Frank Höpfel & Claudia Angermaier. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
International criminal law merges two legal disciplines that are fundamentally different in their focus: (1) international law, which deals with the legal duties and rights of equal sovereign states and (2) criminal law, where the focus is on the criminal responsibility of individuals. Although the notion of individuals as subjects with certain rights under international law has a longer tradition in various humanitarian and human rights instruments, individual criminal responsibility under international law is quite a recent phenomenon. Its roots can be traced back to the Treaty of Versailles of 1919 after World War I, which established the right of the Allied Powers to try to punish individuals responsible for “violations of the laws and customs of war.” On the basis of this treaty, attempts were made to submit Kaiser Wilhelm II to an allied military tribunal. It was only after World War II that trials of individuals before an international tribunal for crimes against international law took place. These were conducted before the Nuremberg and Tokyo Military Tribunals. In its judgment, the Nuremberg Tribunal espoused the principle of international individual criminal responsibility contained in Article 6 of the Nuremberg Charter with the famous statement: “Crimes 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.” The General Assembly of the United Nations in 1946 affirmed this principle for the crime of aggression, war crimes, and crimes against humanity. Half a century later, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) adopted under Chapter VII of the U.N. Charter reinforced the idea of individual criminal liability under international law for gross violations of international humanitarian law, and it is again reflected in Article 2 of the 1996 Draft Code of Crimes Against the Peace and Security of Mankind. With the 1998 Rome Statute of the International Criminal Court (ICC), the principle of individual criminal responsibility under international law for aggression, genocide, war crimes, and crimes against humanity was firmly established. Individuals can therefore be held directly accountable under international law for these crimes by international tribunals or national courts, irrespective of whether the crimes are punishable under domestic legislation.
The principles of nullum crimen sine lege and the concomitant nullum poene sine lege, which can be found in most national legal orders, dictate that no one can be held criminally accountable and punished for behavior that has not been declared criminal by law. The point of reference for domestic courts may be national or international law depending on whether states follow a dualist or monist conception of the relationship between international rules and the domestic legal order, but also depending on the degree of specificity required by states to satisfy the principle of legality. Adjudicating individuals for international crimes thus presupposes the criminalization of certain behavior under international law or national law. Although proscriptions under international criminal law can be found in various international instruments as well as customary international law, these are not always transposed into national legislations. Some 20 categories of international crimes can be distinguished, most notably, aggression; genocide; crimes against humanity; war crimes; apartheid; slavery and slave-related practices; unlawful traffic in drugs and related drug offenses; destruction and theft of cultural heritage; unlawful possession, use, and emplacement of weapons; theft of nuclear materials; unlawful human experimentation; unlawful acts against certain internationally protected elements of the environment; international traffic in obscene materials; piracy; aircraft hijacking; and torture and other forms of cruel, inhuman, or degrading treatment. Bassiouni identifies four factors that determine states’ policy of defining certain acts as international crimes:
- The prohibited conduct affects a significant international interest (including threats to peace and security);
- The prohibited conduct constitutes an egregious conduct deemed offensive to the commonly shared values of the world community (including conduct shocking to the conscience of humanity);
- The prohibited conduct involves more than one state (transnational implications) 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;
- The conduct bears upon an internationally protected interest which does not rise to the level required by (a) or (b) but which cannot be prevented or controlled without its international criminalization.
Hence, transnational crimes constitute international crimes. International crimes do not, however, necessarily presuppose a transnational element; indeed some of the most heinous crimes are committed within a state’s territory by its own nationals. Although all these crimes are international crimes, the enforcement systems available for each of these crimes vary considerably.
The enforcement of international criminal law has traditionally been and still is to a large extent a decentralized system, relying on individual states to prosecute international crimes and execute the punishment. For the effective functioning of this system, states in principle have to (1) proscribe international crimes under their national laws, (2) provide for jurisdiction over these crimes, and (3) actually assert their jurisdiction or, alternatively, extradite to a state that is willing to exercise its jurisdiction over the international crime. Customary international law and international treaties provide a framework in which states may decide to what extent they will assert their jurisdiction over specific crimes. Some international conventions do not leave such discretion to the state parties but oblige them to enact legislation with regard to international crimes. The content of these obligations varies: States may be obliged to criminalize certain behavior in their national laws, but often treaties also contain an obligation for states to enact rules that allow them to assert criminal jurisdiction when certain conditions are met. A centralized enforcement system of international criminal law entails the arrest, prosecution, adjudication, and the enforcement of the punishment by an international tribunal. The only examples of such a system were the Nuremberg and Tokyo Military Tribunals. The ICTY and ICTR as well as the recently established ICC also prosecute and adjudicate certain international crimes but have to rely on the cooperation of states for the other aspects of enforcement, such as the arrest of suspects and the execution of prison sentences. As such, they only in part directly enforce international criminal law.
The purpose of this chapter is to explore a specific aspect of enforcement—namely, the prosecution and adjudication of perpetrators of international crimes. In light of continuing criticism of the ICC and the Security Council Resolutions providing for the immunity of U.N. peacekeepers from adjudication by the ICC, it will be particularly important to discuss the role of national courts and the ICC in the adjudication of international crimes. We will provide a short overview of other tribunals that have jurisdiction over international crimes, such as the ad hoc tribunals and internationalized courts. These courts need to be distinguished from international courts such as the International Court of Justice and the European Court of Human Rights, which do not have the competence to determine the criminal responsibility of individuals.
National Courts Adjudicating International Crimes
In prosecuting conduct that constitutes a crime under international law, states do not necessarily invoke the fact that a crime under international law has been committed to justify their jurisdiction but, rather, proceed in accordance with their respective domestic legislation: first determining whether the conduct in question is proscribed under their domestic law and then whether there is a legal basis in their domestic legal order for asserting jurisdiction. Thus, it does not suffice that specific conduct is punishable under the domestic law of a state; the state must also be able to assert jurisdiction over the conduct in question. The rules governing the criminal jurisdiction of a state are primarily found in domestic legislation. International law only delimits the boundaries within which states may exercise their domestic jurisdiction. These boundaries are embodied in the so-called principles of jurisdiction, the most important of which are (a) the principle of territoriality (the crime was committed in the territory of the state), (b) the active personality principle (the perpetrator is a national of the state), (c) the protective principle (the crime violates essential interests of the state), (d) the passive personality principle (the victim is a national of the state), and (e) the universality principle (certain crimes can be adjudicated by any state, no matter where and by whom they were committed). It is important to note that these principles are not all equally accepted and states may combine various principles when defining the extent of their criminal jurisdiction over a specific offense. Therefore, discrete categories such as territory and nationality are not necessarily invoked by states to justify their criminal jurisdiction over a specific incident. It has been argued that the overarching principle of international law that justifies a state in exercising jurisdiction is the existence of a meaningful link between the forum state and the specific criminal conduct.
A distinction is often made between the jurisdiction to prescribe, to adjudicate, and to enforce. Some commentators differentiate only between prescriptive and enforcement jurisdiction, where adjudication is taken to be a part of the enforcement of legal rules. However, it is arguable that the distinction between prescriptive and enforcement jurisdiction is merely one of degree: There is a presumption that the enactment of rules is followed by their enforcement in the future. In the following sections, the various principles under international law that allow a forum to assert jurisdiction, and thus give the state the right to prosecute crimes, will be discussed. This must be kept separate from the question of how far states are obliged to prosecute certain crimes. Last, we explore the effect of the Rome Statute on this existing decentralized enforcement system with reference to some national implementing legislation.
Traditional Bases for Asserting Jurisdiction
Territorial jurisdiction is the most uncontested principle of jurisdiction because it is closely related to the notion of sovereignty: States may prosecute any person who commits an offense in whole or in part in their territory. It can be distinguished generally from extraterritorial jurisdiction, which does not flow from the idea of sovereignty but is tied rather to concrete state interests. This seemingly clear distinction has become blurred by broad conceptions of the locus delicti (the place where an offense was committed). For example, if an anthrax letter is posted in Austria and is intended for a person living in Vienna who receives the letter and dies from the contents, the offense of murder was committed in whole in the territory of Austria. However, if the same letter was posted in Germany, the offense was committed in part in German and in part in Austrian territory. Both the Austrian and German criminal code enable their courts to assert jurisdiction when only part of the offense took place in their territory: The locus delicti is defined as the place where the perpetrator acted or where the effect of the crime occurred or was intended to occur. This means, in the second scenario, that both Austria and Germany can assert jurisdiction based on their respective national legal provisions, because the perpetrator acted in Germany and the effect of the crime took place in Austria. If, however, the letter was intercepted at the border before reaching its destination in Vienna, both Austrian and German courts would still be able to assert jurisdiction over the incident, because the Austrian criminal code also defines the locus delicti as that place where the effect of the crime was intended to take place. Therefore, the principle of territoriality in the Austrian and German criminal code covers also inchoate offenses. U.S. courts have similarly asserted their jurisdiction based on the principle of territoriality in conspiracies in drug trafficking, based on the fact that drugs were intended to be trafficked to the United States. Under Austrian law, conspiracy is defined as an independent criminal offense and not merely as a material element of another crime such as drug trafficking, which is the reason why Austrian courts have not applied the principle of territoriality to thwarted conspiracies outside Austrian territory. These examples illustrate that the definition of the material elements of a crime as well as the definition of the locus delicti in domestic legislation determines whether a state can assert jurisdiction over a specific criminal conduct based on the principle of territoriality. From the above it is clear that, especially in the case of transnational crimes involving different states, all these states could have concurrent territorial jurisdiction.
Although it is accepted under international law that territorial jurisdiction can be established when the effect of the criminal act occurs in the territory of the forum state, the “effects doctrine,” which allows states to assert jurisdiction over acts that have a significant effect in their territory, is by no means generally accepted. In the case of the former, the effect of the act is a material element of the crime, whereas in the latter case, the effect is merely the vague concept of a general consequence of the conduct in question. The controversy has arisen mainly with regard to United States antitrust legislation, which, many affected states have argued, goes beyond what is permissible under international law.
The principle of nationality, which is often combined with the principle of domicile or residence, is based on the idea that citizens owe their state allegiance. They thus have to respect the laws of their state of nationality even when they leave its territory. States may punish their nationals under their own domestic law, independently of whether the behavior is punishable under the law of the state in whose territory the crime was committed. In practice, states seem to assert such jurisdiction only in the case of grave offenses. For example, the Austrian penal code establishes the jurisdiction of Austrian courts for statutory rape on the basis of nationality in conjunction with the principle of domicile, to combat the phenomenon of sex tourism. Furthermore, the principle of nationality may also be invoked to assert jurisdiction over persons whose behavior is punishable under the laws of the territorial state and the state of nationality. Traditionally, the principle of nationality has been favored by civil law countries and can be seen as a corollary to the constitutional prohibition of extraditing their own nationals.
Protective and Passive Personality
On the basis of the protective principle, states may exercise their jurisdiction over criminal behavior that threatens the security of the state or other important public interests. The principle of passive personality, allowing states to exercise jurisdiction on the basis of the nationality of the victim, is not as widely accepted by states as the other traditional principles of jurisdiction. Although continental systems often apply the principle of passive personality in conjunction with the principle of protection of state interests, the United States has traditionally been a strong opponent of this principle. U.S. Congress enacted legislation that accords U.S. courts jurisdiction over certain violent acts committed against American citizens. However, this act requires that there must be an intention to harm the government or civilian population, thereby relying primarily on the protective principle. In United States v. Yunis, where the only link between the United States forum and the crime was the nationality of two passengers that had remained unharmed, U.S. courts were willing to assert their jurisdiction over the crime. This could be seen as an acceptance of the principle of passive personality or universality, but not an application of the protective principle, because the action was not directed against U.S. interests. There is thus some marginal support for the passive personality principle.
The Principle of Universality
The principle of universality is the most controversial principle of jurisdiction. As a principle of jurisdiction based solely on the nature of the crime, independent of notions of nationality, territoriality, and other important state interests, it does not fit the traditional framework outlined above under which states can assert jurisdiction when there is a meaningful connection with the crime. One can broadly distinguish between an absolute notion and a more restrictive notion of universal jurisdiction. Under the former view, states may assert their jurisdiction independently of whether the alleged offender is present in their territory, whereas the latter view ties universal jurisdiction to the presence of the accused in the territory of the forum state.
As with all principles of jurisdiction, the source of justification under international law for applying universal jurisdiction to a specific crime may be found in international treaties as well as customary international law. International treaties that espouse universal jurisdiction only do so in the narrow sense but generally also contain provisions that allow states to enact farther-reaching criminal jurisdiction. Although many commentators and, most notably, human right groups have argued that customary international law allows for universal jurisdiction in the broad sense over certain serious international crimes, this may be only a desired state of affairs and not entirely reflect the extent to which such a broad notion is accepted by states. Moreover, there is by no means agreement about which crimes are subject to universal jurisdiction.
The Princeton Project on Universal Jurisdiction brought together a group of leading international legal experts to formulate a set of guidelines for states to apply the universality principle in their courts and thus to increase accountability for certain serious crimes under international law. The Princeton Principles essentially advocate a broad notion of universal jurisdiction for piracy, slavery, crimes against peace (e.g., crimes of aggression), war crimes, crimes against humanity, genocide, and torture. The presence of the alleged offender in the territory of the forum state is not a prerequisite for asserting universal jurisdiction: The jurisdiction over these crimes is inherent and can form the basis of an extradition request.
Another important issue is whether universal jurisdiction provides the asserting state with an equally strong claim to jurisdiction as a state whose jurisdiction is based on a traditional principle of jurisdiction. It is useful to look at the origins of the notion of universal jurisdiction. Piracy is regarded as the first crime for which states accepted universal jurisdiction. However, again there are two views on the precise rationale of the jurisdiction of states over pirates: The one view points to the juris-dictional vacuum because the high seas constituted so-called terra nullius, and the other view focuses on the specific gravity of the crime that designates pirates as enemies of mankind. The second rationale has lead to the expansion of the principle to other grave crimes, such as genocide and war crimes. The state prosecuting the perpetrator of these crimes is thus primarily acting in the interest of the world community. The first rationale supports the idea that universal jurisdiction is merely a subsidiary form of jurisdiction and can be exercised only if other states with a more traditional link to the crime are not bringing perpetrators to book. When states having a traditional basis for jurisdiction do not exercise that jurisdiction, the crime is perpetrated in a de facto jurisdictional vacuum. These two rationales have been combined to form a theory of subsidiary universal jurisdiction for serious international crimes. The intol-erability in the eyes of humankind of letting certain offenses go unpunished establishes a subsidiary link of all states to the crime. A state is empowered to assert its criminal jurisdiction where it can be assumed that no other state with a traditional jurisdictional link to the crime will prosecute.
We have illustrated some of the different theories that have been advocated with regard to universal jurisdiction. Earlier, we made the distinction between a broad and more restrictive notion of universal jurisdiction based on whether the presence of the accused in the territory of the forum state is seen as a precondition to the exercise of universal jurisdiction. Another issue subject to different interpretations is whether universal jurisdiction allows states to exercise concurrent jurisdiction over a crime or whether it is merely a subsidiary form of jurisdiction with regard to jurisdiction based on the traditional principles. Although many states have enacted laws that establish a broad notion of universality, some of these states have subsequently repealed such provisions and limited the scope of universal jurisdiction, as was the case in Belgium, or their domestic courts have taken a restrictive interpretation and required additional conditions for the application of universal jurisdiction, as illustrated by the latest Spanish cases.
The Belgian Law on Universal Jurisdiction
Probably the most far-reaching national legislation with regard to establishing universal jurisdiction over international crimes was the 1993 Act Concerning Grave Breaches of International Humanitarian Law as amended by the Act of 1999. Article 7 of this law provides that Belgian courts are competent to assert universal jurisdiction over war crimes, crimes against humanity and genocide, even if the alleged offender is not present in Belgian territory. On the basis of Article 7, an extradition may be requested and in case such an extradition is impossible, the trial may be conducted in absentia. In principle, the Belgian criminal justice system is based on prosecutorial discretion, and with regard to the exercise of extraterritorial jurisdiction, Belgian law stipulates certain additional requirements, such as official denunciation by foreign public authorities or a formal complaint by the foreign victim or his or her relatives. The 1993 law, however, seems to establish mandatory prosecution for genocide, crimes against humanity, and war crimes. On the basis of this law, numerous applications were brought before Belgian courts, mostly by victims of the alleged crimes. Among others were the cases against four Rwandan citizens for war crimes and against the former President of Chad, Hissène Habre, for torture and crimes against humanity.
In the Arrest Warrant case before the International Court of Justice (ICJ) the Democratic Republic of Congo objected to the issuing of an international arrest warrant in absentia by a Belgian court against the incumbent minister of foreign affairs of the Congo, which alleged grave breaches of the Geneva Conventions of 1949 and of the Additional Protocol thereto as well as crimes against humanity. The Congo argued that the Belgian law that entitled courts to assert universal jurisdiction even where the alleged offender was not present in Belgian territory violated international law and that the circulation of the arrest warrant through Interpol contravened a rule of customary international law concerning the inviolability and immunity from criminal process of an incumbent minister of foreign affairs. The ICJ forfeited the opportunity of settling the issue of universal jurisdiction by confining itself to the second question and held in its judgment that the issue of the arrest warrant indeed violated the immunity of a minister of foreign affairs under international law.
With its recent investigations against Ariel Sharon, Colin Powell, and George Bush, Sr., Belgium increasingly found itself in diplomatic hot water. When the United States threatened to remove the NATO headquarters from Brussels, the Belgian parliament drastically reduced the scope of the statute, allowing for universal jurisdiction only where there exists a link to Belgium, such as the nationality or residence of the accused or the victims.
The Pinochet Case
In 1999, the British House of Lords had to consider an extradition request of the Spanish authorities for General Augusto Pinochet of Chile who at the time was undergoing medical treatment in Britain. A Spanish court had issued an indictment against Pinochet for acts of torture, among others, and based its jurisdiction on the principle of universality that is encoded in Spanish law. While the House of Lords judgment mainly focused on the immunity of former heads of states, the issue of universal jurisdiction was important in deciding whether the principle of “double criminality” required under British extradition law was satisfied. The Court maintained that the principle of double criminality required that the act be punishable in the requesting and requested state at the date of commission. In its final judgment, the Court held that Pinochet could not be extradited for acts of torture committed in Chile because British courts acquired extraterritorial jurisdiction over this crime only after the Criminal Justice Act of 1988 entered into force on September 29, 1988.
It is important to note that English courts can base their jurisdiction on domestic common law as well as on customary international law. Thus, the exercise of criminal jurisdiction over the crime of torture does not require a domestic law if such criminal jurisdiction is legitimated by international law. Lord Millet argued that national courts may exercise universal jurisdiction over a crime once the prohibition of this crime has the status of jus cogens and when it reaches such a scale and gravity that it can be seen as an attack on the international legal order. He maintained that the prohibition of torture had risen to the status of jus cogens well before 1984 and that the crimes committed by Pinochet in Chile from 1973 onward were of such a gravity and scale as to allow other states to exercise universal jurisdiction. As a result, British courts had extraterritorial jurisdiction even over acts of torture committed prior to the enactment of the Criminal Justice Act of 1988. Although not all judges agreed on the exact time when torture constituted a violation of a peremptory norm of international law, they did endorse, in principle, the exercise of universal jurisdiction in cases where the prohibition of the crimes in question has risen to the status of jus cogens.
The Spanish extradition request for General Pinochet based the criminal jurisdiction of Spanish courts on Article 23(4) of the 1985 Organic Law of the Judicial Power, which provides for universal jurisdiction of Spanish courts over the specific crimes such as genocide and terrorism, as well as any other crime that by international treaty or convention should be prosecuted in Spain. There is no added requirement for the exercise of universal jurisdiction in Spanish law. Thus, this provision can be regarded as embodying the principle of universal jurisdiction in its broad form. In contrast to Britain, Spanish courts can assert criminal jurisdiction only on the basis of a domestic legal provision. The Criminal Appeals Chamber of the Audiencia Nacional affirmed that Spain had universal jurisdiction over the acts committed in Chile and that such jurisdiction did not contravene Article 2 of the U.N. Charter, which enshrines the principle of sovereign equality of states. However, in February 2003 in the Guatemala Genocide case, the Spanish Supreme court held that universal jurisdiction interferes with the principles of nonintervention and sovereign equality of states as provided in Article 2 of the U.N. Charter, unless there is a point of connection with Spain, such as the involvement of important national interests or the nationality of the perpetrator or the victims. With regard to nonnationals, the Court maintained that the presence of the perpetrator in the territory of Spain was a precondition to exercise of universal jurisdiction.
The recent Spanish Supreme Court judgment and the amendment of the Belgian law on universal jurisdiction seem to suggest that states are becoming more reticent to apply universal jurisdiction in its pure form but, rather, require that some additional condition be met. In her dissenting opinion in the Arrest Warrant Case, Judge Van den Wyngaert examined the scope of the principle of universality under international law. She argued that although many national courts and national legislation require for the exercise of universal jurisdiction an additional link to the crime, such negative state practice with respect to universal jurisdiction constitutes evidence of opinio juris under international law only if the abstinence was based on a conscious decision of the respective states that they were conforming to a rule of international law. It seems, however, that most states restrict the exercise of universal jurisdiction merely for political or practical reasons rather than from a conviction that they are acting in accordance with a rule of customary international law. Judges Higgins, Kooijmans, and Buergenthal in their joint separate opinion also maintain that state practice is neutral in this regard.
It is clear that the abrogation of the Belgian law resulted from intense political pressure by the United States rather than a conviction that a broad notion of jurisdiction contravenes international law. Interestingly, the position of U.S. courts is in favor of universal jurisdiction for genocide, war crimes, and crimes against humanity as was demonstrated in the Demjanjuk case and more recently in the case of Yousef and others. Moreover, the German Parliament recently explicitly rejected the restrictive stance of its courts, which had required a legitimizing link for the exercise of universal jurisdiction, by enacting a broad version of universal jurisdiction for genocide, crimes against humanity, and war crimes. Although universal jurisdiction is a viable avenue for addressing the prevailing impunity in many countries for serious international crimes, its precise scope under customary international law is not yet settled, and thus, as the Spanish Supreme Court decision and the House of Lords decision in the Pinochet case demonstrate, many states seem to be hesitant to exercise universal jurisdiction based solely on customary international law.
Aut Dedere Aut Judicare and Vicarious Administration of Justice
Clauses in international conventions relating to the jurisdiction of a state must be distinguished from prosecution clauses, expressing the rule of aut dedere aut judicare. This rule is contained in many multilateral treaties on international crimes and establishes an obligation on states to extradite or prosecute the alleged offender. Clearly, states would be able to prosecute only if their national laws foresee jurisdiction in such cases. Thus, the principle of aut dedere aut judicare presupposes that states can assert jurisdiction over the relevant crime but does not in itself confer jurisdiction on the state.
The principle of aut dedere aut judicare often is equated with the jurisdictional principle of vicarious administration of justice, contained in some legal systems such as Austria and Germany. Under the principle of vicarious administration of justice, the jurisdiction of a state is dependent on the following circumstances: (1) The perpetrator is in the custody of the state; (2) he or she cannot be extradited, either because no such request was made by other states or because an extradition is prohibited for reasons other than the nature of the crime; (3) the criminal conduct amounts to an extraditable offense; and (4) the conduct is subject to punishment both in the state of territoriality and the state of custody. These conditions are at the same time necessary and sufficient for the exercise of jurisdiction: If these conditions are fulfilled, the state acquires jurisdiction over the crime, although no inherent jurisdictional link based on nationality, territoriality, or protection exists. It is therefore a derived form of jurisdiction and only subsidiary because it arises when states having inherent jurisdiction over the crime cannot or will not exercise their jurisdiction.
In a sense, the principle of vicarious administration of justice combines the idea behind aut dedere aut judicare, which is to ensure that states do not become safe havens for criminals, with a jurisdictional clause. Jurisdiction on the basis of vicarious administration of justice can go further than universal jurisdiction, because it is not limited to specific grave international crimes. Austrian courts relied on this principle in the case of Dusko C. to assert their jurisdiction over the crime of genocide. Because the crime of genocide was contained in the criminal codes of both the state of territoriality (Bosnia-Herzegovina) and the state of custody (Austria), and extradition was not possible due to the ongoing war in Bosnia-Herzegovina, Austrian courts became competent to judge the case based on the provision in the Austrian code that enshrines the principle of vicarious administration of justice. In contrast, universal jurisdiction provides states with an inherent jurisdiction over certain international crimes and, in the case of the broad notion of universality, can itself be the basis of an extradition request.
Obligation to Prosecute International Crimes?
International law not only defines the legal limits in which states may extend their extraterritorial jurisdiction but in some cases may even oblige states to prosecute certain offenses. That there is a duty of states to uphold the rule of law in their own countries with regard to crimes committed in their own territory has been reiterated by various monitoring bodies in the field of human rights. However, to what extent states have a duty to prosecute offenses committed outside their own territory is a controversial issue, especially with regard to the duty to exercise universal jurisdiction. Most international treaties on international crimes establish an obligation for state parties to enact domestic legislation proscribing these crimes under their national laws. Some international treaties oblige states to provide for jurisdiction over the relevant crimes, and some treaties explicitly require states to prosecute offenders for these crimes and thus exercise their jurisdiction. The obligation to prosecute an international crime is established by the principle of aut dedere aut judicare, which gives states the choice to either extradite or prosecute offenders located in its territory. Thus, insofar as one can speak of an obligation under international law for states to prosecute international crimes that were committed outside their territory, the obligation is never absolute: First, the offender must be located in the territory of the forum state; second, an obligation to prosecute only arises if states do not extradite; and third, such an obligation applies only to state parties of the relevant treaty. Common law countries have been reluctant to introduce universal jurisdiction—even in a limited form—into their systems, whereas civil law states often did not provide for the imprescriptibility of war crimes, crimes against humanity, and genocide in their domestic laws. However, it seems that the Rome Statute of the International Criminal Court has provided new impetus for states to enact legislation proscribing international crimes and establishing broader extraterritorial criminal jurisdiction.
The Implementation of the Rome Statute
State Parties to the Rome Statute of the International Criminal Court have taken different approaches in adopting implementing legislation. Although the Rome Statute does not oblige state parties to proscribe or prosecute the crimes listed in the statute, many states have incorporated the substantive provisions of the statute into their domestic legislation and extended their extraterritorial jurisdiction. Germany enacted a Code of Crimes against International Law (CCIL) in which the provisions of the Rome Statute with regard to genocide, war crimes, and crimes against humanity have to a large extent been copied. However, the CCIL must be regarded as an independent codification of these crimes, because it includes norms that are part of customary international law but that have not been reflected in the ICC Statute. Furthermore, it contains some modifications to satisfy the constitutional requirement of legal certainty and differentiates between serious crimes and less serious crimes against international law. With regard to the serious crimes, the CCIL provides for imprescriptibility and universal jurisdiction, which is mandatory because the CCIL refers to the general rule of obligatory prosecution (Legalitätsprinzip) contained in many civil law countries. Section 153f of the Code of Criminal Procedure provides for some exceptions to this rule and therefore allows the prosecutor a certain amount of discretion, most notably, in the case where the crime was committed by a nonnational against a nonnational abroad and the alleged offender is not located in nor expected to enter German territory.
In Canada, the implementation of the Rome Statute also sparked a legislative reform of the substantive provisions on genocide, war crimes, and crimes against humanity. The Crimes Against Humanity and War Crimes Act defines these crimes broadly, primarily referring to the customary or conventional international law that applied at the time and place of commission but also clarifying that these provisions reflect the substantive part of the Rome Statute. The extraterritorial jurisdiction of Canada over these crimes is based on the active and passive personality principle as well as universal jurisdiction, whereby for the exercise of the latter, the only requirement is the presence of the offender in Canadian territory. Canada has thus extended its jurisdictional regime over extraterritorial international crimes, thereby ensuring that effective domestic prosecution may take place.
Quite a different approach has been taken by Austria in implementing the Rome Statute into its domestic legal order. Austria generally takes a minimalist stance with regard to transposing the substantive provisions of international treaties. With the exception of genocide, Austria does not explicitly proscribe international crimes, relying on its existing penal provisions. Arguably, the gravity of these specific crimes is not sufficiently reflected in traditional domestic offenses. Thereby, Austrian courts can rely only to a limited degree on jurisprudence of international judicial bodies with regard to crimes against humanity and war crimes. It is unfortunate that Austria did not take the opportunity when implementing the Rome Statute to develop its substantive criminal law on international crimes. With regard to jurisdiction, Section 64, paragraph 1, subparagraph 6 of the Austrian Criminal Code provide that its substantive provisions apply to extraterritorial crimes, whenever an international treaty contains an obligation to prosecute those crimes. The Rome Statute only obliges states to enact domestic legislation enabling them to cooperate effectively with the ICC. Thus, Austria limited itself to passing legislation on cooperation with the ICC with regard to assistance during proceedings and enforcement of sentences. It should be noted that there are no statutory exceptions to the Austrian principle of mandatory prosecution (Legalitätsprinzip) with regard to serious crimes committed abroad. Thus, if Austrian courts have jurisdiction over these crimes, the prosecutor is obliged to take up investigations, unless this would contravene the principle of ne bis in idem.
Adjudication by the ICC
Following years of preparation and various draft proposals, the ICC was established by a multilateral treaty, which was adopted on July 17, 1998, and entered into force on July 1, 2002. As a permanent international criminal tribunal situated in The Hague, it is competent to investigate and prosecute serious violations of international human rights law that occurred after July 1, 2002. The ICC is premised on the principle of complementarity, which allows the Court to give due deference to states that are willing and able to prosecute international crimes while at the same time ensuring that these crimes do not go unpunished when political or practical considerations render their prosecution unfeasible for an individual state. In the words of the newly elected prosecutor of the ICC, Luis Moreno Ocampo, “The absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” The ICC has been criticized repeatedly for providing the possibility of politically motivated prosecutions and not being truly complementary. When evaluating the ICC, it is important to consider not only the international framework in which the ICC is embedded but also that it merges different legal traditions, most notably common law and civil law, and therefore must not be criticized with reference to a specific legal tradition but with reference to its own legal framework defined by the ICC Statute, the “Rules of Procedure and Evidence” and the “Elements of Crimes.” In this section, we provide an overview of the jurisdictional scope of the ICC and the procedural safeguards that ensure that the prosecution before the ICC is based on legal considerations.
Substantive Scope of the Court’s Jurisdiction
Article 5 of the ICC Statute stipulates that the Court has jurisdiction with respect to genocide, crimes against humanity, war crimes, and the crime of aggression. Thus, by no means is the Court called on to adjudicate all international crimes but is limited to these four categories of crimes, which constitute “the most serious crimes of concern to the international community as a whole.” The crime of genocide, crimes against humanity, and war crimes are respectively defined “for the purpose of this Statute” in Articles 6 to 8. According to Article 9(1), the interpretation of these crimes is subject to the “Elements of Crimes,” which were adopted at the first session of the Assembly of State Parties in September 2002. The Court will be able to exercise its jurisdiction over the crime of aggression only once this crime has been defined. Given the highly political nature of this crime and the years of fruitless negotiations to arrive at a common definition on the international level, it is unlikely that a consensus in this regard will be reached in the near future. Furthermore, a definition of the crime would constitute an amendment of the statute, which may only occur 7 years from the date of entry into force and in accordance with the rules laid down in Articles 121 and 123.
Even though the main impetus for restarting negotiations on the establishment of a permanent ICC came from a coalition of 16 Caribbean and Latin American nations, who saw such a court as an effective way of dealing with drug crimes, the Rome Statute does not provide for the jurisdiction of the Court over drug trafficking. Furthermore, the Court does not have jurisdiction over acts of terrorism. The main reasons for the exclusion of this crime from the Court’s jurisdiction was the lack of an internationally accepted definition and the opinion of many states that the Court would have become too politicized if the crime were included. In a sense, the same arguments could apply to the crime of aggression; however, this crime was included at least de jure, even if de facto the Court is not able to exercise its jurisdiction over this crime.
According to Article 11(1), the Court does not have retroactive jurisdiction over crimes that occurred before the entry into force of the statute on July 1, 2002. Under Article 11(2), the jurisdiction of the Court over crimes committed by nationals or in the territory of states that acceded to the statute only after this date is limited to crimes that were committed after the statute entered into force for that state. The principle of nonretroactivity is reinforced by Article 24(1), which stipulates that no person shall be held liable under this statute for conduct committed prior to the entry into force of the statute.
Article 25(1) of the ICC Statute limits the Court’s jurisdiction ratione personae to natural persons. Although the French delegation pushed for the inclusion of legal persons under the jurisdiction of the Court, the proposal was finally rejected given the evidentiary difficulties involved and the fact that corporate criminal liability is not yet an established element in most national criminal justice systems. The minimum age of the alleged perpetrator is 18 years at the time of the commission of the crime.
The Court’s jurisdiction over crimes listed in Article 5 is triggered in three ways: (1) by a referral of a situation by a state party, (2) by the Security Council, or (3) by a proprio motu investigation of the prosecutor. Any state party, not only the states concerned, may refer a situation to the Court and request that the prosecutor initiate an investigation. Second, the Security Council can adopt a resolution under Chapter 7 of the United Nations Charter and refer a situation to the Court. Last, the prosecutor can initiate investigations on his or her own motion. There are, however, a number of safeguards that ensure that the prosecutor bases his or her decisions on objective criteria and is not led by political motives. If the prosecutor decides that there is a reasonable basis to proceed with the investigation, thus to start a formal investigation, he or she has to file a request with the Pre-Trial Chamber for authorization of such an investigation. The Pre-Trial Chamber has to authorize an investigation if it finds that there is a reasonable basis to investigate the situation. Such a finding of the chamber does not, however, prejudice subsequent decisions of the Court with regard to admissibility and jurisdiction. Should the Pre-Trial Chamber refuse to authorize an investigation, the Prosecutor may resubmit a request only if it is based on new facts and evidence.
Preconditions to the Exercise of Jurisdiction
The Court has automatic jurisdiction over the crimes listed in Article 5 of the statute. Thus, the ratification of the treaty and the acceptance of jurisdiction by the Court are not two distinct processes, but the state already accepts the Court’s jurisdiction when it ratifies or accedes to the Rome Statute. This is a clear refusal of a jurisdiction à la carte, which would have been the result if alternate proposals advocating an opt-in or case-by-case consent of states had been accepted. By limiting the instances in which the consent of state parties is required for the Court to perform its functions, the Court is able to function more effectively. In principle, the ICC Statute does not allow for reservations of state parties; however, a 7-year opt-out clause with regard to war crimes has been included in Article 124. On becoming a party to the statute, a state can reject the jurisdiction of the Court over war crimes allegedly committed in its territory or by its nationals for a period of 7 years, taking effect after the statute entered into force for that state.
When the jurisdiction of the Court is triggered by a state party referral or by the prosecutor acting proprio motu, the Court may only exercise its jurisdiction if the crimes allegedly were committed either in the territory of a state party or by a national of a state party. Thus, the automatic jurisdiction of the Court is tied to two different principles of jurisdiction: the territoriality principle and the nationality principle. On the basis of these principles, national courts can also assert their jurisdiction over crimes proscribed in their national legal orders. Furthermore, the Court can exercise its jurisdiction if the state of nationality or territoriality is not a party to the statute but accepts the jurisdiction of the Court with respect to the crime, by lodging a declaration with the Registrar.
The well-received proposal of the Korean delegation, which provided for two additional jurisdictional links—namely the state of nationality of the victim and the custodial state—was cut short to accommodate the United States to some degree and thus gain its support for the statute. It is unfortunate that such a weakening of the Court did not pay off in the end, although it is arguable that this brought many other states on board and thus accelerated the overall ratification process. Nevertheless, the effectiveness of the Court in deterring offenders has been severely hampered. Individuals committing genocide, war crimes, and crimes against humanity against their own people, as is often the case with dictators, will not be subject to the jurisdiction of the Court, if these states are not parties to the statute.
On the other hand, it is still possible that the U.N. Security Council refers the situation to the Court under Chapter 7 of the UN Charter. Such a referral is not bound to the preconditions laid down in Article 12. Thus, no matter where or by whom the crime was committed, the offender may be prosecuted by the Court, subject to a Security Council Resolution under Chapter 7. However, considering that the Security Council is a highly politicized body, it will be political expediency and not the rule of law that dictates when such a situation is referred to the Court. In the words of one of the judges at the Court, Article 12 creates a “Janus-headed double court with a double sword,” where “one court is potentially very strong and universal and has a sharp jurisdictional sword with a long outreach,” while “the other court is quite weak and has only a jurisdictional sword which is cumbersome and short.”
Deferral by the Security Council
Article 16 provides for the possibility of the Security Council intervening in the functioning of the Court. Where an investigation or prosecution by the ICC would run contrary to the maintenance or restoration of international peace and security, the Security Council may adopt a resolution under Chapter 7 of the U.N. Charter requesting that the Court not commence or proceed with an investigation or prosecution for the period of 1 year. At the end of this period, the Security Council may renew its request “under the same conditions.” Thus, if after 1 year, criminal proceedings before the ICC would still run contrary to the maintenance or restoration of international peace and security, the Security Council may adopt another resolution, in which it renews its request that the Court not undertake any actions.
Commentators have criticized this provision for allowing the Security Council to exert political control over a judiciary body, which is unprecedented: The Security Council cannot defer proceedings before the ICJ and national courts dealing with crimes that arise out of situations that the Security Council can deal with under Chapter 7. Seeing that the Court mainly deals with crimes arising from situations that fall under the agenda of Chapter 7, there is a strong possibility that the Security Council adopts a resolution to defer proceedings before the Court. This would be a blow to the independence of the Court. However, because the Security Council can adopt a resolution under Chapter 7 only to “maintain or restore international peace and security,” a deferral would mean an implicit acknowledgment that investigations and proceedings before the Court are a threat to international peace and security. If the Security Council too often makes use of its power to defer, it risks loosing its credibility. Furthermore, the Security Council has to garner nine votes from its members in order to adopt such a resolution. In such highly sensitive matters, it is likely that consensus will be reached easily. Although Article 16 therefore opens up the possibility of political interference with the Court, it constitutes a necessary compromise between (a) recognizing the role of the Security Council as the primary body responsible for the maintenance of the peace and security of mankind and (b) eliminating all political influence on the Court’s function. In this sense, the provision is meant to allow for a compromise between peace and justice.
These theoretical considerations put aside, a Security Council resolution was adopted on July 12, 2002, only a few days after the ICC Statute entered into force, requesting the Court to defer proceedings against nationals of non-state parties taking part in U.N. or U.N. authorized operations. Resolution 1422 was taken after the United States stated that it would veto a resolution to renew the U.N. peacekeeping operations in Bosnia-Herzegovina. It is, however, questionable how far the Security Council has the power to defer proceedings against certain persons a priori, considering that the wording and drafting history of Article 16 indicates that such a deferral must be with reference to a specific situation that is being investigated by the ICC. The resolution is based explicitly on Article 16, and it is arguable that the ICC is thus ultimately called on to determine its validity under the ICC Statute.
The Principle of Complementarity
The ICC Statute repeatedly emphasizes the complementary nature of the Court’s jurisdiction. The Court is not meant to substitute its jurisdiction for that of the national courts, but merely to be a safety net, should the national criminal justice system not be able or willing to adjudicate offenders of the crimes under the jurisdiction of the Court. Thus, this principle is a way to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished.”
Article 17 defines three scenarios in which the Court must declare a case inadmissible on the basis of this principle:
- A state is already investigating or prosecuting the case
- A state has investigated the case and decided not to prosecute
- A state has already tried the person concerned before its own courts
However, if the states are either unable or unwilling to genuinely prosecute the case, the Court may declare the case admissible, thus not giving precedence to the national courts. Although “inability” is a fairly objective criterion, the notion of “unwillingness” may be subject to wide interpretation. The ICC Statute defines three factors that the Court has to take into account when determining whether a state is “unwilling” to prosecute: (1) The proceedings are undertaken for the purpose of shielding a person from the jurisdiction of the ICC; (2) there is an unjustified delay in proceedings that is contrary to the intent to bring the person to justice; and (3) the proceedings are not carried out impartially or independently and are conducted in a manner inconsistent with an intent to bring the alleged perpetrator to justice.
The principle of complementarity obliges the Court to give deference to states if they are capable and willing to bring the person concerned to justice. It is the Court and not the states who decides whether the states meet the criteria laid down in Article 17. If there were no such review of national enforcement, the function of the ICC in combating impunity would be hampered: States not wanting certain cases to be prosecuted by the Court would simply have to commence proceedings against the person concerned and thus prevent the Court from exercising its jurisdiction. This would de facto result in a case-by-case consent of states and thus undermine the automatic jurisdiction of the Court as laid down in Article 12(1). However, at the same time, the onus of proof is on the Court. It might be virtually impossible to demonstrate the requisite intent that national proceedings were initiated for the “purpose of shielding the person.” More realistic are the requirements that the delay or the manner in which proceedings are or were conducted is, in the circumstances, “inconsistent with an intent to bring the person concerned to justice.” If the onus of proof is too high, the system of automatic jurisdiction would be overridden in favor of a “jurisdiction à la carte.” On the other hand, it is arguable that the mere fact that another Court has the power to review national decisions runs contrary to traditional concepts of state sovereignty. The principle of complementarity thus tries to find a balance between ensuring the prosecution of grave crimes and giving due deference to a state’s sovereign power to prosecute and punish offenders.
The ICC Statute contains special procedural provisions that ensure that the Court gives due deference to states that are willing and able to investigate and prosecute a certain case. It is important to note that these safeguards in general apply to state parties as well as nonstate parties. First, the prosecutor must consider national investigations or prosecutions when determining whether there is a reasonable basis to start an investigation. Second, once the prosecutor makes a decision to investigate a situation, he or she must notify all state parties as well as those states that would normally exercise jurisdiction of the crimes at issue. States that would normally exercise jurisdiction over the matter can request the prosecutor to defer to their investigations into the case. A deferral to the state’s investigation is subject to a review by the prosecutor after 6 months or at any time when a state’s unwillingness or inability to genuinely investigate the matter becomes apparent. The prosecutor may ask the Pre-Trial Chamber to authorize necessary investigative steps for preserving evidence and request the states to inform him or her on the process of the investigation. Should the prosecutor decide not to defer to the requesting state and the Pre-Trial Chamber authorizes the investigation by the prosecutor, states can lodge an appeal with the Appeals Chamber.
Third, states have the possibility at a later stage to challenge the admissibility of a case on the grounds of Article 17 as well as to challenge the jurisdiction of the Court. In principle, such a challenge may be brought forward only once and prior to or at the commencement of the trial. The prosecutor has to suspend his or her investigation if a challenge is brought forward by a state. Pending a ruling by the Court on a challenge to its jurisdiction or the admissibility of the case, the prosecutor may, however, request the Court to authorize him or her to pursue necessary investigative steps, take the testimony of a witness, complete the gathering and evaluation of evidence that had begun prior to the challenge, or prevent the absconding of persons for whom an arrest warrant had been requested. The prosecutor may also, having regard for the principle of complementarity, defer the investigations to the state and request the state to inform him or her on the process of the investigation. Should the prosecutor take up investigations again, he or she has to inform the state of this fact.
Thus, even before an investigation has been started, the principle of complementarity can already take effect, by giving precedence to states in investigating a matter. Furthermore, states have at least two possibilities to request a deferral to their national proceedings and may appeal against decisions of the Pre-Trial Chamber to the Appeals Chamber. However, the deferral to a state or the suspension of proceedings pending a decision by the Pre-Trial Chamber can lead to a loss of important evidence. Without the possibility of preserving necessary evidence as provided for in the statute, the crimes might go unpunished.
When evaluating the jurisdictional regime of the ICC as a whole, it becomes clear that the Court by no means can exercise its jurisdiction over all incidents of genocide, crimes against humanity and war crimes. First of all, the Court is bound to a jurisdictional link with the state of nationality or state of territoriality, if the situation was referred to the Court by a state party or if the prosecutor initiated an investigation on his or her own motion. Second, where this jurisdictional link cannot be established because the state of nationality or territoriality is either not a state party or does not consent ad hoc to the jurisdiction of the Court, the Court may exercise jurisdiction over the crimes only on the basis of a Chapter 7 resolution by the Security Council. Last, under the principle of complementarity, the Court must give precedence to states that are willing and able to prosecute crimes that fall within their jurisdiction. Several procedural safeguards exist that ensure that states have the possibility to challenge the jurisdiction of the Court and the admissibility of a case. Thus, the legal regime of the ICC constitutes a balance between respecting the states’ sovereign right to prosecute crimes within their jurisdiction and ensuring that crimes are effectively prosecuted. Considering that the Court is dependent on the cooperation of states in fulfilling these functions and its limited jurisdictional scope, it seems more likely that the Court could be accused of falling short of its goal of combating impunity for international crimes rather than of a jurisdictional overreach.
The Ad Hoc Tribunals
The ICTY and ICTR were established by Security Council Resolutions under Chapter 7 of the Charter of the United Nations. The main purpose of the ad hoc tribunals is to ensure some measure of justice in a postconflict situation where the local judicial infrastructure has been destroyed and it cannot be expected that domestic courts will perform a politically independent and effective prosecution of such serious crimes. It was the first time that a judicial body was created as a “measure to maintain or restore international peace and security, following the requisite determination of the existence of a threat to the peace, breach to the peace or act of aggression.” The ICTY has jurisdiction over the territory of the former Socialist Federal Republic of Yugoslavia for crimes committed in the period starting with January 1, 1991, and the ICTR is competent for crimes committed by Rwandan citizens in the territory of Rwanda and neighboring states in the period between January 1 and December 31, 1994. The jurisdiction ratione materiae of both tribunals is limited to genocide, war crimes, and crimes against humanity.
Although the ICC and the ad hoc tribunals essentially deal with the same crimes, the purpose of these institutions is fundamentally different: The ad hoc tribunals, in principle, focus on past atrocities and are envisaged to function for a limited period of time, whereas the ICC is a permanent institution that can exercise jurisdiction only over crimes committed after July 1, 2002, primarily aiming to prevent such atrocities from being committed. The ex post facto jurisdiction of the tribunals does not violate the principle of nullum crimen sine lege or the principle of nonretroactivity of criminal laws, because the crimes within the jurisdiction of the tribunal were already firmly established as crimes under customary international law. The tribunals, thus, merely provide a framework in which these crimes can be adjudicated. Their jurisdiction is concurrent with that of domestic courts but having primacy if the tribunal decides to take over a case pending before a national court. The obligation of states to cooperate with the tribunals is based on the statutes and applies to all states by virtue of the U.N. Charter. The cutoff date for crimes under the jurisdiction of the ICTY has not been defined, which means that the ICTY will also have jurisdiction over crimes that might still occur in the territory of the former Yugoslavia. Its function is thus also to deter such atrocities from being committed and thereby to ensure stability and peace in the region. In this sense, its approach is similar to the ICC, and a concurrent jurisdiction of these two institutions is conceivable. However, the U.N. member states must give precedence to their obligations under the U.N. Charter and would therefore have to cooperate primarily with the ICTY. Furthermore, the primacy of the jurisdiction of the ICTY might also be derived on the grounds of speciality. These considerations will probably remain hypothetical because the ICTY and ICTR have both been called on by the Security Council to complete all investigations by the end of 2004 and finish trials by the end of 2008, which will enable the tribunals to complete all their work by 2010. These completion strategies are predicated on a division of the caseload between the tribunals and the domestic courts in the former Yugoslavia and Rwanda, respectively: The prosecution of those most responsible will be undertaken by the tribunals, and the other cases will be referred to the competent national courts. For this purpose, a specialized War Crimes Chamber will be established within the State Court of Bosnia and Herzegovina (BiH).
The tribunals are subsidiary organs of the Security Council, whereas the ICC was established by a multilateral treaty and is a wholly independent institution. In the Tadic case the Trial Chamber 2 of the ICTY stated that it “must interpret its provisions within its own legal context and not rely in its application on interpretations made by other judicial bodies.” In the same case, it reiterated that the competence of the tribunal is determined by its statute. Thus, although the tribunals rely on various U.N. bodies for administrative and financial support, their judicial function is exercised independently of other institutions. This became clear when the prosecutor established a Review Committee to ascertain whether there were reasonable grounds to proceed with an investigation against nationals of the Allied Forces concerning the NATO bombings of the then Federal Republic of Yugoslavia in 1999. Although the prosecutor on the basis of the report of the Review Committee decided not to proceed with investigations into the matter, this still shows that even nationals of the permanent members of the Security Council are not a priori immune from prosecution by an ad hoc tribunal created under the auspices of the United Nations.
In recent discussions on how to deal with the past atrocities in transitional societies, such as in the case of Iraq, references have been made to special models of justice employed in countries such as Sierra Leone and East Timor. These models can be regarded as a middle path between a purely national and international approach. The prime example is the Special Court in Sierra Leone created in January 2002 by an agreement between the United Nations and the Sierra Leone government to deal with the atrocities committed in Sierra Leone in the 1990s. This international treaty body is not a subsidiary organ of the United Nations. It is independent of the domestic legal system as well as of the U.N. Mission in Sierra Leone. The Special Court has jurisdiction over crimes against humanity, grave breaches of the Geneva Conventions, and other serious violations of international humanitarian law, but it is also competent to apply certain rules of domestic law pertaining to the abuse of girls and damage of property. Just like the ad hoc tribunals, the Special Court and domestic courts have concurrent jurisdiction over these crimes, but the former has primacy over the latter. Furthermore, a Truth and Reconciliation Commission (TRC) has been set up in accordance with the Lomé Peace Agreement, which provides a platform for the victims and perpetrators to come forward to further the reconciliation process. The TRC has no powers to prosecute and punish; this will be left to the Special Court. Nevertheless, the exact relationship to the Special Court, especially with regard to the use of evidence brought before the TRC, is still unclear. On March 10, 2003, the Prosecutor of the Special Court announced the indictment of seven individuals for war crimes, crimes against humanity, and violations of international humanitarian law, among them Foday Sankoh, former leader of the Revolutionary United Front.
The approach used in Cambodia, East Timor, BiH, and Kosovo is less radical, providing merely for special chambers or panels of judges within the existing judicial system to deal with grave crimes, some of which constitute crimes under international law. In Cambodia, an agreement between the United Nations and the Cambodian government, which was signed on June 6, 2003, in Phnom Penh, foresees the establishment of “Extraordinary Chambers” within the Cambodian courts in accordance with the Cambodian law on the Establishment of Extraordinary Chambers of August 2001. This law stipulates that the Extraordinary Chambers shall be composed of Cambodian and international judges and have jurisdiction to try genocide, crimes against humanity, war crimes, torture, and other serious crimes committed during the Khmer Rouge regime between 1975 and 1979. Only the definition of crimes against humanity in the Cambodian law follows the definition in the Rome Statute.
A point of controversy in the long process of negotiations between the United Nations and the Cambodian government was the complicated organizational structure of the Extraordinary Chambers, which could easily lead to cumbersome and inefficient trials and thus undermine the credibility of these Chambers. The Cambodian law originally provided for a three-tier structure within the Extraordinary Chambers and a majority of Cambodian judges as well as co-prosecutors and co-investigating judges. In his report to the General Assembly of March 2003, the secretary-general repeatedly emphasized the lack of independence of the judiciary and the absence of fair trial guarantees in Cambodian courts. Thus, it appears that a stronger role of the international judges and prosecutors would have been imperative to ensure the efficacy and credibility of the Extraordinary Chambers. However, there seems to have been pressure from important member states such as the United States and France to conclude the draft agreement without proposing substantial changes to the existing Cambodian law. As a result the agreement initialed on March 17, 2003, and signed on June 6, 2003, only replaces the three-tier structure of the Extraordinary Chambers by a two-tier structure, leaving the rest of the organization as provided for in the Cambodian law intact. Although the establishment of such Extraordinary Chambers for the crimes committed by the Khmer Rouge is in principle a positive step toward ending impunity, the independence of these Chambers is not sufficiently guaranteed. The international community has a measure of control insofar as the agreement stipulates that any deviation of the Cambodian government from its obligations under the agreement would result in the withdrawal of cooperation and assistance by the United Nations to the Extraordinary Chambers.
The U.N. Transitional Administration in East Timor established Special Panels within the Dili District Court to deal with the crimes committed in the time of the referendum on the independence of East Timor from Indonesia in 1999. These Special Panels, consisting of East Timorese and international judges, have exclusive jurisdiction over crimes against humanity, genocide, and war crimes, as well as torture, murder, and sexual offenses that were committed in the period between January 1 and October 25, 1999. With the independence of East Timor from Indonesia, there is the difficulty that the principal instigators and leaders of the atrocities are located in Indonesia. Although the Special Panels have universal jurisdiction over these cases, they have to rely on the extradition of the defendants from Indonesia, which has proven very difficult. Unfortunately, limited resources have further hampered the effective functioning of the panels. On the Indonesian side, there have also been efforts to bring the perpetrators to justice. The Rome Statute was incorporated into Indonesian law enabling an ad hoc tribunal to apply its substantive provisions to the offenses committed in East Timor immediately following the referendum. The ad hoc tribunal was created specially for this purpose and is a purely domestic court dealing with specific international crimes. Although it is laudable that the Indonesian government took steps to bring those responsible to justice, the tribunal has been criticized for only indicting persons who were lower in command and not high-ranking individuals such as General Wiranto.
Bosnia and Herzegovina/Kosovo
The approach taken in BiH is similar to the model employed in East Timor and Cambodia: A specialized War Crimes Chamber is to be established under the auspices of the High Representative within the State Court of BiH and a concomitant War Crimes Department within the Prosecutors Office. The War Crimes Chamber is envisaged to deal primarily with war crime cases concerning lower- and intermediate-rank accused. The ICTY, as part of its completion strategy, will refer these cases to the Chamber, which will temporarily include a component of international judges and prosecutors.
In Kosovo, a slightly different approach has been taken by the U.N. Interim Administration Mission in Kosovo (UNMIK) with regard to the prosecution of war crimes committed during the 1998-1999 armed conflict in the region of Kosovo. Although the mandate of UNMIK does not specifically include the prosecution of war crimes, a number of UNMIK regulations enable the Special Representative of the Secretary General (SRSG) to appoint international judges and prosecutors to local courts to strengthen the independence and impartiality of the judiciary. UNMIK Regulation 2000/6 regulates for the appointment of international judges and prosecutors by the SRSG, and UNMIK Regulation 2000/64 stipulates that the Department of Judicial Affairs may submit a recommendation to the SRSG for the assignment of international judges or prosecutors to specific cases on its own motion or at the request of the prosecution, the accused, or defense counsel. The SRSG can accept or reject the motion. On the basis of such a motion, a panel of judges consisting of two international judges and one local judge can be designated to a case where there are doubts that the local judge can perform his or her function impartially. These panels of judges do not have exclusive jurisdiction over serious crimes but operate within the Kosovo judicial system and may pronounce on any criminal matter to which they are assigned. The internationalized panels and international prosecutors in Kosovo have been criticized for making little use of international jurisprudence and for prosecuting few cases of war crimes, thus not making any significant contribution toward ending impunity for these international crimes. The establishment of a Kosovo War and Ethnic Crimes Court that had been envisaged by the international community in the year 2000 was put on hold. These plans may, however, be taken up again within the context of the ICTY Completion Strategy.
The Lockerbie Trial
The Lockerbie trial can be regarded as another form of internationalized adjudication. The trial of two Libyan nationals was conducted in the Netherlands before a Scottish panel of judges applying Scottish law. On December 21, 1988, a bomb exploded on the Pan Am Flight 103 killing all passengers as well as some residents of the town of Lockerbie where the Boeing crashed. Libya had refused to extradite the two suspects, both Libyan nationals, to the United States and the United Kingdom, maintaining that a fair trial could not be expected in these countries due to the strong public interest in finding the accused guilty. Following the imposition of economic sanctions and embargoes on oil and military production equipment by Security Council Resolution 883 in 1993, Libya declared in 1994 that it would agree to a trial before a Scottish court provided it was located in a neutral country. It was only in 1998 that the United States and the United Kingdom agreed to this proposal and the suspects were surrendered to the Netherlands in April 1999 for trial before a Scottish panel of judges sitting at Camp Zeist, a former U.S. military base that for the duration of the trial was declared Scottish territory by an agreement between the United Kingdom and the Netherlands. In January 2001, one of the accused, al-Megrahi, was convicted of murder and sentenced to life imprisonment to be served in Barlinnie prison in Glasgow under U.N. supervision. The other accused, Fhima, was acquitted due to inconclusive evidence. Although the Lockerbie Trial was conducted before a national court applying national law, there was a strong involvement of various states as well as the United Nations.
Other International Courts
The International Court of Justice
The International Court of Justice (ICJ) established in 1945 by the Charter of the United Nations as the successor to the Permanent International Court, which was established in 1922 by the League of Nations, is competent to adjudicate on any question of international law and on the interpretation of treaties. Article 34 of the ICJ Statute stipulates that only states may be parties before the ICJ subject to their consent to the jurisdiction of the Court under Article 36. Therefore, the ICJ is not competent to pronounce criminal judgments over individuals, although its decisions may affect whether individuals will be prosecuted for international crimes. In the Lockerbie cases, the ICJ has been called on by Libya to decide that the United States and the United Kingdom are in breach of their obligations under the Montreal Hijacking Convention by not accepting the criminal jurisdiction of Libya over its nationals for the Lockerbie incident. The ICJ has also generally decided on issues relating to international humanitarian law, such as in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons or in its two orders on provisional measures in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. With regard to the ICC, the ICJ may play a role in settling a dispute between state parties over the interpretation of the Rome Statute, which does not relate to the judicial function of the ICC. However, the practical importance of this provision may be very limited, because the primary body for settling disputes in these matters is the Assembly of State Parties.
Human Rights Courts
The European Court of Human Rights was established as a permanent court under the auspices of the Council of Europe in Strasbourg to ensure that the state parties to the Convention for the Protection of Human Rights and Fundamental Freedoms honor their obligations under this convention. Its decisions are binding only on states and do not concern the criminal responsibility of individuals. Individuals as well as states may, however, submit complaints to the Court. Similarly to the Inter-American Court of Human Rights, this Court is merely a regional human rights instrument and does not adjudicate individuals for crimes under international law.
The European Court of Justice
The European Court of Justice (ECJ) in Luxembourg is the judicial organ of the European Union and is competent to decide in matters concerning the interpretation of the founding treaties of the European Union. It acts as a control mechanism over activities of the European Council, European Parliament, and European Commission, ensuring that they keep within the powers transferred to them by the member states. Furthermore, the Court determines whether states find themselves in breach of the E.U. treaties. The Court of First Instance mainly serves to relieve some of the burden on the ECJ, especially in cases brought forward by individuals and legal entities and in staff cases concerning employment issues. In the area of criminal justice, the European Union is still far from being a centralized system and mainly provides a framework for close interstate cooperation. The ECJ therefore does not have the competence to hold individuals criminally liable.
This chapter provided an overview of the various adjudication models that exist in a complex network of international and national rules. Although international law permits states to assert their jurisdiction over international crimes based on nationality, territoriality, passive personality, the protective principle, and the universality principle, states do not always legislate up to the full scope provided by international law. Were we to take state practice as an indication of an obligation to ensure the effective prosecution of crimes under international law, we would have to say that states have merely a moral duty to bring these perpetrators to justice. However, various international treaties impose certain obligations on states with regard to the enactment of legislation and the prosecution or extradition of offenders. These obligations, it seems, are often not taken seriously. We may well ask ourselves, whether the rule of law is an unrealistic goal when we enter the international arena. Is it too much to ask states to abide by those rules that they commonly agreed to, to honor their obligations? It is precisely the fact that states will act in their own interest, that the Rome Statute is a milestone in enforcing the rule of law: If states are not willing to prosecute offenders, the ICC will ensure that perpetrators are brought to justice. The Rome Statute has already provided an impetus for states to enact domestic legislation allowing them to assert criminal jurisdiction over war crimes, crimes against humanity, and genocide. Moreover, proceedings before the ICC follow the highest human rights standards. Without this latter aspect, the system of the ICC would fall short of its goal of establishing global justice for these crimes.
Nevertheless, it is important to realize that no single model can provide an effective solution to all forms of international crime. A centralized system of enforcement such as the ICC may not be the best way to combat international crimes with a strong transnational character, such as drug trafficking or trafficking in human beings. Here, it is more effective to strengthen the cooperation mechanisms between states and to facilitate training programs and proper resource allocation within states. Furthermore, crimes that do not fall within the temporal scope of the Rome Statute, or for which no jurisdictional nexus exists with state parties of the ICC, can be adjudicated by ad hoc tribunals or internationalized courts. Where these are not established, individual states are called on to ensure that egregious crimes of concern to the international community as a whole do not go unpunished.