criminal Court: A Global Commitment to End Impunity, 3, (22 May 2013), available at http://www.icc-cpi.int/iccdocs/presidency/130522-ICC-President-lecture-at-Istanbul-Bilgi-University.pdf; See also Coalition for the International Criminal Court, History of the ICC, Rome Conference, Coalition for the International Criminal Court, available at http://www.iccnow.org/?mod=icchistory.
[9] Coalition for the International Criminal Court, History of the ICC, Coalition for the International Criminal Court, History of the ICC, Rome Conference, Coalition for the International Criminal Court, available at http://www.iccnow.org/?mod=icchistory.
[10] Rome Statute, art. 126; Coalition for the International Criminal Court, Fact Sheet: States Parties to the Rome Statute of the ICC, http://www.iccnow.org/documents/RATIFICATIONSbyRegion_15Feb2013_eng.pdf. Australia and Honduras both ratified the statute on 1 July 2002.
[11] International Criminal Court, Situations and Cases, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visited 8 March 2014).
[12] United Nations Transitional Administration in East Timor, Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15 (6 June 2000).
[13] Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, Phnom Penh (6 June 2003).
[14] Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, S.C. Res. 1715, U.N. Doc S/RES/1757, Annex (2007) (“STL Statute”).
[15] The Special Tribunal for Lebanon allows for trials in abstentia. See STL Statute art. 22. On 16 January 2014 trial proceedings against the four accused commenced. Yet none of the defendants appeared in court. While the Tribunal has asked for the handing over of the indicted individuals, the Lebanese authorities have been unable (or unwilling) to do so. See STL Press Release, Ayyash et al. case opens at the Special Tribunal for Lebanon (16 January 2014), http://www.stl-tsl.org/en/media/press-releases/16-01-2014-ayyash-et-al-case-opens-at-the-special-tribunal-for-lebanon; Mark Kersten, Trials and Tribulations of the Special Tribunal for Lebanon, Justice in Conflict (28 January 2014).
[16] Before the ICC had opened its doors, the ICTY had already completed 30 cases in 2002. See ICTY, Judgment list, ICTY.org, http://www.icty.org/sid/10095 (last visited 17 March 2014).
[17] ICC Assembly of States Parties, Report on the Bureau on Complementarity, ICC-ASP/11/24 (14-22 November 2012) “It is important to recall, that issues arising from the admissibility of cases before the Court under article 17 of the Rome Statute all remain a judicial matter to be addressed by the judges of the Court. Initiatives by State Parties to strengthen national jurisdictions to enable them to genuinely investigate and prosecute the most serious crimes of concern to the international community as a whole should always preserve the integrity of the Rome Statute and the effective, independent functioning of its institutions.”