Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues 9781472565938, 9781841136721

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FOREWORD It is not yet twenty years since Security Council resolution 827 established the Yugoslavia Tribunal and brought in the era of international criminal law, international criminal law, properly so-called, that is, trials of persons charged with offences created by international law before courts, the legal bases of which were acts of international law. It is, in those famous words ‘too early to tell’ if the experiment inaugurated then has been a success and, if a success, whether or not a worthwhile success. Have the effects of any convictions been worth the price? Have there been countervailing costs of delay, partiality, political frustration which have undermined even substantively sound convictions, obtained after fair trials? Whatever answers might emerge from a broad-based inquiry into these questions, the practice since 1993 suggests that States, in their less than scientific assessments, are not certain. For sure, there is a lot more activity which falls under the general rubric ‘international criminal law’ and there is no strong and settled opinion against the project in general. However, in addition to the predictable, adverse reactions of those States whose officials, nationals and individual allies have been dealt with according to international criminal law, there has been a tentativeness in the overall response of States to calls for a more coherent and embracing system of international criminal law and the courts necessary to make it effective. It would, I think, from the perspective of the turn of the century, be surprising to find the number and variety of institutional arrangements which have been brought into existence which might, in a very wide sense, be called international criminal courts. The most prominent innovation is, of course, the International Criminal Court (ICC), intended to be the international criminal tribunal and, at the same time, to squeeze out the manifest and legitimacy-disabling politics which attend Security Council action to set up international criminal tribunals. The incapacity of the ICC project to enlist a sufficiently wide constituency of States to its Statute left a gap in the international legal system which could hardly be countenanced if there were to be any credible international activity in this field. The result has been a series of institutional (and, occasionally, substantive ones) initiatives to bring in to existence a series of ad hoc bodies to apply international criminal law to specific situations. They are (one might be safer saying, ‘they include’ – definition here is tricky): the Special Court for Sierra Leone; the Extraordinary Chambers in the Courts of Cambodia; the International Judges and Prosecutors Programme in Kosovo; the War Crimes Chamber for Bosnia and Herzegovina; the Special Tribunal for Lebanon; and the Special Panels for Serious Crimes in East Timor (the activities of which are presently suspended). It is these bodies which are the subject of the study presented by Dr Sarah Williams. It has been a formidable task for the catholicity of

vi Foreword the arrangements and the inconsistency of the political commitment to making them work means that they resist conceptual harmonization or easy analysis. Indeed, she makes a significant distinction, one based on description rather than conception, between ‘hybridised’ and ‘internationalised’ courts. ‘Hybrid’ tribunals are founded in international law and apply international law as their proper law. ‘Internationalised’ tribunals are creatures of this or that domestic legal system and their access to international law depends on the constitutional law of each system, modified as it may be specifically for each court. Dr Williams brings to her task both the detailed patience of the skilled practitioner she once was and the sceptical eye of the academic lawyer she now is. She has experience in government service and with research institutes. She has needed it all to bring to a conclusion this valuable account of the courts just named. Although, as the sub-title of the book indicates, her concern is what might, in a non-scientific way, be called the ‘constitutional’ law of these bodies rather than their substantive law and procedural practices (though the lines are indistinct). Dr Williams is an international lawyer and it is the international law aspects of the courts which attract her attention the most. These courts are not, though, ‘pure’ international institutions and it is necessary to investigate their relationships, none quite the same, with the appropriate national legal system, which is in some cases the dominant legal environment in which they work. Although our experience is that the work of international criminal tribunals is principally the fiefdom of criminal lawyers, establishing the international legal foundations of the courts is not the end of the function of international lawyers. The very legal basis means that certain questions of jurisdiction in all its aspects (and Dr Williams is particularly attuned to the multiple facets of jurisdiction as an international law institution) arise at the beginning (questions of immunity, for instance) and the end (the impact of amnesty) of criminal trials – and all the way through, matters of treaty interpretation are pervasive. The always present concerns about human rights mean that however great the reliance placed on national law in a particular instance, matters must be assessed against international law standards, such as the independence and impartiality of the judges or the impact of the principle of legality on the substantive jurisdiction of a tribunal. Dr Williams’s accounts of these things are thorough and clear but she is not content with a descriptive catalogue of the doings of the courts. She brings an evaluative and critical eye to their work and its impact and speculates about other, contemplated recourses to this kind of device. While it may be too soon to reach a confident conclusion about the value of the international criminal law experiment since 1993, nor is the process concluded. The search for more nicely tailored mechanisms continues, as does the tinkering with those we already have. Dr Williams gives us an authoritative account of where the international system is. Her book is a distinguished addition to the Publisher’s series and a valuable contribution to the literature of international criminal law. Colin Warbrick Birmingham Law School 1 March 2012

ACKNOWLEDGEMENTS This book arose from a PhD thesis produced at the School of Law of Durham University, completed as a staff candidate from 2004 to 2009. International criminal law is a rapidly developing area and, while I have tried to make the material included in this book as up to date as possible, material is generally current as at 31 July 2011. I am grateful for the assistance of my supervisors at Durham, Michael Bohlander, Colin Warbrick and the late Kaiyan Kaikobad, as well as my examiners, Robert Cryer and Nigel White, for their guidance and support. Several friends and colleagues have also been invaluable in providing comments on drafts of various chapters, in particular Dapo Akande and Sangeeta Shah. Parts of this book were written while I was the Dorset Fellow in Public International Law at the British Institute of International and Comparative Law, and I very much appreciate the encouragement of the Institute’s Director, Robert McCorquodale. For research assistance, I would like to thank Matthew Cross, Katharine Everett, Alison Ewart, Oleg Haritonov, Lisa Le, Peter Mitchell, Chantal Nguyen, Melanie Vezard and Lena Sherif, as well as the UNSW Faculty of Law Research Support Fund. Many other friends and colleagues generously offered their time to discuss various aspects of this book, which was of enormous assistance. Of course, all errors remain my own. I also wish to acknowledge the team at Hart Publishing (Richard Hart, Mel Hamill, Jo Ledger, Rachel Turner and Tom Adams) for their faith in and commitment to this project, and for their patience. Finally, I wish to thank Jamie Glister for his unfailing support, as well as our daughter, Isobel, and our parents, family and friends. In particular, I wish to dedicate this book to my parents, Christine and Allan, for their many years of love and encouragement.

TABLE OF CASES International Economic Community of West African States (ECOWAS Court) Hissène Habré cl Republique du Senegal, Arrêt No ECW/CCJ/JUD/06/10, La Cour de Justice de la Communaute Economique des Etats de l’Afrique de l’Ouest (18 November 2010) .................................................................... 183–4

European Court of Human Rights Al-Jedda v The United Kingdom (Judgment) Application No 27021/08, European Court of Human Rights, Grand Chamber (7 July 2011).......................... 113, 294 Al-Saadoon and Mufdhi v The United Kingdom (Judgment) Application No 61498/08, European Court of Human Rights (2 March 2010).... 293, 378, 379 Al-Skeini and Others v The United Kingdom (Judgment) Application No 55721/07, European Court of Human Rights, Grand Chamber (7 July 2011)............16, 394 Bankovic and Others v Belgium and 16 Other Contracting States (Admissibility Decision) Application No 52207/99, European Court of Human Rights, Grand Chamber, ECHR 2001 XII (12 December 2001)................................12, 16

European Court of Justice Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Judgment) C-402/05 P and C-415/05 P, European Court of Justice (3 September 2008).............................................................................................394

Extraordinary Chambers in the Courts of Cambodia Co-Prosecutors v Nuon Cheaand Ieng Sary (Second Decision on Nuon Chea’s and Ieng Sary’s Appeal Against OCIJ Order on Requests to Summon Witnesses) 002/19-09-2007-ECCC/OCIJ (PTC 50), P T Ch (9 September 2010)....................................................................................................................130

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Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71, 001/18-11-2008-ECCC/PTC, P T Ch (18 August 2009).....................................................................................131 Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order, D427/2/15, PT Ch (15 February 2011)...............................................................323 Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 002/19-09-2007-ECCC/OCIJ (PTC38), P T Ch (20 May 2010).....................................................................................................324 Decision of the Constitutional Council on EC Law, Decision No 040/002/2001 (12 February 2001) unofficial English translation.............................................381 Ieng Sary (Decision on Appeal Against Provisional Detention Order of Ieng Sary) 0021l9-09-2007-ECCC/OCIJ(PTC03) , P T Ch (17 October 2008)........354 Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) 002/19-09-2007-ECCC/OCIJ (PTC75), P T Ch (11 April 2011).............298, 232, 324, 325, 354, 355, 383, 385 Kaing Guek Eav alias ‘Duch’ (Amended Closing Order) 001/18-07-2007ECCC-OCIJ, OCIJ (8 August 2008)................................................... 222, 230, 247 Kaing Guek Eav alias ‘Duch’ (Appeal Brief by the Co-Lawyers for Kaing Guek Eav alias ‘Duch’Against the Trial Chamber Judgement of 26 July 2010) 001IIS-07-2007-ECCC/SCC, Supreme Court Ch (18 November 2010)..... 128, 222 Kaing Guek Eav alias ‘Duch’ (Closing Order) 001/18-07-2007-ECCC-OCIJ, OCIJ (18 July 2007).....................................................................................224, 381 Kaing Guek Eav alias ‘Duch’ (Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias ‘Duch’) 001/18-07-2007-ECCC/OCIJ, PT Ch II, (5 December 2008).............................................................. 230, 247, 397 Kaing Guek Eav alias Duch (Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav Alias ‘Duch’) 001/18-07-2007-ECCC-OCIJ (PTC01), P T Ch (3 December 2007).........................................................299, 397 Kaing Guek Eav alias Duch (Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes) 001/18-072007/ECCC/TC, T Ch (26 July 2010)................................................. 129, 247, 381 Kaing Guek Eav alias Duch (Detention Order) 001/18-07-2007-ECCC, Document D/99/3/43 (5 December 2008).........................................................397 Kaing Guek Eav alias Duch (Decision on Request for Release) 001/18-072007-ECCC/TC, T Ch (15 June 2009)........................................................299, 397 Kaing Guek Eav alias Duch (Judgment) 001/18-07-2007ECCC/TC, T Ch (26 July 2010)..............................................................................................127, 128 Kaing Guek Eav alias Duch (Order for Provisional Detention) 002/14-082006, OCIJ (31 July 2007)...................................................................................396 Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) 002/19-09-2007-ECCCOCIJ, OCIJ (15 September 2010)................ 127, 128, 222, 224, 247, 299, 355, 381, 383



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International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) 22 July 2010................. 88, 269, 286, 295 Case Concerning Legality of the Use of Force (Serbia and Montenegro v United Kingdom) [2004] ICJ Rep 1307...........................................................................364 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43....................................................................101, 369 Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) (Preliminary Objections, 18 November 2008).............................................................................................364 Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90....................91 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3.....................................12, 20, 22, 328-330, 337, 339, 340, 343, 348, 414–15 Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Application) General List No 144 (16 February 2009)............................................................................................................... 182–3 Certain Criminal Proceedings in France (Republic of Congo v France) [2003] ICJ Rep 102 ...........................................................................................................22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136........................................ 294–5 Proceedings instituted by the Kingdom of Belgium against the Republic of Senegal (Belgium v Senegal) [2009] ICJ Rep 1...................................................................22 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States) (Preliminary Objections) [1998] ICJ Rep 115........................................345 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States) (Provisional Measures, Order of 14 April 1992) [1992] ICJ Rep 114..................................................................................................142, 266 Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion of 11 April 1949) [1949] ICJ Rep 174..........................................278, 338 The Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) (Judgment) [1970] ICJ Rep 3.......................................................2

International Criminal Court Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute) ICC-01/09-02/11-26, P T Ch II (31 March 2011)..................................................................................49, 177

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Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09-02/11, P T Ch II (8 March 2011)...........177 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) ICC-01/04-01/07 OA 8, A Ch (25 September 2009)............................................................................54, 198 Prosecutor v Harun and Abd-Al-Rahman (Ali Kushayb) (Decision Informing the United Nations Security Council about the Lack of Cooperation by the Republic of Sudan) ICC-02/05-01/07-57, P T Ch I (25 May 2010)................. 368 Prosecutor v Harun and Abd-Al-Rahman (Ali Kushayb) (Prosecution Request for a Finding on the Non-Cooperation of the Government of the Sudan) ICC-02/05-01/07, P T Ch I (19 April 2010).......................................................368 Prosecutor v Katanga and Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC01/04-01/07, T Ch II (16 June 2009)...................................................................223 Prosecutor v Lubanga (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04-01/06, P T Ch I (10 February 2006).........52, 220 Prosecutor v Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Situation in the Libyan Arab Jamahiriya, Decision on the Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi) ICC-01/11-01/11- 1, P T Ch I (27 June 2011)..........................48, 344 Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest) ICC-02/05-01/09-3, P T Ch (4 March 2009).....................................................152, 153, 155–156, 344, 367, 406 Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09-95, P T Ch I (12 July 2010).........367 Prosecutor v William Samoei Rutu, Henry Kiprono Kosgey and Joshua Arap Sang (Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute) ICC01/09-01/11-101, P T Ch II (30 May 2011)..................................................49, 178 Prosecutor v William Samoei Rutu, Henry Kiprono Kosgey and Joshua Arap Sang (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Rutu, Henry Kiprono Kosgey and Joshua Arap Sang) ICC01/09-01/11, P T Ch II (8 March 2011)..............................................................177 Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-01/04169-US-Exp, A Ch (13 July 2006).......................................................................221 Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09, P T Ch II (31 March 2010)..............................177



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Situation in the Republic of Kenya (Request for Authorisation of an Investigation Pursuant to Article 15) ICC-01/09, P T Ch II (26 November 2009).................176

International Criminal Tribunal for Rwanda In Re Andre Ntagerura (Decision On Motion To Appeal The President’s Decision Of 31 March 2008 And The Decision Of Trial Chamber III Of 15 May 2008) ICTR-99-46-A28, A Ch (18 November 2008)...................................................365 Barayagwiza v Prosecutor (Decision) ICTR-97-19-AR72, A Ch (3 November 1999)....................................................................................................................365 Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998).........34 Prosecutor v Bucyibaruta (Decision On Prosecutor’s Request For Referral Of Laurent Bucyibaruta’s Indictment To France) ICTR-2005-85-I, T Ch (20 November 2007).............................................................................................42 Prosecutor v Joseph Kanyabashi (Decision on the Defence Motion on Jurisdiction) ICTR-96-15T, T Ch II (18 June 1997)..........................................257 Prosecutor v Édourad Karemera et al (Decision on Defence Motion, Pursuant to Rule 72 of the Rules of Procedure and Evidence, Pertaining to, inter alia, Lack of Jurisdiction and Defects in the Form of the Indictment) ICTR-98-44-T, T Ch II (25 April 2001).............................................................257 Prosecutor v Hategekimana (Decision on the Prosecutor’s Appeal Against Decision on Referral Under Rule 11bis) ICTR-2000-55B-R11bis (4 December 2008)................................................................................................41 Prosecutor v Jean Uwinkindi (Decision on Prosecutor’s Request for Referral to the State of Rwanda) ICTR-2001-75-R11bis, Referral Ch (28 June 2011)..........41 Prosecutor v Kayishema and Ruzindana (Original Indictment) ICTR-95-1-A (issued 22 November 1995 and confirmed 28 November 1995).........................34 Prosecutor v Michel Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom of Norway) ICTR-2005-86-R11bis, T Ch III (19 May 2006)...... 42 Prosecutor v Michel Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom of the Netherlands) ICTR-2005-86-11bis, T Ch III (13 April 2007)........................................................................................42 Prosecutor v Michel Bagaragaza (Sentencing Judgment) ICTR-2005-86-S, T Ch III (17 November 2009)...............................................................................42 Prosecutor v Munyeshyaka (Trial Chamber Decision on Referral) ICTR-2005-87-I, T Ch (20 November 2007).......................................................42

International Criminal Tribunal for the former Yugoslavia Prosecutor v Blaškic (Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997) ICTY-95-14, A Ch (29 October 1997)......................................................................................363

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Prosecutor v Dragomir Milutinovic (Decision on Referral of Case Pursuant to Rule 11bis) ICTY- 98-29/1-PT, Referral Bench (8 July 2005)...........................220 Prosecutor v Erdemovic (Sentencing Judgment) ICTY-96-22-T (29 November 1996)......................................................................................................................32 Prosecutor v Furundžija (Judgment) ICTY-95-17/1-T, T Ch (10 December 1998)...................................................................................................... 21, 350, 380 Prosecutor v Haradinaj et al (Judgment) ICTY-04-84-T, T Ch I (3 April 2008)..............................................................................................................83, 232 Prosecutor v Jankovic (Decision on Rule 11bis Referral) ICTY-96-23/2 (15 November 2005).............................................................................................39 Prosecutor v Kordic & Cerkez (Order for the Production of Documents by the European Community Monitoring Mission and its Member States) ICTY-95-14/2, T Ch (4 August 2000).................................................................364 Prosecutor v Kovacevic (Decision on Referral of Case Pursuant to Rule 11bis) ICTY-01-42/2-1 (17 November 2006)...............................................................140 Prosecutor v Krstic (Binding Order to the Republika Sprska for the Production of Documents) ICTY-98-33-PT, T Ch (12 March 1999)..................................364 Prosecutor v Limaj et al (Judgment) ICTY-03-66-T, T Ch II (30 November 2005)....................................................................................................................232 Prosecutor v Mejakic (Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11 bis) ICTY-02-65 (20 July 2005)...........................................39 Prosecutor v Stankovic (Decision on Referral of Case Under Rule 11bis) ICTY-96-23/2-PT, Referral Bench (17 May 2005)....................................224, 289 Prosecutor v Slobodan Miloševic (Decision on Preliminary Motions) ICTY-99-37-PT, PT Ch (8 November 2001).............................................257, 342 Prosecutor v Stankovic (Corrigendum to Decision on Referral of Case under Rule 11bis) ICTY- 96-23/2-PT, Referral Bench (27 May 2005).........................109 Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72, A Ch II (2 October 1995) ............... 21, 32, 37, 237, 256, 280, 309, 317, 322, 323, 357 Prosecutor v Todovic & Raševic (Decision on Savo Todovic’s Appeal Against Decisions on Referral Under Rule 11bis) ICTY-97-25/1 (4 September 2006)...............................................................................................40

International Military Tribunal Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg 30 September and 1 October, 1946.........................17

Iraqi High Tribunal ‘1991 Case’ (Sentencing Verdict) 1/T2/2007, T Ch II (12 February 2007)............120



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‘Anfal Campaign Case’ (Appeal) IHT 1/TC2/2006, A Ch (4 September 2007).................................................................................................... 120, 324, 353 ‘Dujail Case’ (Saddam Hussein et al) (Judgment) IHT 1/9 First/2005, T Ch (5 November 2006)..................................................................... 120, 324, 334, 353 ‘Merchants’ Execution Case’ (Verdict) IHT 2 First/2008, T Ch II (11 March 2008)....................................................................................................................120

Permanent Court of International Justice Lotus (SS) Case (France v Turkey) PCIJ Rep Series A No 9......................................11

Special Court for Sierra Leone Prosecutor v Brima, Kamara and Kanu (Appeal Judgment) SCSL-04-16-A, A Ch (22 February 2008)....................................................................................224 Prosecutor v Brima, Kamara and Kanu (Judgment) SCSL-04-16-T, T Ch II (20 June 2007)...............................................................................................72, 224 Prosecutor v Brima, Kamara and Kanu (Sentencing Judgment) SCL-04-16-T, T Ch II (19 July 2007)............................................................................................72 Prosecutor v Brima (Ruling on the Application for the Issue of a Writ of Habeas Corpus Filed by the Applicant) SCSL-03-06-PT, T Ch (22 July 2003).............281 Prosecutor v Foday Saybana Sankoh (Withdrawal of Indictment) SCSL-2003-02-PT, T Ch (8 December 2003)......................................................71 Prosecutor v Fofana and Kondewa (CDF Case) (Appeal Judgment) SCSL-04-14-A, A Ch (28 May 2008)..................................................................243 Prosecutor v Fofana and Kondewa (CDF Case) (Judgment) SCSL-04-14-T, T Ch I (2 August 2007).......................................................................... 72, 223, 243 Prosecutor v Fofana and Kondewa (CDF Case) (Sentencing Judgment) SCSL-04-14-T, T Ch I (9 October 2007)..............................................................72 Prosecutor v Fofana (Decision on Preliminary Motion on Lack of Jurisdiction: Illegal Delegation of Jurisdiction by Sierra Leone) SCSL-2004-14-AR72(E), A Ch (25 May 2004)............................................................................................356 Prosecutor v Fofana et al (Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on behalf of Accused Fofana) SCSL-04-14-PT, T Ch (3 March 2004)...............................................................223 Prosecutor v Fofana (Decision on the Urgent Defence Application for Release from Provisional Detention) SCSL-2003-11-PD, T Ch (21 November 2003)...........................................................................................281 Prosecutor v Gbao (Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court) SCSL-2004-15-AR72(E), A Ch (25 May 2004) (25 May 2004).........................................................................................278–9, 356

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Prosecutor v Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-04-15-PT-060, A Ch (13 March 2004)................................................................................ 217, 274, 309, 314, 356–9 Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction) SCSL-2004-15-AR72(E), SCSL-2004-14-AR72(E), SCSL-2004-16-AR72(E), A Ch (13 March 2004)........................................ 279–81 Prosecutor v Kondewa (Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord) (Appeals Chamber) SCSL-0414-T-128 (25 May 2004) ............................................................................356, 359 Prosecutor v Kondewa (Decision on the Urgent Defence Application for Release from Provisional Detention) SCSL-03-12-PT, T Ch (21November 2003).......281 Prosecutor v Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction) (Child Recruitment), SCSL-2004-14-AR72(E), A Ch (31 May 2004)....................................................................................................................323 Prosecutor v Norman (Decision on the Defence Preliminary Motion on Lack of Jurisdiction) (Command Responsibility) SCSL-2003-08-PT, P T Ch (15 October 2003)...............................................................................................324 Prosecutor v Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence)) SCSL-2004-14-AR72(E), A Ch (13 March 2004)..................................................................................................277 Prosecutor v Sam Bockarie (Withdrawal of Indictment) SCSL- 2003-04-PT, T Ch (8 December 2003).......................................................................................71 Prosecutor v Sesay, Kallon and Gbao (RUF Case) (Appeal Judgment) SCSL-0415-A, A Ch (26 October 2009)..............................................................................72 Prosecutor v Sesay, Kallon and Gbao (RUF Case) (Judgment) SCSL-04-15-T, T Ch I (25 February 2009)....................................................................................72 Prosecutor v Sesay, Kallon and Gbao (RUF Case) (Sentencing Judgment) SCSL-04-15-T, T Ch I (8 April 2009)...................................................................72 Prosecutor v Taylor (Applicant’s Motion Made Under Protest and Without Waiving of Immunity) SCSL-O3-01-I-015, T Ch (23 July 2003)......................336 Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004)............................. 189, 274, 276, 336–340, 347, 348, 373, 415 Prosecutor v Taylor (Indictment) SCSL-03-01-PT, P T Ch (7 March 2003)............................................................................................218, 336 Prosecutor v Taylor (Order Pursuant to Rule 72(E): Defence Motion to Quash The Indictment and to Declare the Warrant of Arrest and All Other Consequential Orders Null and Void) SCSL-O3-01-I, T Ch (19 September 2003)....................................................................................................................336 Prosecutor v Taylor (Prosecutor’s Second Amended Indictment) SCSLO3-01-PT, P T Ch (29 May 2007)..............................................................336 Samuel Hinga Norman et al. (Decision on Registrar’s Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues) SCSL-04-14-T, T Ch I (21 May 2007)..................................................................71



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Special Panel for Serious Crimes General Prosecutor v Joao Fernandes (Indictment) BO-13-99-SC (14 November 2000)......................................................................................................................96 General Prosecutor v Joao Fernandes (Sentencing Judgment) 0/01.C.G.2000 (25 January 2001)..................................................................................................96 Los Palos case (Public Prosecutor v Joni Marques and 9 Others, Case No. 9/2000).................................................................................................245 Prosecutor v Leonardus Kasa (Judgment) Case No. 11/CG/2000, T Ch (9 May 2001).................................................................................................97, 218 Prosecutor v Lino De Carvalho, Case No. 10/2001..................................................245

Special Tribunal for Lebanon Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homocide, Perpetration, Cumulative Charging (Appeals Chamber Judgment) STL-11-0l/I, STL-11-01/I/AC/R176bis, A Ch (16 February 2011)...............77, 79, 235–237, 246, 269, 341, 342, 361

War Crimes Chamber for Bosnia – Herzegovina Prosecutor v Abduladhim Maktouf (First Instance Verdict) K-127/04 (1 July 2005)........................................................................................................109 Prosecutor v Samardži´c (Verdict) X-KR-05/49, (7 April 2006)............................324

National Cases Chad Ministere Public et François Diouf Contre Hissène Habré (Accusation) Arrêt n’ 135, Chambre d’accusation de la Cour d’appel de Dakar (4 July 2000)....................182

France Prosecutor v Klaus Barbie (Arrêt) 83-94425, Chambre Criminelle (26 January 1984) 78 ILR 135.................................................................................................380

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Israel Attorney-General of the Government of Israel v Eichmann (District Court) (1961) 36 ILR 5................................................................................................12, 20 Attorney General of the Government of Israel v Eichmann (Supreme Court) (1968) 36 ILR 302..................................................................................................27

Kenya Hassan m Ahmed et al v Republic (Judgment) [2010] High Court of Kenya (12 May 2009).....................................................................................................165

Kosovo Prosecutor v Momcilo Trajkovic (Judgment) No P 68/2000, (6 March 2001)........324 Prosecutor v Vuckovic, Supreme Court of Kosovo (31 August 2001).....................231 Nigeria David Anyaele and Emmanuel Egbuna v Charles Ghankay Taylor and Others, Nigerian Federal High Court (13 April 2006)....................................................336

Senegal Souleymane Guengueng et Autres Contre Hissène Habré (Pénal) Arrêt n’ 14 du 20-3-2001, Cour de Cassation, Première Chambre Statuant en Matière Pénale (20 March 2001)......................................................................................182 Avis Sur La Demande d’Extradition de Hissène Habré, Cour d’Appel de Dakar (25 November 2005)...........................................................................................182

Scotland Abdelbaset Ali Mohmed Al Megrahi v H. M.’s Advocate (26 March 2002).............144 Her Majesty’s Advocate v Abdelbaset Ali Mohmed Al Megrahi And Al Amin Khalifa Fhimah (Opinion) Case No 1475/99, High Court of Justiciary at Camp Ziest (31 January 2001)............................................................................143



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Spain Guatemala Genocide Case Constitutional Tribunal (Second Chamber) Judgment No STC 237/2005 (26 September 2005)...............................................................27

United Kingdom R (Al-Saadoon) v Secretary of State for Department of Defence [2009] EWCA Civ 7 (Court of Appeal)......................................................................................377 R (Al Saadoon) v Secretary of State for the Department of Defence [2008] EWHC 3098 (Admin) (High Court)..................................................................377 R (on the application of Al-Jedda) v Secretary of State of Defence [2007] UKHL 58.....................................................................................................111, 113 R v Bartle and the Commissioner of Police for the Metropolis and Others, ex p Pinochet; R v Evans and Another and the Commissioner of Police for the Metropolis and Others, ex p Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division) (No 3) [1999] UKHL 147..................................345 R v Horseferry Road Magistrates’ Court, ex p Bennett [1993] 3 WLR 90.................398 R v Jones and Milling [2006] UKHL, 45 ILM 988...................................................240

United States Boumediene v Bush 553 U.S. 723 (2008).................................................................393 Hirota v MacArthur (1948) 338 US 197..................................................................139 Rasul v Bush (03-334) 542 U.S. 466 (2004) 321 F.3d 1134.....................................393

TABLE OF LEGISLATION National Bosnia - Herzegovina Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina (2004).........................................................................108 Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina ( 2006).........................................................................108 Art 8.....................................................................................................................107 Amnesty Law of the Republika Srpska (1996)........................................................353 Bosnia and Herzegovina Criminal Procedure Code..............................................108 Art 4.....................................................................................................................387 Art 7.....................................................................................................................363 Art 242.................................................................................................................363 Art 247.................................................................................................................363 Criminal Code of Bosnia and Herzegovina.................................... 108, 246, 248, 323 Art 12...................................................................................................................218 Art 172.................................................................................................................324 Art 180 (1)...........................................................................................................333 Law on Amendments to the Criminal Code of Bosnia and Herzegovina.............106 Law on Amendments to the Law on the State Court of Bosnia and Herzegovina................................................................................................106, 288 Law on Amnesty of the Federation of Bosnia and Herzegovina (1996)................353 Law on Amnesty of the Federation of Bosnia and Herzegovina (1999)................353 Law on Amnesty of the Republic of Bosnia and Herzegovina (1996)...................353 Law on changes and Amendments to the Law on Amnesty (1999).......................353 Law on the Prosecutor’s Office of Bosnia and Herzegovina..................................106 Art 3.....................................................................................................................107 Art 12 (2).............................................................................................................107 Art 18 a................................................................................................................107 Art 18 a (2)...........................................................................................................107 Law on Protection of Witnesses Under Threat and Vulnerable Witnesses...........106 Law on the State Court of Bosnia and Herzegovina (BiH).................... 103, 106, 333 Art 7.....................................................................................................................391 Art 7 (1) ..............................................................................................................108 Art 7 (3)...............................................................................................................396

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Art 7 (3) (d).........................................................................................................392 Art 14...................................................................................................................106 Art 16...................................................................................................................107 Art 17 (1).............................................................................................................108 Art 17 (5).............................................................................................................108 Art 22...................................................................................................................392 Art 24 (1).............................................................................................................108 Art 24 (2).............................................................................................................107 Art 24 (4).............................................................................................................107 Art 24 (5).............................................................................................................107 Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of Bosnia and Herzegovina and the Use of Evidence Collected by ICTY in Proceedings before the Courts in Bosnia and Herzegovina (Law on Transfer).............106, 333

Burundi Arusha Peace and Reconciliation Agreement for Burundi (28 August 2000)............................................................................................................149, 258 Protocol I, Art 6 (10)...........................................................................................149 Protocol I, Art 6 (11)...........................................................................................149 Protocol III Art 26 (I)..........................................................................................150

Cambodia Cambodian Constitution .......................................................................................381 Art 3.....................................................................................................................125 Criminal Procedure Code.......................................................................................385 Art 7.....................................................................................................................385 Art 12...................................................................................................................385 ECCC Internal Rules.......................................................................................129, 297 R 6 (c)..................................................................................................................297 R 81......................................................................................................................363 ECCC Law to Outlaw the Democratic Kampuchea Group 1994..................354, 355 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (ECCC Law)..................125–7, 129, 130, 131, 132, 200, 212, 221-22, 231, 238, 246, 248, 293, 295–7, 299, 323, 325, 335, 354, 362, 376, 381–3, 385, 387, 389, 392, 396 Art 1.............................................................................................................128, 220 Art 2.............................................................................................................221, 293 Art 3......................................................................................... 129, 238, 354, 381–3 Art 3new.......................................................................................................381, 383



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Art 4..................................................................................................... 129, 228, 354 Art 5............................................................................................. 129, 228, 238, 354 Art 6............................................................................................. 129, 228, 238, 354 Art 7..................................................................................................... 129, 238, 354 Art 8.............................................................................................................238, 354 Art 9.....................................................................................................................130 Art 12...................................................................................................................296 Art 13...................................................................................................................296 Art 14...................................................................................................................130 Arts 16-19............................................................................................................130 Art 20...................................................................................................................131 Art 20new.............................................................................................................129 Art 23...................................................................................................................131 Art 23new............................................................................................................129 Art 29new.............................................................................................................335 Arts 30 – 33..........................................................................................................132 Art 33new............................................................................................................129 Art 33new............................................................................................. 385, 387, 398 Art 34new.............................................................................................................298 Art 35 (d).............................................................................................................363 Art 35new.............................................................................................................296 Art 40...................................................................................................................354 Art 47bis...............................................................................................................297 Penal Code 1956..............................................................................................129, 246 Art 109.................................................................................................................381 Royal Decree No NS/RKT/0996/72........................................................................354 Statute of Limitations..............................................................................................129

Democratic Republic of Congo Avant-Projet de Loi Relative aux Spécialisées pour la Répression des Violations Graves du Droit International Humanitaire: Organisation, Fonctionnement, Droit Applicable, Compétence et Procédure (Draft Law)...................159–61, 247 Art 3.....................................................................................................................161 Art 15 (a).............................................................................................................160 Art 15 (b).............................................................................................................160 Art 15 (c).............................................................................................................160 Art 15 (d).............................................................................................................160 Art 15 (e).............................................................................................................160 Art 15 (f) .............................................................................................................160 Art 18...................................................................................................................161 Art 19............................................................................................................ 160–61 Art 23...................................................................................................................161

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Art 29...................................................................................................................160 Art 37...................................................................................................................160 Constitution Art 149.................................................................................................................160 Military Penal Code................................................................................................157

East Timor / Timor Leste Constitution for the Democratic Republic of East Timor (Constitution)..............93 S 165.......................................................................................................................93 Decree Law No 13/2005 approving the Criminal Procedure Code S 3.........................................................................................................................100 UNTAET Notification 1/2000 on the provisional appointment of judges and prosecutors............................................................................................................96 UNTAET Regulation 1991/1............................................................................97, 286 UNTAET Regulation 1991/2..................................................................................286 UNTAET Regulation 2000/11........................................................ 92, 95, 216, 285–7 Preamble..................................................................................................................286 S 9...........................................................................................................................95 S 10.2....................................................................................................................216 S 10.3......................................................................................................................95 S 10.4......................................................................................................................95 S 15.........................................................................................................................95 S 24.........................................................................................................................95 UNTAET Regulation 2000/15 to formally establish the Special Panels for Serious Crimes (SPSC).......................... 95–7, 100, 200, 216, 230, 286–7, 323, 331 S 1.1................................................................................................................96, 391 S 1.4................................................................................................................96, 391 S 2.1.................................................................................................. 96-97, 218, 239 S 2.2................................................................................................................97, 218 S 2.3................................................................................................................96, 216 S 2.4........................................................................................................................96 S 2.5........................................................................................................................96 S 3...........................................................................................................................97 S 3.1........................................................................................................................97 S 4...........................................................................................................................96 S 5...........................................................................................................................96 S 5.1......................................................................................................................239 S 6...........................................................................................................................96 S 6.1 (a) (ii)..........................................................................................................239 S 6.1 (c) (i)...........................................................................................................239 S 7...................................................................................................................96, 239 S 7.1......................................................................................................................239



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S 8...........................................................................................................................96 S 9...........................................................................................................................96 S 11.2....................................................................................................................387 S 11 – 21.................................................................................................................97 S 15 (2)............................................................................................................ 331–2 S 17.1....................................................................................................................381 S 17.2....................................................................................................................381 S 22.........................................................................................................................95 S 22.2......................................................................................................................95 UNTAET Regulation 2000/16 S1...........................................................................................................................95 S2...........................................................................................................................95 UNTAET Regulation 2000/30 S 5.........................................................................................................................363 S 5.1......................................................................................................................363 S 6.2......................................................................................................................363 UNTAET Regulation 2001/2..................................................................................287 UNTAET Regulation 2001/10 on the establishment of a commission for reception, truth and reconciliation in East Timor.............................................353 S 27.......................................................................................................................353 UNTAET Regulation 2001/21................................................................................287

Ethiopia Proclamation 22/1922, Proclamation Establishing the Office of the Special Prosecutor, 8 August 1992..................................................................................147 Preamble..................................................................................................................147 Art 2.....................................................................................................................147

Indonesia Indonesian Penal Code, 245 Art 285...................................................................................................................96 Law 26 (established the Ad Hoc Human Rights Court)..........................................94

Iraq Baghdadi Penal Law of 1919 (from 17 July 1968 to 14 December 1969)...............119 Coalition Provisional Authority (CPA) Order 17 (27 June 2004).........................220 Coalition Provisional Authority (CPA) Order 48 (10 December 2003).......115, 292 S (1) 6...........................................................................................................116, 290

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S 2.........................................................................................................................115 S 3.........................................................................................................................116 Coalition Provisional Authority (CPA) Order 100 (28 June 2004).......................116 S 3 (19).................................................................................................................116 Coalition Provisional Authority (CPA) Regulation 1 (16 May 2003)...........112, 289 S 1.........................................................................................................................112 S 2.........................................................................................................................112 Coalition Provisional Authority (CPA) Regulation 6 (13 July 2003)....................111 Criminal Procedure Law 1971................................................................................119 IHT Rules of Procedure and Evidence...........................................................119, 290 Iraq Governing Council Decree Of 10 December 2003, Establishing A Special Tribunal (2003)............................................................................................ 115–16 Iraqi Constitution 1970 Art 240.................................................................................................................334 Iraqi Constitution 2005...................................................................................116, 292 Art 95...................................................................................................................116 Art 135.................................................................................................................116 Iraqi High Tribunal Statute (Original IHT Statute)............ 116–17, 204, 290–1, 324 Art 3.....................................................................................................................117 Art 3 (d) ..............................................................................................................118 Art 4........................................................................................................................... 117............................................................................................................................. Art 4 (d)...............................................................................................................117 Art 5.....................................................................................................................117 Art 6 (b)...................................................................................................................117 Art 6 (c)....................................................................................................................117 Art 7 (n)...................................................................................................................117 Art 8 (j)....................................................................................................................117 Art 8 (k)...................................................................................................................117 Art 17 (b).................................................................................................................117 Art 24 (e)..................................................................................................................117 Law of the Iraqi Higher Criminal Court 2005 (IHT Statute)................ 116, 119, 193, 200, 205, 230, 240, 244, 245, 251, 290, 323, 381 Art 1.............................................................................................................119, 292 Art 1 (b)...............................................................................................................218 Art 1 (2).......................................................................................................118, 219 Art 3 (5)...............................................................................................................118 Art 7 (2)...............................................................................................................118 Art 8 (9)...............................................................................................................118 Art 11...........................................................................................................118, 334 Art 12...........................................................................................................118, 334 Art 13...........................................................................................................118, 334 Art 14...........................................................................................................118, 334 Art 14 (3).............................................................................................................240



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Art 14 (4).............................................................................................................118 Art 15...................................................................................................................119 Art 15 (3)...............................................................................................334, 346–47 Art 16...................................................................................................................119 Art 17...................................................................................................................119 Art 17(2)..............................................................................................................119 Art 17 (4).............................................................................................................381 Art 19 (4) (D)......................................................................................................363 Art 20 (1) (4).......................................................................................................363 Art 29...................................................................................................................392 Art 30...................................................................................................................387 Art 35...................................................................................................................119 Art 39...................................................................................................................377 Military Penal Law 1940..........................................................................................119 Military Procedure Law 1941..................................................................................119 Penal Law no 111 of 1969 (from 15 December 1969 to 1 May 2003)....................119 Transitional Administration Law (TAL)........................................................113, 116 Art 26...........................................................................................................113, 377 Art 48 (A).............................................................................................................116

Kenya Agreement on the Principles of Partnership of the Coalition Government (Party of National Unity-Orange Democratic Movement) (signed 28 February 2008)...............................................................................................173 Constitution of Kenya (Amendment) (No 2) Bill 2009.........................................175 Constitution of Kenya.....................................................................................175, 393 Constitution of Kenya (Amendment) (No 3) 2009...............................................176 Draft Statute for the Special Tribunal for Kenya (Draft Statute)...........................173 Art 2.....................................................................................................................174 Art 3.....................................................................................................................173 Art 4.....................................................................................................................174 Art 5.....................................................................................................................174 Art 8.....................................................................................................................174 Art 8 (2)...............................................................................................................175 Art 9.....................................................................................................................174 Art 9 (b) ..............................................................................................................175 Art 10...................................................................................................................174 Art 12...................................................................................................................174 Arts 16 – 18..........................................................................................................174 Art 19...................................................................................................................173 Art 26...........................................................................................................174, 175 Art 30...................................................................................................................174

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Art 31...................................................................................................................174 Art 32...................................................................................................................174 Art 43...................................................................................................................175 Art 46...................................................................................................................175 Art 58...................................................................................................................174 International Crimes Bill 2005...............................................................................173 International Crimes Act 2008...............................................................................177 Penal Code...............................................................................................................175 Special Tribunal for Kenya Bill 2009......................................................................175

Kosovo Constitution of the Socialist Federal Republic of Yugoslavia 1974.........................80 Criminal Law of the Socialist Autonomy Province of Kosovo of 1977...................86 Declaration of Independence (17 February 2008) ..................................................88 FRY Criminal Code (FRY CC).................................................................. 86, 324, 331 Art 141...................................................................................................................86 Art 142...................................................................................................................86 Provisional Criminal Code of Kosovo (PCCK)............................... 86, 246, 323, 331 Art 117.................................................................................................................324 Provisional Criminal Procedure Code of Kosoco (PCPCK).......................86–7, 331 Socialist Federal Republic of Yugoslavia Criminal Code.................................86, 324 UNMIK Regulation 1999/1 to vest itself with all legislative and executive authority with respect to Kosovo..................................................................85, 286 S 1 (2).....................................................................................................................85 S 1.1........................................................................................................................81 S 2...........................................................................................................................85 S 3...........................................................................................................................85 UNIMIK Regulation 1999/5.....................................................................................82 UNIMIK Regulation 1999/6.....................................................................................82 UNIMIK Regulation 1999/7.....................................................................................82 UNMIK Regulation 1999/24........................................................................85–6, 387 S 1(3).....................................................................................................................86 UNMIK Regulation 2000/1....................................................................................363 UNMIK Regulation 2000/6 to authorise the appointment of the first international personnel to the District Court of Mitrovica, Kosovo..........84, 285 Preamble .............................................................................................................285 UNMIK Regulation 2000/34 to extend the International Judges and Prosecutors Programme (IJPP) to all districts within Kosovo........................................84, 285 UNMIK Regulation 2000/47..........................................................................220, 395 S 3.5........................................................................................................................86 UNMIK Regulation 2000/64................................................................84, 285–6, 287 Preamble..................................................................................................................285



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S 1...........................................................................................................................85 UNMIK Regulation 2001/2 S 1.4........................................................................................................................85 UNMIK Regulation 2001/9 sets out the Constitutional Framework for Provisional Self-Government............................................................................................ 286–7 S 3.2........................................................................................................................86 UNMIK Regulation 2003/25....................................................................................87 UNMIK Regulation 2003/26....................................................................................87 UNIMIK Regulation 2003/34.................................................................................375

Lebanon Amnesty Law 1991..................................................................................................360 Art 3 (3)...................................................................................................................360 Lebanese Constitution..............................................................................................76 Art 52...................................................................................................................261 Lebanese Criminal Code.......................................................................77, 235, 243–4 Art 314.................................................................................................................245

Liberia An Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia (10 June 2005) (TRC Act)...................................................................................178 Art IV, s4..............................................................................................................178 Art IV, s4 (a)........................................................................................................178 Art VII, s 26 (g)....................................................................................................178 Comprehensive Peace Agreement between the Government of Liberia and the Liberian United Front for Reconciliation and Democracy and the Movement for Democracy in Liberia and Political Parties (signed 18 August 2003) (Comprehensive Peace Agreement)...........................................................178, 181 Art XIII................................................................................................................178 Statute Establishing the Extraordinary Criminal Court for Liberia (Proposed Statute)................................................................................................................179 Art 1.....................................................................................................................179 Art 3.............................................................................................................179, 180 Art 9.....................................................................................................................180 Art 11 (2).............................................................................................................179 Art 11 (4).............................................................................................................180 Art 11 (5) (iii)......................................................................................................180 Art 12...................................................................................................................179 Art 13...................................................................................................................179 Art 14...................................................................................................................179

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Arts 32 (1) – (2)...................................................................................................180 Art 32 (3).............................................................................................................179 Art 32 (4).............................................................................................................180

Rwanda Organic Law No 11/2007 Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States [Rwanda] (16 March 2007).............................................................41 Organic Law No 31/2007 (Death Penalty Abolition Law) [Rwanda] (25 July 2007)........................................................................................................41

Serbia Law on Organisation and Competence of Government Authorities in War Crimes Proceedings – establishing the Serbian War Crimes Chamber (SWCC)..........139 Art 2.....................................................................................................................139 Serbian Criminal Procedure Code 2005.................................................................139 Law on Amendments and Additions to the Criminal Procedure Code................139

Senegal Penal Code...............................................................................................................183 Art 669.................................................................................................................183 Criminal Procedure Law.........................................................................................183

Sierra Leone Constitution of Sierra Leone............................................................................ 279–81 Art 40 (4).............................................................................................................279 Art 108.................................................................................................................279 Art 120.................................................................................................................279 Art 124.................................................................................................................279 Art 125.........................................................................................................279, 281 Criminal Procedure Act 1965...................................................................................71 Malicious Damage Act 1861.............................................................................71, 243 Prevention of Cruelty Act 1926.................................................................................71 Special Court Agreement 2002 (Ratification Act)........70–1, 279, 281, 303, 340, 372 Sec 2...............................................................................................................70, 281 Sec 7.......................................................................................................................70



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Sec 8.......................................................................................................................70 Sec 11 (2).....................................................................................................279, 281 Sec 13...................................................................................................................281 Sec 20...................................................................................................................281

United Kingdom Aviation Security Act 1982......................................................................................143 Geneva Conventions Act 1957..................................................................................23 Human Rights Act 1998..........................................................................................393 S 4.........................................................................................................................394 S 19.......................................................................................................................393 International Criminal Court Act 2001....................................................................27 International Tribunals (Sierra Leone) Act 2007...................................................374 International Tribunals (Sierra Leone) (Application of Provisions) Order 2007..........................................................................................................374 Police Reform and Social Responsibility Bill (2010 – 2011) Cl 151.....................................................................................................................24 Prosecution of Offences Act 1985 Sec 25 (2)...............................................................................................................23 The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998..........................................................143 Art 3.....................................................................................................................143

International African Charter of Human and Peoples’ Rights 1981 Art 7 (2)...............................................................................................................322 African Union ‘Decision on the Hissène Habré Case’ (31 January 2011) AU Doc Assembly/AU/9 (XVI)............................................................................84 African Union, ‘Decision on the Hissène Habré Case and the African Union’ (24 January 2006) AU Doc Assembly/AU/Dec 103 (VI)...................................183 African Union, ‘Decision on the Hissène Habré Case and the African Union’ (2 August 2006) AU Doc Assembly/AU/Dec. 127 (VIII)...................................183 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Netherlands concerning a Scottish Trial in the Netherlands (18 September 1998) (establishing the ‘Lockerbie Court’)...............................................................................................142 Art 16 (2).............................................................................................................143 Art 16 (3).............................................................................................................143 Art 16 (4).............................................................................................................143

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Agreement between the Member States on the Transfer of Proceedings in Criminal Matters (6 November 1990)...............................................................305 Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor (5 May 1999).......................................................91 Agreement between the Special Tribunal for Lebanon and the International Committee of the Red Cross, On Visits to Persons Deprived of Liberty Pursuant to the Jurisdiction of the Special Tribunal For Lebanon (12 June 2009).....................................................................................................371 Agreement between the United Nations and the Democratic Republic of Timor-Leste Concerning Assistance to the Office of the Prosecutor-General of Timor- Leste (12 February 2008) (Assistance Agreement).............................99 S 2.1........................................................................................................................99 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (16 January 2002) (SCSL Agreement)....................................... 69, 70, 200, 206–7, 213, 221, 272, 274–5, 278–81, 296, 303–5, 308–10, 315, 319, 323, 338–40, 357, 372–73 Art 1..................................................................................................... 274, 280, 295 Art 1 (2).................................................................................................................70 Art 6.......................................................................................................................69 Art 7.............................................................................................................277, 310 Art 8.......................................................................................................................70 Art 8 (1)...............................................................................................................309 Art 8 (2)...............................................................................................................309 Art 9.......................................................................................................................70 Art 10.....................................................................................................................71 Art 11..................................................................................... 70, 213, 279, 339, 373 Art 12.....................................................................................................................70 Art 13.....................................................................................................................70 Art 16.....................................................................................................................71 Art 17................................................................................................... 213, 310, 372 Art 17 (2).....................................................................................................359, 372 Art 20...................................................................................................................373 Art 21.....................................................................................................................69 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon (30 May 2007) (STL Agreement).............................................................. 76, 192, 212–13, 260, 261–63, 266–8, 270–1, 276, 323, 343, 360, 370 Art 4.......................................................................................................................78 Art 5 (b)...............................................................................................................262 Art 6.....................................................................................................................270 Art 7....................................................................................................... 78, 213, 371 Art 8.....................................................................................................................262 Art 8 (1)...............................................................................................................206



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Art 9.......................................................................................................................78 Art 10.....................................................................................................................78 Art 11.....................................................................................................................78 Art 12.....................................................................................................................78 Art 15...........................................................................................................213, 369 Art 16...................................................................................................................360 Art 19..................................................................................................... 76, 261, 268 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 (approved by the General Assembly 13 May 2003, adopted by Cambodia 14 October 2004) (ECCC Agreement).................................................. 127, 212–13, 282, 294–9, 319, 353–4, 362, 376, 385, 387, 392 Art 1.............................................................................................................127, 295 Art 2 (2)...............................................................................................................296 Art 2 (3)...............................................................................................................296 Art 5 (3).......................................................................................................... 221–2 Art 6 (3).......................................................................................................... 221–2 Art 8.....................................................................................................................132 Art 11 (1).............................................................................................................354 Art 11 (2).....................................................................................................354, 387 Art 12...........................................................................................................129, 385 Art 25...........................................................................................................213, 376 Art 28...........................................................................................................297, 376 Art 29...................................................................................................................298 Art 31...........................................................................................................296, 376 Agreement between the United Nations and the State of Guatemala on the Establishment of an International Commission against Impunity in Guatemala (12 December 2006) (CICIG Agreement)..............................145, 272 Art 1.....................................................................................................................145 Art 3.....................................................................................................................146 Art 3 (1) (b).........................................................................................................146 Art 5.....................................................................................................................146 Art 6.....................................................................................................................146 Art 7.....................................................................................................................146 Art 11...................................................................................................................146 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) (United States-France-BritainUSSR) (8 August 1945) (London Agreement).........................................28, 135–6 Preamble..............................................................................................................136 American Convention on Human Rights 1969 Art 9.....................................................................................................................322 Arab Convention for the Suppression of Terrorism 1998..................... 235, 345, 370 Art 1.....................................................................................................................244

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Charter of the International Military Tribunal at Nuremberg (Charter of the IMT).....................................................................................30, 135 Art 1................................................................................................. 28, 30, 135, 226 Art 3.....................................................................................................................135 Art 5.....................................................................................................................136 Art 6.....................................................................................................................136 Arts 6 – 8..............................................................................................................136 Art 6 (a)...............................................................................................................240 Art 13...................................................................................................................136 Art 14...................................................................................................................135 Art 16 (d).............................................................................................................136 Art 22...................................................................................................................136 Art 30...................................................................................................................136 Part III.................................................................................................................135 Charter of the International Military Tribunal for the Far East (Charter of the IMTFE)....................................................................................................29, 138 Art 1.............................................................................................................138, 226 Art 2...............................................................................................................29, 138 Art 5.....................................................................................................................138 Art 5 (a)...............................................................................................................240 Art 7.....................................................................................................................138 Art 8.....................................................................................................................138 Art 9(c)................................................................................................................138 Charter of the United Nations 1945......................... 6–7, 13, 32, 34, 38, 44, 47–8, 75, 76, 92–3, 98, 111, 124, 141, 153, 163, 166, 169, 172, 192, 241–2, 250, 254–63, 266–7, 269–71, 274–7, 279–81, 283–7, 294–5, 300–1, 303–6, 312–13, 315, 316–18, 337–9, 340–4, 350, 366–7, 374, 379, 394, 398, 404, 406–7, 412–13 Art 1 (1).......................................................................................................258, 338 Art 2 (7)........................................................................................... 13, 256, 265-66 Art 10...................................................................................................................295 Art 11...................................................................................................................295 Art 12 (1).............................................................................................................295 Art 22...................................................................................................................295 Art 24...........................................................................................................241, 294 Art 24 (1).............................................................................................................317 Art 24 (2).....................................................................................................258, 266 Art 25..............................................................260, 263, 275, 315, 317, 343–44, 369 Art 29................................................................................................... 255, 259, 284 Art 39...........................................................................................................241, 275 Art 41.............................................. 256–57, 259, 263, 275, 283–285, 360, 374, 379 Art 42...................................................................................................................256 Art 97...................................................................................................................278 Art 98...................................................................................................................278



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Art 103................................................................................................. 267, 405, 407 Control Council no 10 Art II (1) (a).........................................................................................................240 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) (GCI).................. 21, 31, 111, 129, 160, 291, 349, 355, 358 Art 3....................................................................................34, 36, 71, 229, 336, 358 Art 49...............................................................................................................13, 14 Art 50.....................................................................................................................13 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) (GCII)....................................................... 21, 31, 111, 129, 160, 291, 349, 355, 358 Art 3....................................................................................34, 36, 71, 229, 336, 358 Art 50...............................................................................................................13, 14 Art 51.....................................................................................................................13 Convention (III) relative to the Treatment of Prisoners of War (12 August 1949) (GCIII)..................................................... 21, 31, 111, 129, 160, 291, 349, 355, 358 Art 3....................................................................................34, 36, 71, 229, 336, 358 Art 99...................................................................................................................322 Art 129...................................................................................................................14 Art 130...................................................................................................................14 Convention (IV) relative to the Protection of Civilian Persons in Time of War (12 August 1949) (GCIV).........21, 31, 111, 129, 160, 291, 336, 349, 355, 358 Art 3........................................................................................... 34, 36, 71, 229, 358 Art 64............................................................................................................ 289–91 Art 64 (2).............................................................................................................291 Art 66...................................................................................................................291 Art 67...................................................................................................................291 Art 146...........................................................................................................14, 291 Art 147...................................................................................................................14 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) (Torture Convention).....14, 86, 160, 238, 239, 302, 349, 355, 358 Art 1 (1)...............................................................................................................239 Art 6.......................................................................................................................14 Art 15 (1)...............................................................................................................96 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971 Art 7.......................................................................................................................14 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention)..........................................................162 Convention for the Suppression of Unlawful Seizure of Aircraft 1970.................141 Art 7.......................................................................................................................14 Convention of Unlawful Acts Against the Safety of Maritime Navigation...........162

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Convention on the Elimination of All Forms of Discrimination Against Women..................................................................................................................86 Convention on the High Seas 1958 Art 15...................................................................................................................162 Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) (Genocide Convention)....................... 14, 20-21, 30, 96, 118, 129, 160, 174, 308, 345, 349, 355, 358, 368 Art VI....................................................................................................... 14, 30, 368 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons......................................................................238 Convention on the Privileges and Immunities of the United Nations 1946.........327 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and their Destruction......264 Convention on the Suppression of the Financing of Terrorism............................342 Convention on the Suppression of Terrorist Bombings........................................342 Convention on the Rights of the Child 1989....................................................86, 160 Cooperation Agreement Between the Special Tribunal for Lebanon and the International Police Organization (October 2009)...........................................371 European Convention on Extradition 1957...........................................................377 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights).......................86, 393 Art 3.....................................................................................................................378 Art 5.....................................................................................................................164 Art 6.....................................................................................................................378 Art 7.....................................................................................................................322 European Convention on Mutual Assistance in Criminal Matters 1959..............377 European Convention on State Immunity 1972....................................................327 European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes 1974.............................................380 European Convention on the Transfer of Criminal Proceedings in Criminal Matters 1972........................................................................................................305 European Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo.....................................................................................89 Art 3 (d).................................................................................................................89 General Framework Agreement for Peace in Bosnia and Herzegovina (Bosnia and Herzegovina-Croatia-Yugoslavia) (14 December 1995) (Dayton Peace Agreement/ DPA).......................80, 86, 102–04, 106, 207, 288, 331, 333, 353, 364 Art 1 (1)...............................................................................................................102 Art 1 (2)...............................................................................................................102 Art 8.....................................................................................................................104 Art V....................................................................................................................103 Art IX...................................................................................................................333 Art XIII (4)..........................................................................................................333 Annex 6................................................................................................................333



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Annex 2................................................................................................................333 Annex 6................................................................................................................104 Annex 10..............................................................................................................102 Annex 10..............................................................................................................102 Annex IV.............................................................................................................104 Annex VI.............................................................................................................104 Hague Convention on the Protection of Cultural Property in the event of Armed Conflict 1954 (1954 Hague Convention)......................................129, 238 Art 18...................................................................................................................238 Art 19...................................................................................................................238 ICC Elements of Crimes............................................................................................46 ICC Rules of Procedure and Evidence (ICC RPE)...................................................46 ICTR Rules of Procedure and Evidence (ICTR RPE)........................................37, 71 Rule 7bis...............................................................................................................364 Rr 8 – 13.................................................................................................................37 Rule 11bis................................................................................................... 39, 42, 72 Rule 11bis (A)........................................................................................................39 Rule 11bis (C)........................................................................................................39 Rule 11bis (D)........................................................................................................39 Rule 11bis (F).........................................................................................................40 ICTY Rules of Procedure and Evidence (ICTY RPE)..............................................37 Rule 7bis...............................................................................................................364 Rr 8 – 13.................................................................................................................37 Rule 11bis............................................................ 39, 42, 72, 105, 108, 224, 298, 377 Rule 11bis (A)........................................................................................................39 Rule 11bis (B)........................................................................................................39 Rule 11bis (C)........................................................................................................39 Rule 11bis (D)........................................................................................................39 Rule 11bis (D) (iv).................................................................................................40 Rule 11bis (F).........................................................................................................40 Rule 28 (A)..........................................................................................................223 Rule 54bis.............................................................................................................364 Rule 58.................................................................................................................364 Rule 61.................................................................................................................379 International Convention for the Protection of All Persons From Enforced Disappearances Art 9.......................................................................................................................14 Art 11.....................................................................................................................14 International Convention for the Suppression of Terrorist Bombings................370 International Convention on the Suppression and Punishment of the Crime of Apartheid 1973 (Apartheid Convention)......................................................308 International Covenant on Civil and Political Rights 1966 (ICCPR)..... 86, 356, 388 Art 2 (3).................................................................................................................16 Art 14..................................................................................... 382, 385, 387–88, 398

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Art 14 (7)...................................................................................................... 385–88 Art 15..................................................................................... 19, 322, 325, 382, 385 Art 15 (1).............................................................................................................325 Art 16...................................................................................................................385 International Covenant on Economic, Social and Cultural Rights 1966................86 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind......................................................................... 15, 30, 45, 240 Montreal Convention 1971.......................................................................................... 141-42........................................................................................................................ Art 7.....................................................................................................................141 Paris Accords on the Political Settlement of the Cambodia Conflict 1991...........293 Art 1.....................................................................................................................293 Peace Agreement Between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (7 July 1999) (Lomé Accord)....................................... 66–67, 201, 217, 226, 247, 310, 356, 359–60, 362 Art 9.....................................................................................................................356 Art IX...................................................................................................................315 Art XXVI...............................................................................................................67 Principles for the Establishment of a Joint Group for the Investigation of Politically Motivated Illegal Armed Groups (December 1993).........................147 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I / API) 1977..........................................................................................13 Art 6 (c)...............................................................................................................322 Art 11.....................................................................................................................14 Art 85.....................................................................................................................14 Art 86.....................................................................................................................14 Art 88.....................................................................................................................14 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II/ APII) 1977..............................................................................229, 358 Art 3................................................................................................... 34, 36, 71, 336 Art 6 (5)...............................................................................................................349 Rome Statute of the International Criminal Court (17 July 1998) (Rome Statute)...............................4, 15–16, 19, 28, 45–55, 57, 94, 96–7, 118, 153–5, 157, 160, 165, 173, 175, 177, 179–80, 197, 200, 204, 209, 223, 228, 230, 232, 242, 250, 258, 263, 271, 280, 306, 308–9, 311, 313, 322, 324, 343–4, 351, 367–8, 374, 380, 385, 389–90, 399–400, 403–5, 407 Preamble......................................................................................................................3 Art 1.......................................................................................................................47 Art 4.....................................................................................................................209 Art 5............................................................................................. 165, 197, 200, 388 Arts 5 – 8................................................................................................................47



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Art 5 (2)...............................................................................................................240 Art 6.....................................................................................................................388 Art 7...................................................................................................... 96, 174, 388 Art 7 (1) (f)..........................................................................................................238 Art 7 (2).................................................................................................................96 Art 8............................................................................................... 96, 118, 314, 388 Art 8 (2) (ii).........................................................................................................238 Art 11...............................................................................................................46, 47 Art 12 (2).......................................................................................................47, 306 Art 12 (3)................................................................................................. 47, 49, 367 Art 13...........................................................................................................258, 306 Art 13 (a)...............................................................................................................48 Art 13 (b)....................................................................................... 48, 153, 367, 407 Art 13 (c) ...............................................................................................................48 Art 14.............................................................................................................48, 176 Art 15............................................................................................... 48, 49, 176, 351 Art 15bis...............................................................................................................241 Art 15bis (2).........................................................................................................241 Art 15bis (3).........................................................................................................241 Art 15bis (4).........................................................................................................241 Art 15bis (5).........................................................................................................242 Art 15ter...............................................................................................................241 Art 16........................................................ 48, 155–56, 194, 199, 258, 263, 351, 407 Art 17...............................................4, 51, 53, 156, 223, 263, 309, 351, 388, 400–04 Art 17 (1) (a).......................................................................................... 52, 389, 401 Art 17 (1) (b).................................................................................................52, 401 Art 17 (1) (c)................................................................................................230, 388 Art 17 (2)...............................................................................................................52 Art 17 (2) (a)................................................................................................388, 401 Art 17 (2) (c)........................................................................................................388 Art 17 (3).......................................................................................................52, 401 Art 17 (1) (d)...................................................................................................47, 52 Art 18...........................................................................................................223, 263 Art 19..................................................................................................... 49, 223, 263 Art 19 (5).............................................................................................................223 Art 20...................................................................................................................351 Art 20 (3)............................................................................................. 230, 388, 389 Art 22...................................................................................................................322 Art 22 (2).............................................................................................................388 Art 26.....................................................................................................................47 Art 27................................................................................................... 263, 331, 344 Art 27 (2)............................................................................................. 329, 338, 343 Art 29...................................................................................................................380 Art 36...................................................................................................................204

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Art 53...................................................................................................................351 Art 73...................................................................................................................367 Art 86...................................................................................................................366 Art 87...........................................................................................................366, 368 Art 87 (5).............................................................................................................367 Art 87 (7).............................................................................................................367 Art 88...................................................................................................................366 Art 90...................................................................................................................367 Art 93...................................................................................................................367 Art 98...........................................................................................................367, 405 Art 98 (2).............................................................................................................405 Art 112 (2) (f)......................................................................................................367 Art 121 (5)...........................................................................................................241 Art 125...................................................................................................................46 Art 126...........................................................................................................46, 175 Special Court for Sierra Leone Rules of Evidence and Procedure (SCSL RPE).............................................................................................71–72, 372 Rule 8 (A)............................................................................................................372 Rule 8 (B).............................................................................................................373 Rule 8 (C) ............................................................................................................373 Rule 8 (D)............................................................................................................373 Rules 9 – 10............................................................................................................71 Rule 11bis...............................................................................................................72 Rule 60.................................................................................................................363 Special Proclamation – Establishment of an International Military Tribunal for the Far East (19 January 1946)............................................................... 137–38 Special Tribunal for Lebanon Rules of Procedure and Evidence (STL RPE)..... 78, 369 Rule 8 (A)............................................................................................................372 Rule 11...................................................................................................................77 Rule 12...................................................................................................................77 Rule 13.................................................................................................................371 Rule 16.................................................................................................................369 Rule 17...........................................................................................................79, 369 Rule 20.................................................................................................................369 Rule 21 (A)..........................................................................................................371 Rule 21 (B)...........................................................................................................371 Rule 68 (G)..........................................................................................................235 Statute of the African Court on Human and Peoples’ Rights................................165 Statute of the International Court of Justice Art 31...................................................................................................................204 Statute of the International Criminal Tribunal of Rwanda (ICTR Statute)............................................................34, 36, 329, 336–37, 343, 385 Art 2.................................................................................................................34, 36 Art 3.................................................................................................................34, 36



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Art 4.................................................................................................................34, 36 Art 6 (2)...............................................................................................................342 Art 8.....................................................................................................................398 Art 10.....................................................................................................................37 Art 12...................................................................................................................204 Art 12bis..............................................................................................................204 Art 12ter..............................................................................................................204 Art 15.....................................................................................................................32 Art 16.....................................................................................................................32 Art 28...................................................................................................................343 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute)..........................................................37, 139, 329, 336–37, 343, 385 Art 2.................................................................................................................32, 36 Art 3.................................................................................................................32, 36 Art 4.................................................................................................................32, 36 Art 5.................................................................................................................32, 36 Art 7 (2)...............................................................................................................342 Art 9..................................................................................37, 83, 104, 309, 331, 398 Art 10.....................................................................................................................37 Art 13.............................................................................................................32, 204 Art 13bis..............................................................................................................204 Art 13ter..............................................................................................................204 Art 16.....................................................................................................................32 Art 17.....................................................................................................................32 Art 29...................................................................................................................343 Statute of the International Residual Mechanism for Criminal Tribunals (Statute of the Mechanism)......................................................................43–44, 72 Art 1 (2).................................................................................................................43 Art 1 (3).................................................................................................................43 Art 6 (2).................................................................................................................43 Art 6 (3).................................................................................................................43 Statute of the Special Court for Sierra Leone, 2002 (SCSL Statute)................. 70, 200, 221, 231, 243, 247, 275, 297, 308, 356, 358, 385 Preamble..................................................................................................................274 Art 1....................................................................................................... 70, 221, 310 Art 1 (1).......................................................................................................218, 224 Art 1 (2).........................................................................................................70, 220 Art 1 (3).................................................................................................................70 Art 2.......................................................................................................................71 Arts 2 – 4.............................................................................................. 314, 356, 357 Art 2 (f)................................................................................................................238 Art 3.......................................................................................................................71 Art 3 (a)...............................................................................................................238 Art 4.......................................................................................................................71

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Art 4 (c)...............................................................................................................323 Art 5...............................................................................................................71, 217 Art 6 (2)...................................................................................................336–8, 340 Art 7.....................................................................................................................219 Art 8....................................................................................................... 71, 303, 391 Art 9.....................................................................................................................387 Art 10....................................................................................... 280, 356–7, 359, 362 Art 12.....................................................................................................................70 Art 14.....................................................................................................................71 Art 15.....................................................................................................................70 Art 16.....................................................................................................................70 Art 17 (d).............................................................................................................363 Art 25...........................................................................................................277, 310 Statute of the Special Tribunal for Lebanon (STL Statute).................77–8, 216, 225, 230–1, 233, 234, 243–4, 261–2, 269, 297, 341, 343–4, 356, 361, 372, 385–7 Art 1...............................................................................................................77, 216 Art 2....................................................................................................... 77, 233, 235 Art 3...............................................................................................................78, 234 Art 4.....................................................................................................................391 Art 4 (2).................................................................................................................79 Art 5.....................................................................................................................387 Art 6.....................................................................................................................360 Art 7.......................................................................................................................78 Art 8.......................................................................................................................78 Art 10 (2).............................................................................................................270 Art 11.....................................................................................................................78 Art 12.....................................................................................................................78 Art 13.....................................................................................................................78 Art 16 (4) (d).......................................................................................................363 Art 19.....................................................................................................................78 Art 22...................................................................................................................363 Art 22 (1).............................................................................................................372 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (signed 11 December 1989, entered into force 9 February 1991)...................................................................................................91 Treaty on the Non Proliferation of Nuclear Weapons...........................................264 United Nations Convention on Special Missions 1969.................................327, 329 United Nations Convention on the Jurisdictional Immunities of States and their Property 2004.............................................................................................327 United Nations Convention on the Law of the Sea 1982 (UNCLOS)...........238, 247 Art 58...................................................................................................................162 Art 100.................................................................................................................163



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Art 101.................................................................................................................162 Art 105.................................................................................................................163 Part X...................................................................................................................165 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968.........................................380 United Nations Model Treaty on the Transfer of Proceedings in Criminal Matters 1990........................................................................................................305 Universal Declaration on Human Rights 1948........................................................86 Art II (2)..............................................................................................................322 UNSC Resolution 827 (1993) establishing the ICTY and approving its Statute...........................................................................32, 34, 254–5, 268, 275, 343 UNSC Resolution 955 (1994) establishing the ICTR and approving its Statute.................................................................................... 34, 256, 268, 275, 342 UNSC Resolution 1244 (1999) provided mandate and the framework for the United Nations Interim Administration Mission in Kosovo (UNMIK)............................................................ 81–2, 87–9, 283, 284, 286–7, 331 UNSC Resolution 1246 (1999) established the United Nations Mission to East Timor (UNAMET)...............................................................................................91 UNSC Resolution 1272 (1999) to establish a United Nations Transitional Administration in East Timor (UNTAET).............................. 88, 92–3, 95, 283–4 UNSC Resolution 1315 (2000) requesting the negotiation of an agreement with the Government of Sierra Leone to establish a special court (SCSL).......................................................... 68, 70, 221, 229, 272, 275–8, 304, 373 UNSC Resolution 1410 (2002) to establish the United Nations Mission of Support in East Timor (UNIMISET)...................................................................93 UNSC Resolution 1483 (2003) request for the establishment of an interim Iraqi administration...................................................... 110–14, 207, 264, 289, 292 UNSC Resolution 1664 (2006) requesting the negotiation of an agreement with the Government of Lebanon to establish a mixed tribunal (STL).......................76 UNSC Resolution 1757 (2007) Resolution recalling the provisions of the STL agreement and deciding that the STL Agreement would enter into force on 10 June 2007 unless the Lebanon Government ratified the agreement prior................................................................ 76–7, 212, 261–3, 265, 266–70, 276, 278, 318, 323, 343–5, 360–1, 369–70 Art 1.....................................................................................................................261 UNSC Resolution 1966 (2010) Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals with Two Branches..........................................................................................................36, 43 Vienna Convention on Consular Relations 1963..................................................329 Vienna Convention on Diplomatic Relations 1961....................... 129, 238, 327, 329 Vienna Convention on the Law of Treaties 1969 (VCLT)..... 266, 269, 273, 296, 307 Art 19...................................................................................................................271 Art 26...................................................................................................................296 Art 27...........................................................................................................296, 395

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Art 34........................................................................................... 261, 271, 338, 372 Art 35...................................................................................................................372 Art 46...........................................................................................................280, 395 Art 51...................................................................................................................266 Art 52.............................................................................................................. 266–7 Art 53...............................................................................................................2, 357 Art 64...................................................................................................................357 Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations 1986........... 266, 273, 296

Introduction The emergence of a system of international criminal justice is a relatively new development largely dating from the 1990s onwards. International criminal law imposes criminal responsibility directly on an individual.1 In contrast, public international law has traditionally focused on the international responsibility of states, and has been dominated by state-centric or Westphalian perceptions of inter­national law. Criminal law imposes individual criminal responsibility, but is implemented through the mechanism of the state – domestic law and courts – rather than by using international law and international mechanisms. Criminal jurisdiction and the ability to impose penal sanctions on individuals committing crimes within the territory of a state, or who are nationals of that state, is closely linked to the sovereignty of a state, part of the power of the state to control its territory. Thus, criminal jurisdiction is advanced as an essential attribute of sovereignty, and the right to determine criminal offences and to punish violations thereof is closely guarded by states. States, and not international institutions, have long held the primary, if not the sole, responsibility to try individuals accused of violating criminal laws. Consequently, where a state fails to criminalise conduct or to punish violations, there has often been little prospect of securing accountability. In recent years, states and the wider international community have endorsed the principle of non-impunity, which asserts that individuals should be held accountable for the commission of international crimes. The former SecretaryGeneral of the United Nations has remarked that there must be ‘an end to the global culture of impunity – the culture in which it is easier to bring someone to justice for killing one person than for killing 100,000’.2 Support for the principle of non-impunity is based on two factors: the nature of international crimes and the benefits to be gained from trials. The first basis for non-impunity is that ‘[I]nternational Justice is built on the notion that heinous international crimes, such as genocide and crimes against humanity, harm all of us. Therefore, we all have an obligation to prevent such crimes and to punish those responsible for 1   R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge, Cambridge University Press, 2010) 3. 2   United Nations General Assembly (UNGA), ‘Report of the Secretary-General on the Work of the Organization 53/1’ (1998) UN Doc A/53/1, para 180. See also UNGA Res 60/147, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (21 March 2006) UN Doc A/RES/60/147.

2 Introduction them’.3 International criminal law now recognises that certain crimes rise above the national interests of states, such that all members of the international community have an interest in their prevention and, where they have been committed, their investigation, trial and punishment, and in ending impunity for the commission of such crimes. These crimes are elevated to the international level either due to their close connection with international peace and security or their ability to shock the conscience of mankind.4 These core crimes incur individual criminal responsibility as a matter of international law, regardless of the criminal nature of the conduct under relevant national laws. Moreover, such crimes may be subject to prosecution before international mechanisms as well as through national courts. While there is not universal agreement as to the crimes that constitute core crimes, the list includes, as a minimum, genocide, crimes against humanity, and certain serious violations of international humanitarian law, as well as potentially piracy, slavery and aggression. Core crimes can be distinguished from transnational crimes in that they are created and may be enforced directly by international law. The prohibition of certain conduct that may constitute an international crime is also considered to have the status of a jus cogens norm; that is, peremptory norms of international law, from which there can be no derogation.5 For example, the prohibition against genocide and the prohibition on the use of force are considered jus cogens norms.6 Additionally, such obligations may also give rise to obligations erga omnes, described as ‘the obligations of a State towards the international community as a whole’ and in which ‘all States can be held to have a legal interest in their protection’.7 International law imposes an obligation on states not to engage in certain conduct, while international criminal law imposes individual responsibility on those committing or ordering violations of the international law rule. International crimes therefore serve as a limit on the sovereignty of the state, ‘marking the point at which sovereignty gives way to the prerogatives of the international community’.8 Yet there remains an inherent tension between the system of international criminal justice, the interest in securing international peace and security and the principle of state sovereignty. In particular, as criminal law is by its nature coercive, it imposes responsibilities directly on individuals and 3   T Gurd, ‘Arresting the “Big Fish”: Lessons on State Cooperation for the International Criminal Court’ in Aegis Trust, The Enforcement of International Criminal Law, Report (2009) 28. 4   B Broomhall, International Justice and the International Criminal Court: Beyond Sovereignty and the Rule of Law (Oxford, Oxford University Press, 2003) 44–49. 5   Vienna Convention on the Law of Treaties (adopted 22 May 1969, entry into force 27 January 1980) 1155 UNTS 331, art 53. 6  See: Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction of the Court and Admissibility of the Application) (Judgment) [2006] ICJ Rep 6, para 64 (genocide); Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, para 190 (use of force). 7   The Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) (Judgment) [1970] ICJ Rep 3, 33. See also: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23; M Ragazzi, The Concept of International Obligations Erga Omnes (New York, Oxford University Press, 1997). 8   Broomhall, n 4, 42–43.

Introduction 3 punishes violations through the imposition of sanctions.9 Enforcement of criminal law necessitates the power to arrest and detain suspects, to investigate alleged violations, to obtain the testimony of witnesses and victims and to protect witnesses, judges and staff of the tribunal and to punish those found guilty. International criminal courts do not have such coercive powers and must rely on the support and cooperation of states. The willingness to cooperate and the effectiveness of such cooperation will be significant factors in whether an international tribunal can successfully fulfil its mandate. Thus, until a viable enforcement mechanism for the punishment of international crimes can be established, international criminal law, like much of international law, continues to rely upon the support of states to enforce its provisions. The second basis for the prosecution of international crimes trials is the import­ ant effect that such trials may have in deterring perpetrators – or future perpetrators – of such crimes. The international condemnation associated with a trial for international crimes may have the effect of marginalising or delegitimising per­ petrators.10 Of course, a successful trial, conviction and imprisonment will physic­ ally remove and isolate the perpetrator. However, the principle of non-impunity is to an extent an idealised notion; politics and other factors will determine those individuals to be held accountable for which crimes and those who will remain immune from prosecution, as well as the forum used to secure accountability. The system of international criminal justice is inherently selective, from the situations in which it is engaged, to the individuals it tries and the conduct for which it seeks accountability.11 This study traces the tension between state sovereignty and accountability that is evident in the development of the current system of international criminal justice. It reveals that the current system is largely a decentralised model, one that relies primarily on states and preserves the link between regulating criminal behaviour and the sovereignty of the state. There is, however, increasing recognition of the need to move away from the traditional reliance on states and the preservation of state sovereignty so as to recognise the community interest in ending impunity for core crimes. Developments in international criminal law, including the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), and the reliance by states on the principle of universal jurisdiction, have been motivated by the desire to avoid impunity for international crimes.12 One way of achieving criminal accountability is through   Cryer et al, n 1.   C Flintoft and N Grono, ‘The Politics of Ending Impunity’ in Aegis Trust, The Enforcement of International Criminal Law, Report (2009) 19. See also M Lattimer and P Sands, ‘Introduction’ in M Lattimer and P Sands (eds), Justice for Crimes Against Humanity (Oxford, Hart Publishing, 2003) 1–27. 11   R Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge, Cambridge University Press, 2005). 12   See, eg, the preamble to the Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (Rome Statute): ‘Determined to put an end to impunity for the perpetrators of these crimes’. 9

10

4 Introduction trials before the domestic courts of the territorial state, which are generally considered to be the most suitable forum for accountability. The important role of trials before domestic courts is also reflected in the principle of complementarity found in the Rome Statute.13 However, national proceedings may be restricted through the operation of legal principles such as statutes of limitation, amnesties, immunity and insufficient or inadequate provision for such crimes in domestic law. Trials may also encounter a lack of political support, particularly where those accused of committing crimes remain in power or are protected by the current regime. Inadequate and insufficient resources may also be a considerable barrier to domestic trials, especially where a state is in or emerging from armed conflict or a situation characterised by serious human rights violations. Another mechanism to ensure accountability is the establishment of inter­ national criminal tribunals by the United Nations Security Council. This model has the benefit of legal coercion and universality of application by virtue of the near-universal membership of the United Nations. However, this method is also hostage to the priorities and the political dynamics of the Security Council. The five permanent members can veto any decision to establish a tribunal that may affect their own national interests, or the interests of states or individuals closely associated with that state. This means that it is unlikely that individuals within those states, or their allies, will face trials for their actions before an international tribunal. Even amongst states that do not fall within this protected category, the limited attention and resources of the Security Council and the United Nations means that international mechanisms are not established for the majority of situations in which international crimes have allegedly been committed. Similarly, the ICC seeks to achieve universality, without coercive power, based on participation in the Rome Statute, an international agreement. Its ability to investigate situations and to try offenders is restricted both by its jurisdictional provisions, the limited number of parties to the Rome Statute and the finite resources of the ICC. It also depends on sufficient domestic implementation in the legal systems of states parties. There therefore exists a lacuna in the system of international criminal law enforcement, where national courts cannot or will not act, and where international mechanisms lack jurisdiction or sufficient resources to act. To fill this gap, the international community has turned to a new model of international criminal justice; the hybrid or internationalised criminal tribunal. Such tribunals have been described as ‘hybrid’ or ‘internationalised’ courts, as ‘both the institutional apparatus and the applicable law consist of a blend of the international and the domestic’.14 Cassese describes the term ‘internationalised’ tribunals: 15

13   Rome Statute, art 17. For discussion see J Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford, Oxford University Press, 2008). 14   L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295, 295. 15   A Cassese, International Criminal Law, 2nd edn (Oxford, Oxford University Press, 2008) 333.

Introduction 5 This notion encompasses judicial bodies that have a mixed composition. There may be two versions of these courts and tribunals. First, they may be organs of the relevant state, being part of its judiciary . . . Alternatively, the courts may be international in nature: they may be set up under an international agreement and not be part of the national judiciary.

A number of hybrid or internationalised tribunals have been established in recent years to investigate, prosecute and try individuals accused of serious violations of international criminal law. These tribunals are said to offer the advantages of both national and international prosecutions.16 Thus, hybrid or internationalised tribunals have been developed as a pragmatic solution to the failure of the international community to achieve, at least in part, the utopian ideal of non-impunity. The role of such institutions was, at least initially, perceived as to fill the gap between domestic courts, tribunals established by the Security Council and the limited jurisdiction of the ICC. However, hybrid and internationalised tribunals are themselves not a perfect solution to this lacuna; their creation requires sufficient political will within the community of states, the support of the state(s) most affected and in some cases the backing of the Security Council. Their establishment is on an ad hoc basis, meaning that certain situations will still continue to evade accountability. As Brownlie noted, ‘[p]olitical con­siderations, power, and patronage will continue to determine who is to be tried for international crimes and who not’.17 Even where the political will is present both internationally and domestically, some impunity will persist as, due to their limited mandates and resources, the hybrid or internationalised tribunals will be unable to try all offenders for all crimes. However, the imperfect and ad hoc nature of such tribunals should not undermine their potential utility in achieving non-impunity. The system of international criminal justice, which is still developing, is far from perfect. This study examines in part the role of the hybrid and internationalised tribunals in the quest to achieve the goal of non-impunity. These tribunals raise many complex and interesting issues, some of which are relevant to all such bodies, while others are linked to specific national circumstances. Such issues include: the fairness of proceedings before such institutions and the procedures adopted; the independence and impartiality of the tribunal and its key personnel; allegations of corruption; issues of capacity; the selection and qualifications of personnel, in particular judges; the participation of victims in proceedings; and the question of the legacy and effectiveness of such tribunals. All these issues are worthy of 16  A number of commentators and non-governmental organisations have reviewed the success or otherwise of the hybrid and internationalised tribunals, as well as their jurisprudence. See, eg, P Mendez, ‘The New Wave of Hybrid Tribunals: A Sophisticated Approach to Enforcing International Humanitarian Law or an Idealistic Solution with Empty Promises?’ (2009) 20 Criminal Law Forum 53; Dickinson, n 14; E Higonnet, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’ (2006) 23 Arizona Journal of International and Comparative Law 347. 17   I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 604. See also R Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (n 11).

6 Introduction detailed study and many have been discussed elsewhere. However, this study adopts a more focused approach to these tribunals, and concentrates on six main issues. First, what is the current practice regarding the creation of institutions considered to fall within the category of hybrid and internationalised tribunals? In which circumstances have states established hybrid or internationalised tribunals? For which situations have such tribunals been proposed? How has the background to establishment, particularly the political and legal context, influenced the selection of a hybrid or internationalised tribunal as the desired option for accountability? To what extent have these circumstances influenced the key features in the design of the tribunal? By examining the practice of states, the United Nations, and other actors in designing and establishing such tribunals, this study assesses the factors that have led to and are driving the current reliance on such tribunals and draws guidelines for the circumstances in which such tribunals may – or should – be established in the future. It finds that, given the weakness of some domestic legal systems and the jurisdictional and resource constraints of the ICC and other international tribunals, there will continue to be a demand for the creation of hybrid or internationalised tribunals. Second, does the existing practice reveal a definition of a hybrid or inter­ nationalised tribunal? If not, does the absence of such a definition matter? Having comprehensively examined the practice surrounding existing and proposed hybrid and internationalised tribunals, this study finds that there is no standard definition of a hybrid or internationalised tribunal. There are, however, a limited number of key features that may render a tribunal hybrid or internationalised in nature, in particular the participation of both national and international judges and a mixed substantive jurisdiction. Moreover, the practice reveals two distinct sub-categories within this category of institution: hybrid and internationalised tribunals. It is suggested that these are not interchangeable terms, but reflect two fundamentally different types of tribunals. Hybrid tribunals, which are established either by treaty or by a resolution of the Security Council acting under Chapter VII of the United Nations Charter, operate separately from and independently of the domestic court system of the territorial state. As such, their legal basis lies in international law and they more closely approximate ‘purely’ inter­ national criminal tribunals such as the ICTY, the ICTR and the ICC. In contrast, internationalised tribunals are based within the domestic legal system of – normally – the territorial state, although they may be ‘special’ or stand-alone institutions within that system. They are established by and operate in accordance with domestic law and, it is suggested, are best considered to be domestic tribunals with international aspects. Third, what is the legal and jurisdictional basis of such institutions? Having determined that there is no accepted definition of a hybrid or internationalised tribunal, the book then turns to whether the absence of a definition matters. It is suggested that, while such tribunals are often called upon to determine their ‘nature’, namely whether they are ‘international’ or ‘domestic’ in character, such

Introduction 7 analysis is potentially misleading and has led in the past to inconsistent decisions as to the nature of a particular institution. Instead, what is relevant is a determination as to the legal and jurisdictional basis of a tribunal, and a thorough study of its constituent instruments. The analysis determines that, despite vast differences in the circumstances leading to their establishment, there are, to date, three legal bases for hybrid and internationalised tribunals: courts effectively operating as domestic institutions of the affected state (internationalised tribunals); courts established by treaty (hybrid); and courts established by the Security Council acting under its powers pursuant to Chapter VII of the Charter (hybrid). It is submitted that the majority of future hybrid or internationalised tribunals, if not all such tribunals, will rely on one of these legal bases. Fourth, building on the previous analysis, the study examines the jurisdictional basis for the existing tribunals, that is, the source of a tribunal’s powers. It considers four possible bases: the exercise of territorial (and other) jurisdiction of the affected state (internationalised tribunals); delegated jurisdiction from a state to the tribunal (hybrid tribunals established by treaty); the power of the United Nations Security Council under Chapter VII of the Charter (hybrid tribunals established pursuant to a Security Council resolution); and ‘floating’ universal jurisdiction (tribunals exercising jurisdiction based on the nature of the crimes alone). The study, however, rejects the notion of universal jurisdiction as a basis for such an internationalised or hybrid tribunal. While universal jurisdiction may, of itself, form a basis for the jurisdiction of an international or internationalised tribunal in the future (and is incorporated as part of recent proposals for a piracy tribunal), it is submitted that international law does not support the notion of a ‘floating’ universal jurisdiction for international crimes. Jurisdiction for such a tribunal is sourced either in a conferral of authority from the Security Council or in the consent of the state(s) concerned, combined with the delegation of jurisdiction from that state(s). The conclusions reached do not preclude further options, including universal jurisdiction, developing over time. Nor do they preclude a role for other entities, such as the General Assembly or other international organisations, from participating in the establishment of future tribunals. However, current concepts of jurisdiction, which remain linked to the notion of state sovereignty, have restricted examples to the three jurisdictional bases discussed. Fifth, how does the legal and jurisdictional basis of a particular tribunal impact upon the operation of the tribunal in question, in particular its response to key jurisdictional issues? The legal and jurisdictional basis of a tribunal will have important consequences for how the tribunal should approach issues concerning the exercise of its jurisdiction. The study identifies several significant jurisdictional issues that have arisen before the tribunals, such as the applicability of immunities under international law, the binding effect of national amnesties or statutes of limitation, and the obligations of states, organisations and individuals to cooperate with the tribunal’s orders or requests. It then examines the practice to determine how the tribunals have approached such issues having regard to the legal and jurisdictional basis identified for each tribunal. It demonstrates that the

8 Introduction hybrid and internationalised tribunals have not always adopted a correct, or even consistent, approach to their findings concerning legal basis, and consequently their decisions on jurisdictional issues have at times been questionable. Finally, the study will show that, while the blending of international and national elements into a single institution is a relatively new concept, the legal and conceptual framework within which such tribunals operate is not. These tribunals operate within the existing international legal framework, which includes areas such as the notion of jurisdiction in international law, the role and powers of the Security Council in the areas of international peace and security, and the notion of state sovereignty. Related concepts such as the rules governing the immunity of state officials and the need for a legal basis for state cooperation are also wellestablished. This study aims to assist those designing such tribunals in the future, and the judges and personnel appointed to them, to consider these issues more carefully and to draw on previous decisions and practice so as to minimise the likelihood of jurisdictional issues arising and, when they do, to ensure clear and consistent decision-making. It is suggested that the legal basis and its consequences for such issues should be taken into account when designing and establishing tribunals in future: not to do so risks rendering the tribunal at best ineffective, at worst, contrary to international standards. The study adopts the following approach. In chapter one, the available options for ensuring criminal trials are examined, including trials before national courts, trials before the courts of other state(s) under the principle of universal jurisdiction, and trials before the international criminal tribunals, namely the ad hoc tribunals and the ICC. The strengths and weaknesses of each model will be assessed. This chapter also outlines the twin concerns of the international criminal justice system – accountability and state sovereignty – and traces the shift in the preference of the international community for trials before international institutions to the recognition that trials should, wherever possible, take place before the courts of the affected state. Chapter two turns to the increasing reliance on the hybrid or internationalised tribunal, and the potential advantages offered by such institutions. It outlines the background and establishment of the tribunals considered to fall within the category of hybrid and internationalised tribunals: the Special Court for Sierra Leone (SCSL); the Special Tribunal for Lebanon (STL); the International Judges and Prosecutors Programme in Kosovo (IJPP); the Special Panels for Serious Crimes in East Timor (SPSC); the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC); the Iraqi High Tribunal (IHT); and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Chapter three considers institutions that have an international element, but which are not considered to be a hybrid or internationalised tribunal, including the Lockerbie Court and the Serbian War Crimes Chamber (SWCC). This chapter also outlines proposals for other institutions that may be established in the future that may fall within the category of hybrid and internationalised tribunals, for example, the proposed Special Tribunal for Burundi and the Special Tribunal for Kenya (STK). It then concludes by outlining the factors that are driving the creation of such

Introduction 9 institutions. Chapter four builds upon the study of state practice by assessing the practice against suggested definitional features of hybrid and internationalised tribunals. It attempts to determine whether there is a comprehensive definition of a hybrid or internationalised tribunal, and the significance of a definition. It also details how the different circumstances within which each tribunal was established have impacted upon the mandate and jurisdictional reach of the institutions studied. Chapter five then identifies the legal bases of the tribunal studied and also assesses the source of the jurisdictional basis for each tribunal. Chapter six considers selected legal barriers to the exercise of jurisdiction: the principle of legality; immunity; amnesties; the ability to secure custody of the accused; statutes of limitation; the principle of ne bis in idem; and the relationship with other courts and tribunals, in particular the ICC. Building upon the discussion in chapters four and five, this chapter suggests that the tribunals studied have not always adopted the correct approach to whether these barriers to the exercise of jurisdiction apply. It is argued that, when determining such issues, the tribunals need to consider the nature of their establishment, their legal basis and the nature and source of the jurisdiction that they are to exercise. The final section offers some concluding remarks.

1 The Emerging System of International Criminal Justice I. Introduction This chapter first considers the role of national courts in suppressing inter­national crimes, including the role of national courts acting on the basis of universal jurisdiction. It then turns to an assessment of the development of international criminal institutions, in particular the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court (ICC). Specifically, it considers the relationship between the national courts and these international mechanisms, namely the principles of primacy and complementarity. The chapter concludes that a key feature of the international criminal justice system is the tension between sovereignty and the drive to ensure international criminal accountability, although various principles have emerged to modify its effects. In particular, the current system of criminal law evidences a preference for trials before national courts, with international institutions intervening only in limited circumstances, generally where the territorial state is unable or unwilling to try offenders. This chapter also confirms that the system of international criminal justice is far from comprehensive and, even following the establishment of the ICC, several potential impunity gaps exist. The final section of this chapter considers the possible roles of hybrid and international tribunals in the system of international criminal justice. It argues that the establishment of mixed tribunals may enable a greater number of national trials to proceed by supplementing the national courts with international assistance. Second, hybrid and inter­nationalised tribunals may serve to fill the possible impunity gaps identified in this chapter, by allowing a further mechanism for securing accountability. Third, the creation of hybrid and internationalised tribunals may shift the focus in international criminal justice away from a ‘competition’ between international mechanisms and national courts, allowing an approach that concentrates more on cooperation between institutions and, in appropriate cases, agreement on ‘burden sharing’ and division of labour between national courts and international criminal institutions.



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II.  Prosecution of International Crimes before Domestic Courts A.  National Jurisdiction for International Crimes For many years, states have considered criminalisation of certain conduct and the enforcement of such criminal law as an inherent aspect of state sovereignty. The exercise of criminal jurisdiction has been traditionally considered within the primary, if not the exclusive, domain of the state. Criminal jurisdiction may be defined as describing ‘the limits of the legal competence of a state or other regulatory authority . . . to make, apply, and enforce rules of conduct upon persons’.1 As Berman notes, ‘[C]riminal jurisdiction is essentially a jurisdiction to prescribe and to punish’.2 Three ‘types’ of jurisdiction can be distinguished: jurisdiction to prescribe, jurisdiction to enforce, and jurisdiction to adjudicate.3 Jurisdiction to prescribe – or legislative jurisdiction – is the authority of a state to prescribe rules, while jurisdiction to enforce is the authority of a state to enforce those rules.4 The third category of jurisdiction, jurisdiction to adjudicate, refers to ‘the right of courts to receive, try and determine cases referred to them’.5 However, the authority of national courts to adjudicate such claims follows from the jurisdiction to prescribe. The organs of the court in question exercise the jurisdiction conferred on them (either by states in the case of national courts or the Security Council in the case of international courts) and the court will also interpret the extent to which such jurisdiction has been conferred. Accordingly, jurisdiction to adjudicate is not considered further as a separate category of jurisdiction. It is now largely accepted by states that jurisdiction to prescribe must be exercised based on principles of jurisdiction recognised in public international law.6 1   V Lowe and C Staker, ‘Jurisdiction’ in M Evans (ed), International Law, 3rd edn (Oxford, Oxford University Press, 2010) 313. 2  F Berman, ‘Jurisdiction: The State’ in P Capps, M Evans and S Konstadinidis (eds), Asserting Jurisdiction: International and European Legal Approaches (Oxford, Hart Publishing, 2003) 5. Jurisdiction also applies in a civil context, although there is some debate as to whether the rules to be applied are the same. This thesis will only examine criminal jurisdiction. 3   R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735. 4   Unlike jurisdiction to prescribe, jurisdiction to enforce is always territorial, unless the consent of the third state is obtained. 5   Lowe and Staker, n 1, 317. 6   The contrary conclusion of the Permanent Court of International Justice in the Lotus case, which provided that states may exercise their jurisdiction to persons, property and acts outside of their territory subject only to a specific rule prohibiting the exercise of such jurisdiction, has been discredited and is now considered not to represent customary international law. See: Lotus (SS) Case (France v Turkey) PCIJ Rep Series A No 9 (Lotus case) 19. For further discussion see Lowe and Staker, n 1; M Akehurst, ‘Jurisdiction in International Law’ (1973) 46 British Yearbook of International Law 145; R Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge, Cambridge University Press, 2005); and C Ryngaert, Jurisdiction in International Law (Oxford, Oxford University Press, 2008) ch 2.

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The most important principle is that of territorial jurisdiction, whereby a state may exercise jurisdiction in respect of acts committed upon its territory. The territorial principle also includes ‘subjective’ and ‘objective’ territorial jurisdiction, so that the state may exercise jurisdiction where one of the constituent elements of the offence occurs within its territory.7 In recent years, at least in the human rights context, states have also been found to exercise jurisdiction where they have control of the territory of another state, either due to military occupation or otherwise.8 This, however, extends beyond the classic view of territorial jurisdiction and is linked to the notion of jurisdiction incorporated in the relevant treaties, rather than an expansion of the principle of territorial jurisdiction. Nationality of the offender is also an accepted basis for the exercise of jurisdiction by a state and is increasingly relied upon as a basis for the exercise of extraterritorial jurisdiction by several states.9 Jurisdiction based upon the nationality of the victim – the so-called ‘passive personality’ principle – is also relied upon by states, but may have found general acceptance only in relation to certain categories of crimes, in particular terrorism.10 The protective principle permits the exercise of jurisdiction where the offence in question is directed at the ‘essential interests of the State’.11 Offences prosecuted under this principle generally relate to national security or a threat to the existence of the state, but may also include offences such as counterfeiting currency.12 The final basis for the exercise of criminal jurisdiction is the principle of universal jurisdiction, discussed further below. To this list must be added jurisdiction based on the ‘flag’ state of a vessel or aircraft and the growing reliance upon treaty-based jurisdiction, through which states are permitted, or in some situations obliged, to legislate extraterritorially, even in the absence of a traditional basis of jurisdiction. Given these different bases of jurisdiction, it is possible that one or more states may assert jurisdiction in respect of a particular act, and that there may be valid, but competing, jurisdictional claims. Unlike private international law and the laws of many national legal systems, international criminal law has not, as yet, developed rules allocating criminal jurisdiction between states. At best, and as further 7   Lotus case, 23. The territorial principle may also include the so-called ‘effects doctrine’ whereby a state may exercise jurisdiction where the act in question has an effect within its territory: see V Lowe, ‘US Extraterritorial Jurisdiction: the Helms-Burton and D’Amato Acts’ (1997) 46 International Comparative Law Quarterly 378. 8   Bankovi´c and Others v Belgium and 16 Other Contracting States (Admissibility Decision) Application No 52207/99, European Court of Human Rights, Grand Chamber, ECHR 2001 XII (12 December 2001). 9   P Arnell, ‘The Case for Nationality-Based Jurisdiction’ (2001) 50 International Comparative Law Quarterly 955. More recently, states have also relied on other criteria besides nationality, such as residence. See, eg, the International Criminal Court Act 2001 (United Kingdom). 10  See United States v Yunis (1991) 30 ILM 403; United States v Yousef 327 F.3d 56 (2002) (US 2nd Cir.), both concerning terrorist offences. Three judges of the ICJ have noted that ‘[p]assive personality . . . today meets with relatively little opposition, at least as far as a particular category of offences is concerned’: Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (the Arrest Warrant case) (Separate Opinion of Judges Higgins, Kooijmans and Buergenthal) [2002] ICJ Rep 3, 11. 11   Lowe and Staker, n 1, 325. 12   Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5.



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detailed in following sections, there is a preference for trials before domestic courts, in particular the courts of the territorial state (ie the state where the act occurred). This preference reflects certain advantages of domestic proceedings. First, it is based on and respects the traditional international law notions of state sovereignty and the principle of non-interference in the internal affairs of a state.13 Second, domestic trials are generally considered to be the most practical option. Victims, defendants, witnesses and evidence will normally be found within that state. Third, domestic trials are argued to be the best means of conveying a sense that society is investigating the impact of the individual’s actions on the local populace – those most directly affected – and that society is dispensing ‘justice’ to the accused. This permits a sense of ownership of the judicial process, which may make a contribution to the rehabilitation of the accused and reconciliation between victim and offender. Fourth, domestic trials, even in respect of cases that are particularly complex or significant, may improve the capacity of the judiciary and public confidence in the legal system. Finally, domestic proceedings enable the territorial state to incorporate a bespoke approach to criminal justice, allowing a greater ability to tailor the design of the system to the needs of the situation. This may include introducing new legal mechanisms, the use of traditional justice approaches, or amendments to the domestic substantive or procedural law.

B. Is There an Obligation to Exercise Domestic Criminal Jurisdiction for International Crimes? Where a state has exercised its prescriptive jurisdiction so as to criminalise certain conduct occurring within its territory, it will generally confer jurisdiction to try individuals suspected of such conduct on its national courts. This raises the question as to whether that state is then required to exercise that jurisdiction in a given situation; ie must that state enforce violations of its criminal law? The ability of a state to criminalise certain conduct and to punish violations of its law is generally considered to be a right rather than an obligation; that is, there is no duty to try individuals accused of crimes, even international crimes.14 However, this general position may be varied by treaty. Several treaties provide that states parties must provide effective penal sanctions for acts prohibited by the treaty.15 States are required either to prosecute alleged violations of those laws (ie 13   Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 2(7). 14   R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge, Cambridge University Press, 2010) 69–73. 15   Treaties that incorporate this principle include the Geneva Conventions and Additional Protocol I to the Geneva Conventions in relation to grave breaches only. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 31 (GCI), arts 49, 50; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 85 (GCII) arts 50 and 51;

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to exercise criminal jurisdiction) or to extradite a suspect to a state that is willing to exercise jurisdiction in respect of the conduct. This is known as the aut dedere aut judicare principle (the duty to prosecute or extradite).16 However, the obligation aut dedere aut judicare is not an absolute obligation. Rather, it applies only to those states party to the relevant international conventions,17 and only where the individual in question is located within the territory of the state concerned. Most relevant to this discussion is consideration of whether any international crimes are subject to such an obligation. There is no treaty-based duty to extradite or prosecute in respect of crimes against humanity.18 The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not incorporate the aut dedere aut judicare principle.19 While there is a wideranging obligation to prosecute or extradite contained in the grave breaches provisions of the Geneva Conventions,20 this regime applies only to international armed conflicts and is thus limited in its scope. Therefore, it must be concluded that there is no general duty to prosecute offenders in respect of international Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 135 (GCIII) arts 129 and 130; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entry into force 21 October 1950) 75 UNYS 287 (GCIV) arts 146 and 147 (GCIV); Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entry into force 7 December 1978) 1125 UNTS 3 (API) arts 11, 85, 86 and 88; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1564 UNTS 85 (Convention Against Torture) art 6; International Convention for the Protection of All Persons From Enforced Disappearances, GA Res 61/177, Annex, arts 9, 11; and certain terrorism conventions, eg, the Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) 860 UNTS 105, art 7 and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973) 974 UNTS 177, art 7. 16   For further discussion of this principle, see M Bassiouni and E Wise, Aut Dedere Aut Judicare: The Duty to Prosecute in International Law (Leiden, Martinus Nijhoff Publishers, 1995). See also the current work of the International Law Commission on the topic: International Law Commission, ‘Preliminary Report of the Special Rapporteur on the Obligation to Extradite or Prosecute (aut Dedere aut Judicare)’ (7 June 2006) UN Doc A/CN.4/571; International Law Commission, ‘Second Report of the Special Rapporteur on the Obligation to Extradite or Prosecute (aut Dedere aut Judicare)’ (11 June 2007) UN Doc A/CN.4/585; and International Law Commission, ‘Third Report of the Special Rapporteur on the Obligation to Extradite or Prosecute (aut Dedere aut Judicare)’ (10 June 1008) UN Doc A/CN.4/603. 17   Broomhall considers that ‘this form of jurisdiction is not truly “universal”, but is a regime of jurisdictional rights and obligations arising amongst a closed set of states parties’: B Broomhall, ‘Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law’ (2001) 35 New England Law Review 399, 401. See also I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 304; R Higgins, Problems and Processes: International Law and How We Use It (Oxford, Clarendon Press,1994) 62–65; Lowe and Staker, n 1, 327–29. 18   There is no treaty that regulates comprehensively crimes against humanity as such, although provisions in instruments such as the Convention Against Torture may be relevant. 19   The Genocide Convention limits prosecution to the courts of the territorial state or an inter­ national criminal court, which had not been established. See Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, art VI. 20   See GCI, art 49; GCII, art 50; GCIII, art 129; GCIV, art 146; see also API, art 86.



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crimes, at least as a matter of conventional law. This reflects the piecemeal nature of the various instruments, with individual treaties concentrated on particular substantive crimes, rather than on establishing comprehensive obligations. Even where such a duty can be established, for example in relation to grave breaches of the Geneva Conventions, the state always retains the option of extraditing the accused to another state willing to exercise jurisdiction. As Akhavan notes, the requirement to extradite or prosecute ‘requires a genuine effort to pursue justice but not a strict obligation to prosecute, recognizing a necessary element of prosecutorial discretion’.21 The provisions establishing the aut dedere aut judicare principle do not establish any hierarchy for states faced with competing jurisdictional claims; even the territorial state may elect to extradite to a third state with a weaker jurisdictional link to the crimes.22 An obligation to prosecute international crimes may arise as a matter of customary international law, binding on all states including those not party to the relevant treaties. The absence of an obligation is supported by practice, for although there is some evidence of support for a customary obligation to prosecute,23 this has not been reflected in a significant number of prosecutions for such crimes at the national level.24 Similarly, arguments that a duty to prosecute exists by reason of the jus cogens or erga omnes nature of the crimes have also been rejected.25 Even though the prohibition against committing the crime may be of a jus cogens nature, this does not necessarily extend to a duty to prosecute those accused of violating the prohibition. To the contrary, practice suggests that the ‘higher’ status of the core crimes creates only a right, but not an obligation, to prosecute those accused of committing core crimes. Thus, there is certainly considerable debate as to whether the aut dedere aut judicare principle is a principle of customary international law, separate from any treaty-based obligation, let alone whether it enjoys jus cogens status distinct from the prohibition against committing the core crimes.26 Although the Rome Statute of the International Criminal Court (Rome Statute) recognises the primary responsibility of states to exercise national jurisdiction in 21   P Akhavan, ‘Whither National Courts? The Rome Statute’s Missing Half: Towards and Express and Enforceable Obligation for the National Repression of International Crimes’ (2010) 8 Journal of International Criminal Justice 1245, 1252. 22  See Suleymane Guengueng et al v Senegal (Decision of the Committee Against Torture) Communication No 181/2001 (19 May 2006). 23   See, eg, the 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind which includes an obligation to extradite or prosecute individuals accused of committing genocide, crimes against humanity and war crimes: International Law Commission, ‘Draft Code of Crimes Against the Peace and Security of Mankind (1996)’ vol II(2) Yearbook of the International Law Commission 17, arts 8–9. The preamble to the Rome Statute ‘recall[s] the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ although it does not establish the source of this duty. 24   For arguments that a duty may be emerging based on territorial and nationality based jurisdiction, see D Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14 European Journal of International Law 481. 25   For advocates of this view, see M Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems 63. Cryer, eg, rejects this argument: Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6, 110–17. 26   See sources at n 16 above.

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respect of core crimes,27 the Statute itself does not recognise or impose an obligation for states to do so, even those states that are party to the Rome Statute. While states are encouraged to criminalise the crimes within the jurisdiction of the ICC as a matter of national law (ie exercise prescriptive jurisdiction), it remains a matter of discretion for states as to whether they will exercise enforcement or adjudicative jurisdiction in respect of the commission of a particular crime.28 Of course, states that do not exercise this jurisdiction risk the ICC exercising its jurisdiction (the principle of complementarity),29 but that possibility may not be a sufficient incentive to force the state to act at the national level. Various commentators have argued that international human rights law, in particular the provisions of multilateral conventions for the protection of human rights, may impose a duty to prosecute alleged human rights violations,30 which by their nature may also constitute international crimes.31 This assertion is based on the obligation to provide an effective remedy, which is included in most major human rights instruments.32 It has also been argued that this obligation exists as a matter of customary international law, relying on instruments such as the General Assembly’s resolution on reparations and the duty to provide an effective remedy.33 However, it is doubtful that the obligation to provide a remedy extends to requiring the state to conduct criminal prosecutions in all cases. Other remedies, such as the payment of compensation, the conduct of an investigation or establishing alternative justice mechanisms could also satisfy this obligation, even in the absence of any criminal proceedings. There is thus an element of discretion for the state as to how the obligation is to be fulfilled. Moreover, human rights instruments are generally restricted to regulating violations committed within the territory of the state concerned, and – at least in the absence of the victim coming within the ‘jurisdiction’ of the state for human rights purposes – do not support a wider obligation to prosecute violations occurring outside the territory of the State.34   See also this ch 1, section III(C)(iii).  Akhavan, ‘Whither National Courts? The Rome Statute’s Missing Half: Towards and Express and Enforceable Obligation for the National Repression of International Crimes’, n 21, 1265. See also J Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86. 29   See this ch 1, section III(C)(iii). 30   D Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537. 31   eg, torture is considered a violation of human rights law, but may also constitute a war crime or a crime against humanity, depending on the circumstances in which it is carried out. 32   See, eg, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 2(3). 33   UNGA Res 60/147 ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (21 March 2006) UN Doc A/Res/60/147. 34   Extraterritorial obligations may be incurred where the victims or the offenders have been brought within the jurisdiction of the state for human rights purposes. eg, the European Court of Human Rights has most recently confirmed that the jurisdiction of the United Kingdom was engaged when ‘through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and individuals killed in the course of such security operations’ in Iraq: Case of Al-Skeini and Others v The United Kingdom (Judgment) Application No 55721/07, European Court of Human Rights, Grand Chamber (7 July 2011) para 149. See also Bankovi´c and Others v Belgium and 16 Other 27 28



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In any event, even if it was possible to establish a duty to prosecute, either as a matter of international criminal law or based on human rights principles, there is no mechanism for enforcing compliance with this obligation. Thus, in the absence of a comprehensive duty on states to exercise national jurisdiction there is no duty to prosecute. This may result in one or more states permitted under international law to exercise jurisdiction, yet no action being taken by any state. In fact, until the last two decades, instances of states exercising jurisdiction to try crimes considered to be international crimes were rare, and those that did occur largely concerned war criminals from the Second World War. Other situations where trials have occurred include trials for genocide in Equatorial Guinea,35 the con­victions in absentia of Khmer Rouge leaders in Cambodia,36 and several trials before national courts in relation to violations of the Geneva Conventions.37 The frequency of national trials for conduct that could constitute international crimes has increased in recent years, although the majority of states have tried the conduct as ordinary crimes, rather than international crimes. National trials concerning international crimes have occurred in states including Argentina, Chile, Ethiopia, Germany, Guatemala, Hungary and Indonesia and are ongoing in several states of the former Yugoslavia, including Serbia, Croatia, Bosnia and Herzegovina, and also in Rwanda.38 There have also been courts martial in the United Kingdom and the United States in respect of abuse of detainees in Iraq.39 Most recently, Bangladesh has established a tribunal to try those accused of committing international crimes during the war of independence from Pakistan.40 However, these cases in no way reflect the actual number of instances where prosecutions for such conduct could Contracting States (Admissibility Decision) Application No 52207/99, European Court of Human Rights, Grand Chamber, ECHR 2001 XII (12 December 2001). 35   In September 1979 Francisco Macias Nguema (the former President of Equatorial Guinea) was tried and convicted by a Special Military Court on charges including genocide, multiple murders and embezzlement. He was subsequently executed. 10 political associates were also tried and convicted. For further discussion, see J Quigley, The Genocide Convention: An International Legal Analysis (Aldershot, Ashgate, 2006). 36   In 1979 the government installed in Cambodia by Vietnam ordered the trial by a revolutionary people’s court of Pol Pot and Ieng Sary, the deputy prime minister and minister of foreign affairs. Both men were convicted and sentenced to death in absentia. 37   Numerous trials before national courts resulted from the Second World War, in particular before German courts. However, other states have also initiated proceedings for war crimes during that conflict, including France, Italy, Austria, the Netherlands and the UK. For further discussion, see Cryer et al, n 14, 65–66. 38   J Rikhof, ‘Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International Impunity’ (2009) 20 Criminal Law Forum 1. For Croatia, see I Josipovic, ‘Responsibility for War Crimes before National Courts in Croatia’ (2006) 861 International Review of the Red Cross 145. 39   See Proceedings of a General Court Martial held at Military Court Centre Bulford in the Case of Corporal Donald Payne and Others, 7 September 2006–30 April 2007 (UK), discussed in N Rasiah, ‘The Court-Martial of Corporal Payne and Others and the Future Landscape of International Criminal Justice’ (2009) 7 Journal of International Criminal Justice 177; R Arnold, ‘The Abu Ghraib Misdeeds: Will There Be Justice in the Name of the Geneva Conventions?’ (2004) 2 Journal of International Criminal Justice 999. 40   See S Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation’ (2010) 21 Criminal Law Forum 191.

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and should have been pursued. Many states have proved reluctant to try their own nationals.41

C.  Challenges of Domestic Prosecution The absence of state practice showing trials for international crimes at the domestic level reinforces the conclusion that there is not an obligation to prosecute such conduct. There is, at present, simply insufficient state practice to support such an obligation. But why is there a continued reluctance to prosecute international crimes at the domestic level? In part, the reluctance may be due to the political, legal and resource challenges of trying international crimes domestically. The exercise of national jurisdiction in respect of international crimes presents many challenges. The traditional model presumes a stable state and justice system; essentially a state of normalcy in the territorial state. Yet in many conflict and post-conflict societies this is often not the case. The most extreme situation is where the judicial system has collapsed because of the conflict, leading to a lack of the physical, financial and human resources necessary to operate the judicial ystem. There is no infrastructure to conduct any trials, let alone complex and sensitive trials. A related concern is that where a conflict has recently ended, or is ongoing, the security situation may not permit the holding of trials, especially those connected to the conflict. Even if the judicial system is operational it may not be able to cope with trials of all offenders where the conflict has produced a significant number of accused. Moreover, some otherwise-functioning systems raise specific concerns. The domestic system may not be capable of operating either impartially or independently of the government or other key national power groups, or may be tainted by association with a prior regime. Government officials may be implicated in the alleged actions and may wish to interfere with or avoid investigation and prosecutions altogether. Alternatively there may be a perceived need to remove judges and officials associated with the previous regime, leading to a loss of vital skills and experience. Members of minority groups alienated by the conflict may be unable or unwilling to participate, and the procedural standards may not meet the minimum standards required by international human rights law. Furthermore, there may be a lack of political will. All these factors may lead the local population, or the international community, to struggle to accept the criminal justice system as legitimate, unbiased and fair. More subtle obstacles to trials before national courts may exist in the domestic procedural or substantive law. For example, the applicable procedural law may not accord with internationally accepted fair trial standards and the resulting convictions or acquittals would therefore be considered suspect. In terms of substantive law, there may be amnesty provisions, domestic immunities, statutes of 41   See T McCormack, ‘Their Atrocities and Our Misdemeanours: The Reticence of States to Try Their “Own Nationals” for International Crimes’ in M Lattimer and P Sands (eds), Justice for Crimes Against Humanity (Oxford, Hart Publishing, 2003) 107.



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limitation, or simply an underdeveloped substantive law that does not criminalise the activity in question, or else considers the action to constitute a ‘lesser’ crime. The general rule against retroactive laws can also prove an obstacle in instances where the laws in place at the time of the commission of the relevant acts failed to comprehensively criminalise the conduct.42 Even where a suitable law exists, the judiciary, prosecution and defence may have little or no experience of trials for serious or systematic crimes conducted during the conflict, and limited exposure to principles of substantive and procedural international criminal law. Despite the nature and complexity of the crimes committed, local lawyers may treat the conduct as ordinary domestic crimes or may be uncertain about how to prove or defend such serious charges. While the process of implementation into domestic law of obligations of states becoming party to the Rome Statute may improve this situation, as states incorporate the crimes within the Rome Statute and consider their application before national courts,43 such issues have led to impunity in the past and may continue to do so in future.

D.  Prosecution before National Courts of Third States on the Basis of Universal Jurisdiction As several states may assert jurisdiction for a given crime, trials before the courts of a third state may also be an option to end impunity for international crimes. Under this model, proceedings in third states effectively replace trials in the courts of the state most affected. By criminalising conduct that has occurred outside its territory, a state may be exercising jurisdiction based on principles of nationality of the victim or offender, or the protective principle. However, it is the exercise of universal jurisdiction, which does not require such a connection, which has attracted the most critical attention. The widest view of universal jurisdiction is that it enables a state to criminalise conduct based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.44 If such jurisdiction is accepted, a state with no real connection to the crime, save the general community interest in securing accountability, could claim jurisdiction and enforce violations. The exercise of such universal jurisdiction by the domestic courts of third states is a horizontal   See ICCPR, art 15.   For discussion of such problems in the context of implementation of obligations under the Rome Statute in Africa, see O Bekou and S Shah, ‘Realising the Potential of the International Criminal Court: The African Experience’ (2006) 6 Human Rights Law Review 499. 44   Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction (Princeton, Princeton University, 2001); Institute of International Law ‘Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes – Preparatory Work: Report – Replies and Observations of the Members of the Commission’ (2005) 71–I, Seventeenth Commission, Session of Krakow Yearbook of the Institute of International Law; C Kress, ‘Universal Jurisdiction Over International Crimes and the Institut de Droit International’ (2006) 4 Journal of International Criminal Justice 561; and O’Keefe, n 3. 42 43

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approach to international criminal justice, with the courts of one state reviewing the acts of an individual in another state. For this reason, the exercise of universal jurisdiction potentially represents a significant interference with the sovereignty of those states having a stronger jurisdictional connection to the crimes, including the territorial state and the state of which the accused is a national. Given the traditional importance placed by states on their right to exercise jurisdiction within their own territory, the exercise of universal jurisdiction is a serious challenge to the sovereignty of the territorial state. It is for this reason that the use of universal jurisdiction is particularly controversial. Broomhall identifies both pragmatic and normative rationales for the existence of universal jurisdiction in international law and its impact on the sovereignty of states. The pragmatic rationale is that other bases of jurisdiction are insufficient to ensure accountability, ‘as these acts are often committed by those who act from or flee to a foreign jurisdiction, or by those who act under the protection of the State’.45 He argues that this consideration is apparent in particular regarding piracy on the high seas,46 slavery and terrorism. The normative rationale is that such crimes are of universal concern, ‘deserving condemnation in themselves, and deemed to affect the moral and even peace and security interests of the entire international community’.47 Thus universal jurisdiction reflects the interference with sovereignty required to advance the community interest in preventing commission and punishing violations of international crimes. Universal jurisdiction is said to arise under both treaty and customary inter­national law.48 The widest view of universal jurisdiction arises only under customary international law. The category of offences in relation to which universal jurisdiction arises in customary international law is limited. It may include offences such as piracy,49 genocide,50 crimes against humanity,51 grave breaches

45   B Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the Rule of Law (Oxford, Oxford University Press, 2003) 107–08. 46   Note, however, the concerns of several commentators that the piracy analogy is inappropriate for international crimes such as war crimes, genocide and crimes against humanity. For detailed discussion, see E Kontorovish, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ (2004) 45 Harvard International Law Journal 183. 47  Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the Rule of Law, n 45, 107. 48   For a detailed discussion of universal jurisdiction, see M Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2002) 42 Virginia Journal of International Law 81; and K Randall, ‘Universal Jurisdiction Under International Law’ (1988) 66 Texas Law Review 785. 49   Commentators and the majority of judges in the Arrest Warrant case agree that universal jurisdiction is recognised in relation to piracy, see A Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’ (2002) 13 European Journal of International Law 853, 857. 50   The Genocide Convention does not recognise universal jurisdiction in respect of acts of genocide. However, genocide has subsequently been considered as giving rise to universal jurisdiction under customary international law: M Morris, ‘Universal Jurisdiction in a Divided World’ (2001) 35 New England Law Review 337, 347. 51   Attorney General of the Government of Israel v Eichmann n 12.



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of the Geneva Conventions,52 slavery,53 and torture,54 although it may also include other offences such as serious violations of international humanitarian law (for example, acts short of torture such as cruel, inhuman and degrading treatment.55 Several states have introduced domestic legislation that criminalises crimes committed abroad, based either on jurisdiction deriving from treaty provisions or under customary international law.56 However, instances of domestic courts relying upon such provisions were rare until relatively recently. Since the 1990s the courts of an increasing number of mainly European states have commenced proceedings concerning acts committed outside the prosecuting state.57 States where complaints have been filed, investigations commenced and/or trials conducted58 include Australia,59 Belgium,60 France,61 Germany,62 the 52   Prosecutor v Tadi´c (Jurisdiction) ICTY-94-1-AR72 (2 October 1995) (the Tadi´c Jurisdiction Decision) para 80. See also R Van Elst, ‘Implementing Universal Jurisdiction Over Grave Breaches of the Geneva Conventions’ (2000) 13 Leiden Journal of International Law 815. 53   None of the treaties aimed at the suppression of the slave trade explicitly provide for the exercise of universal jurisdiction. However, the majority view appears to support the possibility of the exercise of universal jurisdiction for slavery under customary international law: see, Randall, ‘Universal Jurisdiction Under International Law’, n 48, 798. For the contrary view see Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, n 48, 114–15. 54   The argument that customary international law permits the exercise of universal jurisdiction in respect of torture can be made more forcefully since the decision of the ICTY in Prosecutor v Furundžija (Judgment) ICTY-95-17/1-T, T Ch (10 December 1998) 156. See also R v Bow Street Magistrate, ex parte Pinochet Ugarte [No 3] [1999] 2 All ER 97. 55   T Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89 American Journal of International Law 569, 568–76; T Meron, ‘Is International Law Moving Towards Criminalization’ (1998) 9 European Journal of International Law 18, 23 and 29. See also S Boelaert-Suominen, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts?’ (2000) 5 Journal of Conflict and Security Law 63; T Graditzky, ‘Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts’ (1998) 322 International Review of the Red Cross 29; Y Dinstein, ‘The Universality Principle and War Crimes’ in MN Schmitt and L Green (eds), The Law of Armed Conflict: Into the Next Millennium (Newport RI, Naval War College, 1998); and M Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences’ (2001) 23 Human Rights Quarterly 940, 947–48. 56   For an overview of municipal legal provisions and cases concerning universal jurisdiction, see L Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford, Oxford University Press, 2003). 57   For the role of European states in advancing the concept of universal jurisdiction, see Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art (June 2006). 58   Note that not all of these proceedings are based on universal jurisdiction – some may also rely upon the principle of passive personality. 59  See Polyukhovich v Commonwealth (1991) 172 CLR 501 (trials in respect of crimes against humanity and war crimes committed against Jews in Ukraine). 60   Successful convictions include the Butare Four case and the case against Rwandan businessmen Etienne Nzabonimana and Samuel Ndashykirwa, both of which related to the commission of crimes during the Rwandan genocide in 1994. A case is still outstanding in respect of former Chadian dictator, Hissène Habré. Other cases were withdrawn following changes to the relevant law in 2003. For discussion, see: L Reydams, ‘Universal Criminal Justice: The Belgian State of Affairs’ (2000) 11 Criminal Law Forum 183; L Reydams, ‘Belgium’s First Application of Universal Jurisdiction: The Butare Four’ (2003) 1 Journal of International Criminal Justice 428. 61   On 1 July 2005, Ely Ould Dah was sentenced in absentia for torturing black African members of the military in Mauritania in 1990 and 1991. Other cases remain ongoing. 62  German authorities investigated and prosecuted several offences committed in the former Yugoslavia. However, since the relevant legislation was modified in 2002, no complaints have been

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Netherlands,63 Spain64 and the United Kingdom.65 The house arrest of General Pinochet by the United Kingdom during a private visit to London in 1998 following a request for extradition from Spain and the subsequent legal proceedings66 was at the time considered to herald a new era for the prosecution of international crimes.67 Reliance on universal jurisdiction would, it was believed, overcome the twin difficulties of relying upon the territorial state to exercise its jurisdiction and the absence of a functioning international criminal court. This initial optimism may have been misguided, as universal jurisdiction has not proved to be the ‘cure-all’ it was hoped to be. The relatively few instances where a state has exercised universal jurisdiction have highlighted the challenges involved. First, there remains a division between states and commentators as to the scope of universal jurisdiction and the crimes to which it applies, absent a specific treaty provision.68 For example, is any link to the prosecuting

investigated. This includes cases filed against former US Secretary of State for Defence, Donald Rumsfeld, former Chinese President, Jiang Zemin, and former Uzbek Minister of the Interior, Zokirjon Almatov. 63   In 2004 a Congolese national was convicted of leading death squads in Kinshasa between 1990 and 1995. In 2005 two Afghans were convicted for their involvement in torture and war crimes. 64   Spain has relied on universal jurisdiction in relation to international crimes. Cases initiated in Spain include the following: former Chilean dictator, Augusto Pinochet; former Peruvian President, Alberto Fujimori; Argentine military officer Adolfo Scilingo (see A Gil Gil, ‘The Flaws of the Scilingo judgment’ (2005) 3 Journal of International Criminal Justice 1082; G Pinzauti, ‘An Instance of Reasonable Universality: The Scilingo Case’ (2005) 3 Journal of International Criminal Justice 1092; C Tomuschat, ‘Issues of Universal Jurisdiction in the Scilingo Case’ (2005) 3 Journal of International Criminal Justice 1074; Decision on the Extradition of Ricardo Miguel Cavallo, Supreme Court of Justicia (10 June 2003) 42 ILM 888; Tribunal Supremo, Sala de lo Penal, Sentencia n°327/2003, Recurso de casación n°803/2001 (25 February 2003) (Guatemalan Generals Case); and cases concerning events in Tibet (see C Baker, ‘Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can it Work?’ (2006) 4 Journal of International Criminal Justice 595). 65   The first successful trial under universal jurisdiction legislation occurred in 2005, with the conviction of Faryadi Zardad, an Afghan militia leader, of acts of torture and hostage-taking in Afghanistan in the 1990s. However, the legislation criminalising the conduct was based on the United Kingdom’s treaty-based obligations so it was not an exercise of universal jurisdiction in the sense used here. 66   For discussion of the proceedings in the United Kingdom, Spain and other European courts, see N Roht-Arriaza, ‘The Pinochet Precedent and Universal Jurisdiction’ (2001) 35 New England Law Review 311. 67   eg, C Chinkin, ‘R v Bow Street Stipendiary Magistrate, ex parte Pinochet (No 3) [1992] 2 WLR 827’ (1999) 93 American Journal of International Law 703, 711. 68   The varying views on the scope of universal jurisdiction were apparent in the opinions expressed by the ICJ in the Arrest Warrant case. For discussion of the different viewpoints, see: N Boister, ‘The ICJ in the Belgian Arrest Warrant Case: Arresting the Development of International Criminal Law’ (2002) 7 Journal of Conflict and Security Law 293; O’Keefe, n 3; and Cassese, n 49. The International Court of Justice may have further opportunities to address the issue of universal jurisdiction in international law, with proceeding pending between the Republic of the Congo and France with respect to proceedings for crimes against humanity and torture commenced against the Congolese Minister of the Interior, Mr Pierre Oba, in connection with which a warrant was issued for the witness hearing of the President of the Republic of the Congo, Mr Denis Sassou Nguesso: Certain Criminal Proceedings in France (Republic of Congo v France) [2003] ICJ Rep 102. Proceedings are also pending relating to a dispute between Belgium and Senegal concerning Senegal’s obligation to extradite or prosecute Hissène Habré: Proceedings instituted by the Kingdom of Belgium against the Republic of Senegal (Belgium v Senegal) [2009] ICJ Rep 1.



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state – such as custody of the accused – required? Is the exercise of universal jurisdiction permissive or mandatory?69 Second, trials based on universal jurisdiction have tended to become heavily politicised, with governments concerned that the investigation of foreign state officials may affect diplomatic relations with the state concerned, and be inconvenient or embarrassing to the state where the trial is to be conducted.70 For example, in December 2009, a magistrate in the United Kingdom issued a warrant for the arrest of Ms Tzipi Livni, a former Israeli Foreign Minister and, at the time, the leader of the opposition. Ms Livni was accused of war crimes allegedly committed during the Israeli operations in Operation Cast Lead from December 2008 to January 2009.71 The warrant was issued at the request of a private party for which the consent of the Attorney-General was not required.72 It led to Ms Livni cancelling her planned visit to London, diplomatic protests by Israel73 and the United Kingdom government expressing its concern that the possible exercise of universal jurisdiction at the instigation of a private party threatened the inter­national relations of the United Kingdom.74 These types of concerns regarding the exercise of universal jurisdiction have already led some states to revise their universal 69   For the view that universal jurisdiction is permissive only, see: M Scharf, ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’ (1996) 59 Law and Contemporary Problems 41, 52–59; Meron, ‘International Criminalization of Internal Atrocities’, n 55; and Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the Rule of Law, n 45, 404–06. For the argument that the exercise of universal jurisdiction should be mandatory in certain circumstances, see M Bassiouni, Crimes Against Humanity in International Law, 2nd edn (The Hague, Kluwer Law International, 1999) 220 (on crimes against humanity) and M Bassiouni, ‘Accountability for International Crime and Serious Violations of Fundamental Human Rights: International crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems 63. 70   Morris notes that, as war crimes, genocide and crimes against humanity will often involve official acts, trials of such acts pursuant to universal jurisdiction ‘often will constitute, in effect, the judgment of one state’s policies and perhaps, officials, in the courts of another state. In such instances . . . universal jurisdiction will become a source and an instrument of interstate conflict’: Morris, n 50, 354. Moreover, prosecutions may be politically motivated. 71   The policy of Westminster Magistrates’ Court is neither to confirm nor to deny the existence of an arrest warrant. See I Black and I Cobain, ‘British Court Issued Gaza Arrest Warrant for Former Israeli Minister, Tzipi Livni’ The Guardian (London, 14 December 2009) www.guardian.co.uk/world/2009/ dec/14/tzipi-livni-israel-gaza-arrest. 72   The Geneva Conventions Act 1957 permits the exercise of universal jurisdiction in respect of grave breaches of the Geneva Conventions. The consent of the Attorney-General is required before proceedings based on universal jurisdiction are initiated. However, s 25(2) of the Prosecution of Offences Act 1985 allows an arrest warrant to be issued before proceedings have been instituted, thus avoiding the need for the Attorney-General’s consent. This provision has been used by a number of private parties to secure arrest warrants against foreign nationals intending to visit London. 73   Statement, Ministry of Foreign Affairs of Israel (15 December 2009). The British Ambassador to Israel was summoned and informed of Israel’s protests and the impact of the arrest warrant on Israel-UK diplomatic relations: see A Blomfield, ‘Tzipi Livni Arrest Warrant Provokes Britain-Israel Diplomatic Row’ The Telegraph (London, 15 December 2009) www.telegraph.co.uk/news/worldnews/ middleeast/israel/6819275/Tzipi-Livni-arrest-warrant-provokes-Britain-Israel-diplomatic-row.html. 74   Statement by then Foreign Secretary David Miliband, 15 December 2009. See also G Brown, ‘Britain must protect foreign leaders from private arrest warrants’ The Telegraph (London, 3 March 2010) www. telegraph.co.uk/news/politics/gordon-brown/7361967/Britain-must-protect-foreign-leaders-fromarrest.html.

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jurisdiction laws.75 The United Kingdom has subsequently changed the relevant legislative provisions to restrict the ability of a private party to seek an arrest warrant based on universal jurisdiction.76 Third, universal jurisdiction is more likely to be exercised by a developed, Western state, which raises allegations of neo-colonialism.77 The African Union has asserted that the principle is subject to abuse mainly by European states,78 and has engaged in dialogue with the European Union to further define the principle and agree on appropriate restraints in its exercise.79 Experts engaged by the two organisations noted that while several African states may exercise universal jurisdiction under their national laws, based either on treaty provisions or on customary international law, no African state is known to have exercised such jurisdiction.80 The concerns raised by the African Union also resulted in the question of the possible abuse of the principle of universal jurisdiction being referred to the Sixth Committee – the legal committee – of the General Assembly for discussion.81 Fourth, there are concerns regarding the resources required to conduct trials on the basis of universal jurisdiction. Even before the courts of the territorial states, trials for those accused of international crimes often raise complex legal and evidentiary issues. When the trial is before the courts of a third state, it is likely that preliminary challenges to jurisdiction will be raised, further complicating proceedings. Trials that are conducted away from the scene of the alleged crimes require evidence to be obtained from victims and witnesses located in other states, which may be very difficult absent the consent and cooperation of the territorial state. For example, the only trial to have occurred in the United 75   In 2003 Belgium amended its laws permitting the exercise of universal jurisdiction as a result of direct pressure from the United States following the filing of complaints in Belgium against US military and political leaders. The United States threatened to have the NATO headquarters moved from Brussels. See: L Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law’ (2003) 1 Journal of International Criminal Justice 679; Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, n 49; S Ratner, ‘Belgium’s War Crimes Statute: A Postmortem’ (2003) 97 American Journal of International Law 888. Spain has also recently amended its law to require a clear link to Spain. See also Jurist, ‘Spain parliament passes law limiting reach of universal jurisdiction statute’ (16 October 2009). 76   The Police Reform and Social Responsibility Act 2011 introduced a requirement that a private party must obtain the consent of the Director of Public Prosecutions before an arrest warrant can be issued on the basis of universal jurisdiction. 77  Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6, 95–97. 78   See, eg, ‘Decision on the Report Of The Commission on The Abuse of the Principle of Universal Jurisdiction’ Assembly of the African Union, Eleventh Ordinary Session (Sharm 30 June–1 July 2008) UN Doc A/AU/14(XI). 79   Two meetings of the AU-EU Ministerial Troika in late 2008 addressed the issue of universal jurisdiction, and its possible impact on relations between the EU and the AU. 80   Technical Ad Hoc Expert Group on the Principle of Universal Jurisdiction ‘AU-EU Expert Report on the Principle of Universal Jurisdiction’ (16 April 2009) available at www.africa-union.org/root/ar/ index/Report%20UJ%20_FINAL_English.pdf. 81   The Sixth Committee asked the Secretary-General to request states to submit information and observations concerning the principle of universal jurisdiction and to produce a report for consideration by the General Assembly at its 66th session in 2011. At sessions of the Sixth Committee in both 2009 and 2010, several Member States made statements on the principle of universal jurisdiction. See UNGA Resolution 64/117 (16 December 2009) UN Doc A/RES/64/117.



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Kingdom based on universal jurisdiction, that of Afghan militia leader Faryadi Zardad – who was convicted of acts of torture and hostage-taking that had taken place in Afghanistan in the 1990s – required British officials to travel to Afghanistan on several occasions and to hear evidence from 16 witnesses located in Afghanistan.82 This required considerable diplomatic efforts on the part of the prosecuting and governmental authorities in the United Kingdom. States that have exercised universal jurisdiction have found it difficult to obtain custody of the accused and to locate and produce witnesses and evidence because treaties on extradition and mutual legal assistance generally do not specifically contemplate universal jurisdiction for international crimes.83 This reflects the horizontal, rather than vertical, nature of courts exercising universal jurisdiction. At the very least, this makes such trials more complicated, lengthy and expensive than ‘ordinary’ criminal trials and may raise novel and difficult questions of law for the national court. Moreover the fear that a legal system with laws that provide for the exercise of universal jurisdiction may become the forum of choice, leading to great expense and inconvenience for national authorities, has led to some dampening of polit­ical enthusiasm for universal jurisdiction. Fifth, there are also concerns that the defendant’s right to a fair trial may be adversely affected in a trial located outside the territorial state,84 or that the courts of other states will not remain impartial.85 This is particularly worrying where the state in question permits trials in absentia on the basis of universal jurisdiction. Sixth, the relevant national legal provisions may be inadequate: the state asserting universal jurisdiction may not have appropriate legislation,86 or defendants may rely on amnesties or immunities conferred under national law.87 Finally, many states allow   Crown Prosecution Service, Press Release, ‘CPS Secures Historic Torture Conviction’ (18 July 2005).   For discussion, see: Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the Rule of Law, n 45, 412–16. 84   Morris, n 50, 352–53; H Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (2001) Foreign Affairs 86; cf K Roth, ‘The Case for Universal Jurisdiction’ (2001) Foreign Affairs 150. Fletcher argues that the failure to preclude trials in violation of the principle of double jeopardy is a fundamental flaw: G Fletcher, ‘Against Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 580, 582. For a rebuttal, see A Eser, ‘For Universal Jurisdiction: Against Fletcher’s Antagonism’ (2004) 39 Tulsa Law Review 955 and G Abi-Saab, ‘The Proper Role of Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 596. 85  For the contrary argument, see Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6, 97–99. 86   eg, the United States has been hampered in its use of universal jurisdiction by gaps in its own law: D Scheffer, ‘Opening address to the Conference on Universal Jurisdiction’ (2001) 35 New England Law Review 233. For discussion of the gaps and how to address them, see: D Cassel, ‘Empowering United States courts to hear crimes within the jurisdiction of the International Criminal Court’ (2001) 35 New England Law Review 421. For further discussion, see Kamminga, n 55, 951–54. 87   Kamminga, ibid, 955–99. eg, UK courts have refused several requests for an arrest warrant based on universal jurisdiction due to the official status of the individual concerned at the time the warrant was requested. See: Re Mugabe (Judgment of 14 January 2004) Bow Street Magistrates’ Court (2004) 53 International and Comparative Law Quarterly 770 (Head of State Immunity); Re Shaul Mofaz (Judgment of 12 February 2004) Bow Street Magistrates’ Court (2004) 53 International and Comparative Law Quarterly 771 (Defence Minister); Re Bo Xilai, (Judgment of 8 November 2005) Bow Street Magistrates’ (2005) 128 ILR 713 (Trade Minister/Special Mission); and Ehud Barak, December 2009 (unreported – on file with author) (Defence Minister). 82

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the final decision on initiating prosecutions to be made by the relevant prosecuting authorities, which often possess a wide degree of discretion as to whether such cases are pursued.88 The final authority to proceed may also be subject to the consent of a government official, who may take into account other interests, such as the impact of the prosecution on the state’s relations with other states.89 Moreover, the state-based approach of universal jurisdiction does not recognise any method of resolving the priority between possibly competing claims of juris­ diction, as the principle does not recognise that states that have a stronger juris­ dictional link to the crimes should be preferred where possible. Even those states that are broadly supportive of the principle of universal jurisdiction have indicated that the exercise of universal jurisdiction by states is subject to restrictions, including rules designed to prevent conflicts of jurisdiction.90 One such principle is the principle of subsidiarity, which provides that universal jurisdiction should not be exercised unless the territorial state is not willing to investigate (genuinely) the alleged offences. This principle, which has its roots in the division of competence between the institutions of the European Union, requires states to defer the exercise of jurisdiction to the courts of a state having a more substantial jurisdictional link to the crimes.91 A third state should exercise its jurisdiction on the basis of universal jurisdiction only where any state with a stronger claim has failed or refused to act and where an international court, in particular the ICC, is not willing or able to exercise its jurisdiction. Thus national courts of third states initiating prosecutions on the basis of universal jurisdiction would be the final option to avoid impunity. Only where a state with a stronger jurisdictional basis has failed to act would a third state be able to step in and enforce the violation of the international crime. Accordingly, it has been suggested that ‘[T]he subsidiarity principle provides a fair balance between sovereignty interests and inter­national justice interests’.92 The principle of subsidiarity is reflected in paragraphs 3(c) and (d) of the 2005 resolution of the Institute of International Law.93 The subsidiarity approach to 88   See, eg, The Code for Crown Prosecutors issued by the Director of Public Prosecutions of England and Wales. 89   eg, as noted above, in the United Kingdom, the Attorney-General, a government-appointed official, must consent to the initiation of a prosecution for an international crime based on universal jurisdiction. Morris argues that allowing a role for those responsible for foreign policy may enable the state in question to avoid undesirable consequences: Morris, n 50, 356. However, it is unlikely that such officials would accept such a role, as they are act independently in the exercise of these types of powers. 90   UNGA Sixth Committee (64th Session) United Kingdom, Statement to the Sixth Committee concerning ‘Agenda item 84: The Scope and Application of the Principle of Universal Jurisdiction’ (24 November 2009) UN Doc A/C.6/64/SR.13. 91   Recent practice, including remarks by the UK Government, suggest that the subsidiarity principle also applies to international courts; that is, a national court should also defer where the accused is sought for prosecution before an international tribunal with jurisdiction. 92  J Geneuss, ‘Fostering a Better Understanding of Universal Jurisdiction: A Comment on the AU-EU Expert Report on the Principle of Universal Jurisdiction’ (2009) 7 Journal of International Criminal Justice 945, 958. 93   Institute of International Law (17th Commission), ‘Resolution on Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes’ (Krakow 2005). For a discussion of the resolution, see C Kress, ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’, n 44.



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resolving jurisdictional issues has been adopted by some European states, including those most active in asserting universal jurisdiction. However, only a small number of states have endorsed the principle as a legal rule binding their national authorities,94 with other states regarding the principle as a rule of policy or international comity.95 The report of the AU-EU Expert Group on the Principle of Universal Jurisdiction,96 while recommending that states should accord priority to the territorial state ‘as a matter of policy’ and for practical reasons, found that the principle cannot yet be regarded as a rule of customary international law restraining the exercise of universal jurisdiction by third states. Thus, despite the obvious practical and policy benefits of the principle, there does not yet seem to be sufficient practice or certainty as to the scope of the principle to conclude that the principle has crystallised into a rule of customary international law.97 Moreover, the concept of subsidiarity as currently advanced does not take into account the relationship between the principle of universal jurisdiction and the role of international criminal courts, in particular the ICC, which may also be able to exercise jurisdiction in respect of a situation. Kleffner has suggested that states should only exercise universal jurisdiction when the territorial state has not done so (subsidiarity, or as he refers to it, horizontal complementarity) and where the ICC does not exercise its jurisdiction (complementarity).98 The role of the ICC and other mechanisms for international criminal justice will be discussed below. Given these challenges and concerns, the prosecution of international crimes before the courts of third states on the basis of universal jurisdiction may not represent an effective or reliable basis for achieving justice in all cases. Given the 94   In Germany and Belgium, prosecutors and courts apply the principle as a legal concept: see C Ryngaert, ‘Applying the Rome Statute’s Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting Under the Universality Principle’ (2008) 19 Criminal Law Forum 153. See also W Kaleck, ‘From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998– 2008’ (2009) 30 Michigan Journal of International Law 927. 95  In Spain and France, the principle is applied on the basis of reasonableness. The Spanish Constitutional Court has stated that international law does not oblige states to accord priority to the state with the stronger jurisdictional claim: Guatemala Genocide Case Constitutional Tribunal (Second Chamber) Judgment No STC 237/2005 (26 September 2005). See N Roht-Arriaza, ‘Guatemala Genocide Case’ (2006) 100 American Journal of International Law 207; Ryngaert, ibid; see H Ascensio, ‘The Spanish decision in Guatemalan Generals: unconditional universality is back’ (2006) 4 Journal of International Criminal Justice 586, and H Ascensio, ‘Are Spanish courts backing down on universality? The Supreme Tribunal’s decision in Guatemalan Generals’ (2003) 1 Journal of International Criminal Justice 690. See also A Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 589. The Supreme Court of Israel has described the principle as ‘a purely practical test’: Attorney General of the Government of Israel v Eichmann (1968) 36 ILR 302, 12. The UK has indicated that the principle is a legitimate factor to consider when assessing whether UK courts should exercise jurisdiction in a given case: the government referred to the need to defer to territorial state in debate on recent amendments to the International Criminal Court Act, confirming that the UK would only act where the territorial state had failed to do so. 96   Technical Ad Hoc Expert Group on the Principle of Universal Jurisdiction ‘AU-EU Expert Report on the Principle of Universal Jurisdiction’ (16 April 2009) available at www.africa-union.org/root/ar/ index/Report%20UJ%20_FINAL_English.pdf. 97   For the contrary view, see C Kress, ‘Universal Jurisdiction Over International Crimes and the Institut de Droit International’, n 44, 580. 98   Kleffner, n 28.

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political factors at play, it is doubtful that universal jurisdiction will prove to be the wide-reaching tool to end impunity that was hoped. Nor should it be, given the advantages that can be gained by prosecution in the courts of the territorial state. This is not to say that universal jurisdiction has no role in future. The option of trials before courts in third states will remain, but it will most likely be subjected to more stringent restraints on its future use, in particular the developing principle of subsidiarity. Moreover, given the politicisation of trials based on universal jurisdiction, many states have called for greater reliance on more neutral, independent international mechanisms to ensure accountability, in particular through the establishment of international criminal courts with jurisdiction to act when the territorial state fails to do so.99 The trend towards the use of inter­national mechanisms is considered in the next sections.

III.  Trials of International Crimes before International Courts A.  The Post-War Period: The Nuremberg and Tokyo Tribunals and the Work of the International Law Commission ‘Modern’ international criminal law originates from the period following the Second World War, with the creation of the International Military Tribunal (IMT) to prosecute and punish the major war criminals. The IMT was established at a conference following the conclusion of the war in Europe, pursuant to an agreement between the four Allied powers – the United States, the Soviet Union, the United Kingdom and France.100 The London Agreement provided for the establishment of an international military tribunal for the trial ‘of war criminals whose offences have no particular geographical location’.101 The IMT held its first session in public on 18 October 1945 and delivered its judgment on October 1946, finding 19 defendants guilty of crimes against humanity, war crimes and crimes against peace.102 In addition, the four occupying powers established courts in their

99   Interestingly, the establishment of the ICC (discussed below) has had a positive effect on the possibility of the exercise of universal jurisdiction by national courts, with several states incorporating universal jurisdiction as part of the process of implementing their obligations under the Rome Statute. See: L Arbour, ‘Will the ICC have an Impact on Universal Jurisdiction?’ (2003) 1 Journal of International Criminal Justice 585; and Kleffner, ibid. 100   Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) (United StatesFrance-Britain-USSR) (8 August 1945) 82 UNTS 279 (Charter of the IMT), art 1. 101   Charter of the IMT, art 1. 102   Judgment of the Nuremberg International Military Tribunal 1 October 1946 (1947) 41 American Journal of International Law 172.



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own zones of operation in Germany to try individuals not falling within the category of ‘major war criminals’.103 The Allied powers also established a separate tribunal to prosecute and punish the ‘major war criminals’ accused of crimes committed in the campaigns in the Asia-Pacific region, the International Military Tribunal for the Far East (Tokyo Tribunal).104 The Tokyo Tribunal was modelled on the IMT but its judges were drawn from a wider range of states, including the newly independent states of India and the Philippines.105 It commenced operations on 3 May 1946, conducted trials over a period of two and a half years, and delivered its final judgment in November 1948 by which it convicted 25 individuals for the offence of crimes against peace and war crimes. ‘Lesser’ criminals were tried by military courts in the territory of the victorious states.106 Both the IMT and the Tokyo Tribunal have been criticised as imposing ‘victors’ justice’ over the defeated nations.107 The tribunals were not truly independent, in that the judges and prosecutors were appointed by the victorious Allied powers. Moreover, alleged offences committed by Allied troops and authorities were not considered, most significantly the atomic bombing of Japan in 1945. Concerns were also raised that the substantive laws of the tribunals violated international law, in particular the principle of nullum crimen sine lege, or the prohibition against retroactive criminal laws. However, the tribunals were significant in that they represented the first occasion on which international institutions were established to punish war crimes. Their constituent instruments clearly supported the principle of individual criminal responsibility for crimes such as crimes against humanity and crimes against peace and, along with the emerging juris­prudence, have contributed to a body of substantive and procedural rules in international criminal law. The tribunals also assisted in promoting the development of a universal international criminal code and the establishment of a permanent international criminal court. Building upon the criminal trials undertaken by the IMT and the Tokyo Tribunal, the United Nations also contributed to an emerging international criminal law. At its first meeting in 1946, the General Assembly adopted a resolution 103   Control Council for Germany, Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945. 104   Charter of the International Military Tribunal for the Far East, issued by an executive order of General MacArthur, the Supreme Commander for the Allied Powers, on 19 January 1946. The Tokyo Tribunal was considered necessary to give effect to the Potsdam Declaration of 26 July 1945, which demanded that ‘stern justice shall be meted out to all war criminals’. 105   Art 2 of the Charter of the International Military Tribunal for the Far East provides for the appointment by the Supreme Commander for the Allied Powers of a maximum of 11 judges from the signatories to the declaration of surrender, India and the Philippines. 106   Trials were held in The Netherlands, the United Kingdom, Australia, the United States, the Soviet Union, China, France and the Philippines. 107   For discussion of these tribunals, see: N Boister and R Cryer, The Tokyo International Military Tribunal (Cambridge, Cambridge University Press, 2008); Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6; and G Mettraux, Perspectives on the Nuremberg Tribunal (Oxford, Oxford University Press, 2008).

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confirming the principles established by the Charter and judgment of the IMT.108 The following year the General Assembly requested that the International Law Commission formulate the principles of international law recognised in the Charter of the IMT and its judgment, and to prepare a draft code of offences against the peace and security of mankind.109 The United Nations, in particular the Sixth Committee of the General Assembly, was also influential in the drafting and adoption of the Genocide Convention in 1948. Article VI of the Genocide Convention contemplated the future establishment of an international penal tribunal. On the same day as the text of the Genocide Convention was adopted, the General Assembly referred the task of drafting a statute for the proposed tribunal to the International Law Commission.110 The Commission appointed a special rapporteur to the topic,111 who provided his first report in 1950.112 Work on a draft statute for an international criminal court was subsequently assigned to a special committee of the General Assembly,113 which provided a first draft in 1951.114 A further committee established in 1952 issued an amended text in 1953.115 However, efforts were suspended in 1954, pending agreement as to a definition of aggression and the resumption of work on the draft code of offences against the peace and security of mankind.116 The onset of the Cold War stalled the work of many United Nations bodies, including the General Assembly, and the proposal for an international criminal court was not taken up again until 1989.117

  UNGA Res 19 (I) (11 December 1946) UN Doc A/RES/19(I).   UNGA Res 177 (II) (21 November 1947) UN Doc A/RES/177(II).   UNGA Res 260 (III)B (9 December 1948). 111   International Law Commission, ‘Desirability and Possibility of Establishing an International Judicial Organ for the Trial of Persons Charged with Genocide or Other Crimes over which Jurisdiction will be Conferred upon that Organ by International Conventions’ (31 May 1949) UN Doc A/CN.4/7. 112   International Law Commission, ‘Report on the Question of International Criminal Jurisdiction by Ricardo J. Alfaro, Special Rapporteur’ (3 March 1950) UN Doc A/CN.4/15. 113   UNGA Res 489 (V) (12 December 1950) UN Doc A/RES/489(V). 114   UNGA, ‘Report of the Committee on International Criminal Court Jurisdiction’ UN Doc A/2135 (1952) Supplement No 11 (A/2136). 115   UNGA Res 687 (VII) (5 December 1952) UN Doc A/RES/687(VII); Official Records of the General Assembly, Ninth Session, Supplement No 12 UN Doc A/2645. 116   UNGA Res 898 (IX) (14 December 1954) UN Doc A/RES/898(IX). The General Assembly had established a special committee of 19 Member States to consider the question of defining aggression: UNGA Res 895 (IX) (4 December 1954) UN Doc A/RES/895(IX). Work on the draft code of offences against the peace and security of mankind was suspended pending consideration by the General Assembly of the report of the special committee on aggression: UNGA Res 897 (IX) (4 December 1954) UN Doc A/RES/897(IX). Progress on the draft code and the draft statute was suspended indefinitely in 1957: UNGA Res 1186 and 1187 (XII) (11 December 1957) UN Doc A/RES/1186 and A/RES/1187 . 117   UNGA Res 44/39 (4 December 1989) UN Doc A/RES/44/39. The request for the International Law Commission to revisit the issue of an international criminal court arose in the context of the need for a criminal jurisdiction to consider transnational crimes, in particular drug trafficking. Work on the Draft Code for Offences Against the Peace and Security of Mankind recommenced in 1981: see UNGA Res 36/106 (10 December 1981) UN Doc A/RES/36/106. 108 109 110



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B.  The Ad Hoc International Criminal Tribunals i.  Establishing the International Criminal Tribunal for the Former Yugoslavia Following the end of the Cold War, certain events led to a development in international criminal law. The disintegration of the Socialist Federal Republic of Yugoslavia (SFRY) in 1991 and subsequent declarations of independence by several of its constituent states led to the emergence of conflicts both between and within the former constituent states. The conflict thus had aspects of both an international and an internal armed conflict. Various attempts to resolve the conflicts failed and reports emerged of widespread violations of international humanitarian law. In October 1992, the Security Council acted to establish a Commission of Experts to examine the available evidence and to report to the SecretaryGeneral as to whether it considered there was evidence that grave breaches of the Geneva Conventions and other violations of international humanitarian law had been, or were being, committed within the territory of the former Yugoslavia.118 The Commission of Experts started its investigations in November 1992, provided an interim report to the Secretary-General in January 1993,119 and issued its final report in 1994.120 The interim report concluded that grave breaches and other violations of international humanitarian law had been committed, including wilful killing, ‘ethnic cleansing’ and mass killings, rape, torture, pillage and destruction of civilian property, destruction of cultural and religious property and arbitrary arrests. It also raised the possibility of the establishment of an international criminal tribunal to try those accused of war crimes, noting that, in the opinion of the Commission of Experts, it would be for the Security Council – or another competent body of the United Nations – to establish such a tribunal.121 Acting on this suggestion, the Security Council determined that a tribunal should be established and requested that the Secretary-General investigate possible

  UNSC Res 780 (1992) UN Doc S/RES/780, para 2.   UNSC, ‘Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780’ (1992) UN Doc S/25274 (Interim Report) Annex 1. 120   UNSC, ‘Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780’ (1992) UN Doc S/1994/674. For discussion of the work of the Commission, see M Bassiouni,‘The United Nations Commission of Experts established pursuant to Security Council Resolution 780’ (1994) 88 American Journal of International Law 784. 121   Interim Report, n 119, para 74. This was not the first time that the possibility of an international criminal tribunal for atrocities in the former Yugoslavia had been raised. The Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia also advocated the establishment of an international penal tribunal to try individuals accused of violations of inter­ national humanitarian law within the former Yugoslavia: UNSC, ‘Report of the Secretary-General on the Activities of the International Conference for the Former Yugoslavia’ (2 February 1993) UN Doc S/25221, Annex 1, para 9. For a more detailed discussion of the background to establishment, see W Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge, Cambridge University Press, 2006), 13–22 and Cryer et al, n 14, 122–35. 118 119

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options for the creation of an international tribunal.122 Based on the recommendation of the Secretary-General that the tribunal be established by a resolution,123 the Security Council established an international criminal tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.124 The Security Council used its powers under Chapter VII of the Charter to establish the International Criminal Tribunal for the former Yugoslavia (ICTY), finding that the situation in the former Yugoslavia constituted a threat to international peace and security.125 The ICTY may exercise jurisdiction with respect to the international crimes of genocide, crimes against humanity and war crimes.126 Judges are appointed to the ICTY following election by the General Assembly, from a list of candidates nominated by Member States and approved by the Security Council.127 The Prosecutor and Registrar, as well as all personnel, are international appointments.128 There is no requirement for the states of the former Yugoslavia to be represented in the judges or key personnel of the ICTY. Initial doubts from some states and commentators129 that the Security Council did not have the authority to establish such a tribunal were largely resolved in the Tadi´c case.130 The ICTY took well over a year to become operational, with judges appointed in late 1993 and the prosecutor in July 1994. The first indictments were issued in late 1994,131 the first trial began in May 1996132 and the first judgment was handed down on 29 November 1996.133 As at June 2011, the ICTY had indicted 161 individuals and convicted and sentenced 64 individuals, with 13 suspects acquitted. Cases concerning 35 accused were ongoing. 13 accused had been referred to national jurisdictions (see below) and 36 accused had their cases withdrawn or had died.134   UNSC Res 808 (1993) UN Doc S/RES/808.   UNSC, ‘Report of the Secretary-General Pursuant to Security Council Resolution 808’ (1993) UN Doc S/25704, annexing the draft statute of the tribunal. The Secretary-General had recommended that the tribunal be established by a resolution rather than by treaty, as the treaty process would be too lengthy and would not guarantee that the states most affected would become parties. 124   UNSC Res 827 (1993) UN Doc S/RES/827. 125   Statute of the International Criminal Tribunal of the Former Yugoslavia (as established by UN Security Council Resolution 808/1993 and 827/1993) UN Doc S/RES/827 (ICTY Statute). 126   ICTY Statute, arts 2, 3, 4 and 5. 127   Each judge must satisfy the requirement in art 13 of the ICTY Statute, which provides that each judge ‘shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices’. 128   ICTY Statute, arts 16 and 17; ICTR Statute, arts 15 and 16. 129   UNSC Verbatim Record (25 May 1993) UN Doc S/PV.3217. A Rubin, ‘An International Criminal Tribunal for Former Yugoslavia’ (1994) 6 Pace International Law Review 7. 130   Tadi´c Jurisdiction Decision. The legal basis of the ICTY will be discussed further in ch 3. 131   The ICTY’s first indictment was issued on 7 November 1994 in respect of Dragan Nikoli ´c , a commander of Sušica camp in eastern Bosnia and Herzegovina, for crimes committed against non-Serbs in 1992. 132   Prosecutor v Tadi´c ICTY-94-1. The trial commenced on 7 May 1996. 133   Prosecutor v Erdemovic (Sentencing Judgment) ICTY-96-22-T (29 November 1996); the accused had pleaded guilty to crimes against humanity. 134   All figures have been taken from the ICTY website and are current as at August 2011. See www. icty.org/sid/24. 122 123



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ii  Establishing the International Criminal Tribunal for Rwanda Both during and following independence in 1963, Rwanda was beset by tension between its two main ethnic groups, the Hutus and the Tutsis, with systematic killings of Tutsis documented in 1963, 1966 and 1973. In 1993, the Arusha Accords established a power-sharing arrangement between the Rwandan government and the Tutsi paramilitary group, the Rwandan Patriotic Force (RPF). The arrangement was supervised by the United Nations Assistance Mission for Rwanda (UNAMIR). The shooting-down of the aeroplane carrying President Habyarimana on 6 April 1994 ended the period of peace that had been secured by the Arusha Accords. Members of the Hutu elite moved to eliminate Tutsis. The killing was not restricted to members of the Tutsi leading class or key opposition figures, but extended to the wider Tutsi population, including women and children. The RPF mounted a counter-offensive. By the time the killings ended in July 1994, between 500,000 and 1,000,000 Tutsis had been massacred, and between 10,000 and 100,000 Hutus had been killed in the RPF counter-offensive. The killings had been conducted at great speed, within a three month period. In addition to those killed, millions were internally displaced or became refugees in neighbouring countries. Systematic rape, torture and severe assaults were also reported. In July 1994, the Security Council requested the Secretary-General to establish a Commission of Experts to examine the evidence and report its conclusions concerning grave violations of international humanitarian law and the possibility that acts of genocide had occurred in Rwanda.135 The preliminary report of the Commission of Experts concluded that there was overwhelming evidence that genocide and other widespread, systematic and flagrant violations of inter­national humanitarian law had been committed in Rwanda.136 It also recommended that the Security Council take action so that those responsible could be brought to justice before an independent and impartial international criminal tribunal, preferably by amending the statute of the ICTY so as to include jurisdiction for crimes committed in Rwanda.137 The UN Special Rapporteur for Rwanda, appointed by the Commission on Human Rights, reached a similar conclusion.138 The Government of Rwanda requested that the Security Council establish as soon as possible an international tribunal to prosecute those who had committed the genocide. It noted that the continued presence of alleged criminals was disrupting efforts to return refugees and was ‘diluting’ the question of genocide having been committed in Rwanda.139   UNSC Res 935 (1994) UN Doc S/RES/935.  UNSC, ‘Preliminary Report of the Independent Commission of Experts Established in Accordance with Security Council Resolution 935’ (1994) UN Doc S/1994/1125. 137   ibid, paras 133–42. 138   ‘Report on the Situation of Human Rights in Rwanda Submitted by the Special Rapporteur of the Commission on Human Rights, in Accordance with Commission resolution S-3/1 and Economic and Social Council Decision 1994/223’ (1994) UN Doc A/49/508-S/1994/1157. 139   UNSC, ‘Letter Dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council’ (1994) UN Doc S/1994/115. 135 136

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In November 1994 the Security Council established the International Criminal Tribunal for Rwanda (ICTR), an international tribunal for the purposes of prosecuting the people responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1994.140 Unlike the conflict(s) in the former Yugoslavia, the genocide in Rwanda was an internal affair. However, the Security Council recognised that the situation in Rwanda constituted a threat to international peace and security. As with Resolution 827 establishing the ICTY, the Security Council expressly relied upon its powers under Chapter VII of the Charter.141 Rwanda, which had originally supported the establishment of an international tribunal, voted against the resolution for reasons primarily related to the exclusion of the death penalty as a possible sentencing option.142 The ICTR may exercise jurisdiction in relation to genocide, crimes against humanity, and violations of common article 3 of the Geneva Conventions and of Additional Protocol II,143 reflecting the non-international nature of the conflict in Rwanda. Like the ICTY, its judges and personnel are international appointments, and there is no requirement for Rwanda to be represented. The first judges were elected by the General Assembly in May 1995 and the first accused arrived in May 1996. The first indictment was issued in November 1995,144 the first trial started in January 1997145 and the first judgment was issued in September 1998.146 As at July 2011, the ICTR has delivered 49 judgments affecting 66 accused. Trials are ongoing for six cases concerning 10 accused, one accused is awaiting trial and nine accused remain at large.147

iii.  The Development of the Completion Strategy The establishment of the ICTY and the ICTR were significant steps in the development of international criminal law, both in terms of its substantive content and enforcement. For the first time since the end of the Second World War, interna140   Statute of the International Criminal Tribunal for Rwanda (as established by Security Council Resolution 955 (1994) of 8 November 1994) (ICTR Statute) UN Doc S/RES/955. For a detailed discussion of the development of the ICTR, see Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, n 121. 141   Resolution 955 was put to a vote in the Security Council, with 13 members voting in favour, one abstention (China) and one, Rwanda – which happened to be a member of the Security Council at the time – voting against. 142   UNSC Verbatim Record (8 November 1994) UN Doc S/PV/3453. 143   ICTR Statute, arts 2 (genocide), 3 (crimes against humanity) and 4 (violations of common art 3 and APII). 144   Prosecutor v Kayishema and Ruzindana (Original Indictment) ICTR-95-1-A (issued 22 November 1995 and confirmed 28 November 1995). 145   Prosecutor v Akayesu ICTR-96-4-T. The trial commenced on 9 January 1997. 146   Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998). 147   UNSC, ‘Report on the Completion Strategy for the International Criminal Tribunal for Rwanda as at 12 May 2011’ UN Doc S/2011/317, as updated by reference to ICTR website on 27 July 2011.



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tional criminal tribunals were established to investigate, prosecute and try individuals accused of committing international crimes of the most grave and serious nature. The ad hoc tribunals promised the highest standards of international criminal justice, being sanctioned, established and supported by the Security Council. Hopes and expectations were high, particularly among the people of Rwanda and the former Yugoslavia. Yet by the fourth or fifth year of the operation of the tribunals there was a growing sense of disillusionment. Concerns were mounting amongst the Member States of the United Nations, the Secretariat and the tribunals themselves about the performance and efficiency of the tribunals.148 The tribunals proved to be an expensive means of securing accountability.149 Member States were reluctant to continue paying the vast amounts required for the tribunals from assessed contributions on an indefinite basis, at least without any improvement in efficiency. Perhaps more worryingly, trials before the tribunals were very long, beyond the ‘acceptable’ duration of trials required by international human rights standards and jurisprudence. Due to backlogs in reaching trial, many accused faced considerable delay in their case reaching trial, causing many to undergo unacceptable periods of pre-trial detention.150 The tribunals had delivered few final verdicts and several key figures in the conflicts, particularly those in the former Yugoslavia, remained at large, with little likelihood of apprehension. Those trials that had occurred had tended to focus on lower-level or intermediate perpetrators. These concerns led to a process of evaluation and review of the tribunals’ performance, seeking to improve the efficiency and effectiveness of the tribunals and to stem the growing criticism of the delays in trials and length of detention. The Security Council turned its attention to the date when the open-ended mandate of the tribunals could (or would) end. The Council asked the Secretary-General to submit to it a report containing an assessment and proposals regarding ‘the date ending the temporal jurisdiction’ of the ICTY.151 The Security Council did not make such a request for the ICTR, although it did refer to the need for both tribunals to expedite their work and to continue progress towards improving their procedures.152 In August 2003, a strategy to end the temporal jurisdiction of the tribunals was included in the operative part of a Security Council resolution, Resolution 1503, for the first time.153 The Resolution called upon the tribunals ‘to take all possible measures to complete investigations by the end of 2004, to 148   See D Raab, ‘Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and Their Tribunals’ (2005) 3 Journal of International Criminal Justice 82, 96. 149  For biennium 2010–11, the General Assembly approved the ICTR biennial budget of US$245,295,800 gross (US$227,246,500 net) and the ICTY biennial budget of US$301,895,900 net. 150   See: S Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’ (2004) 2 Journal of International Criminal Justice 526, ‘the length of the proceedings, at all stages [which] appears to be uncontrollable’, 527. The judges have addressed the problem of pre-trial detention to some extent by adopting a more flexible policy, with provisional release now the presumption provided certain requirements are satisfied. 151   UNSC Res 1329 (2000) UN Doc S/RES/1329, 6. 152   ibid, preambular paras 5 and 6. 153   UNSC Res 1503 (2003) UN Doc S/RES/1503.

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complete all trial activities at first instance by the end of 2008, and to complete all work in 2010’.154 This is known as the ‘completion strategy’ of the tribunals. In a non-operative paragraph the Security Council urged the ICTR to formalise a detailed strategy (modelled on the ICTY strategy) to transfer cases to national jurisdictions in order to allow the ICTR to meet similar completion targets.155 It also requested the presidents and prosecutors of the tribunals to explain their plans to implement the completion strategy in their annual reports to the Security Council.156 Both tribunals have not met the deadlines initially set by the completion strategy, ie the end of 2008 for the completion of trial activities and the end of 2010 for the completion of all judicial activities. In their most recent reports, the President of the ICTY indicated that trials should be completed by the end of 2013, with the aim for appeals to be concluded by late 2014,157 while the President of the ICTR indicated that trials would be completed by the end of 2011, with appeals to be completed in 2013.158 In December 2010, the Security Council established the International Residual Mechanism for Criminal Tribunals, which shall continue the jurisdiction, rights and essential functions of the ICTY and the ICTR. This will allow the Mechanism to fulfil the residual functions of the ad hoc tribunals following their closure.159

iv.  Relationship between the Ad Hoc Tribunals and National Jurisdictions a. Deferrals The ad hoc tribunals may exercise jurisdiction with respect to the crimes of genocide, crimes against humanity and war crimes.160 They thus enjoy concurrent jurisdiction for these crimes with national jurisdictions. Their establishment therefore raised the sensitive issue of an international criminal court exercising jurisdiction over crimes committed within the territory of a state, and the proper relationship between the international tribunal and the national courts. In resolv  ibid, para 7.   ibid, preambular para 8. This obligation was included in an operative paragraph in a subsequent resolution: UNSC Res 1534 (2004) UN Doc S/RES/1534, para 4. 156   A further reporting obligation was imposed by Resolution 1534 (2004), which requires each tribunal to provide to the Security Council every six months an assessment by its President and its Prosecutor, ‘setting out in detail the progress made towards implementation of the Completion Strategy’: para 6. 157   UNSC, ‘Identical Letters Dated 28 October 2010 from the Permanent Representative of Tajikistan to the United Nations Addressed to the Secretary-General and the President of the Security Council’ (1 November 2010) UN Doc S/2010/558. 158   UNSC, ‘Letter dated 5 November 2010 from the President of the International Criminal Tribunal for Rwanda Addressed to the President of the Security Council’ (5 November 2010) UN Doc S/2010/574. 159   UNSC Res 1966 ‘Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010), paras 1 and 4. 160   ICTY Statute, arts 2 (grave breaches), 3 (violations of the laws and customs of wars), 4 (genocide) and 5 (crimes against humanity). ICTR Statute, arts 2 (genocide), 3 (crimes against humanity) and 4 (violations of common art 3 to the Geneva Conventions and of Additional Protocol II). 154 155



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ing this potential conflict, the Statutes of the tribunals confer primacy for the ICTY and the ICTR in respect of national prosecutions. Consequently, the tribunals may request national authorities to defer national proceedings to allow the tribunal to exercise its own jurisdiction.161 Thus primacy acknowledges, to a degree, the sovereignty of states by requiring them to defer to an international tribunal.162 That the Security Council may confer primacy on an international criminal tribunal it has established has been confirmed by both the Trial and Appeals Chambers of the ICTY, with the Appeals Chamber stating that primacy was indeed essential if the tribunal was to fulfil its mandate. The Chamber noted that, without primacy, states may use various strategies to undermine the work of the tribunal, including the characterisation of international crimes as ‘ordinary crimes’.163 Both tribunals have maintained support for the principle of primacy in their practice, and have requested the deferral of national proceedings on occasion.164 Given the principle of primacy’s interference with the normal domain of a state to enforce violations of criminal law within its own boundaries, it was controversial. Several members of the Security Council, including four permanent members, made statements clarifying their understanding of the concept.165 Such statements revealed differences of opinion as to the scope of the principle, with several members of the Council suggesting an interpretation of primacy that is more consistent with the principle of complementarity. Such statements appeared to consider that primacy would only apply in ‘exceptional circumstances’, in particular those listed in article 10 of the ICTY Statute.166 In addition, some states have voiced narrow views of the principle when processing requests for deferral under national law.167 161   ICTY Statute, art 9. See also Rules of Procedure and Evidence for the International Criminal Tribunal of the Former Yugoslavia (adopted 11 February 1994, entry into force 14 March 1994) (ICTY RPE) UN Doc IT/32/Rev.45, rr 8–13; ICTR Statute, art 10; ICTR Statute, art 10; Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (adopted and entered into force 29 June 1995) (ICTR RPE), rr 8–13. 162   See B Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’ (1998) 23 Yale Journal of International Law 383. 163   Tadi´c Jurisdiction Decision, paras 58–59. 164   eg, the first accused to appear before the ICTY was surrendered to the ICTY by German authorities following a request for deferral. 165   See UNSC Verbatim Record (25 May 1993) UN Doc S/PV.3217 (1993). Statements were made by representatives of the United Kingdom, France, United States and Russian Federation. For more detailed discussion see Brown, n 162, and M El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’ (2001–02) 23 Michigan Journal of International Law 869. 166   Art 10 allows retrial by the ICTY where national proceedings were not impartial or independent or were designed to shield the accused. See in particular the UK Statement, which also suggested that primacy applied only to the states of the former Yugoslavia. This approach was rejected in the ICTR Statute, which clearly notes that the primacy of the ICTR applies to all states. The statement of the Russian Federation went further, which interpreted primacy to refer to ‘the duty of a State to give very serious consideration to a request by the Tribunal to refer to it a case that is being considered in a national court’. 167   See, eg, the proceedings before US courts in relation to the ICTR’s request for the deferral of proceedings concerning Ntakirutimana, accused of genocide. Despite the willingness of the US

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The rationale for the jurisdictional priority given to the ICTY (and the ICTR) is the nature of the events leading to their establishment. As Brown notes:168 Each of the ad hoc tribunals was specifically created to protect compelling humanitarian interests in the context of a situation identified as a threat to international peace and security. Extraordinary measures are justified to deal with such a situation, and, in the cases of the former Yugoslavia and Rwanda, they have been formally authorised under the UN Charter. All cases within the jurisdiction of the ad hoc tribunals involve fundamental humanitarian interests of concern to the international community as a whole . . . Each of the ad hoc tribunals was created to address a threat to international peace and security – the maintenance of which is the primary purpose of the United Nations . . . The primacy of the International Tribunal is thus justifiable as a necessary response to a threat of this kind and enjoys the same legally binding force as any formal decision of the Security Council.

Thus, the establishment of the ICTY and the ICTR ‘represents the high-water mark for the primacy of international criminal tribunals over national courts’.169 The interference with the sovereign right of a state to enforce its own criminal laws was justified in each case by the interest of the international community in preserving the values at stake; the humanitarian values and the threat to international peace and security. That the tribunals were ad hoc and not permanent institutions, with limited personal, temporal, substantive and territorial jurisdiction, also made the impact on sovereignty more acceptable to Member States in each case.170 However, in any event, the tribunals did not adhere to a model of absolute primacy. Instead, in several cases the Prosecutors of the tribunals effectively deferred to national proceedings by refraining from exercising primacy and by calling for the proceedings to be transferred to the national forum. This exercise of the discretionary powers of the Prosecutor ‘reflects a sort of concurrence and complementarity that functions alongside the existing system of primacy, and resulted from the division of labour on the basis of co-operation between the tribunals and domestic jurisdictions’.171 This trend has been furthered by the adoption of the completion strategy for the tribunals, and the related process of referring cases to national authorities.

Government to cooperate with the tribunal, the magistrate refused the request on the basis that to allow transfer of the accused to the ICTR in the absence of an extradition treaty would violate constitutional guarantees. While this decision was eventually overturned, it demonstrated a failure to appreciate the different nature of the request from the ICT: see Brown, ibid, 411–13; M Coombs, ‘In Re Surrender of Ntakirutimana’ (2000) 94 American Journal of International Law 171; J Godinho, ‘The Surrender Agreements Between the US and the ICTY and the ICTR: A Critical View’ (2003) 1 Journal of International Criminal Justice 502. 168   Brown, n 162, 407–08, emphasis in original. 169   Brown, n 162, 385. 170   J Holmes, ‘The Principle of Complementarity’ in R Lee (eds), The International Criminal Court: the Making of the Rome Statute: Issues, Negotiation, Results (Leiden, Martinus Nijhoff Publishers, 1999). 171   M El Zeidy, ‘From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the Ad Hoc Tribunals’ (2008) 57 International and Comparative Law Quarterly 403, 407.



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b. Referrals An essential element of achieving the completion strategy is the transfer of trials to national jurisdictions. This raises, again, the need to examine the proper relationship between international and national criminal institutions. As the ad hoc tribunals have been encouraged to achieve the completion strategy over recent years, attention has been directed at how to increase the role and capacity of national jurisdictions, both of the territorial state(s) and other states willing to exercise jurisdiction in respect of international crimes. Both tribunals have introduced a Rule 11bis to their Rules of Procedure and Evidence (RPE). This rule enables the referral of proceedings concerning lower and intermediate level accused to national jurisdictions from the tribunals,172 thus freeing up capacity within the international tribunals and encouraging the development of capacity in national courts. Cases may be referred to the authorities of the state: (1) in whose territory the crime was committed; (2) in whose territory the accused was arrested; or (3) having jurisdiction and being willing and adequately prepared to accept such a case.173 Thus it is possible that a case may be referred to a state exercising universal jurisdiction and that more than one state may wish to receive a particular referral.174 The ICTY has denied that a hierarchy favouring the territorial state is established by the possible destinations for referral listed in Rule 11bis.175 Instead, the Appeals Chamber has indicated that the preference to be accorded to a particular jurisdiction is to be assessed on a case-by-case basis, and, where more than one state may be the recipient of a referral, the case should be referred to the state having the ‘greatest nexus’ to the accused.176 Before authorising a referral, the tribunal must be satisfied that the level of responsibility of the accused and the gravity of the crimes charged in the indictment are consistent with a referral.177 It must then be satisfied that the accused will receive a fair trial after referral and that the death penalty will not be imposed or carried out.178 The Prosecutor may send observers to monitor the proceedings before the national court179 and, where the reports are 172   This reflects the introduction of the seniority requirement for the tribunals by the Security Council as part of the completion strategy: see UNSC Res 1503 (2003) UN Doc S/RES/1503 and UNSC Res 1534 (2004) UN Doc S/RES/1534. 173   ICTY RPE, r 11bis(A); ICTR RPE, r 11bis(A). 174   For a discussion of the various bases of jurisdiction included in r 11bis, see O Bekou, ‘Rule 11 bis: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence’ (2010) 33 Fordham International Law Journal 723. 175   Prosecutor v Mejaki´c (Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11 bis) ICTY-02-65 (20 July 2005) para 40. The ICTY Prosecutor has argued that r 11bis does reflect such a hierarchy – see Prosecutor v Ljubicˆi´c (Decision to Refer the Case to Bosnia and Herzegovina Pursuant to Rule 11 bis) ICTY-00-41 (12 April 2006) para 25. 176   Prosecutor v Jankovic (Decision on Rule 11bis Referral) ICTY-96-23/2 (15 November 2005) paras 33–37. 177   This is required by ICTY RPE r 11bis(C); and UNSC Res 1534 (2004) UN Doc S/RES/1534. It is not expressly stated in r 11bis in the ICTR RPE. 178   ICTY RPE, r 11bis(B); ICTR RPE, r 11bis(C). 179   ICTY RPE, r 11bis(D); ICTRRPE r 11bis(D).

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not satisfactory (including where fair trial standards have not been met), the Prosecutor may request that the referral be revoked and proceedings returned to the international level.180 From 2005 to 2007, the ICTY referred eight cases to national authorities in the states of the former Yugoslavia. Two accused were referred to Croatia, one accused to Serbia and 10 accused to Bosnia and Herzegovina. The tribunal refused requests for referral in respect of four accused due to the alleged level of responsibility and the gravity of the crimes charged. No further cases are to be referred, as all accused are considered to be senior level offenders so that it would not be appropriate to refer to national jurisdictions,181 although the ICTY continues to send investigative files and other information to national prosecutors in the region. The ICTY Referral Bench has adopted a formalistic approach to the question of referrals and the need to ensure a fair trial. It has held that, provided the national legal framework adequately provides for a fair trial, the ICTY is under no obligation at the time of referral to confirm that the protections are realised.182 Instead, the ICTY relies on monitoring of the proceedings by the Organization for Security and Co-operation in Europe (OSCE) and the possibility of revoking the order for deferral as appropriate safeguards of the right to fair trial.183 Of the cases that have been referred from the ICTY to national jurisdictions, proceedings against 11 accused have been finalised, with appellate proceedings pending against one accused and another accused unable to stand trial for medical reasons.184 In contrast, the ICTR has encountered more difficulty with referring cases to national jurisdictions. The requirement that the accused must receive a fair trial in the national jurisdiction has so far precluded referral of cases to Rwanda. Initially the justice system in Rwanda was considered to fall short of international fair trial standards and the availability of the death penalty as a sentencing option for crimes within the jurisdiction of the ICTR precluded referrals. Concerns regarding the proper functioning of the national legal system have also proved problematic for other states contemplating extraditing individuals to face trial in Rwanda. For example, in 2009 a court in the United Kingdom denied the extradition to Rwanda of four individuals suspected of genocide, finding that the individuals faced a real risk of a flagrant denial of justice were they to be extradited.185   ICTY RPE, r 11bis(F); ICTR RPE, r 11bis(F),   ICTY, ‘Report on the Completion Strategy’ (1 November 2010) UN Doc S/2010/588, para 70. For a discussion of the jurisprudence of the ICTY referral bench under r 11bis, see S Williams, ‘Referrals to National Courts: A Fair Trial or a Fair Price?’ (2006) 17(2) Criminal Law Forum 177–222. Note, however, the establishment of the residual mechanism, discussed below. 182   Prosecutor v Todovi´c & Raševi´c (Decision on Savo Todovic’s Appeal Against Decisions on Referral Under Rule 11bis) ICTY-97-25/1 (4 September 2006) para 56. 183   Rule 11bis(D)(iv) provides that the Prosecutor may send observers to monitor the national proceedings. The Office of the Prosecutor entered into an agreement with the Organization for Security and Co-operation in Europe for the monitoring of trials for referred cases. 184   ICTY, ‘Report on the Completion Strategy’ (1 November 2010) UN Doc S/2010/588. 185   Brown et al v The Government of Rwanda and the Secretary of State for the Home Department [2009] EWHC 770 (Admin). For discussion, see M Drumbl, ‘Prosecution of Genocide v. The Fair Trial Principle’ (2010) 8 Journal of International Criminal Justice 289. 180 181



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With the objective of referrals to Rwanda as part of the ICTR Completion Strategy, the Government of Rwanda reformed the relevant national law to address concerns regarding the legal framework.186 It also abolished the death penalty in 2007.187 The ICTR Prosecutor promptly filed five requests for the referral of cases to national courts in Rwanda. All requests were rejected, on the basis that national laws and procedures did not adequately guarantee a fair trial for the accused, even taking into account the improvements to the domestic legal system.188 The ICTR has adopted a strict approach to referrals to Rwanda, relying on a mixed legal and factual test in relation to the applicable legal framework in Rwanda. It has required evidence both that the domestic legal framework in Rwanda is sufficient and that the law is applied in practice.189 This is a more stringent approach than that adopted by the ICTR in relation to referrals to states other than Rwanda, and by the ICTY Referral Bench regarding referral of cases to authorities in the states of the former Yugoslavia.190 It requires the national courts in Rwanda to meet the international standards required by the ICTR, while allowing limited flexibility to the national authorities as to how that is to be achieved. Following continued efforts by the Government of Rwanda to reform national law to address the concerns of the ICTR, the ICTR Prosecutor filed a second series of requests for referral of three accused to the courts of Rwanda.191 In June 2011, the Referral Chamber authorised the referral of Jean Uwinkindi for trial in Rwanda, concluding that, in the years since its previous decision on the referral of cases to Rwanda:192 Rwanda has made material changes in its laws and has indicated its capacity and willingness to prosecute cases referred by this Tribunal. This gives the Referral Chamber confidence that the case of the Accused, if referred, will be prosecuted consistent with internationally recognised fair trial standards enshrined in the Statute of this Tribunal and other human rights instruments.

186   See Organic Law No 11/2007 Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States [Rwanda] (16 March 2007). 187   See Organic Law No 31/2007 (Death Penalty Abolition Law) [Rwanda] (25 July 2007). This law was further amended in 2008 to resolve uncertainty as to the effect of abolishing the death penalty on sentencing. 188   Most recently, Prosecutor v Hategekimana (Decision on the Prosecutor’s Appeal Against Decision on Referral Under Rule 11bis) ICTR-2000-55B-R11bis (4 December 2008) para 40, noting that, due to differences in the ability to call defence witnesses under Rwandan law, the accused’s right to a fair trial cannot be guaranteed. 189   For discussion, see J Melman, ‘The Possibility of Transfer(?): A Comprehensive Approach to the International Criminal Tribunal for Rwanda’s Rule 11BIS to Permit Transfer to Rwandan Domestic Courts’ (2010) 79 Fordham Law Review 1271. 190  ibid. 191   Requests were made on 4 November 2010 in respect of Uwinkindi, Kayishema and Sikubwabo: see ICTR, Press Release, ‘Prosecutor Files New Applications for Referral of Cases to Rwanda’ (4 November 2010) ICTR Doc ICTR/INFO-9-2-657.EN. 192   Prosecutor v Jean Uwinkindi (Decision on Prosecutor’s Request for Referral to the State of Rwanda) ICTR-2001-75-R11bis, Referral Ch (28 June 2011) para 223. The Referral Bench also noted that it has received assurances that a ‘robust monitoring mechanism’ would be in place: para 223.

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The ICTR Prosecutor has also sought to rely on Rule 11bis to request the referral of cases to a state having jurisdiction and willing and adequately prepared to prosecute the case. The Prosecutor sought to have the trial of Michel Bagaragaza referred to Norway; however the ICTR refused to approve the requested referral on the basis that the Norwegian law did not recognise the crime of genocide and that a trial for murder was the only possibility.193 The Prosecutor then had the case referred to the Netherlands (where the accused had been held for security reasons).194 However, the initial order for transfer was revoked when a Dutch court found that it did not have jurisdiction in respect of the crimes alleged to have been committed.195 Ultimately, Bagaragaza faced trial before the ICTR.196 In 2007, the ICTR approved referral of two accused for trial in France.197 In approving these request for referrals, the ICTR adopted a strictly legal – and not factual – approach to the question of whether the intended legal system would satisfy fair trial standards, similar to that adopted by the ICTY Referral Bench. This appears to be based on an acceptance that the legal systems in question meet established fair trial guarantees. The emphasis on the referral of cases to national jurisdictions is a ‘retreat from the Tribunal’s exercise of primacy’.198 Burke-White has suggested that the adoption of the Completion Strategy ‘altered the jurisdictional relationship between the ICTY and the institutions of BiH [Bosnia and Herzegovina]’ and ‘has essentially shifted the governance structure from one of absolute international primacy toward a new relationship with incentives similar to those of complementarity’.199 By enabling the ICTY and the ICTR to consider the ‘suitability’ of national jurisdictions to conduct proceedings in relation to referred cases, and to monitor and recall those proceedings if they are perceived to be inadequate or unsatisfactory, the relationship between the ICTY and the ICTR and national jurisdictions more closely resembles that of complementarity.200 As El Zeidy notes, the system of 193   Prosecutor v Michel Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom of Norway) ICTR-2005-86-R11bis, T Ch III (19 May 2006). 194   Prosecutor v Michel Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom of the Netherlands) ICTR-2005-86-11bis, T Ch III (13 April 2007). 195   For discussion of the associated Dutch decisions, see C Ryngaert, ‘The Failed Referral of Michel Bagaragaza from the ICTR to the Netherlands’, Hague Justice Portal www.haguejusticeportal.net/ eCache/DEF/11/116.html; and L van den Herik, ‘A Quest for Jurisdiction and an Appropriate Definition of Crime’ (2009) 7 Journal of International Criminal Justice 1117. 196   Prosecutor v Michel Bagaragaza (Sentencing Judgment) ICTR-2005-86-S, T Ch III (17 November 2009). 197   Prosecutor v Munyeshyaka (Trial Chamber Decision on Referral) ICTR-2005-87-I, T Ch (20 November 2007); Prosecutor v Bucyibaruta (Decision On Prosecutor’s Request For Referral Of Laurent Bucyibaruta’s Indictment To France) ICTR-2005-85-I, T Ch (20 November 2007). Investigations in France are continuing. 198   S Somers, ‘Rule 11bis of the International Criminal Tribunal for the Former Yugoslavia: Referral of Indictments to National Courts’ (2007) 30 Boston International and Comparative Law Review 175, 176. 199   W Burke-White, ‘The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia and Herzegovina’ (2008) 46 Columbia Journal of Transnational Law 297, 319 and 320. See also Melman, n 189. 200  ibid.



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complementarity and the process of referrals ‘draw the balance between the cases to be tried internationally with the limited resources at hand, and ensuring that only cases of extreme gravity are being dealt with at the international level, while those of lesser magnitude are the responsibility of domestic courts’.201 This shift towards a more complementary relationship is reflected in the transitional arrangements to follow the closure of the ICTY and the ICTR. The Statute of the Mechanism restates the concurrent jurisdiction between the Mechanism and national jurisdictions, as well as the primacy of the Mechanism and the ability to require states to defer proceedings.202 However, it emphasises the importance of the Mechanism referring cases to national jurisdictions, providing that only cases concerning the most senior leaders suspected of being most responsible for the crimes within the subject matter jurisdiction of the Tribunals should be dealt with by the Mechanism, taking into account the gravity of the crimes charged and the level of responsibility.203 This reflects the seniority and gravity requirements previously set out by the Council as part of the Completion Strategy.204 The Mechanism may only try cases concerning other accused ‘after it has exhausted all reasonable efforts to refer the case [to national jurisdictions]’.205 The tribunals and the Mechanism are urged to undertake every effort to refer cases other than those concerning senior level accused or those most responsible for the commission of international crimes to competent national jurisdictions.206 Article 6 provides for the referral of cases to national jurisdictions in terms reflecting Rule 11bis of the RPE of the tribunals. Thus, cases may be referred to the authorities of: (1) the territorial state; (2) the arresting state; or (3) a state having jurisdiction and being willing and adequately prepared to accept such a case.207 The Statute confirms that only cases of lesser gravity offences or lower levels of responsibility are to be referred.208 Resolution 1966 also requires states to cooperate fully with the Mechanism, including taking any measures necessary under their domestic law to implement its provisions and the Statute.209 It then calls upon states to ‘cooperate to the maximum extent possible in order to receive referred cases’.210

201   El Zeidy, ‘From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the Ad Hoc Tribunals’, n 171, 414. 202  Statute of the International Residual Mechanism for Criminal Tribunals, UNSC Res 1966 ‘Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) Annex 1 (Statute of the Mechanism), art 5. It also restates the non bis in idem provisions from the Statutes of the tribunals. 203   Statute of the Mechanism, art 1(2). 204   UNSC Res 1534 (2004) UN Doc S/RES/1534. 205   Statute of the Mechanism, art 1(3). 206   UNSC Res 1966, ‘Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) para 11. 207   Statute of the Mechanism, art 6(2). 208   Statute of the Mechanism, art 6(3). 209   UNSC Res 1966, ‘Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) para 9. 210   UNSC Res 1966, ‘Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) para 12.

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The potential role of the Mechanism in relation to the trial of persons indicted by the ICTY will now be quite limited, as all fugitives have now been detained and transferred to the custody of the tribunal.211 The impact may be greater for the ICTR, where nine accused remain at large. Applications seeking the referral of two cases concerning two fugitives to Rwanda are pending before the ICTR.212 Of the remaining seven fugitives, it appears that not all would be appropriate for referral to a national court due to the requirement that only the lower and intermediate level accused to be referred.213

v.  Conclusion: The Ad Hoc Tribunals and Their Contribution to International Criminal Justice The ICTY and the ICTR have had a significant impact upon the development of international criminal law, both substantive and procedural.214 However, as nonpermanent institutions their reach is significantly limited due to their narrow substantive, territorial, personal and temporal jurisdiction, and their ad hoc basis; they can never provide an end to impunity globally. Moreover, the serious issues with costs, delay and inefficiency presented by the operation of the tribunals means that it is unlikely that such tribunals will be established in future.215 Even where such institutions are to be considered in future, given the political nature of the Security Council, their establishment will always be politicised and highly selective.216 The tribunals do illustrate the possible benefits of international prosecution, the ability to override state sovereignty, the power of a mandate from the Security Council under Chapter VII of the Charter, independence and impartiality, and the support of the international community. Yet they also demonstrate the possible limitations of international prosecution. Until the adoption of the completion strategy directed attention at the capacity of national jurisdictions in the affected states, the tribunals had a minimal impact on building national legal capacity.217 In addition, the tribunals have been perceived as removed from 211   Mladi ´c  was transferred by Serbian authorities to the ICTY in May 2011, with the remaining fugitive, Goran Hadži ´c , transferred in July 2011. 212  ICTR, Press Release, ‘Prosecutor Files New Applications for Referral of Cases to Rwanda’ (4 November 2010) ICTR Doc ICTR/INFO-9-2-657.EN. 213   eg, Protais Mpiranya formerly held the role of Commander of the Presidential Guard Battalion within the High Command of the Rwandan Army. He is charged with genocide, crimes against humanity and war crimes. With his role indicating significant seniority and apparent responsibility, the Mechanism would likely be the most appropriate forum for any trial of Mpiranya should he be arrested. 214   See R Zacklin, ‘The Failings of Ad Hoc International Tribunals’, (2004) 2 Journal of International Criminal Justice 541; A Cassese, ‘The ICTY: A Living and Vital Reality’ (2004) 2 Journal of International Criminal Justice 585; G McDonald, ‘Problems, Obstacles and Achievements of the ICTY’ (2004) 2 Journal of International Criminal Justice 558; E Mose, ‘Main Achievements of the ICTR’ (2005) 3 Journal of International Criminal Justice 920. 215   Zacklin, ibid, 545. 216  Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6. 217  See W Burke-White, ‘The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina’ (2008) 46 Columbia Journal of Transnational Law 279.



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affected populations and as ‘imposed justice’. The tribunals initially favoured the international approach, relying upon the primacy of international institutions over national courts and the ability to require deferral of national proceedings in favour of those at the international level, with no consideration as to the appropriateness and standard of the national proceedings. However, their relationship with national courts has gradually become less competitive, as is reflected in the completion strategy and its commitment to referrals to national courts, the tribunals’ increased support for national prosecutions in the region, including its outreach and the provision of technical assistance to national courts.

C.  The International Criminal Court i. Establishment While the ad hoc international tribunals certainly had their failings, their establishment was an important step in reigniting interest in the creation of a permanent international criminal court. As noted above, early efforts to establish such a court had stalled amidst the tension of the Cold War period.218 While the General Assembly had invited the International Law Commission to resume its work on the Draft Code of Offences against the Peace and Security of Mankind in 1981,219 which the Commission eventually concluded in 1996,220 the draft code did not provide for the body that would have jurisdiction to try such offences. In 1989 the General Assembly requested the International Law Commission to address, as part of its work on the draft code, ‘the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code’.221 The Commission submitted the final version of its draft statute for an international criminal court to the General Assembly in 1994.222 Both the draft code and the draft statute were to play a significant role in the development of the Rome Statute some years later.223 The ICC was established by a treaty, the Rome Statute. The Rome Statute was adopted on 17 July 1998 by 120 218  For an introduction to the background to the ICC, see W Schabas, An Introduction to the International Criminal Court, 4th edn (Cambridge, Cambridge University Press, 2011). 219   UNGA Res 36/106 (10 December 1981) UN Doc A/RES/36/106. 220  International Law Commission, ‘Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission 48th Session’ II(2) (1996) Yearbook of the International Law Commission 17. 221   UNGA Res 44/39 (4 December 1989) UN Doc A/RES/44/39, para 1. 222   International Law Commission, ‘Draft Statute for an International Criminal Court’ (1994) vol II(2)Yearbook of the International Law Commission, UN Doc A/CN.4/SER.A/1992/Add.l(Part 2) See: J Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’ (1994) 88 American Journal of International Law 140 and J Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’ (1995) 89 American Journal of International Law 404. 223  For an introduction to the background to the ICC, see Schabas, An Introduction to the International Criminal Court, n 218; P Kirsch and J Holmes, ‘The Birth of the International Criminal Court: The 1998 Rome Conference’ (1998) 36 Canadian Yearbook of International Law 3.

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states, with 21 abstentions and seven votes against, including the United States, Israel and China.224 States were given until 31 December 2000 to sign the Rome Statute as an initial step signalling their intent to ratify the treaty.225 By that date 139 states had signed the treaty, including some states (like the United States)226 that had initially opposed the adoption of the Rome Statute at the Rome Conference. The Rome Statute required 60 ratifications or accessions for it to enter into force.227 This occurred on 11 April 2002, when 10 states deposited instruments of ratification simultaneously. The Rome Statute entered into force on 1 July 2002, the date that was the first day of the month following a period of 60 days after the sixtieth ratification or accession.228 This date is highly significant because the ICC has only prospective jurisdiction; that is, it may only exercise jurisdiction in respect of situations arising after the date of the entry into force of the Rome Statute.229 The Assembly of State Parties (ASP) convened for a first session in September 2002 and formally adopted the Rules of Procedure and Evidence and the Elements of Crimes.230 Judges were elected to the Court in February 2003, and the Prosecutor was appointed in April 2003. The Prosecutor opened the first investigation in June 2004,231 the first accused was arrested and surrendered on 17 March 2006232 and the ICC commenced its judicial activities shortly thereafter.233 As at July 2011, there were 116 states parties to the Rome Statute, representing all regions of the world.234

ii. Jurisdiction The final version of the Rome Statute reflects several important compromises reached at the Rome Conference. Most importantly, the jurisdiction of the ICC is 224   There is no official record of how states voted, as the United States specified that it did not wish the vote to be recorded. 225   Rome Statute, art 125. 226   However, the successor Bush administration did not favour participating in the treaty and purported to ‘unsign’ the Rome Statute on 6 May 2002. The communication from the United States government to the Secretary-General of the United Nations indicates that the United States no longer intended to become a party to the Rome Statute. Israel lodged a similar declaration later that year. 227   Rome Statute, art 126. 228   Rome Statute, art 126. 229   Rome Statute, art 11. 230   See Assembly of State Parties to the Rome Statute of the International Criminal Court, Official Records, First Session (New York 3–10 September 2002) ICC-ASP/1/3. 231  The first investigation concerned grave crimes allegedly committed on the territory of the Democratic Republic of Congo since 1 July 2002: Statement of the OTP, ‘The Office of the Prosecutor of the International Criminal Court Opens its First Investigation’ (23 June 2004). 232   Mr Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the Union des Patriotes Congolais (UPC), was arrested and transferred to the ICC on 17 March 2006. Pre-Trial Chamber I had issued a sealed warrant of arrest against Mr Lubanga on 10 February 2006 and also requested that the Democratic Republic of the Congo arrest and surrender him to the Court. 233   On 20 March 2006, Pre-Trial Chamber I held an initial public hearing to verify the identity of Thomas Lubanga Dyilo. 234   Information obtained from the ICC website. For further details, see www.icc-cpi.int/Menus/ ASP/states+parties/.



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restricted in several ways, thus ‘preserving the jurisdictional primacy of sovereign states’.235 First, as noted above, the ICC may only exercise prospective jurisdiction, that is it may only exercise jurisdiction in respect of situations occurring after 1 July 2002.236 Second, the ICC may only exercise jurisdiction where the alleged criminal conduct occurred on the territory of a state party or the accused is a national of a state party.237 This requirement does not apply where the state concerned accepts the jurisdiction of the ICC by lodging a declaration to that effect,238 or where the Security Council, acting under Chapter VII of the United Nations Charter, refers a situation to the ICC. Third, the ICC is bound by the principle of complementarity, which stipulates that the ICC may only exercise jurisdiction where the territorial state is not currently investigating or prosecuting the case or is unwilling or genuinely unable to do so. This principle is discussed in more detail below. Fourth, the jurisdiction of the ICC is restricted to persons over 18 years of age239 accused of committing the most serious crimes of international concern, that is, it is not intended that the ICC will deal with lower level offenders or less serious crimes.240 Fifth, the ICC has limited material jurisdiction and currently has jurisdiction only in respect of war crimes, crimes against humanity and genocide.241 The Court may in future be able to exercise jurisdiction in respect of the crime of aggression following the adoption of a definition of the crime of aggression by the first Review Conference of the Rome Statute in June 2010.242 Finally, the Council, acting pursuant to its powers under Chapter VII, may delay or preclude the commencement of an investigation or prosecution by sending a 235   M Newton, The Complementary Conundrum: Are We Watching Evolution or Evisceration?’ (2010) 8 Santa Clara Journal of International Law 115, 127. 236   Rome Statute, art 11. Where a state becomes a party to the Rome Statute after it has entered into force, the ICC only has jurisdiction with respect to crimes committed after the entry into force of the Statute for that state. 237   Rome Statute, art 12(2). The ICC would also have jurisdiction if the crime was committed on board a vessel or aircraft and the state of registration of that vessel or aircraft is a party. 238   Rome Statute, art 12(3). 239   Rome Statute, art 26. 240   Art 1 provides that the ICC will only exercise jurisdiction ‘over persons for the most serious crimes of international concern’. Art 17(1)(d) provides that the ICC must find a case inadmissible where it is not of sufficient gravity to justify further action by the ICC. For further discussion, see R Murphy, ‘Gravity Issues and the International Criminal Court’ (2006) 17 Criminal Law Forum 281 and M El Zeidy, ‘The Gravity Threshold Under the Statute of the International Criminal Court’ (2007) 19 Criminal Law Forum 35. 241   Rome Statute, arts 5–8. 242   ‘Resolution RC/Res.6’ (adopted 11 June 2010) Review Conference of the Rome Statute (Kampala 31 May–11 June 2010. The agreed definition will be inserted as Art 8bis of the Rome Statute. However, even following the adoption of a definition, which was reached as a result of much compromise at the review conference, the ICC will not be able to exercise jurisdiction in respect of the crime of aggression for several years. Moreover, states will be able to opt out of the Court’s jurisdiction with respect to the crime of aggression, and there are important limits as to when jurisdiction may be exercised. For further discussion, see C Wenaweser, ‘Reaching the Kampala Compromise on Aggression: The Chair’s Perspective’ (2010) 23 Leiden Journal of International Law 883; N Blokker and C Kress, ‘A Consensus Agreement on the Crime of Aggression: Impressions from Kampala’ (2010) 23 Leiden Journal of International Law 889; and C Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”? Introducing Debates and Voices on the Definition of “Aggression” ’ (2010) 23 Leiden Journal of International Law 875.

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request to that effect to the ICC. The request for delay is to be for a renewable 12-month period.243 A related restriction on the exercise of jurisdiction by the ICC is the limited number of mechanisms for ‘triggering’ the Court’s jurisdiction. There are three ‘triggering mechanisms’: referral of a situation to the Court by a state party;244 the exercise of the Prosecutor’s proprio motu powers to commence an investigation;245 and the referral of a situation to the Court by the Security Council using its powers for international peace and security under Chapter VII of the UN Charter.246 As at July 2011, the Court had exercised its jurisdiction in respect of six situations. Three situations have been referred by state parties to the Rome Statute, namely the situations in northern Uganda,247 the Democratic Republic of the Congo248 and the Central African Republic.249 The practice whereby states ‘self-refer’ situations within their own territory to the ICC was not considered likely when the Rome Statute was adopted. In fact, consensus at the time was that those states that had armed conflicts within their territory or other situations that may attract the jurisdiction of the ICC would refrain from becoming state parties to the Rome Statute. Instead, the Prosecutor has adopted a policy of encouraging voluntary referrals and states have been willing to refer situations to the ICC. The Security Council has referred two situations to the Court: the situation in Darfur, Sudan in 2005;250 and the situation in Libya in 2011.251 The Prosecutor has 243   Rome Statute, art 16. A request has been made on one occasion concerning jurisdiction regarding peacekeeping forces of non-party states. Art 16 has more recently been suggested as a response to the ICC Prosecutor’s request for an arrest warrant in respect of President Bashir of Sudan: see R Cryer, ‘The Security Council, Article 16 and Darfur’ (29 October 2008) Oxford Transitional Justice Research Working Paper Series and A Ciampi, ‘The Proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 ICC Statute’ (2008) 6 Journal of International Criminal Justice 885. 244   Rome Statute, arts 13(a) and 14. 245   Rome Statute, arts 13(c) and 15. 246   Rome Statute, art 13(b). 247   Referred by Uganda in December 2003, see Statement of the OTP, ‘President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC’ (29 January 2004). 248   Referred by the Democratic Republic of Congo on 19 April 2004, see Statement of the OTP, ‘Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo’ (19 April 2004). 249  Referred by the Central African Republic on 7 January 2005, see Statement of the OTP, ‘Prosecutor Receives Referral Concerning Central African Republic’ (7 January 2005). 250   UNSC Resolution 1593 (2005). For discussion of this referral, see R Cryer, ‘Sudan, Resolution 1593 and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195 and M Happold, ‘Darfur, the Security Council, and the International Criminal Court’ (2006) 55 International and Comparative Law Quarterly 226. Indictments have been issued against six accused. Three accused remain at large (including President Al-Bashir of Sudan on charges of genocide, crimes against humanity and war crimes), charges against one accused were not confirmed, and the two remaining accused appeared voluntarily in June 2010. Sudan is not a party to the Rome Statute. 251   UNSC Res 1790 (2011) UN Doc S/RES/1790. On 3 March 2011, the Prosecutor announced his intention to open an investigation into crimes alleged to have been committed in Libya, see Statement of the OTP, ‘ICC Prosecutor to Open an Investigation in Libya’ (3 March 2011). Pre-Trial Chamber I issued arrest warrants in respect of three individuals, including the de facto head of state of Libya, Muammar Mohammed Abu Minyar Gaddafi, on 27 June 2011, on charges of murder and persecution as crimes against humanity: Situation in the Libyan Arab Jamahiriya, Decision on the Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 27 June 2011.



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to date exercised his power to commence an investigation proprio motu in respect of one situation, the situation of Kenya following electoral violence in that country in 2008.252 The Kenyan government unsuccessfully challenged the jurisdiction of the Court under article 19 of the Rome Statute on the basis of the complementarity principle.253 The Office of the Prosecutor (OTP) is actively monitoring the situations in Afghanistan,254 Colombia,255 Côte d’Ivoire,256 Georgia,257 Guinea,258 Honduras,259 Nigeria,260 North Korea261 and Palestine.262 The Prosecutor has so far declined to open an investigation in two situations: Iraq263 and Venezuela.264

252   Pre-Trial Chamber II authorised the Prosecutor to open an investigation into the situation in Kenya on 31 March 2010: Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of the Opening of an Investigation into the Situation in the Republic of Kenya, 31 March 2010. On 8 March 2011, the Pre-Trial Chamber granted the Prosecutor’s request to issue a summons requiring six suspects to appear before the Court on charges of crimes against humanity. Those suspects appeared voluntarily in April 2011. See also the request for an investigation in respect of Côte d’Ivoire, n 256. 253   Situation in the Republic of Kenya, Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, 31 March 2011. The Pre-Trial Chamber rejected the admissibility challenge: Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute) ICC-01/09-01/11, P T Ch, (30 May 2011). However, an appeal by the Government of Kenya is pending. For further discussion, see ch 3, section III(E). 254   The preliminary investigation was made public in 2007. 255   The preliminary investigation was made public in 2006. 256   On 1 October 2003, the Government of Côte d’Ivoire submitted a declaration accepting the jurisdiction of the Court as of 19 September 2002. On 23 June 2011, the Prosecutor submitted a request under art 15: Situation in the Republic of Côte D’Ivoire, Request for authorisation of an investigation pursuant to art 15. If the investigation is authorised, it will be the first occasion on which an investigation has been opened concerning a state that is not a party to the Rome Statute, but has accepted the jurisdiction of the Court. 257   Statement of the OTP, ‘ICC Prosecutor Confirms Situation in Georgia Under Analysis’ (20 August 2008). 258   Statement by ICC Deputy Prosecutor, ‘ICC Deputy Prosecutor: We are Keeping an Eye on Events in Guinea’ (19 November 2010) 259   OTP, Weekly Briefing (16–22 November 2010). 260  ibid. 261   The investigation concerns crimes alleged to have been committed by North Korean forces in the territory of the Republic of Korea (which is a state party to the Rome Statute). See Statement of the OTP, ‘ICC Prosecutor: Alleged War Crimes in the Territory of the Republic of Korea Under Preliminary Investigation’ (6 December 2010). 262   On 22 January 2009, the Palestinian National Authority lodged a declaration with the Registrar under art 12(3) of the Rome Statute which allows states not party to the Statute to accept the Court’s jurisdiction. The OTP is currently considering whether the declaration meets the requirements set by the Rome Statute for an acceptance of jurisdiction by a state. 263  OTP response to communications received regarding Iraq: OTP, ‘Letters to Senders re Iraq 9 February 2006’ (9 February 2006). The prosecutor found that, while there was evidence to suggest that war crimes had been committed by British troops in Iraq, the crimes were not of sufficient gravity to warrant the exercise of jurisdiction by the ICC. 264   See OTP response to communications received concerning Venezuela: OTP, ‘Letters to Senders re Venezuala 9 February 2006’ (9 February 2006). The Prosecutor did not find a reasonable basis to believe that crimes against humanity had been committed.

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iii.  ‘Complementary’ Justice: The System of International Criminal Justice as Contemplated by the Rome Statute When the Rome Statute was negotiated, it was clear that the model of primacy adopted for the ICTY and ICTR was not a realistic option for a permanent international criminal court.265 States were prepared to tolerate interference with their sovereignty for the purposes of an ad hoc, temporary court established by the Security Council as part of its mandate for maintaining international peace and security. However, they were not prepared to do so on a permanent basis, for significant crimes, in particular the crime of aggression, and for a court to be established by a treaty rather than by a Security Council resolution.266 Moreover, in most situations the Security Council would not be involved in consenting to or initiating the exercise of jurisdiction by the ICC.267 States were also particularly concerned regarding the independent power of the Prosecutor to initiate investigations.268 The limited resources to be allocated to the ICC raised the risk that more than a few, highly significant, cases would overwhelm the capacity of the ICC. This required the recognition that the ICC could not be considered a replacement for national jurisdiction and, at best, could expect to try only a few cases in a limited number of situations. Practical considerations also dictated that national courts should have a considerable role in relation to a permanent court, as the affected state is often in a better position to access evidence and using the existing legal framework at the domestic level, which is established and familiar to the participants, is more efficient.269 Consequently, the negotiators of the Rome Statute searched for a different relationship than primacy to apply as between the ICC and national jurisdictions.270

  Brown, n 162.   Brown, ibid; Holmes, ‘The Principle of Complementarity’, n 170.   Earlier proposals had provided a greater role for the Security Council in the Court’s exercise of jurisdiction. eg, the International Law Commission draft statute for a permanent international criminal court provided that only states parties and the Security Council could refer cases to the ICC and, where the situation had not been referred by the Council, the Court could only exercise jurisdiction where both the state with custody and the territorial state had accepted the Court’s jurisdiction: International Law Commission, ‘Report of the International Law Commission on the Work of its Forty-Sixth Session’ (1994) UN Doc A/49/10. See also J Crawford, ‘The Making of the Rome Statute’ in P Sands (ed), From Nuremberg to the Hague: The Future of International Criminal Justice (Cambridge, Cambridge University Press, 2003). 268   C Stahn, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Criminal Law Forum 87, 96; M Bergsmo, ‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship between the Court and the Security Council’ (2000) Nordic Journal of International Law 69. See also P Kirsch and D Robinson, ‘Initiating of Proceedings by the Prosecutor’ in A Cassese, A Eser, G Gaja, P Kirsch, A Pellet and B Swart (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) vol I, 660. 269   The advantages offered by trials before national courts were discussed during negotiations for the Rome Statute: ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, GAOR 50th Session, Supplement No 22 (1995) UN Doc A/50/22, para 31. 270   For discussion see Holmes, n 170, 41. 265 266 267



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States settled instead on the principle of complementarity; that is, the notion that international proceedings should complement, but not replace, national proceedings.271 Complementarity requires that national courts will bear the primary responsibility for enforcement of international criminal law. Accordingly, the ICC is to function as a court of last resort, where accountability cannot be secured at the national level.272 As the Prosecutor has stated: 273 The effectiveness of the International Criminal Court should not be measured by the number of cases that reach it. On the contrary, complementarity implies that the absence of trials before this Court, as the consequence of the regular functioning of national institutions would be a major success.

In delineating the jurisdiction of the ICC from that of states, in particular national courts, the principle of complementarity is perhaps the key feature of the Rome Statute.274 The principle was described by several states during the negotiation process ‘as an essential element in the establishment of an international criminal court’.275 The principle of complementarity is reflected in the preamble to the Rome Statute, which recalls that ‘it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes’, and also in article 1, which provides that the ICC ‘shall be complementary to national criminal jurisdictions’. Complementarity is considered as an issue of admissibility under article 17 of the Rome Statute, rather than as a question of jurisdiction.276 Thus, even though the Court may otherwise have jurisdiction in a particular situation, the Court will be unable to exercise that jurisdiction other than in certain circumstances.277 Article 17 of the Rome Statute retains a role for the ICC where: (1) the state has not taken action;278 (2) the case has been investigated or prosecuted by a 271   The notion of complementarity featured in the International Law Commission draft statute for a permanent international criminal court, but the definition and scope of the principle was substantially developed during negotiations. For discussion of the development of the principle of complementarity, see: M El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Leiden, Martinus Nijhoff Publishers, 2008). 272  M Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591, 599. 273   L Moreno Ocampo, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the ICC (16 June 2003). 274   Bergsmo, n 268, 87. 275   Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR 50th Session, Supplement No 2 (1995) UN Doc A/50/22, para 29. 276  Schabas, An Introduction to the International Criminal Court, n 218, 187–89 for a discussion of the difference between jurisdiction and admissibility in the Rome Statute. 277   Benzing, n 272, 594. 278   That the ICC may exercise its jurisdiction where the state concerned has taken no steps to exercise its jurisdiction is not stated expressly in art 17 of the Rome Statute. However, to preclude the exercise of jurisdiction by the ICC in such circumstances does not make sense and would be contrary to the purpose of the Rome Statute, which is to end impunity. That the ICC may exercise jurisdiction in the face of inactivity has been confirmed by the Court. eg, in Lubanga, Pre-Trial Chamber I said ‘The first part of the test relates to national investigations, prosecutions and trials concerning the case at hand insofar as such case would be inadmissible only if those States with jurisdiction over it have

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state, but the state is ‘unwilling or unable genuinely to carry out the investigation or prosecution’;279 or (3) the case has been investigated by a state and a decision not to prosecute the accused has been made, but that decision ‘resulted from the unwillingness or inability of the State genuinely to prosecute’.280 The drafters of the Rome Statute provided limited guidance as to when a state may be considered ‘unwilling or unable’. In determining inability in a particular case, the Court is required to consider whether, ‘due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.281 A state will be considered unwilling where: the proceedings or decision not to prosecute were taken with the purpose of shielding the individual; there has been an unjustified delay in bringing the proceedings, which is inconsistent with an intent to bring the person concerned to justice; and/or the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.282 Therefore, the circumstances in which the ICC may need to intervene reflect many of the problems with trials before domestic courts already identified,283 in particular: inability due to the collapse of the judicial system; unwillingness, due to a lack of political will where the perpetrators, or those closely connected to the perpetrators, are still in power or due to a desire to avoid potential repercussions for national reconciliation; or where national laws preclude prosecution. Complementarity – as well as the requirement that the crimes be of a sufficient gravity284 – thus functions ‘as a bar to the Court’s consideration of a case’285 and is inherently linked to questions concerning the exercise of jurisdiction. Complementarity aims to balance the competing interests at stake in inter­national criminal justice, by preserving the sovereignty of the state to prosecute criminal activity, but also by setting the outer parameters for the exercise of that authority. Where a state does not exercise its primary function to investigate and prosecute offenders, then the ICC can step in, thus preserving the interest of the inter­national community in ending impunity for those accused of committing international crimes. It envisages a system of international criminal justice comprising national courts as the primary tool to avoid impunity, supported by trials at the international level where national trials have not occurred or have not been conducted in good remained inactive in relation to that case or are unwilling or unable . . .’: Prosecutor v Lubanga (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04-01/06, P T Ch I (10 February 2006) para 29, emphasis added. Thus, where no state has taken any action, the Court does not need to assess whether the state is unwilling or unable. See also W Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010) 340–44. 279   Rome Statute, art 17(1)(a). 280   Rome Statute, art 17(1)(b). 281   Rome Statute, art 17(3). 282   Rome Statute, art 17(2). 283   See this ch 1, section II(C). 284   Rome Statute, art 17(1)(d). 285   Holmes, ‘The Principle of Complementarity’, n 170, 61.



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faith. Complementarity places the ICC in a limited super­visory role, in relation to ‘irresponsible states that refuse to prosecute nationals who commit heinous inter­ national crimes’ but balances that power ‘against the sovereign right of states to prosecute their own nationals without external interference’.286 The principle also raises the issue as to the relationship between the ICC and the courts of third states acting on the basis of universal jurisdiction.287 Article 17 of the Rome Statute refers to ‘a State’, which is not necessarily the territorial state. Consequently, it is possible that a third state exercising universal jurisdiction in respect of an international crime may render a case inadmissible before the ICC. While this issue has yet to arise, it is certainly arguable that, given the concerns surrounding the exercise of universal jurisdiction, this basis of jurisdiction should perhaps be the ‘ultimate’ last resort. That is, a state should not seek to exercise jurisdiction on this basis unless states with a preferable link to the crime, or the ICC, are not willing or able to exercise jurisdiction.288 Complementarity has already achieved positive results. First, in order to ensure that national authorities can satisfy the requirements of complementarity by conducting prosecutions at the national level, many states have introduced new legislation or updated existing legislation criminalising the international crimes within the jurisdiction of the ICC.289 This has strengthened the capacity of states to try core crimes, thus reinforcing and enabling the primary responsibility of states for enforcing international criminal law. The desire to avoid intervention by the ICC in a situation has also provided an incentive for states to implement treaty obligations fully and to improve national justice systems so as to comply with inter­ national minimal standards.290 This is perhaps most clearly demonstrated by the reforms introduced by the government of Kenya in an attempt to render two cases arising from the post-election violence in Kenya inadmissible.291 Another – albeit largely unanticipated – development has been the emergence of an approach to complementarity that emphasises cooperation between the ICC and national jurisdictions. This approach, often referred to by terms such as ‘positive complementarity’,292 and ‘co-operative complementarity’,293 has been   Newton, n 235, 121.   See this ch 1, section II(D).   See Kleffner, n 28, 106–09; Ryngaert, ‘Applying the Rome Statute’s Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting Under the Universality Principle’ n 94. 289   See Kleffner, ibid. 290   W Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557; Bekou and Shah, n 43. 291   See ch 3, section III(E). 292   The OTP refers to a ‘positive approach to complementarity, meaning that it encourages genuine national proceedings where possible’: OTP, Report on Prosecutorial Strategy, 14 September 2006, 5 (emphasis in original). In its most recent strategy document, the OTP refers to ‘positive complementarity’, which it defines as ‘a proactive policy of cooperation aimed at promoting national proceedings’: OTP Prosecutorial Strategy 2009–12, 1 February 2010, 4–5. 293   M Cross and S Williams, ‘Recent Developments at the ICC: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui – A Boost for “Co-operative Complementarity”?’ (2010) 10 Human Rights Law Review 336. 286 287 288

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developed by the ICC Prosecutor.294 The strategy of the OTP is ‘to encourage and facilitate states to carry out their primary responsibility of investigating and prosecuting crimes’.295 This approach to complementarity reflects the view that national courts and the ICC are in a partnership for achieving international criminal justice, and that the state concerned and the ICC can make a decision, jointly, as to the allocation of responsibility for prosecution and arrangements for ‘burden-sharing’.296 One aspect of this approach has been the Prosecutor’s encouragement of self-referral of situations by states to the ICC,297 which has raised the issue of whether the territorial state can ‘waive’ its primary right to try individuals, preserved by complementarity, in favour of proceedings before the ICC.298 The Appeals Chamber of the ICC has held that it is consistent with both the obligation of a state to prosecute international crimes and the principle of complementarity for a state to take ‘the sovereign decision to relinquish its jurisdiction in favour of the Court’, either by deciding not to take any steps itself, or by terminating existing proceedings so as to surrender the accused to the ICC.299 For the Appeals Chamber, ‘the complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings visà-vis the International Criminal Court on the one hand, and the goal of the Rome Statute to “put an end to impunity” on the other hand’.300 A second aspect has been the development of so-called ‘reverse cooperation’, the provision of cooperation by the ICC to states in conducting national trials for international crimes.301

294   The strategy is based in an expert paper prepared for the OTP in 2003: Paper on Some Policy Issues before the Office of the Prosecutor, September 2003 (available at www.icc-cpi.int/NR/ rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf). 295   ibid, 5. 296   The OTP strategy states that ‘the Court and a territorial State incapacitated by mass crimes may agree that a consensual division of labour is the most logical and effective approach’: ibid, 5. 297   See also this ch 1, section III(B)(iv)(b). 298   See, eg, Benzing, n 272, 629–31; W Burke-White and S Kaplan, ‘Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation’ (2009) 7 Journal of International Criminal Justice 257; and C Kress, ‘“Self-Referrals” and “Waivers” of Complementarity: Some Considerations in Law and Policy’ (2004) 2 Journal of International Criminal Justice 944. For criticism of this development, particularly in the context of self-referrals by states, see W Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’ (2007) 19 Criminal Law Forum 5; and G Bitti and M El Zeidy, ‘The Katanga trial Chamber Decision: Selected Issues’ 2010 23 Leiden Journal of International Law 319 (arguing that an agreement between the Prosecutor and the state restricts the ability of the accused to challenge admissibility). 299   Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) ICC-01/04-01/07 OA 8, A Ch (25 September 2009) para 85. For discussion see Cross and Williams, n 293. 300   Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) para 85. 301  F Gioia, ‘State Sovereignty, Jurisdiction, and “Modern” International Law: The Principle of Complementarity in the International Criminal Court’ (2006) 19 Leiden Journal of International Law 1095.

Conclusion 55

iv. Conclusion During the negotiation of the Rome Statute and in the early phases of the ICC, ‘ICC jurisdiction and domestic jurisdiction were largely viewed as competing, or diametrically opposed, concepts’.302 The Rome Statute itself reflects a carefully constructed balance between the twin aims of preserving state sovereignty and ensuring accountability for international crimes, as shown in the provisions on the exercise of jurisdiction and admissibility, in particular the principle of complementarity. However, recent years have seen a shift in focus from the ICC as an alternative mechanism to national courts, or a ‘substitution model’,303 towards an appreciation of the ICC as part of a comprehensive system of inter­ national criminal justice. This view advocates that the Rome Statute does more than merely delineate jurisdiction. Instead ‘the Statute may be said to create a system of judicial enforcement for the prosecution of the most serious inter­ national crimes at both the domestic and international levels . . . complementarity regulates the allocation of authority between States and the international court and recognises the shared competence and, perhaps even common duty, of national and international institutions to help bring about an end to impunity’.304 Complementarity therefore reflects a broader system ‘under which the Court and domestic jurisdictions are meant to reinforce each other in their mutual efforts to institutionalise accountability for mass crimes’.305 It has thus moved beyond the ‘threat’ used to procure prosecution by states, to an approach that considers the best circumstances for effective prosecution.

IV. Conclusion This chapter has considered the emerging system of international criminal justice. It has demonstrated that international criminal law has been shaped by two primary interests: the preservation of state sovereignty, reflected in national trials for international crimes on the one hand, and the interest of the international community in ending impunity for violations of international criminal law, reflected in trials before international institutions and before the courts of third states on the other. The present system is one of relatively recent origin, and the appro­ priate balance between these two interests is still being developed. The existing system is largely decentralised, with states remaining the primary actors in 302   C Stahn, ‘Perspectives on Katanga: An Introduction’ (2010) 23 Leiden Journal of International Law 311, 311. 303   W Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’ n 290, 558. 304   W Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59, 65. 305   C Stahn, ‘Complementarity: A Tale of Two Notions’, n 268, 91.

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securing accountability for violations of international criminal law. Other than in limited circumstances, states are not subject to an obligation to exercise criminal jurisdiction in respect of international crimes and there is no supervisory mechan­ ism by which states may be compelled to do so. Similarly, there is no formal hierarchy or ‘conflict rules’ determining which state should exercise jurisdiction where there are equally valid but competing jurisdictional claims. Instead, cooperation and interaction between states and between states and international institutions is largely governed by formal arrangements and informal exchanges. State sovereignty continues to dominate, as reaffirmed by the complementarity regime governing the ICC, the process of referral of cases to national jurisdictions adopted by the ad hoc tribunals, the newly established residual Mechanism, and the emerging principle of subsidiarity in the context of universal jurisdiction. The approach initially adopted in circumstances where concurrent national and international jurisdiction for international crimes existed was to view the relationship between such jurisdictions as a competitive one, with the interests of the international community always favouring international prosecutions. This was evidenced particularly in the creation of the ICTY and the ICTR, which could require the deferral of national proceedings, and also in the notion of the ICC as the safeguard of the international interest, by stepping in to secure accountability where states failed to do so. However, this approach is changing. The ICTY and the ICTR have adopted a more cooperative approach to national jurisdictions, required by the imposition of the completion strategy and the need to refer cases to national courts. Similarly, the ICC has shifted to a more nuanced approach, reflected in notions of burden sharing and positive complementarity. As commentators have noted:306 [T]he choices and policies of the Court on complementarity are of considerable importance for the future of international criminal justice, since they shape the very essence of the relationship of the Court to domestic jurisdictions as well as the interaction of states in the exercise of criminal jurisdiction.

The limits of trials before international tribunals are now recognised, as are the benefits that arise from national prosecution that cannot be realised in inter­ national proceedings. There is also increased resistance to the exercise of universal jurisdiction by third states, largely due to the risks of abuse of this basis of jurisdiction, and its implications for state sovereignty. The focus is now for mechanisms that better reflect the balance between national processes and respect for state sovereignty, and the need to secure accountability for international crimes. The discussion has also revealed that the current system of international criminal justice is not comprehensive. It comprises three main elements: prosecutions by the courts of the territorial state; trial before international institutions, either by tribunals established on an ad hoc basis or by the ICC; and trials before the national courts of third states. There are potentially significant limits to national 306   W Schabas, C Stahn and M El Zeidy, ‘The International Criminal Court and Complementarity: Five Years On’ (2008) 19 Criminal Law Forum 1, 1.

Conclusion 57 trials, including a lack of political will, insufficient expertise and resources, and legal barriers at the domestic level. The existing ad hoc tribunals established by the Security Council are highly selective and may exercise jurisdiction in respect of the former Yugoslavia and Rwanda only. It is also unlikely that the Security Council will establish further ad hoc tribunals, given their expense and the possibility of referring situations to the ICC. The jurisdiction of the ICC is itself restricted, by limits in the Rome Statute on its temporal, geographical and substantive jurisdiction, and its jurisdiction may only by triggered by certain mechan­ isms. Moreover, the ICC must operate in accordance with the principle of complementarity and may only exercise jurisdiction in relation to cases of a sufficient gravity. The exercise of universal jurisdiction by third states is subject to controversy, and the principle is arguably being restricted so as to operate as a subsidiary mechanism. In an ideal world, the three ‘pillars’ of international criminal justice – national courts of the territorial state, the ICC and possibly third states exercising universal jurisdiction – would ensure accountability for all violations of international criminal law. However, given the limits on the availability of these mechanisms there will continue to be impunity gaps. These gaps will most likely exist where: (1) national courts in the affected state cannot or do not act; (2) the ICC does not possess jurisdiction in respect of a particular situation, the crimes are not of sufficient gravity to permit the ICC to intervene, or the ICC lacks the resources to try the case; (3) the Security Council does not or cannot establish an ad hoc tribunal, as the required link to international peace and security is not present, the threat that a permanent member would veto the action, or the absence of support for a tribunal on the Council; and (4) third states do not or cannot exercise universal jurisdiction, either due to shortcomings in national law or a lack of political will to do so. The limits to the current system have led to the development of a further mechanism for achieving international criminal justice and addressing this impunity gap; the so-called hybrid or internationalised criminal tribunal. These tribunals are addressed in the following chapters.

2 Hybrid and Internationalised Tribunals: A Study of Existing Practice I. Introduction A number of hybrid and internationalised tribunals have been established in recent years to investigate, prosecute and try individuals accused of serious violations of international criminal law. Such institutions have a ‘mix’ of the national and the international. These tribunals are different from the ‘purely’ international criminal tribunals discussed in chapter one, namely the International Criminal Court (ICC) and the ad hoc tribunals for the former Yugoslavia and Rwanda, as they incorporate national elements, be it in the personnel of the tribunal, the method of establishment or the applicable law. This model is also distinguishable from the prosecution of international crimes before national courts, including national courts of third states acting on the basis of universal jurisdiction, due to the international element that is not normally present in national proceedings. Higonnet describes this model as ‘blending the international and the local, existing hybrids are products of judicial accountability-sharing between the states in which they function and international entities, particularly the UN’.1 There are several reasons advanced for the development of the hybrid and internationalised tribunal as a mechanism for international criminal justice. First, there is a need to resolve more satisfactorily the tension between the two primary interests of the existing system of international criminal justice: state sovereignty and the desire of the international community to end impunity for those accused of committing international crimes. As discussed in chapter one, there has been a shift from an almost ‘automatic’ preference for trials before international mechan­ isms for those accused of committing international crimes during the early and mid-1990s, to a position that recognises an important role for the courts of the territorial state in trying international crimes and the potential benefits of national trials. By enabling and supporting judicial mechanisms with a national compon­ ent, rather than favouring the creation of new purely international mechanisms, reliance on mixed tribunals does not necessarily view international justice and national prosecutions as competing, mutually exclusive, options for achieving 1   E Higonnet, ‘Restructuring Hybrid Courts: Local Employment and National Crimimal Justice Reform’ (2006) 23 Arizona Journal of International and Comparative Law 347, 352.

Introduction 59 accountability. This approach advocates that, wherever possible, territorial states should be encouraged to conduct their own criminal proceedings. However, those states should be provided with sufficient assistance to ensure that such trials are conducted in a manner that is consistent with minimum international standards, including independence and impartiality. The establishment of a hybrid or international tribunal is one method by which such support can be provided. Reliance on a hybrid or internationalised tribunal is thus potentially a more appropriate balance between state sovereignty and accountability, as it generally enables the affected state greater involvement in the design, establishment and operation of the tribunal. It is thus less intrusive of the affected state’s sovereignty, and for this reason has been referred to as ‘sovereignty light’.2 It recognises that ‘States that are keen to guard their sovereignty are more willing to prosecute nationals at home and in circumstances where they retain control over the design and implementation of the tribunal’.3 However, this model still allows for international involvement and some of the benefits that such involvement may entail. Reliance on mixed tribunals has been criticised as undermining the concept of ‘crimes of international concern’. Pellet has argued that international crimes require international justice and ‘should [not] be subordinated in any respect to national concerns or interests’.4 He asserts that the concern to protect state sovereignty and to strengthen the local judiciary are driving the development of the hybrid, rather than the need to punish the perpetrators of international crimes.5 Mégret suggests an alternative way of looking at mixed tribunals, and advances a ‘representational’ theory of international criminal justice.6 He suggests that ‘persons tried for international crimes should be tried by tribunals that adequately “represent” the nature of the crimes at stake. In other words, there should be as much correspondence as possible between the nature of the crimes and the nature of the institutions judging them’.7 Mégret argues that hybridity, to the extent it can offer something that is both domestic and international, takes away the need to choose between national and international institutions. He writes: 8 the great merit of hybrid tribunals is that they deal with the artificial distinction between the domestic and the international by simply collapsing it . . . As a result, they are the institutional mechanism that makes most sense of the dual nature of international 2  Mendez describes this model as ‘softer on soverignty’: P Mendez, ‘The New Wave of Hybrid Tribunals: A Sophisticated Approach to Enforcing International Humanitarian Law or an Idealistic Solution with Empty Promises’ (2009) 20 Criminal Law Forum 53, 90; B Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the Rule of Law (Oxford, Oxford University Press, 2003) 58–62. 3   Mendez, ibid, 70. 4   A Pellet, ‘Internationalized Courts: Better Than Nothing . . .’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 439. 5   ibid, 440. 6   F Mégret, ‘In Defence of Hybridity: Towards a Representational Theory of International Criminal Justice’ (2005) 38 Cornell International Law Journal 725. 7   ibid, 727. 8   Mégret, n 6, 747.

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A Study of Existing Practice crimes as both domestic and international . . . Hybrid tribunals can be seen as sophis­ ticated attempts at striking the best possible balance between the competing pulls of sovereignty and universalism in a way that maximizes the “representational” function of international criminal justice.

However, Mégret accepts that certain crimes or individuals should only be tried at the international level, and would be exceptions to the emerging preference for national trials. These would include the ‘Kunarac’ and ‘Miloševi ´c  ’ exceptions.9 The first concerns the situation ‘where a case is of groundbreaking precedential value, a supranational court may yield better jurisprudence’.10 The second concerns a situation ‘where a globally renowned despot is tried for international crimes, the world at large may have an interest in supranational prosecution’.11 A hybrid or internationalised tribunal may also provide an alternative to the use of universal jurisdiction by third states, while at the same time such initiatives ‘reinforce the conceptual underpinnings of universal jurisdiction’.12 Creating a hybrid or internationalised mechanism with international support provides an incentive to try offenders in the courts of the affected state and should therefore preclude the need for third states to initiate proceedings based on the more controversial jurisdictional basis of universality.13 Thus, the continued use of such tribunals will have repercussions for the circumstances in which third states will have recourse to universal jurisdiction.14 It is preferable that where a territorial state is willing to try offenders, albeit with international assistance, these endeavours should be supported by the international community as opposed to the resort to proceedings in third states on the basis of universal jurisdiction.15 Another aspect of the potential relationship between courts exercising universal jurisdiction and hybrid and internationalised tribunals is illustrated by the negotiations concerning the proposed internationalised tribunal to try Hissène Habré, discussed in chapter three. The proposals for this tribunal suggest that hybrid or internationalised tribunals are now being contemplated even in situations where universal jurisdiction may be the only possible basis for the exercise of jurisdiction. A second factor driving the development of hybrid and internationalised tribunals as a mechanism for international criminal justice is the limited jurisdictional reach and resources of the ICC and the ad hoc tribunals, and the likelihood that the United Nations Security Council will not act to establish further ad hoc tribunals in the future. Chapter one outlined the limits to the current system of 9   ibid, 745. These exceptions draw on the work of W Burke-White, ‘A Community of Courts: Toward a System of International Criminal Law Enforcement’ (2002–03) 24 Michigan Journal of International Law 1. 10   Burke-White, ibid, 93. 11   ibid, 93. 12   D Orentlicher, ‘Striking a Balance: Mixed Law Tribunals and Conflicts of Jurisdiction’ in M Lattimer and P Sands (eds), Justice for Crimes Against Humanity: International Law After Pinochet (Oxford, Hart Publishing, 2003) 213. 13  ibid. 14   Orentlicher, ‘Striking a Balance: Mixed Law Tribunals and Conflicts of Jurisdiction’, n 12, 218. 15   Human rights considerations warrant trial before the territorial court, at least assuming that a fair and impartial trial is likely: ibid, 233.

Introduction 61 international criminal justice that may result in ‘impunity gaps’ in certain circumstances, in particular where the ICC does not have jurisdiction or elects not to exercise jurisdiction and where trials before national courts are unlikely.16 Hybrid and internationalised tribunals are a possible option for filling those gaps. However, as will be demonstrated in the following discussion of the relevant practice, although perhaps initially viewed as a ‘stop-gap’ measure until the ICC was established,17 or to fill gaps where the ICC was unable to exercise jurisdiction due to its limited mandate, the role of hybrid and internationalised tribunals is much wider. While initial practice supported a limited focus for such institutions, recent practice demonstrates that this model is being considered both in situations where the ICC is not likely to be able to exercise jurisdiction in the foreseeable future (for example, piracy), as well as where such a tribunal would serve as a complementary mechanism to the ICC. Accordingly, a hybrid or internationalised tribunal is no longer viewed as an alternative to the ICC, but as a possible complement.18 It is certainly evident that the demand for such institutions has not slowed following the establishment of the ICC. In fact, as Higonnet notes, ‘the success of the ICC can be bolstered by establishing complementary hybrids’.19 This is in part as it minimises the effect of ‘the ICC’s binary approach of either providing wholly international justice or leaving the conflict to local post-atrocity courts’.20 Practice indicates that the possibility of establishing a hybrid or internationalised mechan­ ism can be an important factor in whether or not the ICC will exercise jurisdiction at all, as shown by negotiations concerning the involvement of the ICC in the situations in Darfur and Kenya, discussed in chapter three. Attention is now being directed as to how best to utilise this model as an additional, not alternative, mechanism within a system of international criminal justice. As well as the twin concerns of accountability and sovereignty, the experience of international criminal justice in the last decade has led to the recognition of an additional interest of international criminal justice, that of increasing capacity within a national judicial system. This recognises that situations in which a mechanism for accountability may be required are often post-conflict situations, where national legal systems have either collapsed entirely or lack adequate human and financial resources to process not only violations during the conflict, but serious crimes committed in its aftermath. In such situations, securing accountability for 16  See, eg, M Colitti, ‘Geographical and Jurisdictional Reach of ICC: Gaps in the International Criminal Justice System and a Role for Internationalized Bodies’, in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 417. 17   This is suggested by the approach of Condorelli and Boutruche, who seemingly suggest that there would be no need to create further internationalised tribunals where the ICC is operational and has jurisdiction: L Condorelli and T Boutruche, ‘Internationalized Criminal Courts: Are they necessary?’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 428, 435. 18  Mendez, n 2, 72. E Kaufmann, ‘Justice in Jeopardy: Accountability for the Darfur Atrocities’ (2005) 16 Criminal Law Forum 343, 351; L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295, 296. 19   Higonnet, n 1, 349. 20   ibid, 349.

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past violations alone may not preclude a return to violence. Instead, steps to enhance domestic capacity and the development of respect for the rule of law at the national level are required. The former United Nations Secretary-General noted in 2004 that the United Nations:21 must learn as well to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations . . . Our main role is not to build international substitutes for national structures, but to help build domestic justice capacities

Trials before purely international mechanisms do not achieve this, as the trials are too remote from the legal system of the affected state and do not engage or train local judges, prosecutors and personnel. Yet, trials before national institutions may not be possible due to a lack of resources and skills, and even when they do take place, may not do so in accordance with international minimum standards or within a system that accords sufficient independence and impartiality. Thus, scholars, particularly transitional justice scholars, have argued that institutions that promote capacity-building and wider respect for the rule of law should receive greater attention.22 Hybrid or internationalised institutions are thus viewed as offering potential benefits over both national and international institutions in developing domestic capacity through training of judges and tribunal staff, and mentoring and collaboration with international colleagues.23 Mendez notes that the constituency of such tribunals is now primarily focused on the domestic, not the international.24 This shift in focus from retributive justice means that criminal justice mechanisms must now also contribute to the broader goal of nation building and reconciliation as well as securing accountability.25 It is recognised that ‘[I]nterventions to create hybrid courts constitute unique moments in terms of the international community’s attention, resources and effort, and this window of opportunity should be maximized’.26 Accordingly, United Nations policy requires that hybrid tribunals leave a ‘legacy’, namely ‘a lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity’.27 However, ‘legacy’ extends beyond the immediate impact on the national system. Instead, it should ‘encompass a shift in terms of trust in the legal system as a viable avenue for dealing with future conflicts and ongoing violations of human rights’28 – the so-called ‘demonstration effect’.29 21   Report of the Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and PostConflict Societies’ (23 August 2004) UN Doc S/2004/616, summary. 22   Mendez, n 2, 73. 23   Dickinson, ‘The Promise of Hybrid Courts’ n 18, 303–04. 24   Mendez, n 2, 90–02. 25   Higonnet, n 1, 350. 26   UN Office of the High Commissioner for Human Rights (OHCHR), Rule-of-Law Tools for PostConflict States: Maximizing the Legacy of Hybrid Courts (2008) UN Doc HR/PUB/08/2, 1. 27   ibid, 4–5. 28   ibid, 6. 29   ibid, 6. The UN also refers to the ‘sustainability’ of national capacity.

Introduction 63 In addition to reducing the potential for conflict between state sovereignty and accountability and developing capacity, the use of a hybrid or internationalised tribunal is considered to offer additional practical and normative benefits. Mendez notes that ‘the common assumption underlying all mixed courts is that purely domestic and purely international approaches are inadequate’.30 Mixed tribunals may bring the advantages of both national prosecutions and international prosecutions, while hopefully avoiding the drawbacks of each type of model. Dickinson asserted that both national and international mechanisms may lead to problems of legitimacy and norm-penetration.31 While international mechanisms may have legitimacy at the international level, their distance from the affected population may make achieving legitimacy at the local level difficult. Particularly where they are situated in the affected territory, internationalised tribunals may enable a sense of domestic ownership of and engagement with the criminal justice process.32 The less-intrusive nature of a hybrid tribunal into a state’s sovereignty enhances the political legitimacy of these institutions.33 Yet the legitimacy, impartiality and independence of national institutions, particularly in a post-conflict environment, are often doubtful. Hybrid and internationalised tribunals may enhance the legitimacy of the process at both the national and international level. The addition of international judges and prosecutors may enhance the perception that the judiciary is independent and impartial. It potentially safeguards national personnel from political pressure and intimidation from their national governmental authorities.34 International involvement may allow minority groups greater participation in the process. Norm-penetration problems are created as neither international nor national institutions best allow for international law to be incorporated into, or to influence, domestic law. Hybrid tribunals are said to enable greater opportunities ‘for the cross-fertilization of international and domestic norms regarding accountability for mass atrocity’ by creating ‘a network of international and domestic legal professionals, providing a setting in which they can interact, share experiences, and discuss the relevant norms’.35 International judges and prosecutors should be familiar with the relevant international laws and standards, while local judges are familiar with the relevant local law and the territory. Establishing an internationalised tribunal may enable the revision of national laws to more clearly   Mendez, n 2, 63.   Dickinson, ‘The Promise of Hybrid Courts’, n 18, 295. 32   As Cassese notes, the local population will be familiar with the events that led to the conflict and the atrocities committed. Observing and engaging with the trial process may be a cathartic process for the wider community, and contribute towards long-term reconciliation: A Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 6. Mendez suggests that hybrids offer significant moral and ethical advantages, by enabling the victims and affected communities the focus and enabling greater ownership and participation in the process: Mendez, n 2, 70. 33   Mendez, ibid. 34  ibid. 35   Dickinson, ‘The Promise of Hybrid Courts’, n 18, 307. 30 31

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incorporate international crimes and may encourage the penetration of inter­ national norms both within the territory affected and also, potentially, in the wider region.36 It is beyond the scope of this study to conclude whether all or any of these bene­fits have been realised; however, this discussion provides important context as to the practical and theoretical reasons advanced for the creation of hybrid and internationalised tribunals. While this study will identify issues that may have arisen in the design and operation of such tribunals, its main focus is on whether hybrid and internationalised tribunals exist as a single, homogenous category and, if so, what are the defining features of that category, where that category may be located within the range of possible criminal justice mechanisms, and the implications of a definition (or absence of a definition) for legal issues facing such tribunals. Those institutions generally considered most likely to fall within the mixed model include: the Special Court for Sierra Leone (SCSL); the Special Tribunal for Lebanon (STL); the International Judges and Prosecutors Programme in Kosovo (IJPP); the Special Panels for Serious Crimes in East Timor (SPSC);37 the War Crimes Chamber for Bosnia and Herzegovina (WCC); the Iraqi High Tribunal (IHT);38 and the Extraordinary Chambers in the Courts of Cambodia (ECCC). This chapter will set out the background to the establishment of these existing tribunals, as well as examining their key features and jurisdiction. Chapter three will then examine those institutions that have international elements, but which are generally not considered to be hybrid or internationalised criminal tribunals, such as the Serbian War Crimes Chamber and the ‘Lockerbie’ Court. Assessing the institutions and arrangements that are not considered to fall within this model will allow us better to determine the boundaries of this category of tribunals, and may assist in the formulation of a definition. In addition to the existing hybrid and internationalised tribunals, and the accepted ‘exclusions’ from that category, there have also been several proposals for the creation of hybrid and internationalised tribunals in recent years, many of which are considered in chapter three. Existing analyses of hybrid and internationalised tribunals tend to concentrate on those tribunals that have been established, and do not examine such proposals. While some of these proposals have not been acted upon for various reasons, and others remain speculative or the subject of negotiation, expanding the study of state practice beyond the existing tribunals usually considered to be hybrid and internationalised tribunals allows us to identify more clearly whether there are any defining features for this model. It also enables a broader study of the circumstances in which such institutions are being proposed, and emerging trends.

  ibid, 307–08.   Until independence in May 2002, the territory was known as East Timor. For convenience, all references will be to East Timor unless the context requires otherwise. 38   Some authors do not include this institution within the category of hybrid or internationalised tribunals. See, eg, Mendez, ‘[A] hybrid model would arguably have been ideal in Iraq’, n 2, 95. 36 37



Special Court for Sierra Leone

65

The study of existing and proposed practice in chapters two and three will form the basis for the conclusions reached in chapter four. That chapter will: (1) outline the context and background to establishment of the existing and proposed tribunals and assess why and in which circumstances such tribunals are likely to be established, or at least suggested, and any emerging trends; (2) assess the reasons leading to the increasing reliance upon such mechanisms, including the relationship between hybrid and internationalised tribunals and the tension between the need for accountability for serious crimes and state sovereignty; (3) consider whether there is a definition or defining characteristic(s) of a hybrid or mixed tribunal, or whether the unique background to the creation of each tribunal precludes a conclusive definition; (4) assess whether the existence or absence of a definition is significant; and (5) suggest an alternative approach to categorising such tribunals within the range of options available for criminal prosecution.

II.  Special Court for Sierra Leone A.  Background to the Conflict in Sierra Leone In 1967 the All People’s Congress (APC) party was successful in general elections but was prevented by a military coup from assuming control of the country.39 The coup was short-lived, with the APC regaining control through another putsch a year later. The APC ruled the country for almost two decades, with its policies of economic centralisation, marginalisation of certain ethnic groups, widespread institutional corruption, and interference with civil service employment serving to deepen the divide between socio-economic and geographical groups within Sierra Leone society. On 23 March 1991 an armed group comprising Sierra Leone nationals and nationals of other African states attacked a village in the east of Sierra Leone, triggering a civil war that was to last 11 years, claim an estimated 75,000 lives and displace one-third of the population.40 The group was the Revolutionary United Front (RUF), and its leader, Foday Sankoh, announced his intention to overthrow the APC. In 1992 the APC regime was forced into exile by a military coup and a military government was established. RUF forces and members of the 39   This brief outline of the history of the conflict is based on several sources. See: C Anthony, ‘Historical and Political Background to the Conflict in Sierra Leone’ in K Ambos and M Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg, Max Planck Institute, 2003); N Stafford, ‘A Model war Crimes Court: Sierra Leone’ (2004) 10 ILSA Journal of International and Comparative Law 117; N Fritz and A Smith, ‘Current Apathy for Coming Anarchy: Building the Special Court for Sierra Leone’ (2002) 25 Fordham International Law Journal 391; and Human Rights Watch, The Jury is Still Out, Briefing Paper on Sierra Leone (11 July 2002). For further details of the atrocities committed see: Human Rights Watch, We’ll Kill You if You Cry: Sexual Violence in the Sierra Leone Conflict (January 2003). 40   International Center for Transitional Justice, The Special Court for Sierra Leone: The First Eighteen Months (2004) 1.

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regular Sierra Leone military forces collaborated in undermining the government, leading the population to demand a transfer to democratic rule. In March 1996 Ahmad Kabbah was elected President. The first attempt to negotiate an end to the conflict took place in November 1996, with the signature of a peace agreement between President Kabbah’s party and the RUF.41 The agreement included a call for the end of hostilities and an amnesty for combatants but was never implemented because support for the agreement collapsed soon after its signature. The Kabbah government’s rule was short-lived: it was ousted by a violent milit­ ary coup in May 1997 that triggered a period of violence and terror that lasted for nine months. The leaders of the military coup joined with the RUF to form the Armed Forces Revolutionary Council (AFRC), a military junta that was alleged to have been responsible for violations of human rights. The Civil Defence Force (CDF), consisting of locally-formed armed bands aligned to the Kabbah government and the regular army, was also involved in the conflict in order to defend civilians against attacks by rebel forces. There was also an international dimension to the conflict, with the alleged involvement of the then-President of Liberia, Charles Taylor, and Liberian forces. The Sierra Leone government also engaged Executive Outcomes, a South-African based private military and security company, which was involved directly in hostilities against the RUF and the AFRC. International pressure and military intervention by the Economic Community of West African States (ECOWAS)42 removed the AFRC in early 1998 and restored President Kabbah and the Sierra Leone People’s Party to power.43 The AFRC and the RUF fled to the northern region and some eastern regions from where they continued to attack government forces, civilians and peacekeeping forces. In early 1999 the AFRC and the RUF attacked the capital, Freetown, and seized control of diamond mines, killing and maiming thousands of civilians before being repelled by troops deployed by the Economic Community of West African States Monitoring Group (ECOMOG). In 1999 the parties participated in a further peace conference in Lomé, Togo,44 with the assistance of the United Nations, the Government of the Togolese Republic, the Organisation for African Unity, ECOWAS and the Commonwealth. The negotiations resulted in the Lomé Accord between the Government of Sierra Leone and the RUF, signed on 7 July 1999.45 The Lomé Accord provided for an immediate and permanent end to the conflict between the parties, the establishment of monitoring commissions for violations of the ceasefire, the transformation of the RUF into a political party, 41   Peace Agreement Between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (30 November 1996) UN Doc S/1996/1034, Annex (Abidjan Accord). 42   ECOWAS dispatched a peacekeeping mission under the auspices of its military arm, the Economic Community of West African States Monitoring Group (ECOMOG), in 1990. Its original mandate was to intervene in the civil war in Liberia. 43   See L Berger, ‘State Practice Evidence of the Humanitarian Intervention Doctrine: The ECOWAS Intervention in Sierra Leone’ (2001) 11 Indiana International & Comparative Law Review 605. 44   This was the parties’ fourth attempt at peace negotiations, and the second ‘comprehensive’ peace agreement signed. 45   Peace Agreement Between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (7 July 1999) UN Doc S/1999/777, Annex (Lomé Accord).



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arrangements for a transitional governance structure ahead of national elections, the continued deployment of a United Nations observer mission and a mandate for a regional peacekeeping force. Its provisions were partly implemented, with a partial ceasefire, the establishment of an implementation committee and the dispatch of a peacekeeping mission by the United Nations Security Council.46 The truth and reconciliation commission envisaged by the Lomé Accord was established in February 2000.47 However, fighting resumed early in 2000, hostilities against civilians continued, and the RUF seized and held hostage United Nations peacekeepers.48 Various factors led to the end of hostilities, including a requirement that Liberia expel all RUF members, end the trade in diamonds and cease supporting the RUF49 and cross-border raids by Guinean forces on RUF bases in Sierra Leone. With international support failing, the RUF agreed to end the conflict. The end of the conflict was not announced officially until 14 January 2002, with the surrender of approximately 45,000 rebels.50 Elections were held in May 2002, with President Kabbah appointed to a five-year term, while the RUF did not win a seat in Parliament. The hostilities between the warring factions were particularly horrendous and included the targeting of civilians. Victims were murdered or maimed through amputation of limbs.51 Boys were recruited as child soldiers and women and girls were raped, abducted and used as sex slaves. It is estimated that between 100,000 and 200,000 people died during the conflict, with 100,000 more mutilated and 46   UNSC, ‘Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone’ (1999) UN Doc S/1999/836; UNSC, ‘First Report of the Secretary-General on the United Nations Mission in Sierra Leone (UNAMSIL)’ (1999) UN Doc S/1999/1223; and UNSC Res 1260 (1999) UN Doc S/RES/1260 and UNSC Res 1270 (1999) UN Doc S/RES/1999. See also N Udombana, ‘Globalization of Justice and the Special Court for Sierra Leone’s War Crimes’ (2003) 17 Emory International Law Review 55, 78–82. 47   Lomé Accord, art XXVI; Truth and Reconciliation Commission Act 2000 (Sierra Leone). There is extensive literature regarding the truth and reconciliation commission and its relationship with the SCSL, for example: W Schabas, ‘Conjoined Twins of Transitional Justice? The Sierra Leone Truth and Reconciliation Commission and the Special Court’ (2004) 2 Journal of International Criminal Justice 1082; L Hall and N Kazemi, ‘Prospects for Justice and Reconciliation in Sierra Leone’ (2003) Harvard International Law Journal 287; W Schabas, ‘The Relationship Between Truth Commissions and International Courts: The Case of Sierra Leone’ (2003) 25 Human Rights Quarterly 1035; A Tejan-Cole, ‘The Complementary and Conflicting Relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission’ (2003) 6 Yale Human Rights & Development Law Journal 139; and E Evenson, ‘Truth and Justice in Sierra Leone: Coordination Between Commission and Court’ (2004) 104 Columbia Law Review 730. 48   See the Reports of the Secretary-General during this period: UNSC, ‘Second Report on the United Nations Mission in Sierra Leone’ (2000) UN Doc S/2000/13; UNSC, ‘Third Report on the United Nations Mission in Sierra Leone’ (2000) UN Doc S/2000/186; UNSC, ‘Fourth Report on the United Nations Mission in Sierra Leone’ (2000) UN Doc S/2000/455; UNSC, ‘Fifth Report on the United Nations Mission in Sierra Leone’ (2000) UN Doc S/2000/751; UNSC, ‘Sixth Report on the United Nations Mission in Sierra Leone’ (2000) UN Doc S/2000/832; and UNSC, ‘Seventh Report on the United Nations Mission in Sierra Leone’ (2000) UN Doc S/2000/1055. 49   UNSC Res 1343 (7 March 2001) UN Doc S/RES/1343. 50   Stafford, n 39, fn 50. 51   M Miraldi, ‘Overcoming Obstacles of Justice: The Special Court of Sierra Leone’ (2003) 19 New York Law School Journal of Human Rights 849.

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seriously injured,52 and up to one quarter of the population displaced.53 All parties to the conflict were alleged to have committed violations of international humanitarian law.54 Soldiers from the Nigerian-led peacekeeping force contributed as part of the ECOMOG presence also allegedly committed offences.55

B.  The Establishment of the SCSL In June 2000, the President of Sierra Leone, President Kabbah, had written to the Security Council requesting its assistance ‘in establishing a strong and credible court that will meet the objectives of bringing justice and ensuring lasting peace’.56 President Kabbah stated that Sierra Leone did not have the resources or expertise to conduct trials for crimes of the magnitude and extent of those committed.57 He attached a suggested legal framework for the intended court, ‘one that will meet international standards for the trial of criminal cases while at the same time having a mandate to administer a blend of international and domestic Sierra Leonean law on Sierra Leone soil’.58 Security Council Resolution 131559 requested the Secretary-General ‘to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with this resolution’, and to report to the Security Council on the result of negotiations within 30 days from the date of the resolution.60 The Security Council made several recommendations as to the subject matter and personal jurisdiction of the proposed court,61 and asked for recommendations from the Secretary-General on the temporal jurisdiction, the appeals process, the location of the court, the level of assistance required for the court and funding alternatives.62 The Secretary-General submitted his report to the Security Council on 4 October 2000,63 annexing a draft agreement for the creation of the proposed court and a draft statute. The Secretary-General and the Security Council then corresponded in relation to the proposed personal jurisdiction, composition and funding arrangements of the court, with the

  Stafford, n 39, fns 17 and 18.   Human Rights Watch, n 39. 54   See B Akinrinade, ‘International Humanitarian Law and the Conflict in Sierra Leone’ (2001) 15 Notre Dame Journal of Law, Ethics and Public Policy 391. 55   Human Rights Watch, n 39. 56   UNSC, ‘Letter from the President of Sierra Leone to the President of the United Nations Security Council, Dated 12 June 2000, Annex to the Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council’ (2000) UN Doc S/2000/786. 57  ibid. 58  ibid. 59   UNSC Res 1315 (2000) UN Doc S/RES/1315. 60   ibid, paras 1 and 6. 61   ibid, paras 2 and 3. 62   ibid, paras 7 and 8. 63   UNSC, ‘Report of the Secretary-General on the establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915. 52 53



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Security Council suggesting various amendments to the text of the draft agreement and statute. 64 Unlike the ICTY and the ICTR, the Special Court for Sierra Leone (SCSL) was to be funded by voluntary contributions from Member States of the United Nations, and not from the normal United Nations budget.65 The SecretaryGeneral indicated that he would not formally enter into the agreement until he had received assurances from Member States that sufficient funds would be available for the start-up of the Court and its operation.66 This did not occur until early 2002, after which the Secretary-General sent a planning mission to Sierra Leone.67 Following the report of the planning mission,68 the Secretary-General instructed his representative to formally execute the agreement on behalf of the United Nations.69 The decision to proceed with the SCSL was ‘approved’ by the Security Council on 19 March 2002, following a briefing by the United Nations Legal Counsel and Assistant Secretary-General for Legal Affairs, although there is no resolution or presidential statement documenting this approval.70 The SCSL Agreement entered into force on the day after both parties notified each other in writing that the legal requirements for entry into force had been satisfied.71 As Sierra Leone employs a dualist system, it required national legislation to give 64   UNSC, ‘Letter Dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General’ (2000) UN Doc S/2000/1234; UNSC, ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40; and UNSC, ‘Letter Dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General’ (2001) UN Doc S/2001/95. The final letter from the Security Council to the Secretary-General was dated 31 January 2001 and left only one issue upon which the Security Council and the Secretary-General were not in agreement: UNSC, ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40, paras 4–5. The Security Council’s preferred text was adopted, and was approved by the Government of Sierra Leone by letter dated 7 February 2001. 65   Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (16 January 2002) (SCSL Agreement), art 6. 66   UNSC, ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40, para 12. This was confirmed by the Security Council on 31 January 2001: UNSC, ‘Letter Dated 31 January 2001 from the President of the Security Council Addressed to the Secretary-General Referring to the Secretary-General’s letter to the President of 12 January 2001’ (2001) UN Doc S/2001/95. In July 2001, the Secretary-General indicated that a reduced operating budget had been agreed for the proposed court, and that he intended to collect sufficient funds from donor states before executing the agreement: UNSC, ‘Letter Dated 12 July 2001 from the Secretary-General Addressed to the President of the Security Council’ (13 July 2001) UN Doc S/2001/693. See also UNSC, ‘Letter Dated 23 July 2001 from the President of the Security Council to the Secretary-General’ (2001) UN Doc S/2001/722. 67   UN News Center, Press Release, ‘Sierra Leone: Annan Despatches Planning Team in First Step to Set up Special Court’ (3 January 2002). 68   UNSC, ‘Report of the Planning Mission on the Establishment of the Special Court for Sierra Leone, Submitted to the Security Council as Annex to Letter Dated 6 March 2002 from the SecretaryGeneral Addressed to the President of the Security Council’ (2002) UN Doc S/2002/246. 69   UN News Center, Press Release, ‘Sierra Leone: UN, Government Sign Historic Accord to Set up Special War Crimes Court’ (16 January 2002). 70  UN News Center, Press Release, ‘War Crimes Court for Sierra Leone Gets Security Council Go-ahead, UN Official Says’ (20 March 2002). 71   SCSL Agreement, art 21. For Sierra Leone, this required giving effect to the SCSL Agreement in national law and formally ratifying the SCSL Agreement.

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effect to its obligations under the SCSL Agreement and to facilitate cooperation with the SCSL. The Special Court Agreement 2002 (Ratification) Act 2002 (the Ratification Act) was adopted in August 2002.

C.  Key Features and Jurisdiction The SCSL functions in accordance with the SCSL Statute, attached as an annex to the SCSL Agreement and forming an integral part of the SCSL Agreement.72 The SCSL exists as a distinct institution, separate from both the United Nations and the national legal system. It has separate legal personality73 and its personnel, premises and property are extended certain privileges under both international law74 and national law.75 It comprises two Trial Chambers and an Appeals Chamber, each consisting of a majority of international judges, sitting with national counterparts.76 The SCSL has an international Prosecutor and an international Registrar, assisted by national deputies.77 The SCSL may exercise jurisdiction in respect of ‘persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’.78 The Court may also exercise limited jurisdiction in respect of peacekeepers in Sierra Leone, subject to the consent of the Security Council and in the absence of investigation or prosecution by the sending state.79 The substantive jurisdiction of the SCSL includes: war crimes   SCSL Agreement, art 1(2),   SCSL Agreement, art 11; The Special Court Agreement, 2002 (Ratification) Act 2002, as amended,

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s 2. 74   SCSL Agreement, arts 8 (inviolability of premises), 9 (immunity of funds, assets and property), 12 (immunity of judges, the Prosecutor and the Registrar) and 13 (immunity of international and national personnel). 75   SCSL Agreement 2002 (Ratification) Act 2002, ss 7 and 8, concern the inviolability of the Special Court’s property, assets and finances. 76   Statute of the Special Court for Sierra Leone, 2002 (Annexed to the SCSL Agreement, 16 January 2002) (SCSL Statute) art 12. 77   SCSL Statute, arts 15 and 16. 78   SCSL Statute, art 1. The Security Council had indicated its preference that the SCSL have a limited personal jurisdiction – to those ‘who bear the greatest responsibility’: UNSC Res 1315 (2000) UN Doc S/RES/1315, para 3. The phrasing of this provision generated several exchanges between the Secretary-General and the Security Council, with the Secretary-General calling for the term ‘persons most responsible’, which, he suggested, would allow the Prosecutor greater discretion in determining who to prosecute. The Security Council preferred the formulation eventually adopted, arguing that this provided a clearer mandate for the tribunal. See UNSC ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915; UNSC ‘Letter Dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General’ (2000) UN Doc S/2000/1234; UNSC ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40. 79   SCSL Statute, arts 1(2) and (3). Para 3 relies on the complementarity principle, allowing the exercise of such jurisdiction in respect of peacekeepers only where the sending state is unwilling or unable genuinely to investigate or prosecute such violations.



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in non-international armed conflict;80 other serious violations of international humanitarian law (including attacks against peacekeepers, intentional attacks against civilians and conscripting or enlisting children less than 15 years old);81 and crimes against humanity.82 It may also exercise jurisdiction in respect of certain crimes under Sierra Leonean law.83 The Ratification Act does not incorporate these international crimes into national law; instead, it merely enables cooperation with the SCSL by national authorities.84 The SCSL has concurrent jurisdiction with courts in Sierra Leone, with a relationship of primacy for crimes within its jurisdiction.85 The SCSL is to apply international procedural law, although it may be guided by the Criminal Procedure Act 1965 (Sierra Leone) where international rules do not address, or address adequately, a particular issue.86 The SCSL is to sit in the capital of Sierra Leone, Freetown, unless interests of security dictate that it should sit elsewhere.87 The Registrar and the Prosecutor were appointed in April 2002,88 the judges appointed in July 200289 and the first indictments issued in March 2003.90 Trials commenced in June 2004.91 The SCSL has issued 13 indictments,92 concerning

80   SCSL Statute, art 3 – violations of common art 3 to the Geneva Conventions and of Additional Protocol II. 81   SCSL Statute, art 4. 82   SCSL Statute, art 2. 83   Art 5 of the SCSL Statute confers jurisdiction in respect of offences against young girls under the Prevention of Cruelty Act 1926 and offences relating to the wanton destruction of property under the Malicious Damage Act 1861. 84   See Special Court Agreement 2002 (Ratification) Act 2002, as amended. 85   SCSL Statute, art 8; SCSL Rules of Procedure and Evidence (RPE) (as amended 28 May 2010), rr 9–10 86   Art 14 of the SCSL Statute provides that the SCSL must apply the rules of procedure and evidence of the ICTR. 87   SCSL Agreement, arts 10 and 16; see also Headquarters Agreement Between the Republic of Sierra Leone and the Special Court of Sierra Leone (21 October 2003). 88  UN News Center, Press Release, ‘Annan Names Prosecutor, Registrar of Special War Crimes Court’ (19 April 2002). 89   UN News Center, Press Release, ‘Annan, Sierra Leone Appoint Experienced Judges for Country’s Special War Crimes Court’ (25 July 2002). Judges were sworn in on 3 December 2002: UN News Center, Press Release, ‘Judges Sworn-In for UN-Backed Special Court for Sierra Leone’ (3 December 2002). Following a request from the President of the SCSL three additional judges were sworn in on 17 January 2005, so as to enable a second Trial Chamber. 90  UN News Center, Press Release, ‘UN-Backed Special Court for Sierra Leone Indicts Seven’ (11 March 2003). The indictments were welcomed by the Security Council: see UNSC, ‘Press Statement by Security Council President on Indictments by Sierra Leone Special Court’ (14 March 2003) Press Release SC/7692. 91   UN News Center, Press Release, ‘War Crimes Trials of Three Sierra Leonean Leaders to Start June 3 June’ (11 May 2004). 92   Indictments in respect of Sam Bockarie and Foday Sankoh were withdrawn following receipt of evidence of the death of the accused: see Prosecutor v Sam Bockarie (Withdrawal of Indictment) SCSL2003-04-PT, T Ch (8 December 2003); Prosecutor v Foday Saybana Sankoh (Withdrawal of Indictment) SCSL-2003-02-PT, T Ch (8 December 2003). Sam Hinga Norman died while in the custody of the SCSL, and the charges against him were withdrawn: Samuel Hinga Norman et al (Decision on Registrar’s Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues) SCSL-04-14-T, T Ch I (21 May 2007).

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individuals considered to be senior leaders or commanders.93 Only one accused, Johnny Paul Koroma, remains at large. As at July 2011, the SCSL has completed three trials, sentencing eight accused to imprisonment for crimes including war crimes and crimes against humanity.94 Due to security concerns and the weakness of domestic institutions in Sierra Leone, all eight convicted persons have been transferred to Rwanda to serve their sentences.95 One final trial continues, being the highly-publicised trial of former Liberian President, Charles Taylor.96 While the seat of the SCSL is in Freetown, this trial is being held in The Hague for security reasons.97 Therefore, the SCSL has completed all judicial activities in Sierra Leone. Although estimates suggested that the Special Court would deliver its trial judgment in the Taylor trial in 2011, to be followed (if convicted) by a sentencing judgment some six to eight weeks later, it now appears that the judgment will not be delivered until early 2012, with likely appellate proceedings commencing later in 2012.98 In April 2004 the General Assembly invited the SCSL to develop a completion strategy,99 which it produced in May 2005 and has updated regularly since.100 The SCSL will not be included in the Residual Mechanism established for the ICTY and the ICTR.101 Instead, it has been agreed by the Government of Sierra Leone and the Management Committee of the Court that a residual mechanism for the SCSL will be established separately.102 This mechanism will sit in The 93  See D Crane, ‘Dancing with the Devil: Prosecuting West Africa’s Warlords: Building Initial Prosecution Strategy for an International Tribunal after Third World Armed Conflicts’ (2006) 37 Case Western Reserve Journal of International Law 1. 94   Prosecutor v Brima, Kamara and Kanu (Judgment) SCSL-04-16-T, T Ch II (20 June 2007); (Sentencing Judgment) SCL-04-16-T, T Ch II (19 July 2007); and (Appeal Judgment) SCSL-04-16-A, A Ch (22 February 2008). Prosecutor v Fofana and Kondewa (CDF Case) (Judgment) SCSL-04-14-T, T Ch I (2 August 2007); (Sentencing Judgment) SCSL-04-14-T, T Ch I (9 October 2007); and (Appeal Judgment) SCSL-04-14-A, A Ch (28 May 2008). Prosecutor v Sesay, Kallon and Gbao (RUF Case) (Judgment) SCSL-04-15-T, T Ch I (25 February 2009); (Sentencing Judgment) SCSL-04-15-T, T Ch I (8 April 2009); and (Appeal Judgment) SCSL-04-15-A, A Ch (26 October 2009). 95   President of the SCSL, Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010 (2010) 9. 96   Prosecutor v Taylor SCSL-03-01. The Prosecution began introducing evidence in January 2008 and closed its case in February 2009. The defence opened its case on 13 July 2009 and concluded in November 2010. 97  See Prosecutor v Taylor (Order Changing Venue of Proceedings) SCSL-03-01-PT-108 (19 June 2006). This order was confirmed by the President of the SCSL on 12 March 2007. The trial was originally being conducted in the premises of the ICC, but was relocated to the premises of the STL when the increased activity of the former meant that it became difficult to ensure sufficient access to the courtroom required: see Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010. 98   UNSC, ‘Fifth Report of the Secretary-General on the United Nations Integrated Peacebuilding Office in Sierra Leone’ (17 September 2010) UN Doc S/2010/471, para 56. 99   UNGA Res 58/284 (2004) UN Doc A/RES/58/284. 100   UNGA, ‘SCSL Completion Strategy’ (18 May 2005) UN Doc A/59/816-S/2005/350. Updated versions of the Completion Strategy were provided to the Management Committee on 12 October 2005, 19 July 2006, 14 December 2006, July 2007, January 2008, August 2008, December 2008 and June 2009. The strategy was supplemented by a report by an independent expert, Antonio Cassese. 101   See ch 1, section III(B)(iii). 102   See F Donlan, Report on the Residual Functions and Residual Options of the Special Court for Sierra Leone (16 December 2008).



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Hague, and will be responsible for the trial of the remaining indictee, Johnny Paul Koroma, should he be apprehended and if the trial cannot be referred to a national jurisdiction.103 The mechanism will also carry out several residual functions, including witness protection and supervising the enforcement of sentences.104

III.  Special Tribunal for Lebanon A.  The Assassination of Rafik Hariri and the Establishment of the UNIIIC On 14 February 2005, former Prime Minister Hariri and 22 others were killed when a bomb detonated as his motorcade drove through a seafront area in central Beirut. Hariri had close ties with the West, in particular with the United States, France and Saudi Arabia. These links were influential in the adoption by the Security Council of Resolution 1559, which called for the withdrawal of ‘foreign forces’ from Lebanon and for strict respect for the sovereignty, territorial integrity, unity and political independence of Lebanon.105 Tensions between Hariri, pro-Syrian groups and Syria had been high, following a controversial extension of the term of appointment of pro-Syrian President Lahoud. Elections had also been scheduled for May 2005, in which it was widely believed that the opposition, guided by Hariri, would win a clear majority. Syria denied any involvement in the assassination. The assassination prompted mass demonstrations within Lebanon calling for Syrian withdrawal from Lebanese territory, the creation of an international tribunal to investigate the assassination, the resignation of key security officials and free and democratic elections. As a result of these protests and increased international pressure, Syria withdrew its forces from Lebanon in April 2005, ending some 30 years of Syrian military presence. On 15 February 2005 the Security Council labelled the assassination a terrorist attack, and requested the Secretary-General ‘to follow closely the situation in Lebanon and to report urgently on the circumstances, causes and consequences of this terrorist act’.106 The Secretary-General deployed a fact-finding mission to Lebanon in late February 2005, which reported to the Security Council at the end of March.107 The mission conducted a review of the Lebanese investigations and 103   A referral would be based on r11bis of the Court’s Rules of Procedure and Evidence, which is modelled on r 11bis in the RPE of the ICTY and the ICTR (see ch 1, section III(B)(iv)(b)). 104   UNSC, ‘Fifth Report of the Secretary-General on the United Nations Integrated Peacebuilding Office in Sierra Leone’ (17 September 2010) UN Doc S/2010/471, para 57. 105   UNSC Res 1559 (2004) UN Doc S/2004/1559, paras 1 and 2. 106   UNSC Presidential Statement 4 (2005) UN Doc S/PRST/2005/4. 107   UNSC, ‘Report of the Fact-Finding Mission to Lebanon Inquiring into the Causes, Circumstances and Consequences of the Assassination of Former Prime Minister Rafik Hariri’ (24 March 2005) UN Doc S/2005/203 (FitzGerald Report).

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legal proceedings, examined the crime scene and locally-collected evidence, spoke to several witnesses and met a number of Lebanese officials and political groups. A key finding of the mission was that the Lebanese investigation process ‘suffered from serious flaws’108 and had neither the capacity nor the commitment to reach a satisfactory and credible conclusion.109 The mission’s report recommended that the investigation be entrusted to an international independent commission.110 Resolution 1595, adopted by the Security Council on 7 April 2005, condemned the terrorist attack and reiterated its call for the strict respect of Lebanese sovereignty, independence, territorial integrity and unity.111 It noted the findings of the fact-finding mission and, in particular, the recommendation of that body that an international independent investigation should be established to discover the truth.112 Resolution 1595 authorised the establishment of the United Nations International Independent Investigation Commission (UNIIIC).113 It also called on all states and all parties to cooperate fully with UNIIIC.114 The Government of Lebanon welcomed the resolution and pledged to cooperate with UNIIIC.115 Originally established for a three-month period,116 UNIIIC became operational in June 2005. It was mandated to assist the Lebanese judicial and police authorities in the investigation of all aspects of the terrorist act117 and reported to the Security Council on a regular basis.118 The mandate of UNIIIC was allowed to lapse when the Special Tribunal for Lebanon (STL) commenced operation in March 2009.119 The initial report of UNIIIC implicated Syrian state agents and Lebanese security officials in the assassination of Hariri.120 UNIIIC suggested that Syrian cooperation had been ‘cooperation in form, not substance’121 and that several Syrian officials interviewed had attempted to mislead UNIIIC.122 In response, the Security   FitzGerald Report, ibid, para 62.  ibid. 110   ibid, Executive Summary. 111   UNSC Res 1595 (2005) UN Doc S/RES/1595, preambular paras 1 and 3. 112   ibid, reambular paras 5 and 6. 113   ibid, para 1. 114   ibid, para 7. 115   The Government of Lebanon had approved the proposed resolution and had pledged to cooperate with the inquiry: UNSC, ‘Letter from the Mission of Lebanon to the United Nations Dated 29 March 2005’ (2005) UN Doc S/2005/208. 116   UNSC Res 1595 (2005) UN Doc S/RES/1595 requested the UNIIIC to complete its work within three months of commencing full operations, with an extension for a further three months: para 8. This deadline has been extended on several occasions, most recently on 17 December 2008 to 28 February 2009: UNSC Res 1852 (2008) UN Doc S/RES/1852. 117   UNSC Res 1595 (2005) UN Doc S/RES/1595, para 1. 118   ibid, para 9. 119   See UNSC, Eleventh Report of the UNIIIC (2008) UN Doc S/2008/752-S/PV/6047. 120   The initial report of the UNIIIC concluded: ‘There is probable cause to believe that the decision to assassinate former Prime Minister Rafik Hariri could not have been taken without the approval of top-ranked Syrian security officials and could not have been further organised without the collusion of their counterparts in the Lebanese security services’: UNSC, ‘Report of the International Independent Investigation Commission established pursuant to Security Council Resolution 1595’ (2005) UN Doc S/2005/662, para 124. 121   ibid, para 31. 122   ibid, para 222. 108 109



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Council adopted Resolution 1636, by which it determined that the assassination and its implications constituted a threat to international peace and security.123 Noting the possibility of Syrian involvement in the assassin­ation, and the lack of substantive cooperation to date,124 the Security Council, acting under Chapter VII of the Charter, decided that UNIIIC ‘shall have vis-à-vis Syria the same rights and authorities’ as it enjoys against Lebanon, and that ‘Syria must cooperate with the Commission fully and unconditionally on that basis’.125

B.  Further Attacks and the Establishment of the Special Tribunal for Lebanon Several other terrorist attacks were conducted during the course of 2005. These included targeted assassinations of anti-Syrian political figures and non-targeted terrorist attacks aimed at civilians in general. Following the assassination of a prominent member of parliament and a journalist in December 2005, the Government of Lebanon wrote to the Security Council requesting the establishment of a tribunal of an international character to try all those found responsible for the assassination of Hariri. The Government also requested the extension of the mandate of UNIIIC, or the creation of a second independent commission, to investigate terrorist attacks occurring since 1 October 2004.126 In Resolution 1644, acting under Chapter VII of the Charter, the Security Council requested that the Secretary-General ‘negotiate an agreement with the Government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice’ to try individuals responsible for the assassination of Hariri.127 The Security Council also authorised UNIIIC to extend assistance in relation to terrorist attacks that had taken place since 1 October 2004.128 The mandate of UNIIIC was expanded on several occasions, so that it assisted Lebanese officials in 20 other investigations into terrorist attacks occurring from 1 October 2004 up to the end of its mandate in early 2009.129 The Secretary-General issued a preliminary report on the nature and scope of the international assistance required for a tribunal on 21 March 2006.130 It rejected the notion of an exclusively international tribunal, finding that this ‘would remove Lebanese responsibility for seeing justice done regarding a crime that primarily and significantly affected Lebanon’.131 Instead the report suggested a mixed   UNSC Res 1636 (2005) UN Doc S/RES/1636, preambular para 3. See also paras 5 and 6.   ibid, preambular paras 16 to 18. 125   ibid, para 11. 126   UNSC, ‘Letter Dated 13 December 2005 from the Charge d’Affaires a.i. of the Permanent Mission of Lebanon to the United Nations Addressed to the Secretary-General’ (2005) UN Doc S/2005/783. 127   UNSC Res 1644 (2005) UN Doc S/RES/1644, para 6. 128   ibid, para 7. 129   Eleventh Report of the UNIIIC, n 121, para 34. 130   UNSC ‘Report of the Secretary-General Pursuant to Paragraph 6 of Resolution 1644 (2005)’ (21 March 2006) UN Doc S/2006/176. 131   ibid, para 5. 123 124

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tribunal, based on an agreement between the United Nations and the Government of Lebanon.132 The Security Council endorsed this conclusion and requested that the Secretary-General negotiate such an agreement with the Government of Lebanon.133 The Secretary-General issued his Report on the Establishment of a Special Tribunal for Lebanon to the Security Council on 15 November 2006;134 attached to the report was a draft agreement (largely based on the SCSL Agreement) and the proposed statute. The President of the Security Council wrote to the Secretary-General on 21 November 2006 endorsing the report and the text of the draft agreement and statute. The President invited the SecretaryGeneral to proceed, in cooperation with the Government of Lebanon, with the final steps for the conclusion of the agreement.135 The STL Agreement was signed by the Government of Lebanon on 23 January 2007 and forwarded to the Lebanese Parliament for approval and ratification.136 The United Nations signed the agreement on 6 February 2007. The STL Agreement was not to enter into force until the Lebanese authorities had taken the necessary steps required by the Lebanese Constitution for the agreement to be approved and ratified.137 However, while the agreement was approved by the Lebanese cabinet, the pro-Syrian parliamentary speaker refused to convene Parliament, thus essentially precluding ratification of the agreement. Diplomatic efforts, including the intervention of the United Nations Legal Counsel, were unable to resolve the deadlock.138 The Lebanese Prime Minister wrote to the Security Council, requesting it to establish the tribunal unilaterally.139 On 30 May 2007 the Security Council adopted Resolution 1757. This resolution recalled the provisions of the agreement and determined that the terrorist act – the assassination of Hariri – continued to constitute a threat to international peace and security.140 Acting under Chapter VII of the Charter, the Security Council decided that the STL Agreement would enter into force on 10 June 2007 unless the Government of Lebanon confirmed that it had ratified the agreement prior to that date.141 This did not occur and on   ibid, para 6.   UNSC Res 1664 (2006) UN Doc S/2006/1664, para 1. 134   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon’ (15 November 2006) UN Doc S/2006/893. 135   UNSC, ‘Letter from the President of the Security Council Addressed to the Secretary-General’ (24 November 2006) UN Doc S/2006/911. 136   Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Annex to UNSC Res 1737 (30 May 2007) UN Doc S/RES/1737 (STL Agreement) 137   STL Agreement, art 19. 138   UN News Center, Press Release, ‘Time for Security Council Action on Lebanese Tribunal’ (15 May 2007). 139   UNSC, ‘Letter Dated 14 May 2007 from the Prime Minister of Lebanon to the Secretary-General’ (2007) UN Doc S/2007/281. The President of Lebanon wrote a separate letter, opposing the suggestion that the Security Council take binding action to establish the STL and arguing that constitutional procedures should be followed: UNSC ‘Letter Dated 15 May 2007 from the President of Lebanon Addressed to the Secretary-General’ (2007) UN Doc S/2007/286. 140   UNSC Res 1757 (2007) UN Doc S/RES/1757, preambular para 13. 141   ibid, para 1(a). 132 133



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11 June 2007 the Secretary-General announced that the United Nations had begun taking steps to formally establish the STL.142

C.  Key Features and Jurisdiction The mandate of the STL is to prosecute ‘persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons’.143 The STL may also exercise jurisdiction in relation to attacks occurring in Lebanon in the period between 1 October 2004 and 12 December 2005 that are considered to be connected to the attack against Hariri and are of a similar gravity and nature.144 Attacks occurring 12 December 2005 may be included within the jurisdiction of the STL by agreement between the United Nations and the Government of Lebanon, and with the consent of the Security Council.145 The STL Statute has an ‘all-inclusive’ personal jurisdiction, in that it can exercise jurisdiction ‘over persons’ within its subject matter jurisdiction.146 However, as it is assumed that the actual assassin was killed in the explosion, the investigation and prosecution strategy will be focused on those who planned and ordered the attack, rather than the actual perpetrators. The STL has jurisdiction only in respect of crimes under Lebanese law, in particular provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences.147 However, the Appeals Chamber has, rather controversially, interpreted the domestic definition of terrorism by reference to the ‘international’ crime of terrorism.148 The provisions concerning criminal responsibility are those applicable in international

142   UN Secretary-General, Press Release, ‘Secretary-General Launches Measures to Establish Special Tribunal for Lebanon, in Accordance with Security Council Resolution 1757 (2007)’ (11 June 2007) Doc SG/SM/11035L/3117. 143   Statute of the Special Tribunal for Lebanon, Attachment to UNSC Res 1737 (30 May 2007) UN Doc S/RES/1737 (STL Statute), art 1. 144  Rule 11 of the STL Rules of Evidence and Procedure (RPE) sets out a process where the Prosecutor seeks to exercise jurisdiction in relation to such attacks, whereby the Prosecutor may seek a ruling from a Pre-Trial Judge that an attack is ‘connected’. 145   ibid. Rule 12 of the STL RPE sets out the procedure for where the Prosecutor seeks to exercise jurisdiction in respect of an attack occurring after 12 December 2005. First, the Prosecutor must inform the President of the STL of his reasons for seeking to exercise jurisdiction in relation to that attack and why it is appropriate for the STL to do so. The President is then to refer the request to the UN Secretary-General so that the Security Council and the Government of Lebanon can discuss whether or not to grant jurisdiction to the STL. 146   STL Statute, art 1. See Report of the Secretary General, n 134, para 20. 147   STL Statute, art 2. 148   Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homocide, Perpetration, Cumulative Charging (Appeals Chamber Judgment) (16 February 2011). For criticism, see B Saul, ‘Legislating from A Radical The Hague: The UN Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’ (2011) 24 Leiden Journal of International Law 677.

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law, rather than the relevant Lebanese provisions.149 The procedural law to be applied by the STL draws on the inquisitorial system, which forms the basis of Lebanese criminal law, but also incorporates elements of the adversarial system.150 Similar to the SCSL, the STL comprises an Appeals Chamber and at least one Trial Chamber, which consist of a majority of internationally-appointed judges.151 There is also an international pre-trial judge,152 an international Registrar153 and an international Prosecutor who is to be assisted by a Deputy Prosecutor appointed by the Government of Lebanon.154 The STL Statute also provides for a Defence Office, headed by an international appointment.155 The STL enjoys separ­ate legal capacity,156 various privileges and immunities,157 and has concurrent jurisdiction – and primacy – in respect of courts in Lebanon for crimes within its jurisdiction.158 The STL commenced operations on 1 March 2009, with the transfer of investigative functions and material from the UNIIIC.159 Judges were appointed to the STL in March 2009, although several judges will continue to serve on a part-time basis until the judicial activities of the STL have fully commenced.160 The Prosecutor, who had served as the Commissioner for the UNIIIC, transferred to the STL on 1 March 2009. The Prosecutor stated that there would be a two-stage process, with an initial investigatory stage to be followed by a trial stage at a date to be determined.161 Four suspects, originally detained by the Lebanese authorities at the request of the UNIIIC, were transferred to the custody of the

149   STL Statute, art 3. This article includes modes of participation, such as a crime committed towards ‘a common purpose’, as well as command responsibility and superior orders. Note that the Appeals Chamber has held that the pre-trial judge and Trial Chamber judges must consider the provisions of both Lebanese and international criminal law on a case-by-case basis. Where there is no conflict between those sources of law, Lebanese law should be applied. Where there is conflict, the law that is most favourable for the accused should be applied: ibid, para 263. 150   The procedural law is largely set out in the Rules of Procedure and Evidence, adopted by the judges of the STL in March 2009, and subsequently amended in June 2009, October 2009 and November 2010. For further discussion, see M Gillett and M Schuster, ‘The Special Tribunal for Lebanon Swiftly Adopts Its Rules of Evidence and Procedure’ (2009) 7 Journal of International Criminal Justice 885. 151   STL Statute, arts 7 and 8. 152   STL Statute, art 8. 153   STL Statute, art 12. 154   STL Statute, art 11. 155   STL Statute, art 13. The requirement for the creation of a defence office within the formal structure of the tribunal is an innovation in the STL Statute. It remains the only tribunal to expressly provide for the creation of this office. Other institutions have made provision for the availability of defence lawyers, but usually within a defence support office located within the Registry. 156   STL Agreement, art 7. 157   STL Agreement arts 9 (inviolability of premises), 10 (immunity of funds, assets and other property), 11 (immunity of judges and key appointments) and 12 (immunity of international and national personnel). 158   STL Agreement, art 4. 159   Art 19 of the STL Statute provides for the admission before the STL of evidence obtained by the UNIIIC or Lebanese authorities. 160  STL, Second Annual Report (2010–2011) (2011). 161   UNSC Verbatim Record, Briefing by Mr Bellemare to the Council (17 December 2008) UN Doc S/PV/6047, 3.



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STL in 2008.162 However, on the basis that the Prosecutor did not consider there to be sufficient evidence to justify their continued detention, the STL ordered their release.163 The first indictment, which was issued under seal and remains confidential, was submitted in January 2011 for review by the Pre-Trial Judge.164 The announcement of the indictment led to protest and unrest within Lebanon, emphasising the delicate political situation in Lebanon and the region.165 The confirmation of the indictment in June 2011 and the transmission of the indictment and arrest warrants to the Lebanese authorities166 also triggered unrest.167 To date, the main judicial activities of the STL have been confined to proceedings concerning the release of the case file to one of the suspects168 and the issue of an opinion by the Appeals Chamber on the applicable law.169

IV.  Kosovo and the International Judges and Prosecutors Programme A.  The Conflict in Kosovo Kosovo was an autonomous province of Serbia, one of the constituent republics of the Socialist Federal Republic of Yugoslavia (SFRY), in accordance with the 162   The Lebanese authorities had been requested to defer the national proceedings in favour of proceedings before the STL in accordance with art 4(2) of the STL Statute and r 17 of the RPE: Order, Pre-Trial Judge, 27 March 2009. For discussion, see: G Mettraux, ‘The Internationalization of Domestic Jurisdictions by International Tribunals: The Special Tribunal for Lebanon Renders Its First Decisions’ (2009) 7 Journal of International Criminal Justice 911. 163   See Order Regarding The Detention of Persons Detained In Lebanon In Connection with the Case of the Attack Against Prime Minister Rafiq Hariri and Others (Pre-Trial Judge) CH/PTJ/2009/06 (29 April 2009). See Mettraux, ibid. 164  STL, Press Release, ‘Prosecutor Daniel A. Bellemare Files Indictment in the Hariri Case’ (17 January 2011). An amended indictment was filed in March, May and June 2011, the latter amendment at the request of the Pre-Trial Judge. 165   L Bassam, ‘Tension on Beirut Streets after Hariri Indictments’ Reuters (Beirut, 18 January 2011) www.reuters.com/article/2011/01/18/us-lebanon-security-idUSTRE70H1V120110118. 166   The Pre-Trial Judge confirmed the indictment on 28 June 2011 and authorised the Prosecutor’s request for the issue of arrest warrants for those named in the indictment: STL Press Release, ‘Prosecutor Daniel Bellemare Welcomes Confirmation of Indictment’ (1 July 2011). Both the indictment and the arrest warrants are to remain confidential so as to enable the execution of the arrest warrants by the Lebanese authorities: STL Press Release, ‘Confirmed indictment submitted to the Lebanese authorities’ (30 June 2011). 167   P Kenyon, ‘Hezbollah Indictments, Syria Protests Shake Lebanon’ NPR (Beirut, 16 July 2011) www. npr.org/2011/07/16/137825397/hezbollah-indictments-syrian-unrest-shake-lebanon. It is reported that the arrest warrants concern members of Hezbollah. 168   Mr El Sayed requested the STL to allow access to investigative material in order to claim civil remedies in Lebanese courts for his detention by national authorities, which he claimed was arbitrary. In November 2010, the Appeals Chamber confirmed that El Sayed was entitled to request access to the material and had standing to make the application: Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010. Subsequent proceedings have concerned the merits of the request for access. 169   See Interlocutory Decision on the Applicable Law, n 148.

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1974 Constitution of the SFRY.170 In July 1990 Serbia forced amendments to the Serbian Constitution, effectively revoking the autonomous status of Kosovo. Kosovo Albanians initially responded by adopting a strategy of passive, non-­ violent resistance, supporting independence, holding elections for a new government and adopting parallel structures. States showed little willingness to recognise Kosovo as independent and, after the conclusion of the Dayton Agreement in 1995,171 the status of Kosovo as a part of Serbia, and hence the Federal Republic of Yugoslavia (FRY),172 was not contested. Owing to the increasing incidence and gravity of human rights abuses within Kosovo and frustration at the perceived failure of the United Nations to address their claims for self-determination, Kosovo Albanians turned to more violent means. The Kosovo Liberation Army (KLA) emerged to oppose Serbian authorities. Although initially small, decentralised and ill-equipped for war, from 1997 the KLA grew in strength, coordination and support. As it became more active, the harassment of the Kosovo Albanian population by Serb military and paramilitary groups intensified, targeting not only KLA members, but leading politicians, activists and civilians. Faced with an expanding KLA presence, the FRY army entered Kosovo and began large-scale operations utilising both police and paramilitary units. The campaign targeted both the KLA and Kosovo Albanian civilian populations in rural areas, resulting in significant displacement and violations of human and civil rights. The conflict escalated from early March 1998 to March 1999 and eventually engulfed the entire province. Efforts to secure a peaceful resolution of the situation failed, with the FRY refusing to sign the Rambouillet Accords, which would have granted Kosovo self-government within the FRY.173 On 24 March 1999 the North Atlantic Treaty Organisation (NATO) commenced an aerial bombing campaign against the FRY and its forces within Kosovo.174 In 170  The following discussion is drawn from a number of sources. For further information see: Report of the Independent Commission on Kosovo, Kosovo: From Crisis to Crisis (2000) and Supplement, available at www.kosovocommission.org; Amnesty International, Country Reports (Human Rights by Country), available at www.amnesty.org; G Campbell, The Road to Kosovo – A Balkan Diary (Boulder, Westview Press, 2000); T Judah, Kosovo: War and Revenge 2nd edn (New Haven, Yale University Press, 2002); N Malcolm, Kosovo (New York, New York University Press, 1998); and W O’Neill, Kosovo: An Unfinished Peace (Boulder, Lynne Reiner Publishers, 2002). 171   See section VI(B) below. 172   The SFRY disintergrated in the early 1990s, following the declarations of independence of several of its constitutent republics, namely Croatia (25 June 1991, confirmed 8 October 1991), Bosnia and Herzegovina (14 October 1991, with regard to the sovereignty resolution adopted by Parliament on that day), Slovenia (25 June 19991, confirmed 8 October 1991) and Macedonia (8 September 19991, with regard to the referendum held on that day). The Federal Republic of Yugoslavia consisted of the former republics of Serbia and Montenegro. On 3 June 2006, Montenegro declared its formal independence, ending the FRY. 173   UNSC, ‘Agreement for Peace and Self-Government in Kosovo’ (1999) UN Doc S/1999/648. See M Weller, ‘The Rambouillet Conference on Kosovo’ (1999) 75 International Affairs 211. 174   The legality of this action will not be considered here. However, see: B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1; V GowllandDebbas, ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’ (2001) 11 European Journal of International Law 361; L Henkin, ‘Kosovo and the Law of “Humanitarian Intervention” ’ (1999) 93 American Journal of International Law 828; J Duursma, ‘Justifying NATO’s use of force in Kosovo?’ (1999) 12 Leiden Journal of International Law 287; and



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response FRY military and paramilitary units attacked the civilian population, with devastating consequences.175 Diplomatic efforts continued during the NATO campaign under the auspices of the Contact Group for Kosovo and the European Union and culminated in a peace plan formally approved by the Serbian Parliament on 3 June 1999. The peace plan required: the immediate and verifiable end to the violence and repression in Kosovo; the withdrawal of FRY military, police and paramilitary forces; the deployment of an international civil and security presence pursuant to a Council resolution; and the return of all refugees. On 10 June 1999 the Council adopted Resolution 1244, which provided the mandate and the framework for the United Nations Interim Administration Mission in Kosovo (UNMIK). The Council authorised UNMIK to provide ‘an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia’.176 UNMIK was mandated to perform a wide range of tasks, including the performance of basic civil administrative functions, the maintenance of law and order and the protection and promotion of human rights.177 UNMIK’s first legislative act was to vest itself with ‘all legislative and executive authority with respect to Kosovo, including the administration of the judiciary’.178 Legislative and executive authority was vested in the Special Representative of the Secretary-General (SRSG) for Kosovo,179 who assumed responsibility for law-making functions and promulgated a series of regulations and administrative directions on a wide range of issues.180 As part of its administrative function, UNMIK sought to reinstate the judicial system, which had been severely affected by the conflict in the territory.181 The withdrawal of the FRY army, Serbian police and paramilitary units and the Serbian state authorities (including the Serb judiciary), following the suspension

H Neuhold, ‘Collective Security after Operation Allied Force’ (2000) 4 Max Planck Yearbook of United Nations Law 73. 175   The devastation inflicted upon the Kosovo Albanian population between March and June 1999 has been well-documented (see, eg, reports by the Organization for Security and Co-operation in Europe (OSCE), Human Rights Watch and Amnesty International). It is estimated that approximately 10,000 people were killed, mainly Kosovo Albanians, and some 3,000 people missing. 176   UNSC Res 1244 (1999) UN Doc S/RES/1244, para 10. 177   ibid, para 11, ss (b), (i) and (j). 178   United Nations Interim Mission in Kosovo (UNMIK) reg 1999/1, s 1.1. 179   UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244, para 6. 180   Matters the subject of such ‘legislation’ included the permitted currency, ownership of real property, banking arrangements and tax and customs regimes. 181   For further discussion of the conditions facing UNMIK on arrival, and efforts to re-establish the judicial system(s), see: H Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’ (2001) 95 American Journal of International Law 46; W Betts, S Carlson and G Gisvold, ‘The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law’ (2001) 22 Michigan Journal of International Law 372; S Chesterman, ‘Justice Under International Administration: Kosovo, East Timor and Afghanistan’ (2001) 12 Finnish Yearbook of International Law 143; and F Lorenz, ‘The Rule of Law in Kosovo: Problems and Prospects’ (2000) 11 Criminal Law Forum 127.

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of the bombing campaign, left a vacuum in law and order. As many of the displaced population began to return:182 An increasing number of returnees resorted to violence and intimidation as a means of retrieving some semblance of their previous lives. Looting, arson, forced expropriation of apartments belonging to Serbs and other non-Albanian minorities, and in some cases, killing and abductions of non-Albanians became daily phenomena. Moreover, organized crime, including smuggling, drug trafficking, and trafficking in women, soon flourished. It was apparent, within the first few days, that the previous law enforcement and judicial system in Kosovo had collapsed.

Consequently, the immediate priority was to establish an emergency justice system to process individuals that had been detained by the NATO-led Kosovo Force (KFOR) and were awaiting investigation and trial. The SRSG appointed 55 judges and prosecutors to serve in this emergency system, operating as mobile units throughout the territory.183 Once the emergency justice system had commenced functioning, UNMIK turned its attention to establishing a regular judicial system, promulgating a series of regulations making provision for the structure of the court system and the appointment and removal of judges and prosecutors.184 In December 1999, 301 judges and public prosecutors were appointed. However, members of minority groups constituted only a small fraction of these numbers.185

B.  Accountability for Violations of International Humanitarian Law and Human Rights Law Neither the peace plan nor Resolution 1244 made specific reference to a need to secure accountability for violations of international humanitarian law or human rights law during the conflict. Although UNMIK did not have a specific mandate to do so,186 it was considered a moral necessity to ensure accountability for the serious violations of international human rights and international humanitarian law that had occurred in the period immediately preceding its creation.187 The ICTY was already operational and, having an open-ended temporal jurisdiction,   Strohmeyer, ibid, 48 (fns omitted).   See OSCE, Report 1: Material Needs of the Emergency Judicial System (1999) and OSCE, Report 2: The Development of the Kosovo Judicial System (10 June Through 15 December 1999) (1999). 184   See, eg, UNMIK Regs 1999/5, 6 and 7, which provided for the appointment of a public prosecutor, the structure and registration of the judiciary and prosecutorial service and for the appointment of judges. See Betts et al, n 183. 185   The OSCE reports that only eight professional judges were minorities (including two Serbs), only 13 of the lay judges were minorities (none of which were Serb) and only two of the public prosecutors belonged to a minority community. In August 2000, a further 125 judges, 309 lay judges and 17 public prosecutors were appointed, although an ethnic breakdown was not made available: OSCE, Review of the Criminal Justice System: 1 February 2000 to 31 July 2000 (2000) 13. 186   UNSC Res 1244 demanded that ‘all concerned’, which includes UNMIK, provide full cooperation with the ICTY: para 14. There was no statement as to the need to ensure that perpetrators were brought to justice by mechanisms other than the ICTY. 187   See Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, n 181. 182 183



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had jurisdiction in relation to serious atrocities committed within the territory of the former Yugoslavia, including Kosovo.188 As discussed in chapter one, should it choose to exercise its jurisdiction, the ICTY has a relationship of primacy in respect of national courts in the former Yugoslavia, including those in Kosovo established by UNMIK, and could require any proceedings to be transferred to the ICTY.189 The Prosecutor of the ICTY quickly indicated that the ICTY would investigate and try high-level leaders alleged to have committed crimes during the conflict in Kosovo.190 She noted, however, that due to the limited resources of the ICTY, institutions to be established by UNMIK would have the main responsibility for trying crimes committed in Kosovo.191 It was envisaged that those violations not investigated or prosecuted by the ICTY would be processed within the domestic judicial system, to be established and operated by UNMIK. While the ICTY has tried several cases arising from events in Kosovo,192 the majority of cases have been heard by national courts, mainly those established by UNMIK.193 It quickly became apparent that the newly re-established domestic courts in Kosovo were largely incapable of remaining impartial and independent when trying cases concerning violations during the conflict, or those with an ethnic dimension. It was also thought that the national judges and prosecutors did not possess the necessary experience to conduct trials of such complexity and importance.194 Moreover, Serbian lawyers and judges had refused to participate in the system, leading to a perception of, if not actual, bias in proceedings concerning Serb defendants.195 The international administration initially considered proposals for a separate internationalised criminal tribunal, the Kosovo War and Ethnic Crimes Court (KWECC).196 The KWECC would have comprised international and national personnel, including judges and prosecutors.197 It would have exercised   As noted in ch 1, the ICTY has jurisdiction in respect of crimes committed since 1 January 1991.   ICTY Statute, art 9. 190   ICTY, Press Release, ‘Statement by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, on the Investigation and Prosecution of Crimes Committed in Kosovo’ (29 September 1999). 191  ibid. 192   See, eg, Prosecutor v Miloševi´c, ICTY-02-54; Prosecutor v Milutinovi´c et al ICTY-05-88; Prosecutor v Haradinaj et al, ICTY-04-84; Prosecutor v Đorđevi ´c, ICTY-05-87; Prosecutor v Limaj et al, ICTY-03-66. 193   As discussed further in ch 3, the Serbian War Crimes Chamber has also considered cases concerning incidents occurring in Kosovo. 194   See: OSCE, Report 2, n 185; OSCE Background Report, The Treatment of Minorities by the Judicial System (13 April 2000); J Cady and N Booth, ‘Internationalized Courts in Kosovo: An UNMIK Perspective’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004); and Amnesty International, Recommendations to UNMIK on the Judicial System (February 2000). 195   International Crisis Group, Finding the Balance: The Scales of Justice in Kosovo (September 2002). 196   See C Gall, ‘UN Mission in Kosovo Proposes to Set Up a War Crimes Court’ New York Times (New York, 23 June 2000). 197  For greater detail on the KWECC and the development of the IJPP, see: M Baskin, Lessons Learned on UNMIK Judiciary, Report Commissioned by the Department of Foreign Affairs and International Trade of the Government of Canada, Pearson Peacekeeping Centre (5 June 2001); Betts et al, n 181; M Bohlander, ‘Kosovo: The Legal Framework of the Prosecution and the Courts’ in K Ambos and M Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg, Max Planck Institute, 2003) 32–34; J Cerone and C Baldwin, 188 189

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jurisdiction in respect of ‘war crimes, other serious violations of international humanitarian law and serious ethnically motivated crimes’.198 Although the KWECC would have concurrent jurisdiction with the ICTY, the ICTY would have primacy, and would focus its attention on high-level offenders. The role of the KWECC would be to try those not considered sufficiently important to face trial before the ICTY.199 However, these plans were subsequently abandoned, due to budgetary restraints, delays and (reportedly) the political concerns of various states.200 Instead, UNMIK instituted a system of appointing international judges and prosecutors to sensitive trials. Following an attack on a bus carrying Serbs to Serb-controlled northern Mitrovica, and the resulting riots and inter-ethnic violence, UNMIK authorised the appointment of the first international personnel to the District Court in Mitrovica pursuant to UNMIK Regulation 2000/6. Demands for the International Judges and Prosecutors Programme (IJPP) to be made available to detainees beyond the area of Mitrovica quickly followed. UNMIK subsequently extended the IJPP programme to all districts within Kosovo by UNMIK Regulation 2000/34.

C.  Key Features and Jurisdiction Regulation 2000/6 initially provided for the appointment of only one inter­ national judge to a trial panel. However, it was determined that this was not sufficient to address the perceived or actual bias in judicial decisions, as often the international judge was in the minority and was overruled by a majority of domestic judges.201 In December 2000, the SRSG promulgated Regulation 2000/64, which enabled a case to be assigned to an international prosecutor, international investigating judge and/or a panel comprising a majority of international judges ‘where the interests of justice so require’.202 The IJPP is unique amongst the tribunals studied here in that there is ‘no fixed internationalized court or panel. Rather the international judges and prosecutors permeate the system, sitting on

‘Explaining and Evaluating the UNMIK Court System’, in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004); and M Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, Special Report 112 of the United States Institute of Peace (October 2003). 198   L Dickinson, ‘The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo’ (2002–03) 37 New England Law Review 1059, 1062. 199   Betts et al, n 181. 200  OSCE, Review of the Criminal Justice System, 1 September 2000 – 28 February 2001, 71–72. Events, in particular the development of the IJPP, also overtook the proposed KWECC. See also H Strohmeyer, ‘Making Multilateral Interventions Work: the United Nations and the Creation of Transitional Justice Systems in Kosovo and East Timor’ (2001) 25 The Fletcher Forum of World Affairs 107. 201   Amnesty International, Kosovo (Serbia): The Challenge to Fix a Failed UN Justice Mission (January 2008) 12. 202   The IJPP has participated in trials alongside local counterparts, generally as the majority, and, in controversial cases, has sat as all international trial panels.



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panels on a case-by-case basis’.203 An application for the allocation of an IJPP may be made at any stage of the proceedings (including on appeal), although it cannot be made once a trial has started. The accused, the defence counsel, the Prosecutor or the Department of Justice itself could make the application to the SRSG. In addition, an IJPP could be requested for any type of case; the criterion for allocation was simply that allocation of an international prosecutor and/or judge(s) is considered necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice.204 The allocation of cases under the IJPP was within the discretion of the international administration, not that of the President of the relevant court.205 UNMIK also introduced a power for an inter­ national prosecutor to resurrect proceedings that had been abandoned by their local counterparts.206 One of the initial problems facing UNMIK upon arrival in Kosovo was the lack of a legal framework. Regulation 1 attempted to define the law applicable in Kosovo during the international administration.207 The regulation provided for three primary sources of law: UNMIK regulations and subsidiary instruments, including administrative directions; the law in force in Kosovo on 24 March 1999 (the day before the commencement of the NATO bombing campaign);208 and the law in force in Kosovo after 24 March 1999.209 However, the selection of 24 March 1999 offended much of the population. In particular, Kosovo Albanian judges and legal professionals disagreed with the selection, arguing that the legal regime operating in Kosovo following the revocation of autonomy in March 1989 was unlawful and discriminatory. In protest, many judges and prosecutors refused to apply the applicable law, applying instead pre-Miloševi ´c era provisions.210 In order to resolve the deadlock, the SRSG promulgated Regulation 1999/24, which decreed that the relevant date for the applicable law would be 22 March 1989, the day prior to the revocation of autonomy.211 Regulation 1 also provided for the application of human rights standards to Kosovo, with section 2 originally stating that:   Cerone and Baldwin, n 197, 41–42.   UNMIK reg 2000/64, s 1.   Cady and Booth, n 194, 61. 206   UNMIK reg 2001/2, s 1.4. 207   UNMIK reg 1999/1, s 3. Reg 1 was deemed to enter into force on 10 June 1999, the date of the deployment of UNMIK. The regulation has been amended or revised on a number of occasions. 208   It was generally understood by UNMIK that this did not include SFRY Federal and Serbian constitutional laws, although this was not clarified by subsequent UNMIK regulations: see, M Brand, ‘Institution Building and Human Rights Protection in Kosovo in the Light of UNMIK Legislation’ (2001) 70 Nordic Journal of International Law 461–88. 209   This latter source of law was only relevant where the previous two sources did not cover a subject matter or situation and where the later law was not discriminatory and complied with international human rights standards: UNMIK reg 1999/1, s 1(2). This may include laws enacted by Serbia before and after its new Constitution in 1990, the laws of the SFRY until its dissolution, as well as laws enacted by the FRY. 210   Betts, n 181, 373–74. 211   See F Lorenz, n 181, 128; and Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, n 181, 9–10. 203 204 205

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A Study of Existing Practice In exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognised human rights standards and shall not discriminate against any person on any ground such as sex, race, colour, language, religion, political or other opinion, national, ethnic or social origin, association with a national community, property, birth or other status.

This statement was supplemented in Regulation 1999/24 by reference to a nonexhaustive list of international human rights instruments, including the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the Universal Declaration of Human Rights.212 However, Regulation 1 did not make these instruments directly applicable in Kosovo;213 rather it reflected a political commitment only.214 The Constitutional Framework, promulgated in May 2001, also contains provisions incorporating international human rights standards.215 In terms of criminal law, the applicable law was initially UNMIK regulations and the Criminal Law of the Socialist Autonomy Province of Kosova of 1977, which had been suspended on 22 March 1989 and replaced by the SFRY Criminal Code. 216 Where these sources of law do not provide for a particular circumstance, the provisions of the FRY Criminal Code (FRY CC) applied.217 Of particular relevance to the present study were articles 141 and 142 of the FRY CC, which set out the substantive legal provisions for genocide and war crimes. A review of criminal justice legislation was concluded in February 2002 and the SRSG promulgated the Provisional Criminal Code of Kosovo (PCCK) and the Provisional Criminal 212   UNMIK reg 1999/24, s 1(3). The list also includes the International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Discrimination Against Women, Committee on the Elimination of Racial Discrimination, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child. It is a non-exhaustive list, and other human rights standards or instruments could be invoked pursuant to the section. 213   The use of the words ‘shall observe’ does not suggest that the international instruments have direct effect in domestic law. This is in contrast to language used in the DPA, which had the clear effect of directly incorporating human rights law into the law applicable in post-conflict BiH: see C Bell, Peace Agreements and Human Rights (Oxford, Oxford University Press, 2003) 221. 214   Moreover, domestic law did not apply to KFOR, UNMIK and their personnel. Only ‘persons undertaking public duties or holding public office’ are required to observe international human rights law standards. UNMIK personnel did not hold public office in the traditional sense, as they were employees of an international organisation and not of the state. Note, however, UNMIK reg 2000/47 ‘On the Status, Privileges and Immunities of KFOR, UNMIK and their Personnel in Kosovo’ (18 August 2000), which provided that UNMIK personnel must respect the applicable law and UNMIK regulations in the fulfilment of their mandate and must refrain from any actions inconsistent with that mandate: s 3.5. 215   UNMIK reg 2001/9, s 3.2 provided that the provisional institutions ‘shall observe and ensure internationally recognised human rights and fundamental freedoms’, again by reference to a nonexhaustive list of such instruments. Again, the framework only placed an obligation on domestic authorities and not UNMK or KFOR; C Stahn, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425, 441. 216   In the period until the selection of the relevant date was clarified, there were several instances of judges refusing to apply ‘Serb’ laws and relied upon the 1989 Kosovo Criminal Code and earlier laws instead. 217   See Hartmann, n 197.



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Procedure Code of Kosovo (PCPCK) on 6 July 2003.218 These laws entered into force on 6 April 2004.219 The two codes incorporated the content of several UNMIK regulations and substantially revised existing domestic provisions, offering ‘judicial institutions much needed comprehensive criminal and procedural legislation’.220 UNMIK’s intention had been that all cases concerning war crimes, genocide or crimes against humanity would be considered by the IJPP, although this has not always been the practice.221 Unlike most other tribunals studied here, the jurisdiction of the IJPP is not restricted to crimes committed during the conflict and the IJPP has also been responsible for cases considered particularly sensitive, including cases concerning serious inter-ethnic violence,222 trafficking, and organised crime and corruption.223 Moreover, it does not have exclusive or even primary jurisdiction for such crimes, and several cases have been heard before purely national panels and prosecutors, as neither the Department of Justice nor the parties have requested that the trial be internationalised. The IJPP does not have a restriction on its temporal jurisdiction, and many cases that have been inter­ nationalised concern incidents that occurred after the end of the armed conflict, particularly serious incidents of inter-ethnic violence and terrorism. While it is very difficult to obtain accurate information concerning the activities of the IJPP, as judgments and orders are not often publicly available, a report, prepared by Amnesty International, suggests that the IJPP has been involved in approximately 66 cases concerning crimes under international law.224 There is also no requirement that the panels consider only cases concerning senior offenders or those ‘most responsible’. The majority of funding for the IJPP was sourced from the peacekeeping budget of UNMIK, which was authorised by the General Assembly and paid from assessed contributions.

D.  The Situation Following the Declaration of Independence and the Transfer to EULEX Resolution 1244 was silent as to the final outcome of the transitional administration; that is, whether Kosovo would remain an integral part of Serbia or would 218   UNMIK reg 2003/25, ‘On the Provisional Criminal Code of Kosovo’ (6 July 2003); and UNMIK reg 2003/26, ‘On the Provisional Criminal Procedure Code of Kosovo’ (6 July 2003). 219   The delay was required for notification and training purposes. 220   R Murati, ‘Protection of Human Rights under Kosovo’s Criminal Code and Criminal Procedure Code’ (2005) 80 Chicago-Kent Law Review 99. 221   Amnesty International, Serbia (Kosovo): The Challenge to Fix a Failed Justice System, n 203, s 4. 222   The inter-ethnic violence that erupted as a result of riots in March 2004 has also been a focus of the IJPP: Human Rights Watch, Not on the Agenda: The Continuing Failure to Address Accountability in Kosovo Post-March 2004 (May 2006). 223   Cady and Booth note that ‘the fight against organised crime has now become one of UNMIK’s highest priorities’: n 194, 67. 224   Amnesty International, Burying the Past: 10 Years of Impunity for Enforced Disappearances and Abductions in Kosovo (June 2009) 33.

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achieve independence.225 Instead, the United Nations engaged with relevant authorities and representatives in Serbia and Kosovo, appointing a special envoy of the Secretary-General on Kosovo’s future status. In 2007, the special envoy, Martti Ahtisaari, issued his report on Kosovo’s future status and the Comprehensive Proposal for the Kosovo Status Settlement.226 After extensive negotiations, the special envoy concluded that the two parties, Serbia and Kosovo, were not able to reach agreement on Kosovo’s future status. He thus recommended that the only viable option for Kosovo was independence from Serbia, to be supervised by the international community for a period of time in accordance with the terms of the Ahtisaari settlement plan.227 On 17 February 2008 Kosovo unilaterally declared its independence from Serbia.228 This confirmed Kosovo’s acceptance of the Comprehensive Settlement Proposal for the Status of Kosovo, which included the dispatch of the European Union Rule of Law Mission (EULEX) (see below) and the continued deployment of a NATO force. Several states have subsequently recognised Kosovo as an independent state, 229 while Russia and Serbia continue to protest against the recognition of sovereignty for Kosovo.230 The European Union did not adopt a common position on the international status of Kosovo, instead announcing that it was for its Member States to determine unilaterally whether to recognise or not recognise Kosovo as independence.231 In July 2010, the International Court of Justice (ICJ) confirmed that the declaration of independence was ‘in accordance with international law’.232 Although there has 225   UNSC Res 1244 (1999) did not provide that Kosovo is being prepared for independence, nor does it recognise the right of self-determination for the people of Kosovo.cf UNSC Res 1272 (1999), establishing the mandate for UNTAET (see below). 226   UNSC Res 168 (2007), ‘Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status’ UN Doc S/2007/168. 227  ibid. 228   Kosovo Declaration of Independence, 17 February 2008, (2008) 47 ILM 467. 229   Estimates as to the number of states that recognise Kosovo vary. In November 2010, a rep­ resentative of Kosovo appearing before the Security Council in November 2010 reported that 71 countries had recognised Kosovo: UNSC Verbatim Record (12 November 2010) UN Doc S/PV/6422. The Head of the UN Mission in Kosovo informed the Security Council that ‘A total of 65 States had recognized Kosovo, which had entered into diplomatic relations with more than 25 countries, he said, adding that it stood ready to improve its relations with Serbia as well’: UNSC, ‘Head of United Nations Mission, Briefing Security Council, Calls on Serbian, Kosovo Authorities to Create Multi-Ethnic Society, Ensure Regional Prosperity (22 January 2010) Press Release SC/9851. 230   L Harding, ‘Kosovo Breakaway Illegal, Says Putin’ The Guardian (London, 15 February 2008) www.guardian.co.uk/world/2008/feb/15/russia.kosovo. 231   As a result the EU is divided; some 22 Member States recognise Kosovo, while five do not (Greece, Slovakia, Spain, Romania and Cyprus). 232   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) 22 July 2010. The General Assembly had referred the issue to the ICJ for an advisory opinion on the question ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’: UNGA Res 63/3 (2008) UN Doc A/63/3. The General Assembly acknowledged the Court’s advisory opinion, but did not mention the legality or otherwise of the declaration, instead it merely welcomed the ‘readiness of the European Union to facilitate a process of dialogue between the parties’. UNGA Res 64/298 ‘Request for An Advisory Opinion of the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo is in Accordance with International Law’ (9 September 2010) UN Doc A/ RES/64/298.



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been some discussion of Kosovo applying for United Nations membership in 2011,233 the likelihood of its membership being accepted would seem to be in doubt given the requirement of a Security Council recommendation and Russia’s continued opposition to Kosovo’s independence.234 EULEX is an EU civilian mission launched under the EU’s Common Security and Defence Policy (the largest such mission ever authorised). It is directed from Brussels.235 While EULEX operates under the authority of Resolution 1244, it does not enjoy the extensive powers of administration previously conferred on UNMIK. It is not to administer the territory, but rather to provide technical assist­ance and to monitor, mentor and advise the authorities in Kosovo. The central aim of EULEX is to assist the Kosovo authorities in their efforts to promote the rule of law, in particular in the areas of the police, the judiciary and customs (the three pillars of the mission).236 It coordinates closely with UNMIK and a report on the activities of EULEX is included in the regular reports by the Secretary-General to the Security Council.237 EULEX has assumed many functions from UNMIK, including responsibility for administration of the IJPP.238 International judges and prosecutors are now allocated to cases by EULEX.239 Various international crimes, including genocide, war crimes and crimes against humanity are investigated and prosecuted exclusively by the Special Prosecution Office of the Republic of Kosovo (SPRK) and EULEX judges may be assigned to decide such cases. The newly created Assembly of the EULEX Judges is responsible for the allocation of international judges to criminal cases in Kosovo, in accordance with guidelines adopted by the Assembly in July and October 2008.240 The first EULEX judges were deployed in Kosovo in April 2008 and, by 2010, throughout Kosovo there were some 20 EULEX prosecutors and more than 40 EULEX judges sitting in mixed panels with Kosovan colleagues. Following the establishment of EULEX, UNMIK wound down its judicial 233   ‘Sejdiu says Kosovo could apply for UN membership next year’ Southeast European Times (Pristina, 25 July 2010) www.setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/newsbriefs/2010/07/ 25/nb-04. 234   N Makarova, ‘UN membership door closed for Kosovo – Moscow’ RT (Moscow, 11 August 2010) http://rt.com/politics/churkin-kosovo-un-resolution/print/. 235   See Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, 16 February 2008. 236   See Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, 16 February 2008. 237   These reports are submitted every three months. 238  Art 3(d) of the Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo requires the mission to ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, including by the use of international personnel as appropriate. 239   See Law No. 03/L-053, On the Jurisdiction, Case Selection and Case Allocation of EULEX Judges and Prosecutors in Kosovo, 13 March 2008 (Law on Jurisdiction). See also Law No. 03/L – 052 On the Special Prosecution Office of the Republic of Kosovo, 13 March 2008. 240   See Guidelines for Case Allocation for EULEX Judges in Criminal Cases in District Courts, 10 July 2008; and Guidelines for Case Allocation for EULEX Judges in Criminal Cases at the Supreme Court of Kosovo, 23 October 2008, most recent version adopted 1 June 2010.

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functions and was to transfer all cases to EULUX. Between 18 December 2008 and 31 March 2009, EULEX judges received transfers of 185 criminal cases from UNMIK, at varying stages of proceedings and ranging from war crimes charges to cases concerning terrorism and money laundering.241 EULEX identified processing of certain of these ‘inherited’ cases as a priority, in particular the cases concerning war crimes from the 1998–99 conflict and the cases arising from the unrest in March 2004.242 In addition, EULEX police assumed control of some 850 war crimes investigations from UNMIK Police,243 and, in cooperation with the war crimes investigation unit, investigations have been opened for other cases arising from the conflict in Kosovo that had not been investigated by UNMIK before the transfer of responsibility.244 EULEX judges and prosecutors remain involved in several trials concerning war crimes, while EULEX police continue to arrest individuals in relation to war crimes allegations.245

V.  UNTAET and the Serious Crimes Process A.  The Indonesian Occupation of East Timor, the Consultation on Independence and International Administration In 1975 Portugal withdrew from East Timor, a territory it had administered for 500 years. On 7 December 1975 the Republic of Indonesia invaded the territory of East Timor and on 17 July 1976 Indonesia purported to annex the territory as its 27th province. Despite the continued condemnation of the invasion by the United

241  EULEX, Annual Report 2009 on the Activities of EULEX Judges (2009), 5. There are also proposals for EULEX judges to examine allegations of organised trafficking of human organs: see UNSC, ‘Report of the Secretary-General on the United Nations Interim Administration in Kosovo’ (3 May 2011) UN Doc S/2011/281, para 9; see also UNSC Verbatim Record (12 May 2011) UN Doc S/PV/6534. 242   Cases that were pending at the Supreme Court level were finalised in January 2010: UNSC, ‘Report of the European Union High Representative for Foreign Affairs and Security Policy to the Secretary General on the activities of the European Union Rule of Law Mission in Kosovo, Annex I’ (6 April 2010) UN Doc S/2010/169, 14. Cases at the District Court level were completed in July 2010: UNSC, ‘Report of the European Union High Representative for Foreign Affairs and Security Policy to the Secretary General on the activities of the European Union Rule of Law Mission in Kosovo, Annex I’ (29 July 2010) UN Doc S/2010/401, 12. 243   UNSC, ‘Report of the European Union High Representative for Foreign Affairs and Security Policy to the Secretary General on the Activities of the European Union Rule of Law Mission in Kosovo, Annex I’ (29 July 2010) UN Doc S/2010/401. 244   See UNSC, ‘Report of the European Union High Representative for Foreign Affairs and Security Policy to the Secretary General on the activities of the European Union Rule of Law Mission in Kosovo, Annex I’ (January 2011) UN Doc S/2011/43. 245   See UNSC, ‘Annex I, Report of the European Union High Representative for Foreign Affairs and Security Policy to the Secretary General on the Activities of the European Union Rule of Law Mission in Kosovo’ (May 2011) UN Doc S/2011/281.



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Nations,246 no action was taken for several decades.247 The annexation of East Timor was never recognised by the United Nations or its Member States.248 In the initial five-year period following the occupation, there were clashes between the Indonesian army and the military arm of the independence movement. This popular resistance continued, albeit at varying levels of intensity, throughout the Indonesian occupation.249 Following a change of President in 1998, Indonesia proposed autonomy for East Timor, subject to the condition that East Timor accepted integration into Indonesia. That condition was rejected by independence leaders. Indonesia subsequently entered into negotiations with Portugal (the de jure power) and the United Nations, resulting in an agreement that provided for a referendum to be held to assess whether the people of East Timor wished to formalise their de facto status as part of Indonesia or to move towards independence.250 Under the terms of the agreement the United Nations would conduct the ballot and certify its results while the Government of Indonesia would provide sufficient security to enable the referendum to take place. The Security Council established the United Nations Mission to East Timor (UNAMET) to organise and carry out the referendum,251 and indicated its understanding that Indonesia was responsible for ensuring a safe and secure environment for the vote.252 The results of the referendum conducted on 30 August 1999 were conclusive, with 78.5 per cent of voters in favour of independence and rejecting the option of autonomy within Indonesia. Following the release of the results, Indonesian milit­ary and militia forces reportedly initiated and facilitated a widespread and systematic campaign of violence against the civilian population of East Timor. Crimes alleged to have been committed included murder, rape, disappearances, assaults, torture, arson, looting and the forcible transfer of civilians into West 246   See, eg, UNSC Res 384 (1975) UN Doc S/RES/384 (calling for withdrawal by Indonesian forces and the exercise of the right to self-determination) and UNSC Res 389 (1976) UN Doc S/RES/389 (condemning the invasion). 247   Portugal attempted to bring the matter indirectly before the ICJ by challenging Australia’s recognition of the Indonesian occupation. However, this attempt was unsuccessful: Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90. 248   The exception was Australia, which entered into a treaty with Indonesia in respect of the Timor Gap: Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (signed 11 December 1989, entered into force 9 February 1991) 29 ILM 269. 249   The history of the territory of East Timor has been discussed in greater detail in the following works: J Dunn, Timor: A People Betrayed (Milton, Jacaranda Press, 1983); J Taylor, Indonesia’s Forgotten War: The Hidden History of East Timor (London, Zed Books,1991); J Taylor, East Timor: The Price of Freedom (London, Zed Books, 1999); Catholic Institute for International Relations and the International Platform of Jurists for East Timor, International Law and the Question of East Timor (1995). 250  UNSC, ‘Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor’ (5 May 1999) UN Doc S/1999/513. For discussion of the terms of the agreement, and East Timor’s right to self determination, see C Drew, ‘The East Timor Story: International Law on Trial’ (2001) 12 European Journal of International Law 651. 251   UNSC Res 1246 (1999) UN Doc S/RES/1246. 252   ibid, para 9.

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Timor. The Security Council condemned the violence and ultimately deemed the situation to be a threat to international peace and security. Acting pursuant to its Chapter VII powers, the Security Council authorised a multinational force, led by Australia and known as the International Force for East Timor (INTERFET), to restore peace and security in East Timor, to protect and support UNAMET in carrying out its tasks and to facilitate humanitarian assistance operations.253 On 25 October 1999, the Security Council again acted under its powers under Chapter VII of the Charter to establish a United Nations Transitional Administration in East Timor (UNTAET) by Resolution 1272.254 Like UNMIK in Kosovo, UNTAET had an extremely wide mandate; it was ‘endowed with overall authority for the administration’ and was ‘empowered to exercise all legislative and executive authority, including the administration of the judiciary’.255 On the same day, the Indonesian Parliament voted to accept the result of the referendum and Indonesia formally handed over responsibility for East Timor – in whatever capacity it was exercised – to the United Nations. The United Nations was to administer East Timor during a transitional period that would ultimately lead to independence. UNTAET was headed by a Special Representative of the Secretary-General (SRSG), who acted as the Transitional Administrator and was responsible for all aspects of the work of the United Nations in East Timor during the transitional period. The SRSG was also entrusted with all law-making functions, including the power to enact new laws and regulations and to amend, suspend or repeal existing laws.256 In terms of the East Timorese system, when UNTAET was deployed to East Timor in November 1999 it encountered a dire state of affairs. The legal and judicial system was in a state of collapse, with no courts or law enforcement institutions operating. As East Timorese lawyers had not been permitted to hold office under the Indonesian regime, there were no East Timorese judges, prosecutors or defenders able to fill the vacuum. Although some East Timorese had legal qualifications, they generally had no, or very limited, practical experience. Court buildings, records and other physical infrastructure had been destroyed or severely damaged. UNTAET realised that it would have to construct a functioning judicial system largely from scratch.257 UNTAET quickly moved to re-establish the judicial system, appointing judges and prosecutors in January 2000. Regulation 2000/11 was promulgated in March 2000 and established a series of district courts.   UNSC Res 1264 (1999) UN Doc S/RES/1264.   For discussion, see B Kondoch, ‘The United Nations Administration of East Timor’ (2001) 6 Journal of Conflict and Security Law 245; M Rothert, ‘UN Intervention in East Timor’ (2000) 39 Columbia Journal of Transnational Law 257; and M Ruffert, ‘The Administration of Kosovo and East Timor by the International Community’ (2001) 50 ICLQ 613. 255   UNSC Res 1272 (1999) UN Doc S/RES/1272, para 1. 256   UNSC Res 1272 (1999) UN Doc S/RES/1272, para 6. 257   For further discussion of the state on arrival and steps taken to re-establish a functioning judiciary see: H Strohmeyer, ‘Building a New Judiciary for East Timor: Challenges of a Fledgling Nation’ (2000) 11 Criminal Law Forum 259; H Strohmeyer, ‘Policing the Police: Post-Conflict Judicial System Reconstruction in East Timor’ (2001) 24 University of New South Wales Law Journal 171; Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, n 181; and S Linton, ‘Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor’ (2001) 25 Melbourne Journal of International Law 122. 253 254



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On 20 May 2002 East Timor became an independent nation, known as TimorLeste, and it was admitted as a member state of the United Nations on 27 September 2002. The newly adopted Constitution provided that laws and regulations in force at the time of transition would continue in effect unless inconsistent with the provisions of the Constitution.258 UNTAET’s mandate ended on 20 May 2002.259 Its successor mission, the United Nations Mission of Support in East Timor (UNMISET), was mandated to provide assistance to core administrative structures, to provide interim law enforcement and public security, and to contribute to the internal and external security of East Timor.260 After independence the political climate also changed, with an increasing focus on restoring its relationship with Indonesia.261

B.  The Quest for Accountability for Violations in East Timor In Resolution 1272 the Security Council had stressed that those accused of serious violations of human rights and international humanitarian law in East Timor should be brought to justice.262 There was evidence that human rights violations and crimes had been perpetrated before and after the 30 August referendum.263 Moreover, there was significant evidence that such violations were either directly perpetrated or supported and assisted by the Indonesian armed forces and police, thus potentially engaging the responsibility of Indonesia.264 However, Resolution 1272 did not refer to any specific accountability mechanism to be established. Unlike the situation in Kosovo, there was no international tribunal with jurisdiction to try the alleged crimes in East Timor. The Commission of Inquiry on East Timor, established by the United Nations High Commissioner for Human Rights,265 noted that the United Nations had a special responsibility to respond to these violations, which had been committed contrary to a decision of the Council acting under Chapter VII of the Charter, and were in breach of the terms of agreements between the United Nations and Indonesia.266 Given the culture of impunity that existed in East Timor towards the Indonesian military and supporting militia, and the state of the judiciary within East Timor, it was considered that the appropriate mechanism was to establish an international ad hoc criminal tribunal, preferably – but not necessarily – with the consent of Indonesia.267   Constitution for the Democratic Republic of East Timor (Constitution), s 165.   UNSC Res 1392 (2002) UN Doc S/RES/1392. 260   UNSC Res 1410 (2002) UN Doc S/RES/1410, paras 1 and 2. 261   C Reiger and M Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, Report for the International Center for Transitional Justice (March 2006), 8. 262   ibid, para 16. 263   UNGA, ‘Report on the Joint Mission of the Special Rapporteurs and Representatives, Situation of Human Rights in East Timor’ (10 December 1999) UN Doc A/54/660 (Rapporteurs’ Report); UNGA, ‘Report of the International Commission of Inquiry on East Timor to the Secretary-General’ (January 2000) UN Doc A/54/726- S/2000/59 (Report of the Commission of Inquiry). 264   Rapporteurs’ Report, ibid, paras 135–41; Report of the Commission of Inquiry, ibid, paras 135–41. 265   UNCHR, Fourth Special Session 23–25 September 1999 ‘Situation of Human Rights in East Timor’, Res 1999/S-4/1 (27 September 1999) UN Doc E/CN.4/RES/1999/S-4/1 9N. 266   Report of the Commission of Inquiry, n 263, para 147 and 153 267   Rapporteurs’ Report, n 263, para 74(6); Report of the Commission of Inquiry, n 263, para 153. 258 259

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However, Indonesia dismissed the report of the Commission of Inquiry as biased. It rejected the establishment of an international criminal tribunal for several reasons. In particular, Indonesia asserted that it was entitled and willing to exercise jurisdiction, as the violations had occurred at a time when East Timor was part of the territory of Indonesia and subject to Indonesian laws. It confirmed that, where it was established that individual personnel of the Indonesian National Armed Forces (the Tentara Nasional Indonesia, or TNI) and the Indonesian police had committed acts of violence and destruction, ‘the Indonesian Government is determined to bring these individuals to justice through the national judicial mechanism’.268 In the face of significant Indonesian opposition the Security Council did not establish an international tribunal. Instead the Security Council welcomed Indonesia’s commitment to bring those responsible to justice through domestic means,269 and continued to reiterate its call for Indonesia to act upon this commitment and to cooperate with East Timorese officials and UNTAET.270 The responsibility for the prosecution and trial of suspected perpetrators was therefore to be shared between the domestic judicial process of East Timor and the Indonesian legal system. The Indonesian response was focused in a National Commission of Inquiry on Human Rights Violations in East Timor (KPP-HAM) and an Ad-Hoc Human Rights Court.271 The KPP-HAM issued a report in early 2000, recommending the prosecution of 33 individuals, including senior officials.272 The KPP-HAM report was widely recognised as having been conducted in a ‘comprehensive, credible and objective manner, in compliance with inter­ national standards’.273 In contrast, valuations of the Ad-Hoc Human Rights Court

268   UNSC, ‘Letter dated 26 January 2000 from the Minister for Foreign Affairs of Indonesia to the Secretary-General’ (2000) UN Doc S/2000/65-A/54/727. 269   UNSC, ‘Letter from the President of the Council to the Secretary-General of 18 February 2000’ (2000) UN Doc S/2000/137. 270   UNSC Presidential Statement 26 (2000) UN Doc S/PRST/2000/26; UNSC Res 1319 (2000) UN Doc S/RES/1319, para 3; UNSC Presidential Statement 39 (2000) UN Doc S/PRST/2000/39; UNSC Res 1338 (2001) UN Doc S/RES/1338. 271   The Ad Hoc Human Rights Court was established by the Indonesian government in November 2000 by Law 26, which incorporated the crimes contained in the Rome Statute in order to criminalise human rights violations at the domestic level and allowed the President to establish the ad hoc court by decree. However, while the President issued a decree establishing the court, the temporal jurisdiction was initially restricted to events occurring after the August 1999 referendum, although it was subsequently extended to April 1999. The Attorney General issued indictments against seven individuals on 21 February 2002. 272   Indonesian Commission of Investigation into Human Rights Violations, KPP-HAM ‘Paper 3. Full Report of the Investigative Commission into Human Rights Violations in East Timor’ in R Tanter, D Ball and G Van Klinken (eds), Masters of Terror: Indonesia›s Military and Violence in East Timor in 1999, Canberra Papers on Strategy and Defence No. 145 (Canberra, Strategic and Defence Studies Centre, Australian National University, 2002) 15–59, 262–64. 273   UNSC Res 458 (2005) UN Doc S/2005/458, summary, para 15. See L Dickinson, ‘The Dance of Complementarity: Relationships Among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia’ in J Stromseth (ed), Accountability for Atrocities: National and International Responses (Ardsley, Transnational Publishers, 2003) 319, 335.



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have been almost uniformly negative.274 As Bertodano concludes, it is ‘impossible to resist the conclusion . . . that these trials have not been conducted in good faith, and their principal purpose is to placate international donors rather than to provide justice’.275 Despite the lack of a specific mandate in Resolution 1272 to establish an accountability mechanism, key legal advisers within UNTAET saw the creation of such a mechanism as important.276 Regulation 2000/11 envisaged the creation of a system of dedicated judicial panels to try individuals accused of committing ‘serious crimes’ within the District Court of Dili, following consultation with transitional authorities and the President of the District Court.277 The establishment of such panels was expressly stated not to preclude the jurisdiction of any inter­ national criminal tribunal that may subsequently be established and exercise jurisdiction for such offences.278 Regulation 2000/15 was adopted formally to establish these panels, known as the Special Panels for Serious Crimes (SPSC).279

C.  Key Features and Jurisdiction The SPSC comprised a majority of international judges, sitting alongside East Timorese counterparts.280 Special panels were also established within the Court of Appeal in Dili, again with a majority of international judges.281 The SPSC were supported by a Serious Crimes Unit (SCU) staffed almost exclusively by inter­ national personnel.282 Judges and prosecutors were appointed by UNTAET in 274   The process has been criticised for the political and military connections of the judges appointed to the court, the limited number of individuals charged (18) and convictions (only one suspect was convicted, and that conviction was overturned by the Supreme Court) and the failure to investigate several important issues raised by the KPP HAM Report. For further discussion, see: Amnesty International & Judicial System Monitoring Programme, Indonesia: Justice for Timor-Leste: The Way Forward (2004); International Crisis Group, Indonesia: Implications of the Timor Trials (2002); Human Rights Watch, Justice Denied for East Timor (2002); Amnesty International, Indonesia and Timor-Leste: International Responsibility for Justice (2003); S Linton, ‘Unravelling the First Three Trials at Indonesia’s Ad Hoc Court for Human Rights Violations in East Timor’ (2004) 17 Leiden Journal of International Law 303; Judicial System Monitoring Program Press Release, Court in Jakarta completes theatrical performance, 6 August 2003; S Roper and L Barria, Designing International Criminal Tribunals (Aldershot, Ashgate Publishing, 2006) ch 4; and D Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, Report for the International Centre for Transitional Justice (2003). 275   S Bertodano, ‘Current Developments in Internationalized Courts: East Timor Justice Denied’ (2004) 2 Journal of International Criminal Justice 910, 925. 276   For the suggestion that this was required, see S Clanton, ‘International Territorial Administration and the Emerging Obligation to Prosecute’ (2006) 41 Texas International Law Journal 569. 277   UNTAET reg 2000/11, s 10.3. 278   UNTAET reg 2000/11, s 10.4. 279   UNTAET reg 2000/15. For discussion of this approach, see S Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’ (2001) 12 Criminal Law Forum 185, 213–14. 280   UNTAET reg 2000/11, ss 9 and 10.3; and UNTAET reg 2000/15, s 22. 281   UNTAET reg 2000/11, s 15; UNTAET reg 2000/15, s 22.2. The panels within the Court of Appeal would normally sit with three judges (two being international), although in cases of special importance or gravity, a panel of five judges was to be established (three being international). 282   UNTAET reg 2000/16, ss 1 and 2. See also UNTAET reg 2000/11, s 24.

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January 2000.283 The first indictment was issued in November 2000,284 and trials commenced in January 2001.285 Although based in the District Court of Dili, the SPSC operated throughout the entire territory of East Timor.286 The SPSC also operated alongside a truth and reconciliation commission.287 Regulation 2000/15 conferred jurisdiction on the SPSC with respect to ‘serious crimes’, namely: genocide;288 war crimes committed in both international and non-international armed conflicts;289 crimes against humanity;290 murder;291 certain sexual offences;292 and torture.293 The SPSC were conferred with exclusive jurisdiction for genocide, war crimes and crimes against humanity and exclusive jurisdiction in respect of the other serious crimes where they were committed between 1 January 1999 and 25 October 1999.294 A panel could require other courts within East Timor to defer cases in respect of such violations to it at any stage of proceedings.295 The SPSC were also conferred with ‘universal jurisdiction’ in respect of genocide, crimes against humanity and war crimes.296 However, no indictments were issued on this basis. 283  UNTAET Notification 1/2000 ‘On the Provisional Appointment of Judges and Prosecutors’ (7 January 2000) UN Doc UNTAET/NOT/2000/1; see also Judicial System Monitoring Program, ‘East Timor’s New Judicial System’ (Oct 2001) 2(6-7) The La’o Hamutuk Bulletin 6. 284   General Prosecutor v Joao Fernandes (Indictment) BO-13-99-SC (14 November 2000). 285   General Prosecutor v Joao Fernandes (Sentencing Judgment) 0/01.C.G.2000 (25 January 2001); Judicial System Monitoring Program, Justice in Practice: Human Rights in Court Administration, Thematic Report 1 (November 2001) 2. 286   UNTAET reg 2000/15, s 2.5. 287   Commission for Reception, Truth and Reconciliation, established by UNTAET on 13 July 2001. For discussion see: C Stahn, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’ (2001) 95 American Journal of International Law 952 and Dickinson, ‘The Dance of Complementarity: Relationships Among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia’, n 273. 288   UNTAET reg 2000/15, s 4, adopting the definition of genocide from the Convention on the Prevention and Punishment of the Crime of Genocide. 289   UNTAET reg 2000/15, s 6, largely adopts the definiton of war crimes found in art 8 of the Rome Statute. 290   UNTAET reg 2000/15, s 5, adopts the definition of crimes against humanity found in art 7 of the Rome Statute, without adopting the organisational policy requirement reflected in art 7(2) of the Rome Statute. 291   UNTAET reg 2000/15, s 8, refers to the definition of murder under national law. 292   UNTAET reg 2000/15, s 9. These provisions, included in a section entitled ‘Crimes against decency’ criminalise adultery and define rape as ‘Any person who by using force or threat of force forces a woman to have sexual intercourse with him out of marriage, shall, being guilty of rape’: art 285 Indonesian Penal Code. For criticism of this choice of laws, see S Linton, ‘Rising from the Ashes’ n 257, 169–70. 293   UNTAET reg 2000/15, s 7, lists torture as a separate crime, its definition based in part on that found in art 15(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See discussion in ch 4, section III(L)(ii). 294   UNTAET reg 2000/15, s 1.1 and 2.3. Crimes occurring before 1 January 1999 were only within the jurisdiction of the SPSC where the law on which the offence was based was consistent with UNMIK regulations and international standards: s 2.4. 295   UNTAET reg 2000/15, s 1.4. 296   UNTAET reg 2000/15, s 2.1. ‘Universal jurisdiction’ was further defined in s 2.2, as meaning ‘jurisdiction irrespective of whether: (a) the serious criminal offence at issue was committed within the territory of East Timor; (b) the serious criminal offence was committed by an East Timorese citizen; or (c) the victim of the serious criminal offence was an East Timorese citizen’. The SPSC confirmed that it was limited to exercising territorial jurisdiction in relation to the national crimes within



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The jurisdiction of the SPSC was not restricted to senior level offenders and the experience of the SPSC replicated the early stages of the ICTY, with most persons indicted being lower-level offenders, often charged with single crimes unrelated to the political violence. The General Prosecutor then shifted strategy to concentrate on instances of murder, identifying 10 priority cases.297 The arrival of an international Deputy Prosecutor General facilitated a more selective strategy with increased resources dedicated to investigating more serious offenders and those with the greatest responsibility. However, although many of the East Timorese accused held positions of authority within the militia organisations, the majority were low in the overall chain of command. From 2003 onwards, the prosecution moved to indict more senior figures within the Indonesian military and police structures, including several of those not indicted by the Ad Hoc Court in Indonesia.298 Regulation 2000/15 provide that the applicable law was the law of East Timor, as promulgated by Regulation 1999/1 and subsequent UNTAET regulations and directives and, where appropriate, established rules of international law.299 The regulation then set out the applicable provisions on general principles of criminal law and individual criminal responsibility, drawn not from the relevant East Timorese laws, but from the Rome Statute.300 Following independence in May 2002, the mandate of UNTAET terminated and responsibility for the SPSC process was transferred – legally at least – to the Timorese Department of Justice. However, the successor mission, UNMISET, assumed responsibility for funding and effective control of the SCU and the SPSC process. The Security Council in effect introduced a completion strategy for the serious crimes process in May 2004, determining that the SCU should complete all investigations by November 2004 and that it should conclude its activities no later than 20 May 2005.301 The implementation of such a strategy ‘had no relation whatsoever to the progress of the proceedings’ and was instead linked to the desire of the Security Council to terminate the mission that supported the trial process.302 The SCU issued its last indictments in December 2004 and then engaged in a handover process from February to May 2005. By April 2005 a total of 95 indictments had been issued, relating to 440 defendants. The SPSC had completed 55 trials of 87 defendants, with the verdict in the last trial announced  its material jurisdiction and torture, holding that it had no jurisdiction to try an accused alleged to have raped a woman in West Timor: Prosecutor v Leonardus Kasa (Judgment) 11/CG/2000 (9 May 2001). 297   The Serious Crime Unit applied the following criteria: the number and type of victims; the seriousness of the crimes and their political significance; and the availability of evidence. 298   See discussion in this ch 2, section V(A), in particular sources cited at n 257. 299   UNTAET reg 2000/15, s 3.1. 300   UNTAET reg 2000/15, s 3. See also ss 11–21. 301   UNSC Res 1543 (2004) UN Doc S/RES/1543. 302   D Cohen, ‘“Hybrid” Justice in East Timor, Sierra Leone and Cambodia: “Lessons Learned” and Prospects for the Future’ (2007) 43 Stanford Journal of International Law 1, 13; S Katzenstein, ‘Hybrid Tribunals: Searching for Justice in East Timor’ (2003) 16 Harvard Human Rights Journal 245, 271–72.

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on 22 April 2005.303 84 defendants had been convicted, three had been acquitted, 13 had had their cases withdrawn or dismissed, and one defendant had been declared unfit to stand trial. A total of 339 indicted people remained beyond the jurisdiction of the SPSC.304 Without United Nations support and personnel, the SPSC were unable to continue and so functions were suspended on 20 May 2005, pending any legislative amendment that would enable trials to occur before solely Timorese panels.305 In essence: 306 with the closure of the SCU in May 2005, the Timor-Leste justice system lost the international assistance, in terms of both expertise and funding, that was necessary to prosecute serious crimes. The process essentially ground to a halt as the UN scaled down its presence in the country after more than five years of sustained state-building.

Only a few serious crimes have been processed by the domestic system, and those trials ‘demonstrated the national system’s lack of capacity to handle such cases’.307

D.  Further Accountability Initiatives and the Re-activation of the SPSC Process The SPSC and the trials held in Indonesia have not satisfied calls for accountability for violations committed in East Timor. In 2005, the Secretary-General, with the support of the Security Council, decided to establish a commission of experts to conduct a review of the progress made by the Indonesian judicial process, and the SCU and SPSC process in East Timor.308 The report of the commission of experts was forwarded to the Security Council in July 2005.309 While it found that the serious crimes process in East Timor had provided some accountability, it noted that the domestic processes could not be expected to continue without international support and that the Security Council should ensure continued funding and international staffing of the serious crimes process.310 Moreover, if this and its other recommendations in relation to Indonesian performance were not followed, the commission recommended the creation of an ad hoc tribunal by the Security Council acting under its powers under Chapter VII of the Charter, to be located in a third state, or, failing this, that the Security Council consider utilising the ICC.311 The Security Council did not consider directly this report and its 303   UNSC, ‘End of Mandate Report of the Secretary-General on the United Nations Mission of Support in East Timor’ (2000) UN Doc S/20005/310, para 20. 304   Judicial System Monitoring Program, Overview of the Justice Sector (2005) 30–31. 305   Reiger and Wierda, n 261, 27. 306   ibid, 11. 307  ibid. 308  See letters from the Secretary-General to the President of the Security Council, UN Doc S/2005/96 and UN Doc S/2005/104. 309   UNSC, ‘Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999’ (2005) UN Doc S/2005/458. 310   ibid, Recommendation A1. 311   ibid, Recommendations C and D.



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recommendations, instead requesting the Secretary-General to ‘submit a report on justice and reconciliation for Timor-Leste with a practically feasible approach, taking into account the report of the Commission of Experts and the views expressed by Indonesia and Timor-Leste’.312 The Secretary-General issued this report in July 2006, concluding that it would not be ‘practically feasible’ to reestablish the prosecutorial functions of the SCU.313 Instead, the Secretary-General recommended that the Council should mandate an international assistance program that could include providing an international investigative team to resume the investigative functions of the SCU in relation to serious crimes and to strengthen the judicial system.314 In April and May 2006, East Timor again experienced political violence,315 which drew the attention of the Council back to the issue of justice and accountability. The Council authorised a new assistance mission, the United Nations Integrated Mission in Timor-Leste (UNMIT), the mandate for which included implementing the relevant recommendations of the Secretary-General’s report.316 The Serious Crimes Investigation Team (SCIT), established within UNMIT in January 2007,317 is an extension of the previous serious crimes process.318 The SCIT has no judicial capacity; instead, its mandate is ‘to assist the Office of the Prosecutor-General of Timor-Leste with a view to completing investigations into outstanding cases of serious human rights violations committed in Timor-Leste in 1999’.319 While the SCIT has assisted in at least one trial for a serious crime,320 it was scheduled to end its activities in late 2011 or 2012 and it is unlikely that few trials will be prosecuted, particularly given that many defendants remain outside East Timor and beyond the reach of the domestic courts. Moreover, there are still significant concerns about the ability of the domestic legal system to conduct trials without international assistance.321 312   UNSC, ‘Letter Dated 28 September 2005 from the President of the Security Council Addressed to the Secretary-General’ (2005) UN Doc S/2005/613. 313   UNSC, ‘Report of the Secretary-General on Justice and Reconciliation for Timor-Leste’ (26 July 2006) UN Doc S/2006/580, para 36. 314  ibid. 315   The violence originally began as a conflict between elements of the East Timorese military. See P Toohey, ‘Rebels, Riots, and Ruin’ The Bulletin (16 May 2006) www.asia-pacific-solidarity.net/ southeastasia/easttimor/netnews/2006/end_05v5.htm#Rebels, riot and ruin. 316   UNSC Res 1704 (25 August 2006) UN Doc S/RES/1704, para 4(i). 317   It is not clear why the SCIT was established within UNMIT, as it had originally been proposed that it would be established within the Office of the Prosecutor-General: see International Center for Transitional Justice, Impunity in Timor-Leste: Can the Serious Crimes Investigation Team Make a Difference? (June 2010) 14. 318   Although established in 2007, the SCIT did not begin work until early 2008, partly because an agreement needed to be negotiated between the Office of the Prosecutor-General and UNMIT as to its status and relationship with that office, see Agreement between the United Nations and the Democratic Republic of Timor-Leste Concerning Assistance to the Office of the Prosecutor-General of TimorLeste (12 February 2008) (Assistance Agreement) discussed in International Center for Transitional Justice above. 319   Assistance Agreement, s 2.1. 320  Several serious crimes cases have been completed: see International Center for Transitional Justice, n 317, 21–22. 321   ibid, 3.

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However, from 2003, the United Nations Development Program (UNDP) and donor states have funded a project to strengthen the judicial system in East Timor.322 Part of this project has involved the provision of international judges and prosecutors to work throughout the justice system, including at the District Court of Dili.323 In 2005, the Government of East Timor issued a decree providing that ‘All provisions regulating cases related to serious crimes committed between 1 January and 25 October 1999 remain in force’, in particular Regulation 2000/15.324 In January 2010, a special panel was convened, the first since the suspension of the SPSC in 2005. A former Mahidi Militia member, Domingos Noronha, who had been charged with crimes against humanity in 2004 by the former Deputy-General Prosecutor for Serious Crimes, was detained when he reentered East Timor in 2008. He was tried before a mixed panel, including two international judges and with an international prosecutor. The Special Panel handed down its decision on 26 March 2010, finding the defendant guilty of three counts of murder and sentencing him to 16 years’ imprisonment.325 A further serious crimes case was conducted before a special panel in May 2011.326 Thus it appears that the SPSC process may be reinvigorated with the support of international judges funded by UNDP and supportive states, on the basis of an agreement between UNDP, the states providing judges (Portugal and Brazil) and the Government of East Timor. As a separate initiative, the governments of Indonesia and East Timor established a bilateral Commission of Truth and Friendship (CTF) to provide an alternative to the prosecutorial process.327 The CTF submitted its final report to both governments in July 2008, finding that the Indonesian military, police and civilian government bear institutional responsibility for widespread and systematic gross violations of human rights, including crimes against humanity, during the period surrounding the referendum.328 As the terms of reference of the CTF excluded the prospect of prosecution,329 the Indonesian and East Timorese governments are 322   Known as UNDP Justice System Programme, the project commenced in July 2003 and renewed in 2008. Contributors include states, such as Australia, Ireland and Norway, as well as organisations such as the OHCHR. 323   Judges and prosecutors are provided pursuant to the terms of an agreement between East Timor, UNDP and Portugal. Brazil has a similar agreement. 324   Decree Law No 13/2005, Approving the Criminal Procedure Code, s 3. 325   See SCIT Newsletter (May 2010). 326   See Judicial System Monitoring Program, Press Release, ‘Dili District Court tries members of the Besi Merah Putih militia for serious crimes committed in 1999’ (31 May 2011). The trial was conducted by a panel comprising two international judges and one national judge, as well as an international prosecutor. Judgment is pending. 327   M Hirst, Too Much Friendship, Too Little Truth: Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste, Report for the International Center for Transitional Justice (2008). 328   Indonesia-Timor Leste Commission of Truth and Friendship, From Remembering Comes Hope (15 July 2008). 329   The Terms of Reference for the CTF were, however, substantially limiting, and included the requirement that ‘Based on the spirit of a forward looking and reconciliatory approach, the CTF process will not lead to prosecution and will emphasize institutional responsibility’: See Commission of Truth and Friendship (CTF) Final Report of the Commission of Truth and Friendship (CTF) Indonesia – Timor-Leste (2008), www.laohamutuk.org/Justice/Reparations/CTFReportEn.pdf.



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working together to implement the recommendations of the Commission through ‘collective reparation, institutional reformation and reinforcing the culture of human rights.’330

VI.  War Crimes Chamber for Bosnia-Herzegovina A.  The Conflict in Bosnia and Herzegovina The conflict in Bosnia arose from the disintegration of the SFRY during the early 1990s. The SFRY comprised six constituent states and two autonomous pro­ vinces.331 Bosnia faced the choice of remaining in ‘a much smaller Yugoslavia that would be overwhelmingly dominated by Serbia and by implication its own large Serb minority’ or leaving the Federation.332 Bosnia asserted its sovereignty in October 1991 and formally declared its independence in April 1992.333 It was recognised as an independent state by the European Community on 6 April 1992 and by the United States the following day. Despite international support for its status as a sovereign state, for the next three and a half years the fledgling state faced conflict on two fronts. First, its own Serb population, supported by Serbia, sought to establish a separate Bosnian Serb state. Second, the Croat population of Bosnia, supported by Croatia, attempted to gain territory by engaging in a campaign of ethnically motivated violence and intimidation. The resultant conflict was the worst in Europe since World War Two. Estimates suggest that close to 100,000 people were killed or remain unaccounted for, including 16,000 children.334 Civilian populations were deliberately targeted. There were mass executions, many incidents of rape, detention in concentration camps, forced displacement and discriminatory acts, which came to be known as ethnic cleansing. In the most heinous episode of the conflict some 8,000 Bosniak men and boys were killed in Srebrenica, in an act widely recognised as genocide.335 330   Republic of Indonesia, Ministry of Foreign Affairs, ‘Commission of Truth and Friendship (CTF) Indonesia – Timor-Leste’ (7 July 2010), www.deplu.go.id/Pages/IIssueDisplay.aspx?IDP=4&l=en. 331   The six constituent states were Serbia, Republic of Macedonia, Bosnia and Herzegovina, Croatia, Slovenia and Montenegro. The two autonomous republics were Kosovo and Vojvodina. 332   E Cousins, ‘Building Peace in Bosnia’ in E Cousins and K Kumar (eds), Peacebuilding as Politics (Boulder, Lynne Rienner, 2001) 118. 333   Bosnia declared its sovereignty in October 1991, before holding a referendum on independence. Although the referendum was boycotted by the Serb community, the majority of votors favoured independence, and a formal declaration of independence was made on 6 April 1992. Bosnian Serbs immediately proclaimed a separate state. 334  Estimates vary significantly. The independent research conducted by the Research and Documentation Centre (RDC) concluded that the actual figures were probably lower than previously believed. The Centre identified 92,207 persons killed or missing: see RDC, Population Losses in Bosnia and Herzegovina 92–95. 335   Prosecutor v Krsti´c  ICTY-98-33 (Srebrenica-Drina Corps); Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v Serbia And Montenegro) (Judgment) [2007] ICJ Rep 43.

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The initial response of the United Nations was limited. NATO threats produced limited withdrawal of Serb troops from Bosnia in 1994. However, Serb forces and paramilitary groups continued to attack Bosnian civilians and external peacekeepers, taking hundreds prisoner and using the peacekeepers as human shields. On 30 August 1995 the United States led a NATO air strike against strategic Serb positions throughout Bosnia. In the face of the NATO military action and sustained inter­ national pressure, on 21 November 1995 Serbia agreed to a comprehensive peace agreement between the three warring factions. The Dayton Peace Agreement (DPA)336 provided for the federal state of Bosnia and Herzegovina, consisting of two separate entities, the mainly Serb Republika Sprska and the Federation of Bosnia and Herzegovina, consisting of mainly Croats and Bosniaks. It also authorised the deployment of an international peacekeeping force, the United Nations Protection Force (UNPROFOR), to maintain the peace. Unlike Kosovo and East Timor, Bosnia and Herzegovina was not directly administered by the United Nations in the post-conflict stage, and the United Nations was given a more limited role. Instead, several organisations were charged with implementing the civilian aspects of the peace agreement, with their efforts being coordinated and overseen by an international appointment, the High Representative for Bosnia and Herzegovina (OHR). The powers of the OHR derived from the DPA,337 the Peace Implementation Council (PIC)338 and resolutions adopted by the Security Council.339 The OHR was to be:340 appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement by carrying out, as entrusted by a U.N. Security Council resolution, the tasks set out below.

Those tasks included: 341 a wide range of activities including continuation of the humanitarian aid effort for as long as necessary; rehabilitation of infrastructure and economic reconstruction; the establishment of political and constitutional institutions in Bosnia and Herzegovina; promotion of respect for human rights and the return of displaced persons and refugees; and the holding of free and fair elections.

Thus, at least as initially conceived, the OHR would have been authorised by the Security Council, most likely as a subsidiary organ of the Council.342 However, the 336   General Framework Agreement for Peace in Bosnia and Herzegovina (Bosnia and HerzegovinaCroatia-Yugoslavia) (14 December 1995) 35 ILM 75 (1996) (Dayton Peace Agreement) (DPA). 337   Ibid, Annex 10. 338   The PIC comprises a group of 55 interested states and organisations acting on behalf of the international community to sponsor and direct the implementation of the peace process. 339   See, eg, UNSC Res 1031 (15 December 1995) UN Doc S/RES1031, which confirms that the OHR is ‘the final authority in theatre’ regarding the interpretation of the DPA. 340   DPA, Annex 10, art 1(2). 341   DPA, Annex 10, art 1(1). 342   C Stahn, The Law and Practice of Internal Territorial Administration: Versailles to Iraq and Beyond (Cambridge, Cambridge University Press, 2008) 288.



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Council played a more moderate role, merely approving the appointment of the OHR343 and receiving reports from the OHR and the PIC on the implementation of the civil aspects and supporting the activities of the OHR.344 Therefore, unlike UNMIK and UNTAET, the OHR is not a subsidiary organ of the Council. Originally, the OHR was to have a coordinating role and, as a result, the DPA did not grant the OHR the power to adopt binding regulations or to impose decisions. Yet the constitutional arrangements established by the DPA, namely strong entities (Republica Sprska and the Federation of Bosnia and Herzegovina) and a weak federal state, resulted in poor inter-entity cooperation and a breakdown along ethnic lines in key institutions. Realising that external intervention was required, the OHR turned to a provision in the DPA stating that the OHR shall have the final authority ‘regarding interpretation of this Agreement on the civilian implementation of the peace settlement’.345 It thus ‘interpreted’ its powers under the DPA as authorising the promulgation of laws for the civil administration of the territory, including the judiciary, where the national institutions had failed to do so. This interpretation was subsequently endorsed by the PIC and the Security Council.346 The OHR has relied upon this interpretation to introduce legislation in several areas, including the imposition of the Law on the State Court of Bosnia and Herzegovina (BiH), a new federal level judicial institution, in November 2000.347 This law was subsequently amended by a further decision of the OHR in August 2002 to establish the internationalised chamber for Organized Crime, Economic Crime and Corruption.348 The expansive nature of the powers conferred on the High Representative led to Bosnia and Herzegovina being called a ‘de facto protectorate’.349 From 2002, the European Union has been the lead organisation in Bosnia and Herzegovina, with the Special Representative of the European Union350 also serving as the High Representative.

  The OHR has been appointed by States.   eg, UNSC Res 1035 (1995) UN Doc S/RES/1035, authorising the involvement of the United Nations in the implementation of the DPA, and UNSC Res 1088 (1996) UN Doc S/RES/1088, reaffirming support for the DPA and calling upon all parties to comply with their obligations. 345   DPA, art V. 346   At a meeting in Bonn in 1997, the PIC adopted the ‘Conclusions of the Peace Implementing Conference held in Bonn’, which ‘welcomed the High Representative’s intention to use his final authority in theatre regading interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary’ on several issues: art XI. The Council then expressed its support for these conclusions: UNSC Res 1144 (1997) UN Doc S/RES/1144, para 2; see also UNSC Res 1256 (1999) UN Doc S/RES/ 1256, para 4. 347   See Decision imposing the Law on the State Court of BiH (12 November 2000). The law was based on a draft text prepared by the Council of Europe’s Venice Commission. The decision notes that the Council of Ministers of BiH and the Parliamentary Assembly had failed to adopt the required legislation. The Decision and the Law were gazetted in the Official Gazette of BiH and of the two entities. 348   Decision of the High Representative (6 August 2002). 349   International Center for Transitional Justice, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (2008) 4. 350   The mandate of the EUSR is based in the Common Foreign and Security Policy of the European Union. 343 344

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B.  Accountability for Human Rights Violations Approximately 279,000 people were reported dead or missing during the armed conflict. There was evidence of atrocities having been committed on all sides. As outlined in chapter one, the Security Council had established the ICTY in 1993 to investigate and try those suspected of committing international crimes in Bosnia and other states formerly part of the SFRY. Annex 6 to the Dayton Agreement required the competent authorities in Bosnia and Herzegovina to cooperate with the ICTY.351 As already discussed, the ICTY enjoys a relationship of primacy in relation to national courts, including those in Bosnia and Herzegovina.352 However, it was clear that the ICTY would only try a limited number of suspects and that remaining cases would be tried by courts at the national level, in particular before the courts of the two entities, the Federation and Republika Sprska. There were, however, concerns that trials before national courts would not be conducted impartially. Accordingly, under the so-called ‘rules of the road’ arrangement it was agreed that the Office of the Prosecutor of the ICTY would review case files of those suspected of committing international crimes during the conflict to determine whether the files contained sufficient and credible evidence to support the issue of an arrest warrant.353 The ICTY performed this function from 1996 to 2004, reviewing 1,419 cases against 4,985 persons, with approval given for 898 persons to be arrested on war crimes charges.354 This function was transferred to the Prosecution Office in Bosnia and Herzegovina in October 2004. Despite the ICTY not being able to try all perpetrators, the DPA did not establish a federal level judicial institution to try crimes committed during the conflict.355 Jurisdiction for criminal activities in Bosnia and Herzegovina is shared by the federal level institutions and the two entities. There were considerable concerns that the judicial systems of the states in the former Yugoslavia lacked the capacity to conduct complex trials. There was also a risk that courts were incapable of providing impartial and unbiased justice in respect of trials arising from the conflict, particularly regarding either defendants or victims of other ethnic groups. As Burke-White notes, the existence of the ICTY and the requirement for the rules of the road procedure negatively impacted upon the development of the Bosnian judicial system and the conduct of national   DPA, Annex 6, art 8.   ICTY Statute, art 9.   These principles were agreed at a meeting in Rome, signed on 18 February 1996. For further detail see: M Ellis, ‘Bringing Justice to an Embattled Region – Creating and Implementing the “Rules of the Road” for Bosnia-Herzegovina’ (1999) 17 Berkeley Journal of International Law 1. 354   Statistics taken from the ICTY website, www.icty.org/sid/96. 355   The DPA did establish a Constitutional Court and a Human Rights Chamber: Annexes IV and VI, respectively. For the role of the Human Rights Chamber in war crimes cases, see U Garms and K Peschke, ‘War Crimes Prosecution in Bosnia and Herzegovina (1992–2002)’ (2006) 4 Journal of International Criminal Justice 258. 351 352 353



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trials.356 In 2002, the High Representative established the Court of Bosnia and Herzegovina, which has criminal jurisdiction concerning offences committed in Bosnia and Herzegovina and some supervisory functions regarding the entitylevel institutions. However, by January 2005, only 54 domestic war crimes prosecutions had reached trial, and of these, only two trials had commenced in the Republika Sprska.357 A study conducted by the Organization for Security and Co-operation in Europe (OSCE) revealed ‘a number of well-founded allegations of arbitrary arrests and unfair trials’.358 Despite these failings, the establishment of the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC) in 2005 resulted from the development of the completion strategy of the ICTY rather than a drive to reform national institutions.359 The President of the ICTY and the Security Council recognised that the transfer of cases of lesser importance from the ICTY to the courts of states of the former Yugoslavia was a measure vital to achieving the completion strategy.360 In the absence of appropriate national mechanisms, the ICTY and the OHR proposed the establishment of an internationalised chamber to operate within the existing court structure of Bosnia, to be supported by a war crimes department.361 The President of the ICTY reported to the Security Council in June 2002, recommending this model and discussing some of the perceived problems with referring cases to Bosnia.362 In particular, there was concern that the judicial system in BiH was not yet functioning with sufficient impartiality, at least in relation to crimes arising from the armed conflict, and in accordance with applicable human rights norms. The Security Council endorsed this strategy.363 Amendments were made to Rule 11bis of the ICTY Rules of Procedure and Evidence (RPE) to address the concerns of the judges that any referred trials must comply fully with internationally recognised standards of due process and human 356   W Burke-White, ‘The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina’ (2008) 46 Columbia Journal of Transnational Law 279. 357  OSCE, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles (2005) 6. 358   ibid, 4. 359   See ch 1, section III(B)(iii). 360   See UNSC, ‘Letter Dated 21 May 2004, from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Addressed to the President of the Security Council’ (2004) UN Doc S/2004/420; UNSC Res 1503 (2003) UN Doc S/RES/1503, preambular para 4. 361   The OHR engaged expert consultants to consider the available options: see Consultants’ Report to the OHR, The Future of War Crimes Prosecutions in Bosnia and Herzegovina, discussed in M Bohlander, ‘The Transfer of Cases from International Criminal Courts to National Courts’ (2004), working paper (on-file with the author); see also M Bohlander, ‘Last Exit Bosnia – Transferring War Crimes Prosecution from the International Tribunal to Domestic Courts’ (2003) 14 Criminal Law Forum 59; and ICTY, Press Release, ‘Joint Preliminary Conclusions of OHR and ICTY Experts Conference on Scope of BiH War Crimes Prosecutions’ (15 January 2003). 362   UNSC, ‘Report on the Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts’ (2002) UN Doc S/2002/678. 363   UNSC, Presidential Statement 21 (2002) UN Doc S/PRST/2002/21.

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rights.364 In 2003, the ICTY and the OHR reported jointly to the Security Council, recommending the creation of a specialised chamber within the State Court of Bosnia and Herzegovina, an independent Registry and the creation of a war crimes unit within the Office of the Prosecutor of Bosnia and Herzegovina.365 The Security Council subsequently supported the ‘expeditious establishment’ and ‘early functioning’ of the WCC and encouraged donations from interested states.366 The OHR drafted the necessary legislation to establish the WCC within the structure of the federal-level State Court. Unlike the creation of the State Court itself, the OHR did not utilise the international powers conferred on him by the DPA to establish the WCC,367 preferring instead to refer the required legislation to the national and entity level legislatures for adoption in accordance with normal procedures. However, the Bosnian authorities and the Parliament did not act as swiftly as hoped, and the package of legislation required to allow the WCC to receive referrals from the ICTY was not adopted until October 2004.368 The WCC was formally established on 9 March 2005.

C.  Key Features and Jurisdiction The WCC is established by legislation amending the Law on the State Court. It sits as a separate section in the Criminal Division of the State Court, formally known as Section I for War Crimes. It operates alongside two other sections within the Criminal Division, Section II for Organized Crime, Economic Crime and Corruption – which also utilises international personnel – and Section II, with jurisdiction for all other crimes under the jurisdiction of the Court.369 The Appellate Division is similarly separated into sections, with Section I of the Appellate Division to hear appeals from Section I of the Criminal Division (ie 364   Rule 11bis has been amended on three occasions, during the plenary sessions on 30 September 2002, 10 June 2004 and 28 July 2004. See D Mundis, ‘Completing the Mandates of the Ad Hoc International Criminal Tribunals: Lessons from the Nuremberg Process?’ (2005) 28 Fordham International Law Journal 591. 365  Joint Conclusions between the International Criminal Tribunal for the former Yugoslavia and the Office of the High Representative for Bosnia and Herzegovina (January 2003). See also: Office of the High Representative, War Crimes Chamber Project: Project Implementation Plan Registry Report (20 October 2004) 6; Office of the High Representative, Press Release, ‘Joint Preliminary Conclusions of OHR and ICTY Experts Conference on Scope of BIH War Crimes Prosecutions’ (15 January 2003) Doc OHR/PIS/723-e; Office of the High Representative, Press Release, ‘OHR-ICTY Working Group on Development of BiH Capacity for War-crimes Trial Successfully Completed’ (21 February 2003) Doc OHR/P.I.S./731e. 366   UNSC Res 1503 (2003) UN/RES/1503, preambular para 11. 367   cf the Decision Imposing the Law on the State Court of Bosnia and Herzegovina (12 November 2000). 368   The package of legislation included the Law on Amendments to the Law on the State Court of Bosnia and Herzegovina; the Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of Bosnia and Herzegovina and the Use of Evidence Collected by ICTY in Proceedings before the Courts in Bosnia and Herzegovina; the Law on Protection of Witnesses Under Threat and Vulnerable Witnesses; and the Law on Amendments to the Criminal Code of Bosnia and Herzegovina. 369   Law on the Court of BiH, art 14.



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the WCC).370 The arrangements for the WCC included the creation of the Special Department for War Crimes (SDWC), established within the Prosecutor’s Office of Bosnia and Herzegovina.371 The Prosecutor’s Office is responsible for investigating and prosecuting offences within the jurisdiction of the State Court and for processing all requests for international legal assistance in criminal law matters.372 During the transitional period international prosecutors were appointed to this department,373 and the section was headed by an international prosecutor.374 The WCC comprises both national and international judges.375 International judges may be appointed to both Section I and II of the State Court and hear cases arising under either section.376 International assistance was to be for an initial transitional period of five years, with the mandate of foreign judges and prosecutors to end in December 2009. The Office of the High Representative (OHR) appointed international judges and prosecutors until July 2006, when responsibility for appointment was transferred to the High Judicial and Prosecutorial Council of BiH, which also appoints national judges and prosecutors.377 Initially, international judges formed the majority on each panel in Section I and II; however, from 2008 the balance of the composition was reversed, with national judges now forming the majority.378 In October 2009 the Parliament of BiH refused to extend the mandate of the international judges and prosecutors serving in the WCC, which were due to expire at the end of the transitional period. It was reported that the continued presence of international personnel was perceived as a threat to Bosnian sovereignty.379 The OHR intervened, amending the relevant legislation so as to extend the mandate of the international judges and prosecutors until 31 December 2012.380 During the period of its operation, approximately 18 international judges and 12 international prosecutors have been appointed.

  Law on the Court of BiH, art 16.   Law on the Prosecutor’s Office of Bosnia and Herzegovina, art 3. This article also establishes the Special Department for Organised Crime, Economic Crime and Corruption. 372   Law on the Prosecutor’s Office of Bosnia and Herzegovina, art 12(2). 373   Law on the Prosecutor’s Office of Bosnia and Herzegovina, art 18a. 374   The international prosecutor is officially a Deputy Chief Prosecutor of the Prosecutor’s Office: Law on the Prosecutor’s Office of Bosnia and Herzegovina, art 18a(2). 375   Law on the Court of BiH, art 24(2). 376   Law on the Court of BiH, art 24(4) and (5). 377  Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and for the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina as well as on the Creation of the Transition Council, Replacing the Registry Agreement of 1 December 2004 and the Annex Thereto (dated 26 September 2006) art 8. 378   International Center for Transitional Justice, The War Crimes Chamber in Bosnia and. Herzegovina: From Hybrid to Domestic Court (2008) 7. 379   Third Report of the Republic Srpska to the United Nations Security Council on the Situation in Bosnia and Herzegovina (May 2010) 10–12. 380   For criticism of this, see Human Rights Watch, Justice for Liberia: The Truth and Reconciliation Commission’s Recommendation for an Internationalized Domestic War Crimes Court (December 2009). 370 371

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Sections I (War Crimes) and II (Organized Crimes) are supported by a separate Registry,381 which during the transitional period was headed by an international appointment.382 The Registry for Sections I and II was established by an agreement between the High Representative and the Presidency of Bosnia and Herzegovina, which also set out the powers of the Registrar.383 The Registry has now largely transitioned into the relevant national institutions in accordance with its transition plan.384 The WCC sits in Sarajevo. Funding for the WCC is drawn from the state budget of Bosnia and Herzegovina385 and from contributions from international donors.386 Salaries for international personnel are funded directly by states and are managed separately from the WCC’s budget. International donors also provided contributions towards the WCC’s operational costs.387 From 2006, the Registry commenced a process of transferring staff (and associated costs) and assets to the Court proper, to be contained in future within the budget funded by Bosnia and Herzegovina. The WCC has ‘jurisdiction over criminal offences defined in the Criminal Code of Bosnia and Herzegovina and other laws of Bosnia and Herzegovina’.388 The Criminal Code of Bosnia and Herzegovina, which replaced the former SFRY Criminal Code in 2003, includes various war crimes, crimes against humanity and genocide. The Criminal Code also extends jurisdiction extraterritorially in some circumstances, including where Bosnia and Herzegovina is required by inter­ national agreements to try acts committed by foreign nationals abroad. The WCC also operates in accordance with the Bosnia and Herzegovina Criminal Procedure Code. The WCC has received cases from several sources: cases referred from the ICTY under Rule 11bis of the ICTY’s RPE; cases referred by the ICTY Prosecutor, for which no indictment has been issued; cases pending before domestic courts that are considered sufficiently sensitive so as to require trial at a federal level   Law on the Court of BiH, art 17(1) and (5).   Law on the Court of BiH, art 24(1).  Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes, Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia (1 December 2004). 384   See Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption (29 September 2006) attaching the transition plan. 385   In August of each year the State Court submits a budget proposal to the Bosnian Ministry of Finance and Treasury. The proposal is then approved by the Parliament of BiH, with funds secured from the revenues of BiH. The 2006 budget allocated approximately EUR 2.6 million for the State Court. 386   The cost of the WCC project was estimated (in June 2006) at EUR 46.7 million. Latest figures (2007) place this at EUR 48.5 million: Registry Annual Report, 2007. 387   Most recent funding estimates suggest that funding of EUR 48.4 million is required for the project, to be drawn from several sources. The main donors are the United States, the European Commission, the United Kingdom, the Netherlands, Germany and Sweden. Japan, Finland, Italy, Norway, Belgium, Sweden and France have made contributions in kind, including the provision of judges and prosecutors: for figures, see Registry Annual Report 2007. 388   Law on the Court of BiH, art 7(1). 381 382 383



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institution;389 and cases where investigations commenced after March 2003, when the jurisdiction of the entities in respect of war crimes was removed in favour of the State Court.390 The WCC commenced operations in January 2005, and issued several indictments that year. Its first judgment was delivered in July 2005.391 The first ICTY referral to Bosnia was made in May 2005, with the Referral Bench noting that it ‘considers that the legal structure of Bosnia & Herzegovina, as it now stands, is sufficient to safeguard the right of the Accused to a fair trial’.392 The ICTY has referred six cases, involving 10 accused, to the WCC.393 These cases have been concluded.394 The WCC has been a very active institution; as at late 2010, it had issued indictments in over 80 cases, first instance decisions in approximately 70 cases and appellate decisions in approximately 60 cases. It has prioritised the most serious cases according to a war crimes strategy adopted in December 2008.395

VII.  Iraqi High Tribunal A.  Saddam Hussein’s Reign in Iraq Upon taking power as President of Iraq in 1979, Saddam Hussein initiated a purge of opposition from within his own party, denouncing many senior officials and 389   D Mundis, ‘The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals’ (2005) 99 American Journal of International Law 142, 153–54. 390   International Center for Transitional Justice, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (2008), n 351, 8. 391   Prosecutor v Abduladhim Maktouf (First Instance Verdict) K-127/04 (1 July 2005). 392   Prosecutor v Stankovi´c  (Corrigendum to Decision on Referral of Case under Rule 11bis) ICTY96-23/2-PT, Referral Bench (27 May 2005) 68. This decision was confirmed on appeal. For further discussion of the jurisprudence of the referral bench, see S Williams, ‘ICTY Referrals to National Jurisdictions: A Fair Trial or a Fair Price?’ (2006) 17 Criminal Law Forum 177. 393   UNSC, ‘Letter dated 21 November 2008 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Addressed to the President of the Security Council UN Doc’ (2008) UN Doc S/2008/729. 394   Radovan Stankovi ´c , convicted of crimes against humanity, 14 November 2006, appeal reduced sentence to 20 years’ imprisonment on 28 March 2007, escaped from custody in May 2007 and remains at large; Goko Jankovi ´c , guilty of crimes against humanity and sentenced to 34 years’ imprisonment, 16 February 2007, confirmed on appeal, 19 November 2007; Željko Mejaki ´c , Momcˇilo Gruban, Dušan Fuštar, and Duško Kneževi ´c , convicted of crimes against humanity, with various sentences, see 22 April 2008 (Fuštar – guilty plea); 30 May 2008 (remaining accused) and appeal, 16 February 2009; Paško Ljubicˇi ´c , guilty plea, crimes against humanity, 29 April 2008; Mitar Raševi ´c , Savo Todovi ´c , guilty of crimes against humanity 28 February 2008, confirmed on appeal with reduction in sentence; Milorad Trbi ´c , found guilty of genocide on 16 October 2009, and sentenced to 30 years’ imprisonment, confirmed on appeal on 21 October 2010. 395   BiH State War Crimes Processing Strategy adopted by the BiH Council of Ministers (December 2008). There are concerns that the strategy is yet to be implemented, as no decision has been reached as to the sensitivity criteria that determine the distribution of cases between the entity and federation levels: see UNSC, ‘Thirty-Eighth Report of the High Representative for Bosnia and Herzegovina, 1 May–15 October 2010’ (2010) UN Doc S/2010/575, para 39.

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party members as traitors. This move signalled the start of a bloody and brutal reign. In addition to politically-motivated killings and torture, Hussein violated the rights of Iraq’s citizens, targeting in particular minority groups such as the Kurds and those individuals considered to be disloyal to the regime. While no actual figures are known, estimates suggest that the regime killed more than 500,000 citizens from 1968 to 2003.396 The regime was characterised by ‘widespread and systematic disappearances, extrajudicial executions, torture, arbitrary arrests, and detentions’.397 The more well-known incidents are the forcible removal of the Shia population from the Marshland region and the draining of the marshland area, the Anfal campaign conducted against the Kurds in 1987–88, and the gassing of between 4000 to 5000 Kurds in Halabja. The regime also drained Iraq’s natural resources and was known to be corrupt and to condone embezzlement of public assets by senior officials, including Hussein.398 Externally, Hussein conducted an aggressive and violent foreign policy, with Iraq engaged in three international conflicts: the 1980–88 Iran-Iraq war; the 1990–91 invasion and occupation of Kuwait, leading to the Security Council authorising the use of force by a multinational coalition in defence of Kuwait under Chapter VII;399 and the controversial invasion and occupation of Iraq by a coalition of states led by the United States and the United Kingdom in 2003.400 The final conflict led to the fall of the Government of Iraq, with coalition troops occupying Baghdad on 9 April 2003. Hussein was arrested and detained by coalition forces in December 2003.

B.  Occupation of Iraq: May 2003–June 2004 On 1 May 2003, the United States announced that major military operations had ended in Iraq. In the absence of any successor government, the United States and the United Kingdom established the Coalition Provisional Authority (CPA).401 The Security Council adopted Resolution 1483, which noted a letter to the 396   M Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’ (2005) 38 Cornell International Law Journal 327, 330. This figure includes attrocities committed by the Ba’ath party from its rise to power in 1968. Hussein played a prominent role in the regime as vice president until he became the president in 1979. 397   ibid, 331. 398  ibid. 399   UNSC Res 678 (1990) UN Doc S/RES/678. 400   In the interest of space, it is not possible to discuss the background to or legal justifications for the invasion and occupation of Iraq in 2003. For a general discussion of the war in Iraq, see generally European Journal of International Law 13(1) (2002) and American Journal of International Law 97(3) (2003). See also The Iraq Inquiry commissioned by the Government of the United Kingdom in 2009, details available at www.iraqinquiry.org.uk/. 401   The United States and United Kingdom notified the United Nations Security Council of the establishment of the Coalition Provisional Authority on 8 May 2003. See: UNSC, ‘Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council’ (2003) UN Doc S/2003/538.



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Security Council from the United States and the United Kingdom. Those states, on behalf of the coalition, stated their intention to ‘strictly abide by their obligations under international law’ and set out the key objectives and obligations to be performed in post-conflict Iraq. The Council recognised the status of the United Kingdom and the United States as occupying powers and set out and recognised the obligations of those two states as occupying powers under applicable inter­ national law.402 It also affirmed ‘the need for accountability for crimes and atrocities committed by the previous Iraqi regime’.403 After determining that the situation in Iraq continued to constitute a threat to international peace and security,404 the Security Council, acting under Chapter VII of the Charter, called upon all concerned to comply with their obligations under international law, in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.405 As the United Kingdom House of Lords concluded, ‘[T]he multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN’.406 This conclusion applied equally to the CPA, which was clearly not a subsidiary organ of the United Nations. Resolution 1483 also indicated the support of the Council for the formation of an Iraqi interim administration, to be run by Iraqis ‘until an internationally-­ recognized representative government is established and assumes the responsibilities of the Authority’.407 To meet the Security Council’s request for the establishment of an interim Iraqi administration,408 on 13 July 2003 the CPA appointed 25 Iraqis to the Iraqi Governing Council.409 Resolution 1483 contemplated the establishment of a United Nations assist­ ance mission, to be headed by a Special Representative of the Secretary-General.410 The United Nations Assistance Mission for Iraq (UNAMI) was established in August 2003.411 Unlike the United Nations missions in Kosovo and East Timor, the United Nations involvement in Iraq was more moderate, focusing on the coordination of assistance to Iraq and the supporting of the CPA and the interim Iraqi authorities to restore governance.412 Rather than conferring extensive power to regulate for Iraq, the Resolution showed a preference for the international   UNSC Res 1483 (2003) UN Doc S/RES/1483, preambular para 13.   ibid, preambular para 11. 404   ibid, preambular para 17. 405   ibid, para 5. 406   R (on the application of Al-Jedda) v Secretary of State of Defence [2007] UKHL 58, 24, per Lord Bingham. 407   ibid, para 9. 408   UNSC Res 1483 (2003) UN Doc S/RES/1483, para 6. 409   CPA reg 6 (13 July 2003). The creation of the Iraqi Governing Council was welcomed by the Security Council as ‘an important step towards the formation by the people of Iraq of an internationally recognized, representative government’: UNSC Res 1500 (2003) UN Doc S/RES/1500, para 1. 410   UNSC Res 1483 (2003) UN Doc S/RES/1483, para 8. 411   UNSC Res 1500 (2003) UN Doc S/RES/1500, para 2. 402 403

412   UNSC Res 1483 (2003) UN Doc S/RES/1483, para 8, lists a number of functions for the proposed mission.

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presence to support Iraqi authorities in this task. The nature of the United Nations involvement in Iraq was the result of a compromise between the United States, which did not see a role for the United Nations in Iraq beyond the provision of humanitarian assistance, and the European Union, Russia and China, which considered that, given the dubious legal nature of the military intervention in Iraq, the United Nations should have a significant and leading role in post-conflict reconstruction and the transition process.413 It also reflected the preference of the United Nations itself, which supported a ‘light footprint’ for Iraq.414 In order to exercise its authority in Iraq, the Administrator of the CPA promulgated Regulation Number 1,415 which provided that the CPA:416 ‘shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development’.

The regulation further provided that:417 The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant U.N. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator’.

The extensive powers claimed by the CPA clearly exceed the legal powers conferred on the occupying power by the law of occupation. In October 2003, the Security Council emphasised the ‘temporary nature’ of the authority of the CPA,418 called upon ‘the Authority . . . to return governing responsibilities and authorities to the people of Iraq as soon as practicable’419 and determined that the Governing Council and its ministers ‘embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government is established and assumes the responsibilities of the Authority’.420 As Stahn concludes ‘[T]hese few lines made it clear that international administering agents were conceived as trustees of the interests of the Iraqi people, charged with the restoration and establishment of national and international institutions for representative governance’.421 413  Stahn, The Law and Practice of Internal Territorial Administration: Versailles to Iraq and Beyond, n 342, 367. 414   Ibid, quoting a confidential blueprint prepared by the UN in February 2002. 415   CPA reg 1 (16 May 2003). 416   CPA reg 1, s 1. 417   CPA reg 1, s 2. 418   UNSC Res 1511 (2003) UN Doc S/RES/1511, para 1. 419   UNSC Res 1511 (2003) UN Doc S/RES/1511, para 6. 420   UNSC Res 1511 (2003) UN Doc S/RES/1511, para 4. 421  Stahn, The Law and Practice of Internal Territorial Administration: Versailles to Iraq and Beyond, n 342, 366.



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On 8 March 2004, the Iraqi Governing Council passed the Law of Administration for the State of Iraq for the Transitional Period, known as the Transitional Administration Law (TAL). The TAL proposed a framework for the transfer of power from the CPA to the Interim Government of Iraq by 30 June 2004 and the subsequent dissolution of the CPA.422 The TAL operated as an interim Constitution and set out the provisional structures of the Iraqi system for the transitional period, defined as beginning on 30 June 2004 and ending on 31 December 2005. The TAL also provided for the laws in force in Iraq at the time of transition to continue in effect unless amended or rescinded by the Interim Iraqi Government.423 In accordance with the schedule, the CPA transferred authority to the Interim Iraqi Administration on 28 June 2004.424 The legal basis for the presence in Iraq of the former occupying powers after this date was provided by Security Council Resolution 1546, adopted by the Council on 8 June 2004,425 as well as the consent of the Interim Iraqi Government.426

C.  Establishing the Iraqi High Tribunal Even before the Iraq intervention, the United States had been considering options to investigate the Iraqi regime’s violations of international humanitarian law and human rights law.427 The list of objectives provided by the United Kingdom and United States to the Council included ‘promoting accountability for crimes and atrocities committed by the previous Iraqi regime’.428 Security Council Resolution 1483 affirmed the need to promote accountability for crimes and atrocities committed by the previous Iraqi regime.429 The Council also appealed to Member States ‘to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice’.430 Yet neither the CPA nor UNAMI was given a specific mandate

422   This proposed timetable was confirmed by the Security Council in UNSC Res 1546 (8 June 2004) UN Doc S/RES/1546, para 2. 423   Transitional Administration Law (TAL), art 26. 424   The transfer occurred two days earlier than scheduled so as to avoid the transfer being disrupted by insurgents. 425   See UNSC Res 1546 (2004) UN Doc S/RES/1546, paras 9, 10, 11 and 12. For discussion of the significance of this different legal basis on the authority of the US and the UK in Iraq, see R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 and Case of Al-Jedda v The United Kingdom (Judgment) Application No. 27021/08, European Court of Human Rights, Grand Chamber (7 July 2011). 426   UNSC Res 1546 (2004) UN Doc S/RES/1546, para 9, notes that the continued military presence ‘is at the request of the incoming Interim Government of Iraq’. 427   M Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’, n 396, 340–42. 428   UNSC ‘Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council’ (8 May 2003) UN Doc S/2003/538. 429   UNSC Res 1483 (2003) UN Doc S/RES/1483, preambular para 11. 430   ibid, para 3.

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to address transitional justice issues. Instead, resolution 1483 mandated UNAMI to ‘assist the people of Iraq through: . . . (g) promoting the protection of human rights; . . . (i) encouraging international efforts to promote legal and judicial reform’.431 The Secretary-General indicated that this would be achieved primarily through ‘engaging and supporting national dialogue and institutions to address accountability for past human rights violations’.432 Following the transfer of authority in June 2004, UNAMI was mandated, as requested by the Government of Iraq, to ‘promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq’.433 Unlike the missions in Kosovo and East Timor, the United Nations played a limited role in transitional justice in Iraq, due to its preference for Iraqi-led initiatives, its limited mandate and powers and the actions of the CPA, which exercised its authority in this area. The question for the CPA was which forum should be used to secure accountability for crimes alleged to have been committed by previous regimes. Three alternatives were reportedly considered:434 (1) an international ad hoc criminal tribunal; (2) a mixed international and national tribunal similar to that of the SCSL; and (3) a national Iraqi tribunal with international assistance.435 Two conflicting views emerged.436 Many legal experts and non-governmental organisations felt that the nature of the crimes committed and the fragile state of the Iraqi judiciary required the creation of an international or ‘internationalised’ criminal tribunal.437 However, the United States did not support the idea of a tribunal established by the Security Council, fearing that such a body would be as costly and time-consuming as the ICTY and the ICTR. It is also likely that this position was influenced by United States concerns at the time regarding the ICC. France, China and Russia also made known their intention to veto an international tribunal for Iraq, as they considered the initial invasion of Iraq to be unlawful.438   UNSC Res 1482, para 8.   Report of the Secretary-General pursuant to paragraph 24 of Security Council resolution 1483 (2003), 17 July 2003, S/2003/715, para 98. This report was endorsed by the Council in UNSC Res 1500, para 2 and in UNSC Res 1511, para 9. 433   UNSC Res 1546, para 7. 434  Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’, n 396, 342–43. 435   The use of military commissions was also considered: M Frank, ‘Justice for Iraq, Justice for All’ (2004) 57 Oklahoma Law Review 303. Another option was trials by third states. Both Iran and Kuwait indicated that they may bring trials against Hussein for crimes committed against their nationals and armed forces. The United States also reserved the right to try Hussein for crimes against US forces and citizens. See D Orentlicher, ‘Venues for Prosecuting Saddam Hussein: The Legal Framework’ (December 2003) ASIL Insights. Rubin has suggested that a third state may have been willing to exercise universal jurisdiction: A Rubin, ‘Milosevic and Hussein on Trial’ (2005) 38 Cornell International Law Journal 1013, 1015. 436   Detailed in Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’, n 396, 343–44. 437   eg, Human Rights Watch initially argued for the creation of an international ad hoc tribunal by the Council: Justice for Iraq: A Human Rights Watch Policy Paper (December 2002). 438   M Scharf, ‘The Iraqi High Tribunal: A Viable Experiment in International Justice?’ (2007) 5 Journal of International Criminal Justice 259, 261. 431 432



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Moreover, the desire of the Iraqi authorities to retain the death penalty presented a significant barrier to the participation of the United Nations in an international or even an internationalised option.439 The Bush Administration considered that an Iraqi tribunal was preferable as: (1) it would allow Iraq to assume responsibility for conducting trials of senior officials from the previous regime; (2) it would provide a basis for developing domestic legal capacity and the rule of law; and (3) it would send a powerful message that systematic repression of civilian populations would no longer be tolerated.440 The Iraqi Governing Council was also in favour of a national tribunal with international assistance, and research had demonstrated that a majority of the Iraqi population also supported that outcome.441 A statute for the proposed national tribunal was drafted between September and December 2003. Contrary to early suggestions, there was extensive Iraqi involvement in the drafting of the Iraqi High Tribunal (IHT) Statute.442 In December 2003 the CPA made a specific delegation of authority to the Iraqi Governing Council, authorising it to establish the Iraqi Special Tribunal (as it was then known) by promulgating the statute of the tribunal, which was annexed to the order.443 The delegation of authority was made conditional upon several terms and conditions, namely: (1) the Iraqi Governing Council was to promulgate a description of the elements of crimes to be applied to the crimes within the tribunal’s jurisdiction; (2) the Iraqi Governing Council was to ensure that the IHT met, as a minimum, international standards of justice; (3) in the event that there was a conflict between any promulgation by the Iraqi Governing Council or judgment of the IHT and any promulgation of the CPA, the latter would prevail; and (4) non-Iraqis may be appointed as judges.444 The Iraqi Governing Council established the IHT by decree on 9 December 2003,445 the CPA Administrator signed the order into force on 12 December 2003,446

439   Orentlicher, ‘Venues for Prosecuting Saddam Hussein: The Legal Framework’, n 437. Given the role of the UN in the controversial Oil for Food programme, many Iraqis did not ‘regard the United Nations as an honest broker’ and did not wish to see United Nations involvement: T Parker, ‘Prosecuting Saddam: The Coalition Provisional Authority and the Evolution of the Iraqi Special Tribunal’ (2005) 38 Cornell International Law Journal 899. 440   Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal’, n 396, 344. 441   Several independent reports reached this conclusion: see, eg, International Center for Transitional Justice, Iraqi Voices (2003) and Physicians for Human Rights, Southern Iraq: Reports of Human Rights and Views on Justice, Reconstruction and Government (2003). 442   There was some confusion as to the extent of Iraqi involvement. See M Scharf, ‘Is it International Enough? A Critique of the Iraqi Special Tribunal in Light of the Goals of International Justice’ (2004) Journal of International Criminal Justice 330, noting that the IHT is ‘a puppet of the Occupying Power’, 330. cf M Scharf, ‘Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR and SCSL’ (2005) 38 Cornell International Law Journal 911, 912, where the author recognised ‘that Iraqis had played a much greater role in drafting the Statute . . . than had been reported in the press’. 443   CPA Order 48 (10 December 2003). 444   CPA Order 48 (10 December 2003), s 2. 445   Iraq Governing Council Decree Of 10 December 2003, Establishing A Special Tribunal (2003). 446   CPA Order 48 (10 December 2003).

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and judges and personnel were appointed shortly after.447 Following Hussein’s capture a few days later, the CPA announced that he would be tried by the IHT.448 The IHT Statute was confirmed by the Iraqi Governing Council when it promulgated the TAL in March 2004.449 As one of its last legislative acts, the CPA provided for the transition of laws, regulations, orders and directives issued by it to the new regime following the transfer of sovereignty to the transitional powers in June 2004.450 This included specific provision for the IHT,451 and deleted the powers of the CPA Administrator to alter the tribunal’s statute, the elements of crime or rules of procedure and evidence452 and to rescind the order establishing the IHT.453 The Iraqi Constitution adopted in October 2005 preserved the role of the IHT and provided that the Council of Representatives may dissolve it after completion of its work.454 A further version of the IHT Statute was issued on 9 October 2005,455 which made several amendments, including renaming the tribunal the ‘Iraqi High Tribunal’.456 The reasons appended to the amending legislation shed little light on the need for the amendments, although one suggestion is that the name was changed so as to avoid the characterisation of the IHT as an exception to the ‘normal’ legal system.457 The timing of the amendments, a matter of days before the commencement of the first trial, was also controversial.458

447   M Bassiouni and M Hanna, ‘Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein’ (2006) 39 Case Western Reserve Journal of International Law 21; see also M Rubin, ‘Salem Chalabi: Judging Saddam’ 11 Middle East Quarterly 325 (2004) www.meforum. org/article/664. 448   M Scharf and M Newton, Enemy of the State (New York, St Martin’s Press, 2008); S Murphy (ed), ‘Turmoil in Iraq, Transitional Arrangements, and the Capture of Saddam Hussein’ (2004) 98 American Journal of International Law 190. 449  Art 48(A) of the TAL provides that ‘The statute establishing the Iraqi Special Tribunal is confirmed’. It also notes that it is the IHT Statute that exclusively defines the jurisdiction of the IHT, notwithstanding any contrary provisions of the TAL. 450   CPA Order 100 (28 June 2004). 451   CPA Order 100 (28 June 2004), s 3(19). 452   This right had been reserved in s 1(6) of Order 48, which was deleted by Order 100. 453   This right was set out in s 3 of Order 48, which was partly deleted by Order 100. 454   Art 135 of the Constitution provides that ‘The Iraqi High Tribunal shall continue its duties as an independent judicial body, in examining the crimes of the defunct dictatorial regime and its symbols’. 455   The new law is entitled ‘Law of the Iraqi Higher Criminal Court’. This further version was published in the Official Gazette on 18 October 2005, as Law No (10) 2005. All references to the IHT Statute will be to this law; references to the previous version will be to the ‘original IHT Statute’. 456   The Tribunal’s Arabic name may be translated as the Higher Iraqi Criminal Tribunal or Supreme Iraqi Criminal Tribunal; however, the tribunal has decided to refer to itself as the Iraqi High Tribunal in English. 457   Art 95 of the Constitution provides that ‘The establishment of special or extraordinary courts is prohibited’. 458   As Mettraux notes, ‘[T]he timing of the amendment [a matter of days before the first trial] suggests an urge to “fix” the process before it even starts’: G Mettraux, ‘The 2005 Revision of Statute of the Iraqi Special Tribunal’ (2007) 5 Journal of International Criminal Justice 287, 293.



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D.  Key Features and Jurisdiction As initially conceived, the IHT was an independent mechanism within the Iraqi judicial system. It comprised two or more Trial Chambers, an Appellate Chamber and investigative judges, as well as a Prosecutions Department and Administration Department.459 While the judges of the IHT were to be Iraqi,460 the original IHT Statute provided that ‘[T]he Governing Council or the Successor Government, if it deems necessary, can appoint non-Iraqi judges who have experience in the crimes encompassed in this statute’.461 Moreover, the President of the IHT:462 shall be required to appoint non-Iraqi nationals to act in advisory capacities or as observers to the Trial Chambers and to the Appeals Chambers. The role of the nonIraqi national shall be to provide assistance to the judges with respect to international law and the experience of similar tribunals (whether international or otherwise), and to monitor the protection by the Tribunal of general due process of law standards. In appointing such non-Iraqi experts, the President of the Tribunal shall be entitled to request assistance from the international community, including the United Nations.

The Chief Prosecutor was similarly required to appoint non-Iraqi nationals as advisers.463 The original IHT Statute also required the appointment of foreign experts to provide assistance to the investigative judges with respect to the investi­ gation and prosecution of cases.464 The adviser in both cases was required to monitor the protection by the investigating judges and judges of the IHT of due process standards.465 The IHT was also to ‘resort to the relevant decisions of international courts or tribunals as persuasive authority for their decisions’ in relation to the interpretation of the international crimes within the Court’s material jurisdiction.466 While international advisors were relied upon by the different organs of the tribunal, no international judges were appointed. Assistance from the United Nations was not forthcoming, mainly as the Secretary-General took the view that to assist a tribunal that retained the death penalty as a possible sentencing option would be incompatible with the United Nations policy supporting the abolition of the death penalty.467 The bulk of international assistance to the IHT   Original IHT Statute, art 3.  Original IHT Statute, art 4. Judges were to be appointed by the Governing Council or the Successor Government, in consultation with the Iraqi Judicial Council: Original IHT Statute, art 5. 461   Original IHT Statute, art 4(d). 462   Original IHT Statute, art 6(b). The qualifications required for such appointments were set out in art 6(c). 463   Original IHT Statute, art 8(j) and (k). 464   Original IHT Statute, art 7(n). 465   Original IHT Statute, art 6(b) and 7(n). 466   Original IHT Statute, art 17(b). The IHT was also required to take into account sentencing practice established by ‘relevant international precedents’: Original IHT Statute, art 24(e). 467   UN Secretary-General, Press Briefing (15 December 2003); UN News Center, Press Release ‘UN Against Death Penalty But Understands Desire for Justice in Hussein Case – Envoy’ (30 December 2006); the United Nations has stated that it cannot, as a matter of policy, establish or cooperate with a tribunal that permits the death penalty as a possible punishment. For discussion as to whether the IHT was lawfully able to apply the death penalty, see: M Bohlander, ‘Can the Iraqi Special Tribunal sentence Saddam Hussein to Death?’ (2005) 3 Journal of International Criminal Justice 463. 459 460

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was provided by the United States through the Regime Crimes Liaison Office, based at the United States Embassy in Baghdad.468 One of the most significant features of the amended IHT Statute was the shift from the internationalisation of the original IHT Statute towards a more national institution.469 In particular, while the original IHT Statute provided for the appointment of international judges, the amendments limited this possibility to situations where a state is a party to a complaint before the IHT.470 In addition, the amended IHT Statute provides that the President of the IHT ‘shall have the right to appoint’ foreign experts to provide assistance to the judges, that is, it is no longer mandatory for the President to do so.471 The former requirement for foreign experts to monitor compliance with due process standards was omitted from the amended IHT Statute altogether. The IHT may exercise jurisdiction in respect of genocide (as defined in the Convention on the Prevention and Punishment of the Crime of Genocide),472 crimes against humanity (drawing upon the provision in the Rome Statute),473 and war crimes in both international and non-international armed conflicts (again drawing on article 8 of the Rome Statute, including the requirement for an organisational plan or policy and without requiring a nexus to armed conflict).474 Its jurisdiction also includes certain offences under Iraqi law, namely: the abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of Iraq against an Arab country; intervention in the judiciary or the attempt to influence the functions of the judiciary; the wastage and squander of national resources; and crimes under Iraqi law that may form part of the inter­ national crimes within its jurisdiction.475 The revised 2005 Statute also extended the material jurisdiction of the IHT by providing that the Court may have jurisdiction where, although the Court is unable to establish any of the elements of the inter­ national crimes, the conduct constitutes a crime punishable by ‘the penal law or any other criminal law at the time of its commitment’.476 As Mettraux notes, ‘this provision creates a general, and mostly unspecified, jurisdiction by default over a vast array of possible – and not necessarily lesser-included – criminal conducts’.477 468   Assistance took the form of technical and legal advice, as well as financial support to the IHT: J Bellinger, Press Release, US State Department, ‘Supporting Justice and Accountability in Iraq’ (9 February 2006). The UK also provided advisors and assistance to the IHT, although its support was restrained by its opposition to the death penalty. 469   For a discussion of these and other amendments, see Mettraux ‘The 2005 Revision of Statute of the Iraqi Special Tribunal’ n 458, and Human Rights Watch, The Former Iraqi Government on Trial (October 2005). 470   IHT Statute, art 3(5); compare art 3(d) of the original IHT Statute. It is difficult to see how this situation will ever arise, as art 1(2) of the IHT Statute limits the tribunal’s jurisdiction to natural persons. 471   IHT Statute, art 7(2). A similar amendment has been made in relation to experts to assist investigating judges: art 8(9). 472   IHT Statute, art 11. 473   IHT Statute, art 12. 474   IHT Statute, art 13. 475   IHT Statute, art 14. 476   IHT Statute, art 14(4). 477   Mettraux ‘The 2005 Revision of Statute of the Iraqi Special Tribunal’ n 458, 289.



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The personal jurisdiction is restricted to natural persons, who are either Iraqi nationals or non-Iraqi residents.478 Temporally, the IHT may only consider alleged crimes occurring from 17 July 1968 to 1 March 2003.479 While this time period will capture many of the main incidents that occurred during the regime, it excludes consideration of events during the occupation of Iraq. Crimes within the jurisdiction of the IHT may have been committed within the territory of Iraq ‘or elsewhere’. Extraterritorial jurisdiction was included so as to enable the investigation of crimes committed by Iraqis outside Iraqi territory as part of the wars against Iran and Kuwait. However, to date no indictments have relied on extraterritorial jurisdiction. The applicable law of the IHT is its Statute, the 1971 Criminal Procedure Law and the IHT’s Rules of Procedure and Evidence and, where not otherwise provided, specified Iraqi law.480 The provisions on international criminal responsibility draw on international instruments, incorporating provisions concerning command responsibility, joint criminal enterprise and superior orders.481 In interpreting the international crimes incorporated in the IHT Statute, the judges may resort to the relevant decisions of the international criminal courts.482 The IHT sits in Baghdad, despite significant security concerns for the tribunal and its personnel.483 In terms of financing, although the IHT Statute provides that the costs of the tribunal are to be met from the regular budget of the Government of Iraq,484 the IHT has received international assistance, mainly from the United States, which established a Regime Crimes Liaison Office to support the IHT. The office was allocated US$128 million485 and constituted more than 140 personnel at the height of its operations.486 Staff provided training to judges, international legal research and strategic investigative guidance, and United States lawyers served as advisors to the different components of the IHT. From 2007, the Office was restructured into a ‘more supportive role’,487 which involved the withdrawal of many foreign legal advisors.488 As at July 2011, relatively little is known about the continued functioning of the IHT due to a general lack of publicity and information regarding its activities, including a lack of English translations of its decisions. The IHT has handed down   IHT Statute, art 1.   IHT Statute, art 1. 480   IHT Statute, art 16 and 17. Specified laws are: The Baghdadi Penal Law of 1919 (from 17 July 1968 to 14 December 1969); Penal Law no 111 of 1969 (from 15 December 1969 to 1 May 2003); and the Military Penal Law 1940 and Military Procedure Law 1941. 481   IHT Statute, art 15. 482   IHT Statute, art 17(2). 483   Several defence lawyers and one investigating judge have been assassinated. See Human Rights Watch, Judging Dujail: The First Trial before the Iraqi High Tribunal (20 November 2006) 20–21. 484   IHT Statute, art 35. 485   J Bellinger, ‘Give a Hand to Justice in Iraq’, International Herald Tribune (5 March 2006). 486   Department of Justice, Department of Justice Efforts in Iraq, Fact Sheet (13 February 2008). 487  ibid. 488   For a critique and assessment, see K Heller, ‘The Iraqi High Tribunal Post-US Involvement’ (Opinio Juris, 30 April 2008) http://lists.powerblogs.com/pipermail/opiniojuris/2008-April/002347. html. 478 479

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at least four decisions,489 including a highly controversial and publicised decision that resulted in the execution of Saddam Hussein in December 2006.490

VIII.  Extraordinary Chambers in the Courts of Cambodia A.  Regime of the Khmer Rouge The period of Cambodian history from 1975 to 1979 is considered one of the darkest periods of human rights violations in modern history, being ‘marked by abuses of individual and group human rights on an immense and brutal scale’.491 Historians estimate that the Khmer Rouge killed between 1.5 and 1.7 million people during this period, equivalent to approximately 20 per cent of the initial population.492 In 1953 Cambodia emerged from French colonial control as an independent state under the control of the hereditary monarch, Prince Norodom Sihanouk. 493 The country existed relatively peacefully until the escalation of the Vietnam War in the late 1960s, which resulted in Cambodia’s borders becoming vulnerable and subjected its population to bombing raids by United States forces. In 1970, Prince Sihanouk was overthrown in a bloodless coup, and a new government, named the Khmer Republic was established. The Khmer Republic maintained strong links to the United States, which stirred up anti-Western sentiments and gave new credibility to the Communist Party of Kampuchea, or the Khmer Rouge. With the withdrawal of United States support to the Khmer Republic, the Khmer Rouge achieved victory in the decade-long power struggle. The regime was only brought to an end following the occupation of Cambodia by Vietnamese 489   ‘Dujail Case’ (Saddam Hussein et al) (Judgment) IHT 1/9 First/2005, T Ch (5 November 2006), ‘1991 Case’ (Sentencing Verdict) 1/T2/2007, T Ch II (12 February 2007), ‘Anfal Campaign Case’ (Appeal) IHT 1/TC2/2006, A Ch (4 September 2007) and ‘Merchants’ Execution Case’ (Verdict) IHT 2 First/2008, T Ch II (11 March 2008). 490   For commentary, see: M Sissons and A Bassin, ‘Was the Dujail Trial Fair?’ (2007) 5 Journal of International Criminal Justice 272; C Doebbler, ‘An Intentionally Unfair Trial’ (2007) 5 Journal of International Criminal Justice 264; and Human Rights Watch, Judging Dujail: The First Trial before the Iraqi High Tribunal (20 November 2006). 491   UNGA, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, dated 15 March 1999’ UN Doc No A/53/850-S/1999/231 (Report of the Group of Experts for Cambodia) para 18. 492   ibid, para 35. 493   This is a short summary of the background to the Cambodian conflict. For a more detailed account see B Kiernan, ‘Historical and Political Background to the Conflict in Cambodia, 1945–2002’ in K Ambos and M Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg, Max Planck Institute, 2003)173–88; S Ratner, J Abrams, and J Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 3rd edn (Oxford, Oxford University Press, 2009); and A Buckley, ‘The Conflict in Cambodia and Post-Conflict Justice’ in M Bassiouni (ed), Post-Conflict Justice (Ardsley, Transnational Publishers, 2001).



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forces in 1978 and 1979, which lead to the establishment of a puppet government and the declaration of Cambodia as the People’s Republic of Kampuchea. The Khmer Rouge retreated into zones over which it retained control, and continued a civil conflict against the People’s Republic of Kampuchea and Vietnamese forces throughout the 1980s. The conflict ended following a peace process in 1991, although smaller-scale acts of violence continued throughout the transitional phases.494 The atrocities committed by the Khmer Rouge in Cambodia during the period of 1975 to 1979 were largely driven by the political philosophy of achieving a sovereign Cambodia free of interference and domination by foreign interests, in particular those of Vietnam, and the interests of various social classes within Cambodia. This new social system required a reorganisation of Cambodian society, first by restructuring the economic and social order of Cambodia and the ‘persecution and physical elimination’ of those elements of society regarded as enemies of the new sovereign state.495 In order to exercise its control over Cambodian territory, the Khmer Rouge divided Cambodia into seven zones, themselves divided again into 32 administrative regions. The population was organised into cooperatives, supervised by a committee of party members. The atrocities alleged to have been committed resulted from this ‘reordering of society’ and included: forced evacuation of the cities and towns; forced labour and inhumane living conditions; persecution and elimination of enemies; and purges of party members. In achieving its objectives, the Khmer Rouge authorised executions of dissidents and ‘enemies’, engaged in the practice of ‘disappearing’ their targets, and often tortured their victims to obtain false confessions of crimes against the regime, that then led to their execution. In addition, the Khmer Rouge’s policies of forced relocation and labour and economic restructuring resulted in massive human rights abuses. Due to the absence of comprehensive records, it is impossible to identify the exact number of victims of these abuses, although various estimates place the loss at at least 1.5 million, from a population of approximately seven million.496

B.  Accountability for Violations and the Negotiations for the ECCC Until relatively recently, there had been little prospect of bringing the leaders of the Khmer Rouge to justice for their role in such atrocities, either at the national or international level. Accountability before Cambodian institutions was precluded by 494   See S Ratner, ‘The Cambodia Settlement Agreements’ (1993) 87 American Journal of International Law 1. 495   Ratner , Abrams and Bischoff, n 493, 269. In the interest of space, the following discussion is a summary based on the analysis provided therein. 496   C Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport, Praeger Publishers, 2005) 117–19. Kiernan suggests a lesser death toll of 1.5 million people: B Kiernan, The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge, 1975–1979, 2nd edn (Yale University Press, 2002) 456–65.

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an ongoing internal conflict in Cambodia, the continuing links between several key government officials and the Khmer Rouge, a national legal culture of impunity and significant economic hardship.497 International efforts at securing accountability, including an attempt to persuade a state to bring an action against the regime before the ICJ, also failed largely due to the prevailing Cold War politics.498 Moreover, proposals such as a truth and reconciliation commission and other non-judicial accountability mechanisms have never been seriously considered in the Cambodian context.499 The process to create the Extraordinary Chambers in the Courts of Cambodia (ECCC) began in 1997 following a request for assistance from the Cambodian government to the United Nations so as to establish a tribunal to prosecute the senior leaders of the Khmer Rouge for the ‘genocide and crimes against humanity’ committed from 1975–79.500 Many have questioned the motives for this request, arguing that its true purpose was to defeat the surviving leaders of the Khmer Rouge regime, rather than any serious desire to achieve justice.501 Although the situation in Cambodia had been on the agenda of the Security Council in the early 1990s, the request for assistance was not placed on the agenda of the Security Council, as China had made it clear that it would veto any attempt by the Council to establish a tribunal for Cambodia.502 Instead, the United Nations SecretaryGeneral’s Special Representative for Human Rights in Cambodia included the 497   The Vietnamese-installed regime in Cambodia following the end of the Khmer Rouge regime established the People’s Revolutionary Tribunal. It conducted trials in absentia of Pol Pot, the leader of the regime, and Ieng Sary, the Minister for Foreign Affairs, convicting both men and sentencing them to death. However, the tribunal is widely considered to have been a show trial: see Etcheson, n 496, 14–17. For material on the PRT and the evidence it produced, see H De Nike, J Quigley and K Robinson (eds), Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Philadelphia, University of Pennsylvania Press, 2000). 498  For a discussion, see L Fletcher, ‘Context, Timing and Dynamics of Transitional Justice: A Historical Perspective’ (2009) 31 Human Rights Quarterly 82; D Boyle, ‘Establishing the Responsibility of the Khmer Rouge Leadership for International Crimes’ (2002) 5 Yearbook of International Humanitarian Law 167; and T Fawthrop and H Jarvis, Getting Away With Genocide: Elusive Justice and the Khmer Rouge Tribunal (Sydney, UNSW Press, 2005). 499   See: T Klosterman, ‘The Feasibility and Prosperity of a Truth Commission in Cambodia: Too Little? Too Late?’ (1998) 15 Arizona Journal of International & Comparative Law 833; J Ramji, ‘Reclaiming Cambodian History: The Case for a Truth Commission’ (2000) 24 Fletcher Forum of World Affairs 137. For the view that the international community’s failure to address accountability issues undermined the negotiation position of the United States in relation to the ECCC, see B Tittemore, ‘Evolving Dynamics of Intervention to End Atrocities and Secure Accountability; Securing Accountability for Gross Violations of Human Rights and the Implications of Non-Intervention: The Lessons of Cambodia’ (2001) 7 ILSA Journal of International and Comparative Law 447. 500  ‘Letter dated 21 June 1997 from the First and Second Prime Ministers of Cambodia addressed to the Secretary-General’ (24 June 1997) UN Doc A/51/930-S/1997/488. For more discussion, see D Boyle, n 500; D Donavan, ‘Joint UN-Cambodia Efforts to Establish a Khmer Rouge Trial’ (2003) 44 Harvard International Law Journal 551; C Etcheson, ‘Accountability Beckons During a Year of Worries for the Khmer Rouge Leadership’ (2000) 6 ILSA Journal of International and Comparative Law 507; S Linton, ‘New Approaches to international justice in Cambodia and East Timor’ (2002) 84 International Review of the Red Cross 93; and S Williams, ‘The Cambodian Extraordinary Chambers – A Dangerous Precedent for International Justice? (2004) 53 International and Comparative Law Quarterly 227. 501   W Shawcross, ‘Lessons of Cambodia’ in N Mills and K Brunner (eds), The New Killing Fields: Massacre and the Politics of Intervention (New York, Basic Books, 2002) 37. 502   Fawthrop and Jarvis, n 498, 123.



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matter on the agenda of the General Assembly, under the heading ‘The human rights situation in Cambodia’. The General Assembly requested the SecretaryGeneral ‘to examine the request by the Cambodian authorities for assistance . . . including the appointment . . . of a group of experts to evaluate the existing evidence and propose further measures’.503 In April 1998, before the United Nations had formally responded to the request from the General Assembly, it was confirmed that the leader of the Khmer Rouge, Pol Pot, had died, supposedly of natural causes.504 The Group of Experts appointed by the Secretary-General505 recommended establishing an ad hoc international tribunal to be situated in the Asia-Pacific region, but not in Cambodia.506 The Group of Experts had considered the option of conducting the trials in Cambodia, either as the court system was then constituted or through the establishment of a special tribunal under Cambodian law. However, this option was rejected due to: (1) the lack of a qualified legal profession in Cambodia as a result of the Khmer Rouge targeting lawyers and scholars and those lawyers that did remain likely to be subject to pressure or perceived as biased;507 (2) insufficient infrastructure for the Cambodian legal system;508 (3) the lack of ‘a culture of respect for an impartial criminal justice system’, including allegations of corruption and political interference;509 (4) a lack of confidence on behalf of the Cambodian people in the judicial process, particularly in relation to potential trials of senior Khmer Rouge leaders;510 and (5) concerns regarding security for trials.511 The Group of Experts also considered that Cambodian substantial and procedural law should be clarified before trials could commence.512 In light of these concerns and while recognising that domestic trials would potentially offer several advantages,513 the Group of Experts concluded that ‘domestic trials organized under Cambodian law are not feasible and should not be supported financially by the United Nations’.514 Instead, the Group of Experts recommended   UNGA Res 52/135 (27 February 1998) UN Doc A/RES/52/135, para 16.   Pol Pot had been placed under arrest by his own party following the assassination of his former military commander, Son Sen. Many suspect that he was murdered by his own party: see Fawthrop and Jarvis, n 498, 122–23. 505   The Group comprised Sir Ninian Stephen (chair), Judge Rajsoomer Lallah and Professor Stephen Ratner. The General Assembly welcomed the appointment of the Group of Experts: UNGA Res 53/145 (8 March 1999) UN Doc A/RES/53/145, para 17. 506   UNGA, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135’ (15 March 1999) UN Doc A/53/850, para 219. See: S Ratner, ‘The United Nations Group of Experts on Cambodia’ (1999) 93 American Journal of International Law 947. 507   ibid, para 127. 508   ibid, para 128, noting lack of basic materials such as law books and the run-down condition of buildings. 509   ibid, para 129. The Report noted that the low judicial salaries led to corruption and ‘buying’ of judges, while political figures, including the Minister of Justice ‘are widely believed to exert overt and covert influence over the decisions of investigating judges and trial courts’. 510   ibid, para 134. 511   ibid, para 130. 512   ibid, paras 124 and 125. 513   ibid, para 122. 514   ibid, para 133. 503 504

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the establishment by the Security Council of a new tribunal for Cambodia, using its powers under Chapter VII of the United Nations Charter and on the basis of the ICTY and ICTR model. The report noted that ‘only a United Nations tribunal can be effectively insulated from the stresses of Cambodian politics’.515 It was recognised that, given the armed conflict in Cambodia had ended, the refugee crisis had eased and there was no remaining tension in Cambodia and the region due to the Khmer Rouge, the use by the Council of its Chapter VII powers in such circumstances ‘would be unprecedented’.516 The Group of Experts considered that other provisions of the Charter could form an alternative legal basis,517 although this might have implications for cooperation with the tribunal.518 The Group of Experts also considered other options for accountability. It dismissed a tribunal established on the basis of a multilateral treaty due to the likelihood of ‘protracted negotiations’.519 Trials in third states on the basis of universal jurisdiction were also rejected as minimising the role of Cambodia and the wider international community in securing accountability and thus diluting the importance of the trials.520 Another option, and the most relevant for present purposes, was the model of ‘a Cambodian tribunal under United Nations administration’, which proposed the mechanisms by which the ECCC was ultimately established: an agreement between the United Nations and the Cambodian government and a Cambodian law to formally establish the tribunal formally.521 If such an option was to be adopted, the report emphasised that ‘it is essential that, in order to preserve the independence of the court and address the concerns . . . about political interference, the United Nations should have control over certain key elements of the tribunal’s functioning’.522 It noted that this model, while ‘unprecedented’,523 ‘would seek to combine the advantages of the United Nations tribunal in terms of its independence with the connection to Cambodia inherent in domestic trials and also avoid such obstacles as may exist in setting up a United Nations tribunal’.524 However, the disadvantages of this option, which in the view of the Group of Experts outweighed the advantages, was the delay likely to be caused by ‘the negotiation of an agreement and the preparation of legislation’,525 making a tribunal established by the Security Council a more expedient option. In light of the significant delays in the creation of the ECCC, discussed below, this concern seemed rather prescient.   ibid, para 179.   ibid, para 141. The Report suggested that the continued impunity of itself may be sufficient to constitute a threat to the peace of the region: para 141. 517   ibid, para 142. 518   ibid, paras 143–44. The Report also viewed that the General Assembly, as well as other organs of the United Nations, may have competence to establish a tribunal: paras 146–47. 519   ibid, para 193. 520   ibid, para 196. 521   ibid, para 186. 522   ibid, para 187. It listed selection of judges and the recruitment of the prosecutor and staff and their independence as such key factors. 523   ibid, para 188. 524   ibid, para 189. 525   ibid, para 190. 515 516



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However, the Cambodian government rejected the Group of Expert’s proposal for an international tribunal for Cambodia, instead requesting technical assist­ ance in drafting domestic legislation to establish a specialised national court with international participation.526 The task force established to draft the law completed its work in August 1999, releasing a draft of the law for discussion. The United Nations and other technical experts commented upon the draft and engaged in dialogue with the Cambodian government on key issues.527 After considering the report of the Group of Experts, the General Assembly in December 1999 adopted Resolution 54/171, in which the General Assembly appealed strongly ‘to the Government of Cambodia to ensure that those most responsible for the most serious violations of human rights are brought to account in accord­ ance with international standards of justice, fairness and due process of law’, welcomed ‘the efforts of the Secretariat and actors of the international commun­ ity in assisting the Government to this end’ and encouraged ‘the Government to continue to cooperate with the United Nations with a view to reaching an agreement’.528 Following the adoption of this resolution, the United Nations, led by the United Nations Legal Counsel, conducted meetings with the Cambodian authorities on several occasions.529 An understanding on a draft was adopted by an exchange of letters between the United Nations and the Government of Cambodia in May 2000.530 In December 2000, the Cambodian government introduced into Parliament the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (the ECCC Law).531 The law was subsequently signed into law by the Cambodian authorities in August 2001.532 The General Assembly welcomed the adoption of the ECCC Law, ‘noting with appreciation the general provisions and competence of the [ECCC] Law and its provision for a role for the United Nations’ and urged ‘the Government [of Cambodia] and the United Nations to conclude an agreement without delay so that the Extraordinary Chambers can start to function promptly’.533 526  Letter from Hun Sen, Prime Minister of Cambodia to H.E. Thomas Hammarberg, Special Representative of the UN Secretary-General for Human Rights in Cambodia dated 17 June 1999; see also Statement by UN Legal Counsel Hans Correll, UN News Center, ‘Negotiations Between the UN and Cambodia Regarding the Establishment of the Court to Try Khmer Rouge Leaders’ (8 February 2002). 527   Australia provided technical assistance to Cambodia in drafting the law. 528   UNGA Res 54/171 (17 December 1999) UN Doc A/RES/54/171, para 11. 529   eg, meetings were held in February, March and April 2000. The UN Legal Counsel led a delegation to Cambodia in July 2000. 530   A Memorandum of Understanding was reached in May 2000, although there is some dispute as to the intended effect of this document and the extent to which it was incorporated into the Special Law: C Lynch, ‘UN Warns Cambodia on War Crimes Tribunal’ Washington Post (Washington D.C., 3 February 2001). The agreement on the draft was welcomed by the General Assembly in UNGA Res 55/95 (28 February 2001) UN Doc A/RES/55/95, paras 17 and 18. 531   See ‘Cambodia set for Khmer Rouge Trials’ BBC Online (London, 7 August 2001) http://news. bbc.co.uk/2/hi/asia-pacific/1476868.stm. 532   The draft had been revised following the opinion of the Constitutional Council, which considered that the original art 3 would violate the Cambodian Constitution. 533   UNGA Res 56/169 (28 February 2002) UN Doc A/RES/56/169, section IV, para 2.

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However, in February 2002, after two and a half years of negotiations, the United Nations withdrew from the process for the establishment of the ECCC, citing a ‘lack of commitment’ to the process on the part of the Cambodian government.534 The lead negotiator, Hans Correll, stated:535 the United Nations has come to the conclusion that the Extraordinary Chambers, as currently envisaged, would not guarantee the independence, impartiality and objectivity that a court established with the support of the United Nations must have . . . Therefore, having carefully considered these concerns, the United Nations has concluded that the proceedings of the Extraordinary Chambers would not guarantee the international standards of justice required for the United Nations to continue to work towards their establishment . . .

One of the main issues was the failure of the proposed model to protect adequately against the risk of corruption and political interference in the judicial process. Despite these legitimate concerns, the United Nations faced significant international pressure to resume negotiations. In late 2002, the Prime Minister of Cambodia, Hun Sen, wrote to the Secretary-General, indicating that the Government was prepared to amend the ECCC Law ‘to meet the concerns of the United Nations’.536 The Secretary-General indicated that ‘he would be prepared to engage in further talks with the Government’, but that he required ‘a clear mandate from either the General Assembly or the Security Council’.537 The General Assembly provided that mandate on 27 February 2003, when it requested the Secretary-General ‘to resume negotiations, without delay, to conclude an agreement with the Government of Cambodia, based on previous negotiations on the establishment of the Extraordinary Chambers consistent with the provisions of the present resolution’.538 The resolution then set out additional arrangements that the negotiations should ‘ensure that the Extraordinary Chambers exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law’.539 The Secretary-General resumed negotiations with the Government of Cambodia in January 2003.540 During the course of the renewed negotiations, the Cambodian government rejected the majority of amendments sought by the United Nations and resisted any changes to the ECCC Law.541 Consequently, the Secretary-General concluded that the only option acceptable to the Cambodian government was for a national 534  UNGA, ‘Report of the Secretary-General on Khmer Rouge Trials’ (1 April 2003) UN Doc A/57/769 (Report of the Secretary-General on Khmer Rouge Trials) para 14. 535   Statement by UN Legal Counsel Hans Correll, UN News Center, ‘Negotiations Between the UN and Cambodia Regarding the Establishment of the Court to Try Khmer Rouge Leaders’ (8 February 2002). 536  UN News Center, Press Release, ‘Secretary-General Replies to Cambodian Prime Minister’s Letter on Trial of Khmer Rouge Leaders’ (20 August 2002). 537  ibid. 538   UNGA Res 57/228 (18 December 2002) UN Doc A/RES/57/228, para 1. 539   ibid, para 4(a). 540   UN News Center, Press Release, ‘UN, Cambodia, talks on Khmer Rouge court to resume next week’ (3 January 2003). 541   The proposals made were described in the Report of the Secretary-General on Khmer Rouge Trials, n 534, para 16–17.



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court with the structure and organisation envisaged in the ECCC Law.542 An agreement, based on the provisions of the ECCC Law, was finalised and initialled by the Cambodian government and the United Nations on 17 March 2003,543 approved by the General Assembly on 13 May 2003,544 and signed on 6 June 2003 (the ECCC Agreement).545 While the Secretary-General recognised continued doubt ‘regarding the credibility of the Extraordinary Chambers, given the precarious state of the judiciary in Cambodia’, he considered the revised agreement ‘a considerable improvement’ over the draft that had formed the basis of previous negotiations.546 Despite securing an agreement, it took a further two years for arrangements for the ECCC to be finalised, including the financing of the tribunal. The ECCC Agreement entered into force in October 2004 and the ECCC Law was amended on 27 October 2004 to reflect its requirements.547 The ECCC Agreement is ‘to regulate the cooperation between the United Nations and the Royal Government of Cambodia’ and ‘provides, inter alia, the legal basis and the principles and modalities for such cooperation’.548 As Bates notes, ‘[A]fter almost ten years of negotiations, the Cambodian government had got what it wanted: a domestic court with international assistance’.549 Preparations for the ECCC started in 2006. International and Cambodian judges were appointed in May 2006 and judicial activities commenced in late 2007 with the filing of the first introductory submission by the co-Prosecutors.550 United Nations assistance to the ECCC is channelled through the United Nations Assistance to the Khmer Rouge Trials (UNKART) mission, which operates separ­ ately to the ECCC itself. The ECCC delivered its first trial verdict concerning one accused in July 2010,551 and a closing order was issued in the second trial   ibid, para 23.   UN News Center, Press Release, ‘UN and Cambodia Reach Draft Agreement for Prosecuting Khmer Rouge Crimes’ (17 March 2003). 544   UNGA Res 57/228 B (13 May 2003) UN Doc A/RES/57/228B, stating that the General Assembly ‘Approves the draft Agreement between the United Nations and the Royal Government of Cambodia’ and ‘Urges the Secretary-General and the Royal Government of Cambodia to take all the measures necessary to allow the draft Agreement . . . to enter into force’: paras 1 and 2. The draft ECCC Agreement was annexed to the resolution. See UNGA, ‘General Assembly Approves Draft Agreement Between UN, Cambodia on Khmer Rouge Trials’ (13 May 2003) Press Release GA/10135. 545   See UN New Center, ‘UN and Cambodia Reach Draft Agreement for Prosecuting Khmer Rouge Crimes’ (17 March 2003) UNGA, ‘General Assembly Approves Draft Agreement Between UN, Cambodia on Khmer Rouge Trials’ ibid; and UN News Center, Press Release, ‘Cambodia Sign Agreement to Prosecute Former Khmer Rouge Leaders’ (6 June 2003). 546   UNGA, ‘Report of the Secretary-General on Khmer Rouge Trials’ (31 March 2003) UN Doc A/57/769, Summary. 547   ECCC Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (NS/ RKM/0801/12), promulgated on 10 August 2002, as amended on 27 October 2004 (NS/ RKM/1004/006). 548   ECCC Agreement, art 1. 549   A Bates, Transitional Justice in Cambodia: Analytical Report, British Institute of International and Comparative Law (October 2010) http://projetatlas.univ-paris1.fr/spip.php?article68. 550   See UNGA, ‘Report of the Secretary-General on the Khmer Rouge Trials’ (27 August 2007) UN Doc A/62/304. 551   Kaing Guek Eav alias Duch (Judgment) 001/18-07-2007/ECCC/TC, T Ch (26 July 2010). All parties have appealed, and the appeals were heard by the Supreme Court Chamber in late March 2011. A decision was expected in the second half of 2011. 542 543

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(concerning four accused) in September 2010, with the trial to commence in late June 2011.552 Investigations concerning an additional two cases are had been initiated, although it appears unlikely that these two cases will proceed following a decision by the co-investigating judges to close investigations in Case 003 in April 2011.553 This decision is said to confirm concerns that the conduct of investigations may be being affected by political interference on the part of the Cambodian government.554

C.  Key Features and Jurisdiction The ECCC may exercise jurisdiction to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognised by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.555 This time period coincides with the period of the Khmer Rouge regime. The ECCC may consider cases concerning both senior leaders and those that may be considered ‘most responsible’.556 For example, the first accused to be convicted, Duch, did not enjoy a senior position within the Khmer Rouge hierarchy, but was responsible for the notorious S21 torture and prison camp, where it is estimated that thousands of people perished.557 The other accused are comparatively senior figures within the hierarchy.558 552   Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) 002/19-09-2007-ECCCOCIJ, OCIJ (15 September 2010). The closing order is subject to appeal.The Pre-Trial Judge issued a decision on the appeals against the Closing Order in January 2011, and the case was formally remitted to the Trial Chamber. 553   Notice of Conclusion of Judicial Investigation, 29 April 2011. For discussion of the possible implications and subsquent developments in relation to this decision, see Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia (June 2011) update. 554   The Prime Minister has on several occasions indicated his view that the investigation of these two cases should not proceed, as to do so would be contrary to national reconciliation. See Open Society Justice Initiative, ibid and also Open Society Justice Initiative, Political Interference at the Extraordinary Chambers in the Courts of Cambodia (July 2010). 555   ECCC Law, art 1. 556   The four accused are: Nuon Chea, a senior figure in the Khmer Rouge Central and Standing Committees, and a key member of the Military Committee responsible for military measures and security; Ieng Sary, Deputy Prime Minister for Foreign Affairs and a key member of Khmer Rouge Committees; Khieu Samphan, a participant in (if not formally a member of) the Khmer Rouge Standing Committee and President of the Representative Assembly (effectively the Head of State) and Minister of Commerce; Ieng Thirith, Minister of Social Affairs. For further details, see: Closing Order in Case 002 (15 September 2010); and S Heder, ‘Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Assessment’ in J Ramji and B van Schaak (eds), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (New York, Edward Mellen Press, 2005). 557   Kaing Guek Eav alias Duch (Judgment) 001/18-07-2007/ECCC/TC, T Ch (26 July 2010). Note that the Tribunal’s personal jurisdiction in respect of Duch has been appealed, with the defendant’s lawyers arguing that he was neither a senior leader nor a person most responsible for the crimes committed, see Appeal Brief by the Co-Lawyers for Kaing Guek Eav alias ‘Duch’ Against the Trial Chamber Judgement of 26 July 2010, F14 (18 November 2010). An oral hearing on the appeal was held in March 2011, and judgment is pending. 558   Closing Order (15 September 2010); and Heder, n 556.



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The material jurisdiction of the ECCC includes international crimes: crimes against humanity;559 genocide;560 and grave breaches of the Geneva Conventions.561 The ECCC may also exercise jurisdiction in respect of violations of two international conventions to which Cambodia was a party: the Vienna Convention on Diplomatic Relations 1961 and the Hague Convention on the Protection of Cultural Property in the event of Armed Conflict 1954.562 However, it appears that no charges will be brought concerning violations of these conventions. The ECCC may also exercise jurisdiction in relation to three crimes under Cambodian law, the Penal Code 1956: homicide; torture; and religious persecution.563 The ECCC Law provides that, other than in limited circumstances, the ECCC is to apply Cambodian, not international, procedural law.564 However, the ECCC has, somewhat controversially, adopted its own Internal Rules, which are based on those of the ICTY and the ICTR.565 The ECCC Law also purported to extend the Cambodian Statute of Limitations, which would otherwise have precluded the exercise of jurisdiction 10 years after the commission of the crime, for a further period of 30 years.566 However, a Trial Chamber has expressed doubt that this provision was effective to extend the statutory period, and a majority refused to convict an accused for committing crimes under the Cambodian Penal Code.567 The ECCC comprises a Trial Chamber and Pre-Trial Chamber, as well as an appellate chamber, the Supreme Court Chamber. Although there is a president in each chamber, there is not a President of the Court as such. The ECCC utilises international judges and personnel; however, it does not require a majority of international judges on each panel. Instead, the Trial Chamber comprises three 559   ECCC Law, art 5 adopting the definition from the Statute of the ICTR, including the requirement for a discriminatory element. 560   ECCC Law, art 4, adopting the definition of genocide in the Genocide Convention. 561   ECCC Law, art 6. 562   ECCC Law, art 7. During the regime, there had been incidents of attacks on diplomatic premises, as well as targeting of cultural property protected by the Hague Convention. Report of the Group of Experts for Cambodia: paras 76 and 79. 563   ECCC Law, art 3. 564   ECCC Agreement, art 12, provides that international procedural rules may be referred to only where Cambodian law does not deal with a particular matter, there is uncertainty regarding the interpretation or application of a relevant rule, or a rule may not comply with international standards. 565   The Internal Rules were adopted in 2007 following lengthy discussions. A revised version was adopted in September 2010. The decision to adopt internal rules was controversial as the ECCC Law provides that proceedings are to be conducted in accordance with Cambodian law, with international procedural rules only to be used as a supplement where such law ‘does not deal with a particular matter, or if there is uncertainty regarding their interpretation or if there is a question regarding their consistency with international standards’, guidance may be also sought in procedural rules established at the international level’: ECCC Law, arts 20new (prosecution stage), 23new (investigations) and 33new (trials). For further discussion, see S Starygin, ‘Internal rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC): Setting an example of the rule of law by breaking the law?’ (2011) 3 Journal of Law and Conflict Resolution 20; and G Acquaviva, ‘New Paths in International Criminal Justice?: The Internal Rules of the Cambodian Extraordinary Chambers’ (2008) 6 Journal of International Criminal Justice 129. 566   ECCC Law, art 3new. 567   Kaing Guek Eav alias Duch (Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes) 001/18-07-2007/ECCC/TC, T Ch (26 July 2010).

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national judges (one presiding) and two international judges, while the Appellate Chamber comprises four national judges (one presiding) and three international judges.568 The United Nations was very concerned that without a majority of international judges there could be no guarantee that the national judges, who are more likely to be vulnerable to national pressures, would not collude to ‘out-vote’ their international colleagues. However, the Cambodian government refused to concede this issue during negotiations. Instead, a compromise was reached. Judges must attempt unanimity, but, failing this, a ‘super-majority’ is required. Decisions of each chamber require the affirmative vote of a majority of the judges in each chamber plus one.569 This ensures that a decision cannot be taken in either chamber without the support of at least one international judge. While the supermajority formula does provide some protection against corruption,570 it may not be as effective as hoped. The ECCC has interpreted the requirement as extending to every decision taken by a chamber, including procedural ones. Thus, while the requirement is effective at preventing biased decisions that require a positive outcome (for example, a conviction) it has the potential to hinder the investigation and trial phases, which may require ‘positive’ decisions from the Chamber, such as the issue of a summons for a witness. National judges can prevent a supermajority being achieved for such orders.571 The ECCC operates according to a ‘complex dual institutional structure’,572 with the sharing of responsibility between international and Cambodian personnel. The prosecution strategy in the ECCC is devised by two co-prosecutors, one Cambodian and one an international appointment.573 The co-prosecutors are to   ECCC Law, art 9.   ECCC Law, art 14. Judges are to attempt to achieve unanimity in their decisions, but where this is not possible, a decision in the Trial Chamber requires the affirmative vote of at least four judges, and a decision of the Supreme Court Chamber requires the affirmative vote of at least five judges. 570   The United Nations had sought to amend the agreement to provide for a majority of inter­ national judges in both chambers, recognising that the composition of the Extraordinary Chambers failed to protect the tribunal against political interference and intimidation. Given the precarious state of the judiciary in Cambodia, this risk was perceived as significant: Report of the Secretary-General on Khmer Rouge Trials, para 10(c). However, the Cambodian government refused to accept an amendment that would remove the Cambodian majority: Report of the Secretary-General on Khmer Rouge Trials, n 534, paras 16 and 17. 571  eg, two of the accused in Case 002 requested the issue of a summons for officials of the Cambodian government. The government did not permit compliance with the summons by its officials, and the co-investigating judges refused to order coercive measures to seek compliance. This decision was appealed to the Pre-Trial Chamber, where the international judges expressed the view that the actions of the government risked the fair trial rights of the accused and that the Court should ‘do its utmost to ensure that charged persons are provided with a fair trial’, including issuing coercive measures (emphasis in original). The Cambodian judges refused to allow an investigation or to issue further orders. In the absence of a super-majority, nothing further could be done, despite the quite serious allegations of interference with the processes of the ECCC by the Government of Cambodia and a failure to comply with its obligation to cooperate with the ECCC: Co-Prosecutors v Nuon Chea and Ieng Sary (Second Decision on Nuon Chea’s and Ieng Sary’s Appeal Against OCIJ Order on Requests to Summon Witnesses) 002/19-09-2007-ECCC/OCIJ (PTC 50), P T Ch (9 September 2010). 572   International Center for Transitional Justice, Cambodia (July 2010) http://.ictj.org/en/where/ region3/642.html. 573   UN Agreement, art 6; ECCC Law, arts 16–19. 568 569



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work together to initiate investigations, formulate charges, request the opening of judicial inquiries, and conduct any ensuing prosecutions and appeals before the Extraordinary Chambers. The ECCC Law provides that the co-prosecutors must cooperate to develop a common prosecutorial strategy. If the co-prosecutors cannot agree regarding a prosecution, the prosecution will proceed unless a coprosecutor refers the dispute to the Pre-Trial Chamber.574 The dispute resolution mechanism has been used in relation to Cases 003 and 004, where the co-­ prosecutors could not agree that the investigation should proceed. The inter­ national prosecutor wished to commence an investigation, while the national prosecutor considered that further cases were not required and that the conduct in question had already been considered in Cases 001 and 002.575 The approach of the national prosecutor appeared to reflect the views of the Cambodian Government, which had issued statements opposing the initiation of additional investigations. The international prosecutor referred the matter to the Pre-Trial Chamber,576 and, as the Chamber was unable to form a super-majority for a decision on the disagreement, the investigation proceeded.577 The international prosecutor filed introductory submissions in Cases 003 and 004 in September 2009.578 The ECCC also makes use of co-investigating judges (one national and one international), reflecting the civil law nature of the Cambodian legal system. The co-investigating judges have joint responsibility for the conduct of investigations.579 In the event of a disagreement, a similar arrangement as that for the coprosecutors exists, with the investigation to proceed unless the dispute is referred to the Pre-Trial Chamber for resolution, again requiring a super-majority.580 However, it appears that political issues arising from whether to carry out the investigations of Cases 003 and 004 may also have affected the co-investigating judges, with the national co-investigating judge failing to cooperate. If the international co-investigating judge needs to take a step that requires a positive decision, such as the issue of a summons, the dispute may need to be referred to the Pre-Trial Chamber.581 The issue of non-cooperation between the national and international co-investigating judges may have been resolved, with the joint 574   UN Agreement, art 6(4); ECCC Law, art 20. The Pre-Trial Chamber will sit only as required, and will consist of three Cambodian judges and two international judges, with a decision requiring an affirmative vote of four members. If this ‘super-majority’ were not obtained, the prosecution would continue. 575   ECCC, Statement of the Co-Prosecutors (5 January 2009). 576   ECCC, Statement of the Co-Prosecutors (8 December 2008). 577  Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71, 001/18-11-2008-ECCC/PTC, P T Ch (18 August 2009). The judges divided along national lines, with the Cambodian judges considering the investigations should not proceed, while the international judges in favour of additional cases. 578   ECCC, Statement of the Acting International Co-Prosecutor: Submission of Two New Introductory Submissions (8 September 2009). 579   ECCC Law, art 23. 580   ECCC Law, art 23 581   See Open Society Justice Initiative, Political Interference at the Extraordinary Chambers in the Courts of Cambodia, n 556.

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decision to close the investigation in Case 003.582 However, this decision has been criticised as evidence of political interference affecting the operation of the ECCC.583 The ECCC Law requires that there must be a Cambodian Director of the Office of Administration, assisted by an international Deputy Director. The Deputy Director is responsible for the international components of the system and the recruitment of all international staff. The Cambodian Director has responsibility for the overall management of the Office, but does not have power for matters that are subject to United Nations rules and procedures. Both the Director and the Deputy Director are to co-operate so that the Office functions in an effective and efficient manner.584 However, there is not a Registrar as found in other tribunals. The ECCC has faced serious criticism for inefficiency and there have been moves to introduce greater oversight.585 ECCC employs a ‘mixed’ approach to funding, with both the government of Cambodia and the United Nations to contribute to the establishment and operating costs of the ECCC.586 The initial estimate for three years of operation (three years being the period during which it is assumed all trials and appeals will be complete) was US$56.3 million, divided 75 per cent payable by the United Nations and 25 per cent payable by the government of Cambodia. However, this budget has proved to be grossly inadequate, and more recent estimates place the total cost as closer to $338 million.587 The United Nations contribution is funded from voluntary contributions,588 despite the opinion of the Secretary-General that voluntary contributions ‘would not provide the assured and continuous source of   Case 003, Notice of Conclusion of Judicial Investigation, 29 April 2011.   Shortly after the decision, the International Co-Prosecutor issued a statement setting out additional information on the nature of the charges sought in Case 003, as well as his intention to request additional investigative measures: Statement by the International Co-Prosecutor Regarding Case File 003, 9 May 2011. This prompted a response from the National Co-Prosecutor indicating that in her opinion the suspects in the case did not fall within the personal jurisdiction of the ECCC, and from the Co-Investigating Judges as to the statement, and the decision’s portrayal in the media: see Statement by the National Co-Prosecutor Regarding Case File 003, 10 May 2011 and Statements by the Co-Investigating Judges, 18 and 26 May 2011. The co-investigating judges subsequently rejected the International Prosecutor’s requests, a decision which has been appealed by the International Co-Prosecutor: Decision on Time Extension Request and Investigative Requests by the International Co-Prosecutor Regarding Case 003, 7 June 2011. For further discussion, see Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia (June 2011). 584   ECCC Agreement, art 8 and ECCC, arts 30–33. 585   A Heindel and J Ciorciari, ‘Possible Roles for a Special Advisor or Oversight Committee for the ECCC’, (2008) Fourth Quarter 2008 Searching for the Truth (Magazine of the Documentation Center of Cambodia) 45. Calls for greater oversight were triggered by concerns regarding financial mismanagement in particular. Such concerns led to the referral of the ECCC Project Board of accounts for an independent audit. The review cleared the ECCC of financial mismanagement: see HRM Review Team, ECCC-Special Human Resource Management Review, Summary (26 March 2008). 586   For further discussion of funding the ECCC, see T Ingadottir, ‘Financial Challenges and their Possible Effects on Proceedings’ (2006) 4 Journal of International Criminal Justice 294. 587   S Ford, ‘How Leadership in International Criminal Law is Shifting from the US to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts’ (2010–11) Saint Louis University Law Journal (forthcoming). 588   UNGA Res 57/228B (22 May 2003) UN Doc A/RES/57/228B, para 3. 582 583

Conclusion 133 funding’ needed to appoint international staff.589 The ECCC has experienced chronic difficulties in securing funding, both from the United Nations and the Cambodian government, not helped by allegations of corruption and mismanagement.590 The 2010–11 budget for the ECCC shows continued funding deficits for both sides of the ECCC,591 with original budget estimates of US$87.1 million for the year 2010–11 having to be revised to US$40.7 million.592

IX. Conclusion All of the existing tribunals studied in this chapter were established in very difficult and different circumstances. The different background to their establishment, in particular the legal and political context, has impacted upon the key features and the jurisdiction of each of these tribunals. The range in these features lends some support to the argument that there is not a standard definition or model of a hybrid or internationalised tribunal. There are certainly significant variations between the tribunals that are considered to fall within the category of hybrid and internationalised tribunals; in fact, there are probably more differences than similarities. The next chapter expands the study of practice both to institutions generally excluded from this category, as well as to past and current proposals for the creation of further hybrid and internationalised tribunals. Drawing on the context provided by this chapter, it will assess the factors that have driven the establishment of the tribunals studied in this chapter, and the factors that continue to drive proposals for future hybrid and internationalised tribunals. Chapter four returns to the issue of whether there is a definition, or at least defining characteristics, of such tribunals and whether the existence – or absence – of a definition matters.

  Report of the Secretary-General on Khmer Rouge Trials, n 534, para 74.   See, eg, Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia (October 2008). 591   See Bates, n 549, 33. 592   ECCC Budget and Finance Offices, ECCC Expenditures (May 2011) http://www.cambodiatribunal.org/images/CTM/note_to_media.pdf, accessed 5 July 2011; ECCC, ECCC Revised Budget Requirements 2010–2011 (January 2011) www.eccc.gov.kh/en/tags/topic/68; ECCC, Approved ECCC Budget 2010–2011 (July 2010) www.eccc.gov.kh/en/articles/approved-eccc-budget-2010-2011. 589 590

3 Exclusions and Proposals for Future Hybrid and Internationalised Tribunals I. Introduction The previous chapter studied the tribunals generally considered to be hybrid or internationalised tribunals. It examined the background to the establishment of each tribunal, as well as the key features and jurisdiction of each institution. Before drawing conclusions as to the similarities or distinctions between the tri­ bunals studied, and determining whether there is a definition of a hybrid or inter­ nationalised tribunal, this chapter expands that study of practice to consider institutions that have both international and national elements, but which are not viewed as falling within the category of a mixed tribunal. This includes the Nuremberg and Tokyo Tribunals, the Lockerbie Court and the Serbian War Crimes Chamber. A study of ‘excluded’ mechanisms is warranted as it will assist in identifying whether there are definitive features that are used to exclude certain institutions from this category, as well as to include institutions. This chapter also considers emerging practice by reviewing proposals for the establishment of further hybrid and internationalised tribunals. Such proposals may not have been effected for various reasons, or in some cases, the proposals are still the subject of negotiation between the parties concerned. While it is possible that some, or indeed all, of these proposals may never be realised, or at least not in the form outlined here, this emerging practice is still important. It demonstrates the increasing range of situations in which such tribunals are being proposed, as well as the enormous variation in the design and proposed jurisdiction of such tribunals. Practice has moved on in many respects since the establishment of the existing tribunals examined in chapter two, and each new proposal may alter our perception as to what type of institution or arrangement will qualify as a mixed or hybrid tribunal. Significantly, the study of more recent practice demonstrates the emerging relationship between the International Criminal Court (ICC) and mixed tribunals, and the potential role of this mechanism in the dialogue con­ cerning the appropriate forum for trials of those accused of committing interna­ tional crimes. It highlights again the tension between state sovereignty and the need to secure accountability for international crimes, as well as the desire to



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build capacity at the national level. The proposals outlined in this chapter are: the Special Tribunal for Burundi; the Special Court for Darfur; the Specialised Chamber in the Democratic Republic of the Congo; an extraterritorial piracy tri­ bunal; the Special Tribunal for Kenya; the Extraordinary Criminal Court for Liberia; and the Special Tribunal for the Trial of Hissène Habré. The Kosovo War and Ethnic Crimes Court has already been considered as part of the background to the International Judges and Prosecutor’s Programme in Kosovo (IJPP), dis­ cussed in chapter two.

II.  Institutions with International Elements Not Considered to be Hybrid or Internationalised Tribunals A.  The Nuremberg and Tokyo Tribunals The International Military Tribunal (IMT) and the International Military Tribunal for the Far East (Tokyo Tribunal) are considered by most commentators to be the forerunners to the international criminal courts of more recent decades.1 As noted in chapter one, both tribunals had a number of international features, in particular the deployment of international judges and the exercise of jurisdiction in respect of international crimes. However, one commentator has recently sug­ gested that these tribunals are ‘akin to the modern mixed or hybrid tribunals’2 and ‘the forerunner of the more modern mixed/hybrid tribunals’.3 The IMT was established pursuant to the London Agreement between the four Allied powers at the end of the Second World War, ‘for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of the organizations or groups or in both capacities’.4 The Charter for the International Military Tribunal was annexed to the London Agreement.5 The IMT utilised only international judges, two judges appointed by each of the four Allied powers.6 Each Allied power also appointed a Chief Prosecutor ‘for the investigation of the charges against and the prosecution of major war criminals’,7 and the four prosecutors appointed formed a committee to coordinate the investigation and prosecution.8 Defendants were entitled to 1  See, eg, R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge, Cambridge University Press, 2010). 2   D Akande, ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’ (2011) University of Oxford Legal Research Paper Series, Paper No 10 of 2011, 30 (Tokyo Tribunal). 3   ibid, 31 (IMT). 4   Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) (8 August 1945) 82 UNTS 279 (Charter of the IMT), art 1. 5   Charter of the IMT. 6   Charter of the IMT, art 3. Four judges served as alternate judges. 7   Charter of the IMT, art 14. 8   Charter of the IMT, Part III.

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Exclusions and Future Proposals

representation, and several were represented by German counsel.9 The IMT could exercise jurisdiction in respect of crimes against peace, war crimes and crimes against humanity.10 The tribunal’s applicable law was set out in its Charter and its rules of procedure and evidence,11 which included provisions on individual crim­ inal responsibility, superior orders and official position.12 Its applicable law did not draw on national law. The permanent seat of the IMT was in Berlin; however, the trials were held in Nuremberg.13 Its expenses were met from ‘the funds allot­ ted for maintenance of the Control Council of Germany’.14 Thus, on one view, the IMT was an international tribunal established by the Allied powers exercising the authority of and acting on behalf of the United Nations and the wider international community. Support for this view rests on several factors: the description of the tribunal as an international military tribunal in the Charter for the tribunal; the status of other states as signatories to the Agreement;15 the fact that the IMT’s jurisdiction was not restricted strictly by geography or nationality to Germany or German war criminals; its establishment pursuant to an international agreement; the nature of the crimes; the declaration in the preamble to the Agreement that the Allied powers were acting ‘in the inter­ ests of all the United Nations’; and the intention to place the trials on an interna­ tional basis.16 Consequently, the IMT was truly an international tribunal and should not be considered as a hybrid or internationalised tribunal. However, it could be suggested that given the total collapse of the German gov­ ernment, the four Allied powers were in fact jointly exercising their authority as the de facto sovereign of Germany. Each of the Allied powers was entitled to exer­ cise such authority independently, and an agreement was considered practicable to establish a joint institution to exercise these powers collectively. Yet, the source of the powers conferred on the tribunal remained entirely domestic. The IMT could thus be characterised as an ‘occupation’ court, exercising the powers of the German state and jurisdiction based on the territorial and nationality principles. The IMT itself appeared to adopt this view of its legal basis, finding that the mak­ ing of the Nuremberg Charter was ‘the exercise of the sovereign legislative power

9   Charter of the IMT, art 16(d); for a list of names and resumes of defence counsel per defendant, see T Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No 10 (15 August 1949) 297–344 . Over 30 German attorneys served as defence counsel; see D Sprecher, Inside the Nuremberg Trial: A Prosecutor’s Comprehensive Account, vol 1 (Lanham, University Press of America, 1999) 126. 10   Charter of the IMT, art 6. 11   Charter of the IMT, art 13. The Tribunal adopted its rules of procedure and evidence on 29 October 1945. 12   Charter of the IMT, arts 6–8. 13   Charter of the IMT, art 22. 14   Charter of the IMT, art 30. 15   Art 5 of the Charter invites other members of the United Nations to adhere to its terms. 16   For this view, see: H Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’ (1947) 1 International and Comparative Law Quarterly 153, reprinted in G Mettraux (ed), Perspectives on the Nuremberg Trial (Oxford, Oxford University Press, 2008) 274, 286–88.



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by the countries to which the German Reich unconditionally surrendered’.17 Various contemporary commentators endorsed this view,18 and it has also been asserted by more recent commentators in the context of debate concerning the legal basis of the ICC.19 If this view is accepted, then the IMT was predominantly a national court, with international elements, including the presence of inter­ national judges (albeit only representing the four Allied powers). It may thus potentially fall within the category of hybrid or internationalised tribunals, an issue which is considered further in chapter four. Unlike the IMT, the Tokyo Tribunal was established not by an international agreement but by a proclamation issued by General MacArthur acting as Supreme Allied Commander for the Allied War Powers (SCAP).20 The Potsdam Declaration of 26 July 1945 provided that ‘stern justice shall be meted out to all war criminals’, although it did not stipulate as to how and before which mechanism(s) trials were to be conducted.21 In August 1954, Japan accepted the terms of the Potsdam Declaration as part of the terms of surrender,22 and a formal instrument of surren­ der, reflecting this agreement and the unconditional surrender of Japan, was signed.23 This instrument also stated that ‘the authority of the Emperor and the Japanese government to rule the state shall be subject to the Supreme Commander for Allied Powers’ and required Japan ‘to carry out the provisions of the Potsdam Declaration in good faith’. The United States, which issued directives to MacArthur, issued a directive requiring the trial of major Japanese war criminals and conferred the power ‘to appoint special international military tribunals’.24 The United States continued to press for trials, and sent a further directive ordering MacArthur to

17   Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg 30 September and 1 October, 1946 (London, HMSO, 1946) 38. 18  See: G Schwarzenberger, ‘The Judgment of Nuremberg’ (1947) 21 Tulane Law Review 329, reprinted in G Mettraux (ed), Perspectives on the Nuremberg Trial (Oxford, Oxford University Press, 2008) 166; Q Wright, ‘The Law of the Nuremberg Trial’ (1947) 41 American Journal of International Law 38, reprinted in G Mettraux (ed), Perspectives on the Nuremberg Trial (Oxford, Oxford University Press, 2008) 320, 331. 19   The four powers establishing the Nuremberg Tribunal exercised sovereign power at the time: see M Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’ (2001) 64 Law and Contemporary Problems 13, 37–40; D Akande, ‘The Jurisdiction of the ICC over Nationals of Non-Parties: Legal Basis and Limits’ (2003) 1 Journal of International Criminal Justice 618, 627–28; D Scheffer, ‘The International Criminal Court: The Challenge of Jurisdiction’ (1999) Proceedings of the American Society of International Law 68, 70. 20   Special Proclamation – Establishment of an International Military Tribunal for the Far East (19 January 1946), reproduced in N Boister and R Cryer (eds), Documents on the Tokyo International Military Tribunal: Charter, Indictments and Judgments (Oxford, Oxford University Press, 2008) 5. 21   Proclamation Defining Terms for Japanese Surrender, 26 July 1945, art 10, reproduced in Boister and Cryer, ibid, 1–2. The Declaration was made by the United States, the United Kingdom and China, with the USSR later adhering to the declaration. 22   See N Boister and R Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford, Oxford University Press, 2008) 20–21. 23   Japanese Instrument of Surrender, 2 September 1945, reproduced in Boister and Cyrer, Documents on the Tokyo International Military Tribunal: Charter, Indictments and Judgments, n 20, 3–4. 24   Directive on the Indentification, Apprehension and Trial of Persons Suspected of War Crimes, discussed in Boister and Cryer, n 20, 22–23.

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proceed with the trial.25 The Moscow Conference, held on 26 December 1945, agreed that the SCAP should issue all orders for implementation of the Terms of Surrender and the occupation of Japan. It also established a Far Eastern Committee (FEC)26 to review the orders of SCAP, recognising, however, the role of SCAP as a military officer operating under United States command.27 Based on this authority, but without express approval from FEC, General MacArthur issued the special proclamation establishing the Tokyo Tribunal.28 He also adopted the Charter of the International Military Tribunal for the Far East, establishing the tribunal ‘for the just and prompt trial and punishment of the major war criminals in the Far East’.29 The Tokyo Tribunal had a more geograph­ ically diverse bench than the IMT, with judges drawn from all countries that had signed the instrument of surrender, although Japanese judges were not included.30 The United States was entitled to appoint the Chief Prosecutor, while other states appointed associate prosecutors.31 The seat of the tribunal was in Tokyo.32 The Tokyo Tribunal was able to exercise jurisdiction in respect of crimes against peace, war crimes and crimes against humanity.33 Like the IMT, the applicable law of the Tokyo Tribunal comprised its own Charter and rules of evidence and procedure, and did not draw on national law.34 The accused were entitled to defence counsel, approximately three quarters of which were Japanese.35 As with the IMT, the suggestion that the Tokyo Tribunal was a mixed tribunal depends on the source of its jurisdiction. General MacArthur recognised that the Tokyo Tribunal was established pursuant to the powers conferred on him by the Allied Powers, which in turn exercised authority in respect of Japan pursuant to the instrument of surrender. This view of the basis for the authority of the tribu­

25   US Directive, ‘Apprehension and Punishment of War Criminals’, 10 November 1945, discussed in Boister and Cryer, n 22, 24, who note that ‘the directive made it clear that while the Allies had been approached to participate in the international court, the US could proceed unilaterally if they chose not to or delayed unduly’. 26  FEC comprised the states represented in the Far Eastern Advisory Committee (the US, UK, China, Australia, Canada, the Netherlands, New Zealand and France), which it replaced, as well as the USSR and the Phillipines. 27   Boister and Cryer, The Tokyo International Military Tribunal: A Reappraisal, n 22, 24. 28   Special Proclamation – Establishment of an International Military Tribunal for the Far East (19 January 1946) n 20. 29   Charter of the International Military Tribunal for the Far East (19 January 1946) (Charter of the IMTFE), art 1. The Charter was subsequently amended on 20 April 1946 in response to concerns raised by FEC, see Boister and Cryer, The Tokyo International Military Tribunal: A Reappraisal, n 22, 25–27. 30  Charter of the IMTFE, art 2. Representatives from the US, USSR, UK. China, France, the Netherlands, Canada, Australia and New Zealand were appointed. The membership of the tribunal was later expanded to include representatives of India and the Philippines. See: Boister and Cryer, n 22, 26–27. 31   Charter of the IMTFE, art 8. 32   Charter of the IMTFE, art 1. 33   Charter of the IMFTE, art 5. 34   Charter of the IMFTE, art 7. The rules of procedure and evidence were promulgated on 25 April 1946. 35   Charter of the IMFTE, art 9(c).



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nal was adopted by the Tokyo Tribunal itself,36 and by the majority of the United States Supreme Court, which held that the Tokyo Tribunal was an ‘occupation’ court.37 Compared to the IMT, the Tokyo Tribunal was more clearly exercising the authority of the occupying powers as the domestic authority in Japan.38 This arguably makes its legal basis in national law.39 There is relatively little commen­ tary on the legal nature of the Tokyo Tribunal. The most recent study on the topic concludes that the tribunal is international in nature, but without considering the possibility of whether it is a hybrid.40 If the jurisdictional basis is a relevant factor, then the Tokyo Tribunal may well be included within the definition of hybrid or internationalised tribunals, an issue which is discussed in chapter four.

B.  Serbian War Crimes Chamber The Serbian War Crimes Chamber (SWCC) was established in 2003 pursuant to national law,41 although early drafts of the law were reviewed and revised with support from the Organization for Security and Co-operation in Europe (OSCE), the International Bar Association and the United States Embassy to Serbia.42 It commenced operations in 2004. A special chamber within the Belgrade District Court, the SWCC has jurisdiction to try crimes against humanity, genocide and certain violations of international humanitarian law as incorporated into domes­ tic law, as well as serious violations of international humanitarian law as stipu­ lated in the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY).43 While the SWCC receives a significant portion of its funding 36   It held that ‘This is a special tribunal set up by the Supreme Commander under authority con­ ferred upon him by the Allied Powers. It derives its jurisdiction from the Charter’.: Judgment of the Majority, reproduced in Boister and Cryer, n 20, 79. 37  ‘We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers’: Hirota v MacArthur (1948) 338 US 197, 197–98, 31. The petitioners had argued that the tribunal was a US military tribunal within the jurisdiction of the US Supreme Court. See discussion in Boister and Cryer, The Tokyo International Military Tribunal: A Reappraisal, n 22, 28–31. 38   There has been some debate as to the nature of the Japanese surrender, and whether it was made on a contractual basis, that is with the consent of Japan and leaving Japanese sovereignty intact, or on an unconditional basis, rendering the occupying powers the de facto sovereign. See Boister and Cryer, The Tokyo International Military Tribunal: A Reappraisal, n 22, 40–43. 39   See, however, the discussion concerning the legal basis of potentially another ‘occupation’ court, the Iraqi High Tribunal. See ch 5, section IV(iii). 40   Boister and Cryer, n 22, 30–31. 41   Law on Organisation and Competence of Government Authorities in War Crimes Proceedings, as amended in 2004. 42   See M Ellis, ‘Coming to Terms with its Past – Serbia’s New Court for the Prosecution of War Crimes’ (2004) 22 Berkeley Journal of International Law 165. 43   Law on Organisation, art 2. The international crimes are as set out in the Serbian Criminal Procedure Code, 2005, as amended by the Law on Amendments and Additions to the Criminal Procedure Code, 2009 (for an English translation, see: www.legislationline.org/documents/section/ criminal-codes/country/5).

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from the international community,44 in particular the United States,45 reportedly at the insistence of the United States it does not incorporate international judges or personnel, even in an advisory capacity. Although it was initially considered that the SWCC may form an important part of the ICTY’s completion strategy, only one case has been referred to the SWCC from the ICTY,46 reflecting the sen­ ior level of the Serbs facing trial before the ICTY. Staff from the ICTY participated in training judges and prosecutors appointed to the SWCC, and the ICTY has cooperated in providing investigative material to the Serbian prosecutors.47 The OSCE Mission in Serbia also monitors and reports on trials. As at 22 November 2010, the SWCC had issued final judgments in 12 cases. It has considered alleged crimes in Serbia, Croatia and Kosovo, committed by all parties to the conflict.48 The response to the trials has generally been positive, although there is some con­ cern as to possible political interference, particularly at the appellate level (the Supreme Court).49 The SWCC does not have exclusive jurisdiction for war crimes trials.50 The SWCC is generally considered to be a national tribunal established with international assistance, but not an internationalised tribunal.51

C.  The Lockerbie Court The trial of the individuals accused of committing the terrorist attack on Pan Am Flight 103 over Lockerbie in Scotland has been suggested as falling within the category of internationalised tribunals.52 Following the bombing of the flight, 44   eg, the European Union funds 12 staff positions through the War Crimes Justice Project until October 2011. 45   The United States allocated approximately US$12–14 million to Serbian rule of law initiatives for the fiscal years of 2004 and 2005, with a large portion of this amount going to the Special Courts; see USAid, USAid/Serbia Program, Budget Summary, Congress Budget Justification 2005 (2005) www.usaid. gov/policy/budget/cbj2005/ee/se.html; see also R Baker, ‘Towards a New Transitional Justice Model: Assessing the Serbian Case’ (2009) 11 San Diego International Law Journal 171, 210. 46   Prosecutor v Kovacˇevi´c (Decision on Referral of Case Pursuant to Rule 11bis) ICTY-01-42/2-1 (17 November 2006), confirmed on appeal, 28 March 2007. The SWCC deemed the accused unfit to stand trial, due to medical reasons, and the trial is suspended subject to any change in the condition of the accused. 47   Memorandum of Understanding between the ICTY and War Crimes Prosecutor’s Office in Serbia (2006). 48   eg, the SWCC has convicted several former ethnic Albanian guerillas, members of the Kosovan Liberation Army, for killing Serb and non-Albanian civilians after the end of the conflict in Kosovo. It has also convicted members of Serb paramilitary groups accused of killing civilians during the Kosovo conflict. 49  See B Ivani s¸ evi c´ , Against the Current – War Crimes Prosecutions in Serbia, Report for the International Center for Transitional Justice (2007); Human Rights Watch, Unfinished Business: Serbia’s War Crimes Chamber (June 2007); and Humanitarian Law Centre, War Crimes Trials in Serbia (December 2007). 50   eg, District Courts in Požarevac and Niš have conducted trials in respect of war crimes commit­ ted during the Kosovo conflict. See Humanitarian Law Centre report, ibid. 51   See, Cryer et al, n 1, 195. 52   However, it was included in a recent survey by the United Nations of its own practice regarding United Nations and United Nations-assisted tribunals, in the same category as the SPSC, the IJPP and the WCC.



Excluded Tribunals

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criminal proceedings were commenced in Scotland. The United Kingdom and the United States sought to compel Libya, the state of nationality of the accused, to surrender the accused for trial either in the United Kingdom or the United States.53 Libya refused to comply with this demand, arguing that under the rele­ vant international instrument, the 1971 Montreal Convention,54 Libya was enti­ tled to try the accused itself and was required to extradite the suspects to another state only when it had failed to do so.55 The United Kingdom and the United States, along with France (a French airliner had been bombed over Nigeria in 1989, and Libyan involvement was suspected), seized the Security Council of the matter. The Council issued a nonbinding resolution urging the Libyan government to respond to the requests by France, the United Kingdom and the United States concerning investigations into the bombings.56 On 3 March 1992, Libya referred the dispute to the International Court of Justice (ICJ). It sought an order for provisional measures confirming that it was not required to extradite the accused and that the United Kingdom and the United States were in violation of their own obligations under the Convention in attempting to coerce the extradition of the accused.57 The Council subsequently adopted Resolution 748, acting under Chapter VII of the Charter.58 The Council decided that Libya was required to comply with the requests concerning the judicial investigations and must cease support for terrorist activities.59 It also imposed a range of sanctions on Libya, including an arms embargo and measures against Libyan flights and airlines.60 In the face of contin­ ued refusal to surrender the accused, the Council adopted a further resolution, 53   Joint Declaration of the United States and the United Kingdom of 27 November 1991 (1991) UN Doc A/46/827-S/23308 – Libya should ‘surrender for trial all those charged with the crime . . . and accept responsibility for the actions of Libyan officials, disclose all it knows of this crime . . . and pay appropriate compensation’. 54   Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) 860 UNTS 105. The US, UK and Libya were all state parties to this Convention. 55   This assertion was based on art 7 of the Montreal Convention, which provides: ‘The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.’ 56   UNSC Res 731 (21 January 1992) UN Doc S/RES/731. 57  See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom); Application (3 March 1992) and Request for the Indication of Provisional Measures (3 March 1992). 58   UNSC Res 748 (31 March 1992) UN Doc S/RES/748. The Council noted that the suppression of acts of international terrorism is ‘essential for the maintenance of international peace and security’. 59   ibid, paras 1 and 2. 60   ibid, imposing sanctions and restrictions on take-off and overflight rights in respect of Libyan air carriers, limits on the provision of parts, maintenance and technical assistance, as well as certification, to Libyan carriers, an arms embargo, reduction in diplomatic representation in Libya, and expelling certain Libyan nationals. UNSC Res 883 (11 November 1993) UN Doc S/RES/883 extended the range of the measures adopted, and imposed financial sanctions. The measures were suspended in 1999 fol­ lowing the surrender of the accused to the Lockerbie court, and finally lifted in 2003, following an agreement by the Government of Libya to pay compensation to the victims of the bombing.

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Exclusions and Future Proposals

which extended the sanctions to a trade embargo and restrictions on capital and financial resources.61 In the proceedings before the ICJ, the United Kingdom and the United States asserted that Libya’s obligations as set out in binding resolutions of the Council prevailed over any inconsistent rights or obligations in the Montreal Convention. This argument was upheld by the ICJ, which dismissed the application for provisional measures.62 However, the ICJ did not uphold the United Kingdom and United States preliminary objections to the exercise of its jurisdiction, and in 1998 the case was listed for pleadings on the merits. The dispute was ultimately resolved politically, with the Security Council and the Secretary-General assisting to negotiate a solution to the impasse.63 The idea of a trial in a third country in accordance with the laws of that state was initially suggested by Libya, and then by regional organisations interceding on behalf of Libya from 1994 onwards. The initial response from the United Kingdom and the United States to the proposal was not enthusiastic. It was not until 1998 that the United States and the United Kingdom informed the Secretary-General that they would consider a trial before a Scottish court sitting in the Netherlands ‘as an exceptional measure’.64 The Council welcomed the initiative, requested the Secretary-General to support Libya in implementing the proposal and indicated that sanctions against Libya would be lifted once the accused had been surren­ dered for trial.65 The Council also required ‘all States’ to co-operate in enabling the Scottish court to exercise its jurisdiction.66 The United Kingdom concluded an agreement with the Netherlands that pro­ vided for the trial to be conducted by a panel of Scottish judges, operating under Scottish law, but sitting in the Netherlands.67 The agreement obliged the host state to make available suitable premises, to permit the detention of the accused, and to accord privileges and immunities to the Court. In order to address concerns of Libya, the accused could only be transferred to the territory of the United Kingdom following notice to the Libyan government and either with the consent of the accused (for trial) or to serve any sentence.68 The Netherlands was also pre­   UNSC Res 883 (11 November 1993) UN Doc S/RES/883.   Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States) (Provisional Measures, Order of 14 April 1992) [1992] ICJ Rep 114. 63   For further discussion of the background to the trial, see M Plachta, ‘The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare’ (2001) 12 European Journal of International Law 125 and D Andrews ‘A Thorn on the Tulip – a Scottish Trial in the Netherlands: The Story Behind the Lockerbie Trial’ (2004) 36 Case Western Reserve Journal of International Law 307. 64   UNSC, ‘Letter dated 24 August 1998 from the Acting Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America Addressed to the Secretary-General’ (1998) UN Doc S/1998/795. 65   UNSC Res 1192 (1998) UN Doc S/RES/1192. 66   ibid, para 4. 67  Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Netherlands concerning a Scottish Trial in the Netherlands (18 September 1998) 2062 I-35699 UNTS 82. 68  Agreement, art 16(2). In the event of an acquittal or the discontinuance of proceedings, the accused were entitled to leave the Netherlands: art 16(4). 61 62



Excluded Tribunals

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cluded from exercising its own jurisdiction in relation to the accused.69 The United Kingdom government introduced amendments to Scottish law to enable the trial to proceed, including waiving the normal requirement under Scottish law for a jury trial.70 Measures against Libya were lifted following the surrender of the accused for trial in April 1999.71 The Scottish court tried two Libyan nationals charged with murder, conspiracy to murder and acts contrary to the United Kingdom Aviation Security Act 1982.72 It convicted Al Megrahi in 2001, sentencing him to life imprisonment.73 An appeal by the defendant was dismissed, and Al Megrahi was transferred to Scotland to serve his sentence.74 Fhimah was judged not guilty, and permitted to return to Libya. Megrahi remained in custody until August 2009, when he was controver­ sially released by the Scottish Justice Minister on the basis of his terminal cancer,75 and allowed to return to Libya. Despite the involvement of the Security Council and the Secretary-General in the resolution of the dispute, the Lockerbie tribunal is not generally considered to be an internationalised criminal tribunal within the scope of this study. The tribunal itself was a United Kingdom court. It was established pursuant to United Kingdom law, applied Scottish substantive and procedural law, with some modification, and utilised Scottish judges, personnel and defence counsel. The United Kingdom acted on an established basis of jurisdiction – territoriality, which it would have been able to exercise acting independently and regardless of the nationality of the accused. The international element was the location of the tribunal in the Netherlands, which was a term of Libya’s surrender of the accused, and the political pressure applied to secure that surrender. The Security Council did not establish the tribunal or require its establishment, but merely called upon the United Kingdom and the Netherlands to take such steps as were necessary to enable the Court to exercise jurisdiction and supported the United Kingdom in its efforts to obtain custody of the accused.76 The United Kingdom was responsible for all costs associated with the trial, and reimbursed the expenses incurred by the Netherlands in hosting the trial. International observers appointed by the Secretary-General, at the invitation of the Security   Agreement, art 16(3).  Statutory Instrument 1998, No 2251, The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998. The Order also provided for the court to sit outside the UK: art 3. 71   UNSC Presidential Statement (8 April 1999) UN Doc No S/PRST/1999/10. 72  An arrest warrant was issued for Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhinmah on 13 November 1991. 73   Her Majesty’s Advocate v Abdelbaset Ali Mohmed Al Megrahi And Al Amin Khalifa Fhimah (Opinion) Case No 1475/99, High Court of Justiciary at Camp Ziest (31 January 2001). 74   In 2007, the Scottish Criminal Cases Review Commission referred Megrahi’s conviction for a second appeal on the basis there had been a miscarriage of justice in the initial trial. Despite being scheduled to commence in 2009, the appeal was never heard, due to his failing health. 75   The relevant Scottish law provides that a prisoner with less than three months to live may be released. 76   UNSC Res 1192 (1998) UN Doc S/RES/1192, para 3. 69 70

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Exclusions and Future Proposals

Council, attended the trial.77 However, the Security Council did impose a general obligation on all states to cooperate towards enabling the Court to exercise juris­ diction and a particular obligation on Libya to ‘ensure the appearance in the Netherlands of the two accused for the purpose of trial by the court’.78 It is thus best considered ‘an ad hoc solution for a particular incident’79 or ‘extradition by analogy’.80 Accordingly, it has not been included in this study as an example of an internationalised tribunal.

D.  Other Institutions There are a number of other institutions with international elements that play a role in responding to acts that are criminal in nature. These may include institu­ tions that perform investigative and fact-finding roles and, in some cases, a pros­ ecutorial role. Examples are commissions such as the United Nations International Independent Investigation Commission (UNIIIC) in Lebanon; the Bhutto Commission in Pakistan; the International Commission against Impunity in Guatemala (CICIG); the Joint Group for the Investigation of Politically Motivated Illegal Armed Groups in El Salvador (Joint Group); the Serious Crimes Investigation Team in Timor-Leste (SCIT) and the Special Prosecutor’s Office in Ethiopia. These institutions are generally excluded from the category of hybrid and internationalised tribunals, although their ‘hybrid’ nature is recognised by some commentators.81 As detailed in chapter two, UNIIIC was established by the Security Council at the request of the Lebanese government to investigate the assassination of Rafik Hariri.82 It operated under Lebanese law, was led by an international appoint­ ment, but used teams of both international and national investigators. At least as initially envisaged, it would have provided the findings of its investigation to domestic courts.83 Unlike the Special Tribunal for Lebanon (STL), UNIIIC was 77   UNSC Res 1192 (1998) UN Doc S/RES/1192, para 6. Dr Hans Koechler was appointed by the UN Secretary-General as the only official independent monitor of the trials. He issues reports on both the trial and appeal proceedings, which were highly critical of the process: Report on and evaluation of the Lockerbie Trial conducted by the special Scottish Court in the Netherlands at Kamp van Zeist, 3 February 2001; Report on the Appeal Proceedings at the Scottish Court in the Netherlands (Lockerbie Court) in the case of Abdelbaset Ali Mohmed Al Megrahi v H. M.’s Advocate (26 March 2002). 78   UNSC Res 1192 (1998) UN Doc S/RES/1192, para 4. 79   Cryer et al, n 1, 196. 80   D Arzt, ‘The Lockerbie “Extradition by Analogy” Agreement: “Exceptional Measure” or Template for Transnational Criminal Justice?’ (2002–03) 18 American University International Law Review 163. 81   See A Hudson and A Taylor, ‘The International Commission against Impunity in Guatemala: A New Model for International Criminal Justice Mechanisms’ (2010) 8 Journal of International Criminal Justice 53. These authors also discuss the example of the Serious Crimes Investigation Team in TimorLeste. 82   UNSC Res 1595 (7 April 2005) UN Doc S/RES/1595. 83   Of course, this was altered following the establishment of the STL. The investigative process of the UNIIIC and any findings and evidence collected were transferred to the STL in 2009.



Excluded Tribunals

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extended Chapter VII powers, enabling it to require cooperation from states other the Lebanon, in particular Syria.84 The United Nations Commission of Inquiry into the facts and circumstances of the assassination of former Pakistani Prime Minister Mohtarma Benazir Bhutto was created following a request by the Pakistani government to establish an inter­ national commission to investigate the circumstances of the assassination.85 Following discussion with the Security Council and the Pakistani government, the United Nations agreed to provide assistance and to establish the Commission.86 The Commission’s mandate was to investigate the assassination of former Pakistani Prime Minister Benazir Bhutto in Pakistan in December 2007.87 The Bhutto Commission comprised three inter­national commissioners, appointed by the United Nations Secretary-General. Its mission was ‘to determine the facts and circumstances of the assassination of the former prime minister’. Responsibility to conduct a criminal investigation, and to find and try the perpetrators remained with the Pakistani authorities. The terms of reference for the Commission pro­ vided that ‘the Commission shall enjoy the full cooperation of the Government of Pakistan’ including compliance with its requests.88 The Commission was funded by voluntary contributions from Member States.89 The Commission’s report,90 which was issued in April 2010, found that there had been failings on the part of the Pakistani authorities, both in protecting the former Prime Minister and in investigating the attack. It recognised that a culture of impunity existed, and rec­ ommended that the perpetrators be brought to justice and the creation of a truth and reconciliation commission ‘to investigate political killings, disappearances and terrorism in recent years’.91 The CICIG was established pursuant to an agreement between the United Nations and the Guatemalan government.92 The mandate of the CICIG is:93 84   UNSC Res 1636, para 3: ‘Noting the possibility of Syrian involvement in the assassination, and the lack of substantive cooperation to date, the Security Council, acting under Chapter VII, decided that the UNIIIC ‘shall have vis-à-vis Syria the same rights and authorities’ as it enjoys against Lebanon, and that ‘Syria must cooperate with the Commission fully and unconditionally on that basis’. 85  ‘Letter Dated 2 February 2009 from the Secretary-General to the President of the Security Council’ (2009) UN Doc S/2009/67. 86  The agreement and the mandate of the Commission is evidenced by an exchange of letters between the Secretary-General and the President of the Security Council. See ibid, and ‘Letter dated 3 February 2009 from the President of the Security Council to the Secretary-General’ (2009) UN Doc S/2009/68. 87   24 other people were killed in the attack, and a further 91 injured. 88   Annex to UN Doc S/2009/67, para 2. 89   Annex to UN Doc S/2009/67, para 7. 90  UN Secretary-General, Report of the United Nations Commission of Inquiry into the Facts and Circumstances of the Assassination of Former Pakistani Prime Minister Mohtarma Benazir Bhutto (15 April 2010). 91   ibid, para 265. 92   Agreement between the United Nations and the State of Guatemala on the Establishment of an International Commission against Impunity in Guatemala (12 December 2006) (CICIG Agreement). 93   CICIG Agreement, art 1. This article defines illegal security groups and clandestine security organisations are defined as those groups that: (i) commit illegal acts in order to affect the full enjoy­ ment and exercise of civil and political rights and (ii) are linked directly or indirectly to agents of the state or have the capacity to generate impunity for their illegal actions.

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Exclusions and Future Proposals

to support, strengthen and assist institutions of the State of Guatemala responsible for investigating and prosecuting crimes allegedly committed in connection with the activities of illegal security forces and clandestine security organizations and any other criminal conduct related to these entities operating in the country, as well as identifying their structures, activities, modes of operation and sources of financing and promoting the dismantling of these organizations and the prosecution of individuals involved in their activities.

Given the increasing presence of such groups, the level of violence and the impu­ nity within which they operate, the Guatemalan government recognised that it could not respond to this threat without international assistance. The CICIG is staffed by both national and international appointments, and led by the Commissioner, who is appointed by the Secretary-General.94 It possesses investi­ gative powers,95 but not prosecutorial or judicial powers,96 and must refer its find­ ings to national authorities and defer to the Guatemalan criminal justice system. The CICIG may, however, file complaints with the relevant authorities and can participate in such cases as a private prosecutor.97 Accordingly, ‘CICIG does not use international law and judges to punish perpetrators of mass atrocities, but instead helps Guatemalan institutions adopt more robust criminal law practices to investigate and prosecute domestic actors currently committing crimes under Guatemalan law’.98 The CICIG operates in accordance with national law, as well as the terms of its agreement. The Guatemalan government and national authori­ ties are required to cooperate with the CICIG in the performance of its func­ tions.99 The agreement confers international legal personality on the CICIG and recognises that it has the capacity to enter into agreements with other states as necessary for the implementation of its mandate.100 It is funded from voluntary contributions from the international community.101 The Joint Group was also created to investigate the acts of death squads and illegal armed groups. The acts of such groups had threatened to jeopardise the peace process in El Salvador, achieved by the signing of Peace Accords in 1992. Investigation of the activities of such groups by national institutions with foreign assistance had also been one of the recommendations of the Commission on the Truth.102 The Joint Group comprised the National Counsel for the Defence of   CICIG Agreement, art 5.   The powers of the CICIG are listed in art 3 of the CICIG Agreement. 96   A previous proposal to establish a similar institution to the CICIG, but which would have had prosecutorial powers, was found to be unconstitutional, as prosecutorial powers within Guatemala could only be exercised by the Public Prosecutor: see Hudson and Taylor, n 81,57–58. 97   CICIG Agreement, art 3(1)(b). This is the equivalent of a civil party in other civil law systems. 98   Hudson and Taylor, n 81, 57. 99   CICIG Agreement, art 6. If cooperation is not forthcoming, the UN may withdraw its coopera­ tion under the CICIG Agreement, art 11. 100   CICIG Agreement, art 5. 101   CICIG Agreement, art 7. 102   The Commission of the Truth comprised three individuals appointed by the Secretary-General, after consultation. El Periódico, ‘CICIG lleva al Congreso segundo paquete de leyes para reformar’ (13 March 2009). For a summary, see UNGA, ‘Activities of the International Commission Against Impunity in Guatemala: Report of the Secretary-General’ (23 September 2009) UN Doc A/64/370, para 13. 94 95



Excluded Tribunals

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Human Rights, a representative of the Secretary-General and two representatives of the Government.103 It was formally established in December 1993, after an agreement was reached on its mandate and functions.104 The Joint Group was supported by a technical team consisting of both national and foreign investiga­ tors.105 While it had investigatory powers, the Joint Group was only able to pres­ ent a public report of its conclusions and recommendations and to refer its findings and information collected to national authorities.106 The SCIT has already been discussed in the context of the successor accountabil­ ity mechanisms to the Special Panels for Serious Crimes in Timor-Leste.107 It was established in January 2007, within the mandate of the United Nations Integrated Mission in Timor-Leste.108 The SCIT comprises both international and national staff, and is to provide assistance to the Office of the Prosecutor-General in TimorLeste in investigating and bringing to trial outstanding cases concerning serious crimes. It has, however, no judicial capacity and, once investigations are completed, hands its findings to the Office of the Prosecutor-General for prosecution. Similarly, the Office of the Special Prosecutor in Ethiopia did not exercise judi­ cial capacity.109 The Office was established in 1992 pursuant to a proclamation issued by the Transitional Government of Ethiopia.110 The Office had two key functions: for historical posterity to establish a record of the abuses committed by the Mengistu regime from 1976 to 1991 and to educate people as to their commis­ sion, so as to prevent a recurrence; and to bring to trial those responsible for human rights law and undermining the justice system.111 The Mengitsu regime had committed serious violations of human rights law, including torture, killings and extra-judicial executions, unlawful and politically-motivated detentions, and disappearances.112 The Office was responsible for bringing several accused to trial for both national and international crimes,113 although there were criticisms of 103  UNSC, ‘Letter dated 7 December 1993 from the Secretary-General to the President of the Security Council’, and Annex, ‘Principles for the Establishment of a Joint Group for the Investigation of Politically Motivated Illegal Armed Groups’ (December 1993) UN Doc S/26865. 104  ibid. 105  ibid. 106   ibid. The Report of the Joint Group for the Investigation of Politically Motivated Illegal Armed Groups in El Salvador was issued on 28 July 1994: see ‘Letter Dated 11 August 1994 from the SecretaryGeneral Addressed to the President of the Security Council’ (1994) UN Doc S/1994/989. 107   See ch 2, section V(D). 108   See UNSC Res 1704 (25 August 2006) UN Doc S/RES/1704. 109   Note, however, that Orentlicher categorised the Office of the Special Prosecutor as an example of an ‘internationalised national court’ due to the influence of the international community and the fact that charges were brought based on international crimes, as incorporated into national law: D Orentlicher, ‘Striking a Balance: Mixed Law Tribunals and Conflicts of Jurisdiction’ in M Lattimer and P Sands, Justice for Crimes Against Humanity: International Law After Pinochet, (Hart, Oxford, 2003) 220–21. 110   Proclamation 22/1992, Proclamation Establishing the Office of the Special Prosecutor, 8 August 1992, art 2. 111   ibid, preamble. 112   See Amnesty International, Ethiopia – Accountability Past and Present: Human Rights in Transition (April 1995); and G Aneme, ‘Apology and Trials: The case of the Red Terror trials in Ethiopia’ (2006) 6 African Human Rights Law Journal 64. 113   See Aneme, ibid.

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aspects of the procedure, in particular the duration of pre-trial detention and reliance on in absentia proceedings.114 Several states, non-governmental organisa­ tions and United Nations bodies provided significant technical and financial assistance to the Office, including in the form of sending experts to provide advice on various aspects of the process.115 However, the role of the international com­ munity remained an informal one.116 Also not included in the category of hybrid or internationalised tribunals are arrangements for the provision of technical or financial assistance to the justice sec­ tor in a state, or to a particular institution within a state. For example, the United Nations has funded various courses and training for lawyers and human rights monitors in Guatemala, including the assignment of staff from the United Nations Verification Mission in Guatemala to work with the Attorney-General’s office to support investigation and prosecution efforts.117 United Nations missions have also contributed to the collection of information concerning the violations committed, which may then form the basis of discussion as to how best to deal with those viola­ tions.118 United Nations and other international personnel may have a role in mon­ itoring trials before national courts, aiding in the reform of national legislation concerning substantive and procedural criminal law and facilitating the process of developing national institutions to secure accountability.

E. Conclusion This section has considered a number of institutions that are not considered to be hybrid or internationalised in nature. However, it is not yet clear what distin­ guishes such institutions or arrangements from those institutions considered in chapter two. All have international elements including the involvement of the international community, particularly the United Nations. What is it that makes these institutions ‘too international’ or ‘not international enough’ to be a hybrid or internationalised tribunal? Before examining this issue, we consider proposals for further institutions that are considered to be within the category of hybrid or internationalised tribunals.

114   eg, Human Rights, Press Release, Watch ‘Mengistu Haile Mariam: A Human Rights Watch back­ ground paper’ (24 November 1999). 115   See United States Institute of Peace, Ethiopia: Report of the Office of the Special Prosecutor – The Special Prosecution Process of War Criminals and Human Rights Violators in Europe (February 1994), listing: Sweden, United States, Norway, the Netherlands, Canada and Denmark and the Carter Centre in the United States. The United Nations Centre for Human Rights provided technical advice. 116   N Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1997) 59 Law and Contemporary Problems 127, 149. 117   Office of the UN High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Mapping the Justice Sector (2006) 37. 118   See, eg, the extensive mapping exercise conducted by the UN in the Democratic Republic of Congo, discussed in this ch 3, section III(C).



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III.  Proposed Hybrid and Internationalised Tribunals A.  Special Tribunal for Burundi Burundi is a society divided along ethnic lines, namely the Twa, Tutsi and Hutu peoples. It is also one of the world’s poorest nations.119 Since its independence in July 1962,120 Burundi has been plagued by various cycles of violence and interethnic killings. In particular, there have been five intense incidents of inter-ethnic violence, in 1965, 1972, 1988, 1991 and 1993, which featured the commission of large-scale crimes.121 The death of the newly elected Hutu president (the first Hutu to hold this office)122 during an attempted coup in October 1993 triggered a civil war between the army and a Hutu-led insurgency, which lasted several years. This violence accelerated in 1994, following the shooting down of an aircraft car­ rying the next President of Burundi (also a Hutu) and the President of Rwanda. It is estimated that since 1993 up to 300,000 people have died as a result of the con­ flict and violence, mainly civilians.123 Despite numerous attempts to reach a peaceful settlement, the conflict and violence continues today. Following mediation efforts, the Government of Burundi, along with 13 of the 19 parties to the conflict, signed a peace agreement that provided for a powersharing agreement. The agreement, the Arusha Peace and Reconciliation Agreement for Burundi, also provided that the Government of Burundi should make two requests to the United Nations relating to accountability for violations that had occurred during the violence. The first was a request for the establish­ ment by the Security Council of an international judicial commission of inquiry on war crimes, crimes against humanity and genocide;124 the second, a request to the Security Council for the establishment of an international criminal tribunal to try and punish those responsible, should the report of the commission of inquiry indicate that such crimes had been committed.125 In July 2002, the President of Burundi wrote to the Council to request the establishment of the commission of inquiry.126 The Council authorised the dispatch of an assessment mission to Burundi in January 2004.127   See statistics provided by the World Bank: http://devdata.worldbank.org/AAG/bdi_aag.pdf.   Prior to its independence, Burundi formed part of the Belgian administered UN trust territory of Ruanda-Urundi. 121   See Report of the Assessment Mission on the Establishment of an International Commission of Inquiry for Burundi (11 March 2005) UN Doc S/2005/158 (Report of the Assessment Mission). 122   Burundi’s first democratic elections were held in June 1993. 123   BBC News, ‘Burundi Country Profile’ (11 December 2010) http://news.bbc.co.uk/2/hi/africa/ country_profiles/1068873.stm#facts. 124   Arusha Peace and Reconciliation Agreement for Burundi (28 August 2000) Protocol I, art 6(10). 125   Arusha Peace and Reconciliation Agreement for Burundi (28 August 2000) Protocol I, art 6(11). 126   Letter from the President of Burundi to the Secretary-General, dated 24 July 2002. 127   UNSC, ‘Letter Dated 26 January 2004 from the President of the Security Council to the SecretaryGeneral’ (2004) UN Doc S/2004/72. 119 120

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Exclusions and Future Proposals

The report of the assessment mission, submitted in March 2005, rejected the initial proposal for a commission of inquiry.128 This was as the United Nations had already established three commissions of inquiry at the request of the Government of Burundi and that ‘no legal or practical effect’ had been given to any of their recommendations.129 The assessment mission conducted a limited review of the Burundian judicial system, concluding that the limited capacity of the system, the risk of political interference and corruption, and the perception of the judicial system as a ‘partial, ethnically biased and politically dependent judi­ ciary’ precluded national trials.130 However, the mission also rejected the possibil­ ity of an international ad hoc tribunal for Burundi on the basis of the cost and delay in proceedings experienced by the ICTY and the International Criminal Tribunal for Rwanda (ICTR).131 Instead, the report advised the United Nations to consider the establishment of a special chamber for war crimes, crimes against humanity and genocide within the existing court system of Burundi, to operate alongside a truth and reconciliation commission. Both would include significant international elements. The report recommended a special chamber based on the model of the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC)132 The chamber would be a special chamber within the court structure of Burundi (com­ prising a trial panel or panels and an appellate panel), to be established by national law133 and located in Burundi.134 It would be of mixed composition, with a major­ ity of international judges and an international prosecutor and registrar.135 Its jurisdiction would be restricted to those bearing the greatest responsibility for crimes against humanity, genocide and war crimes committed in Burundi during specified periods of the conflict (at a minimum, events occurring from 1972 to 1993).136 The mission considered that the advantage of the mixed mechanism would be to strengthen the judicial sector in material and human resources terms and to leave behind ‘a legacy of international standards of justice, and trained judges, prosecutors, defence counsel and experienced court managers’.137 Significant issues, such as the applicability of amnesty provisions,138 the sequenc­ ing of and relationship between the chamber and the proposed truth and recon­   Report of the Assessment Mission, n 121, para 18.   Report of the Assessment Mission, n 121. 130   Report of the Assessment Mission, n 121, paras 44–52, at 47. 131   Report of the Assessment Mission, n 121, paras 57–58. 132   Report of the Assessment Mission, n 121, para 60. The report also considered the model pre­ sented by the SCSL. 133   Report of the Assessment Mission, n 121, para 62. 134   Report of the Assessment Mission, n 121, para 60. 135   Report of the Assessment Mission, n 121, para 65. 136   Report of the Assessment Mission, n 121, para 61. 137   Report of the Assessment Mission, n 121, para 68. 138   Provisions in the Arusha Agreement required the Parliament to adopt legislation for immunity for certain ‘politically motivated’ crimes. Art 26(I) of Protocol III prohibited amensty for international crimes, but subsequent agreements have extended immunity to thousands of prisoners. See International Center of Transitional Justice, Burundi: Submission to the Universal Period Review of the United Nations Human Rights Council (14 July 2008) paras 19–21. 128 129



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ciliation commission, and the funding mechanism were left undetermined. It was recognised that given Burundi’s perilous financial situation, the mechanisms would need to be funded at the international level, from either assessed contribu­ tions or voluntary contributions.139 It was also suggested that Burundi’s coopera­ tion with the chamber should be ensured by an agreement between the government and the United Nations to determine the terms and conditions of United Nations cooperation,140 and that to ensure United Nations participation, the death penalty must not be a possible punishment.141 The Security Council endorsed the recommendations of the expert mission.142 It requested the Secretary-General to initiate negotiations with the Government of Burundi as to how the recommendations could be implemented.143 The Government of Burundi established an ad hoc commission to negotiate with the United Nations in October 2005. The first round of negotiations took place in March 2006, but ended without agreement on several key issues, including the applicability of the amnesty provisions, the relationship between the proposed special tribunal and the truth and reconciliation commission and the independence of the tribunal’s prose­ cutor. Further negotiations have not resolved these issues. In 2006 Burundi was placed on the agenda of the newly-created Peace Building Commission.144 The Commission funded public consultations on transitional jus­ tice alternatives, and the government and the United Nations signed an agree­ ment to facilitate the process, including the establishment of a tripartite steering committee, in 2007.145 National consultations commenced in July 2009 and were completed in December. Consultations were extended to the wider diaspora in early 2010. The report of the consultations was submitted to the President of Burundi in 2010,146 and demonstrated significant support for the tribunal to exer­ cise jurisdiction in relation to serious crimes, but more divided opinions as to whether the tribunal should include international personnel.147 There is no agreed timeline for the establishment of the Special Tribunal for Burundi or the truth and reconciliation commission, and very little appears to have been done to promote its establishment.   Report of the Assessment Mission, n 121, para 67.   ibid, para 63. 141   ibid, para 62. 142  UNSC Res 1606 (20 June 2005) UN Doc S/RES/1606. The Council heard the views of the Transitional Government of Burundi on the proposals before requesting the Secretary-General to commence negotiations: see UNSC Verbatim Record (15 June 2005) UN Doc S/PV/5203. 143   UNSC Res 1606 (20 June 2005) UN Doc S/RES/1606, para 1. 144   UN Peacebuilding Commission, ‘Summary Record of the 1st Meeting, held 13 October 2006’ (2007) UN Doc PBC/1/BDI/SR.1. 145   See International Center of Transitional Justice, Burundi: Sumbission to the Universal Period Review of the United Nations Human Rights Council (14 July 2008); UNGA, ‘Report of the Independent Expert on the Situation in Burundi’ (15 August 2008) UN Doc A/HRC/9/14, para 37. 146  Amnesty International, Burundi: Still No Justice for Burundi Massacre Victims (28 December 2010); UNSC ‘Seventh Report of the Secretary-General on the United Nations Integrated Office in Burundi’ (30 November 2010) UN Doc S/2010/608, para 46. 147   Report on National Consultations (December 2010). eg, 59% of those consulted preferred the tribunal to consist only of Burundian jurists. 139 140

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Exclusions and Future Proposals

B.  The Special Court for Darfur, Sudan The conflict in Darfur emerged in 2003, when two groups, the Justice and Equality Movement (JEM) and the Sudan Liberation Movement/Army (SLM/A) resorted to violence against the Sudanese authorities which they accused of favouring Arab Sudanese and oppressing non-Arabs. The Government military and police forces responded, supported by the Janjaweed, a paramilitary group predominantly comprising members of Arab tribes from Northern Sudan.148 The conflict has had a severe impact on the population; while estimates vary greatly, as many as several hundred thousand may have died as a direct result of the conflict and the suffer­ ing it has caused, including starvation, poor living conditions and forced reloca­ tions. Murder, torture, rape and other gross violations of human rights have occurred on a large scale, with the civilian population the main victim of attacks.149 Several ethnic groups within Darfur – the Fur, Zaghawa and Masalit groups – have been specifically targeted by government forces and the Janjaweed.150 Despite the involvement of the Security Council151 and the presence of a peacekeeping mission in Darfur,152 attempts at ending or minimising the impact of the conflict have so far failed. The level of government involvement in the violations being committed in Darfur is an important aspect that must be considered in proposals for securing accountability. Moreover, unlike other situations in which hybrid justice mecha­ nisms have been established, it is unlikely that the current regime will change in the foreseeable future.153 Hybrid and internationalised options have been consid­ ered in relation to Darfur in two contexts: first, as part of the discussion surround­ ing the referral of the situation in Darfur to the ICC in 2005; and, second, in the 148   For background, see J Flint and A De Waal, Darfur: A New History of a Long War (London, Zed Books, 2008). 149   See, eg, reports by Human Rights Watch on the topic of Darfur: Darfur in Flames (2004); Darfur Destroyed (2004); Empty Promises (2004); Targeting the Fur (2005); Entrenching Impunity (2005); Five Years On (2008); Darfur in the Shadows (2011). See also Amnesty International, Sudan Human Rights (2011) www.amnestyusa.org/our-work/countries/africa/sudan; ‘Sudan Recalls Darfur Negotiators’ Al Jazeera (30 December 2010) http://english.aljazeera.net/news/africa/2010/12/2010123016450925114. html. 150  See Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09, P T Ch (4 March 2009). 151   The UNSC was first briefed on the situation in April 2004. In July 2004 UNSC Res 1556 (2004) UN Doc S/RES/1556 imposed an arms embargo on the Janjaweed. UNSC Res 1556 (2004) and 1591 (2005) imposed sanctions over Darfur; UNSC Res 1590 (2005) established the United Nations Mission In Sudan (UNMIS); UNSC Res 1706 (2006) authorised the UNMIS mandate and specified troop strength (later extended by UNSC Res 1755 (2007). 152  UNSC Res 1769 (2007) was adopted to establish UNAMID, the African-Union and United Nations Peacekeeping Force in Sudan. It incorporates AMIS, the African Union Mission in Sudan, which had been responsible for peacekeeping previously. 153   R Libscomb, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’ (2006) 106 Columbia Law Review 182, 191. The strategy of the Security Council and other actors has focused on maintaining peace, rather than encouraging regime change. The issue by the ICC of an arrest warrant against President Bashir in March 2009 appeared in many parts of Sudan to have strengthened his support, rather than undermined his government.



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context of the investigation and arrest warrant issued by the ICC in respect of the President of Sudan, President Bashir, in March 2009.

i.  The Discussion Surrounding the Referral to the International Criminal Court In September 2004, the Security Council, acting under Chapter VII of the United Nations Charter, requested that the Secretary-General ‘rapidly establish an inter­ national commission of inquiry in order immediately to investigate reports of viola­ tions of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable’.154 The United Nations International Commission of Inquiry on Darfur, Sudan, was established in October 2004, headed by Professor Cassese, the former President of the ICTY.155 The Commission of Inquiry reported in January 2005.156 It concluded that seri­ ous violations of international human rights and humanitarian law were occur­ ring in Darfur, which amounted to international crimes. As Sudan was not a party to the Rome Statute,157 the Commission strongly recommended that the Security Council refer the situation to the ICC under article 13(b) of the Rome Statute, finding that national trials in Sudan would not be possible, or appropriate as ‘the Sudanese judicial system has proved incapable, and the authorities unwilling, of ensuring accountability for the crimes committed in Darfur’.158 It considered that the ICC model offered at least six key benefits: the ICC was established to try crimes with a link to international peace and security; as the alleged crimes con­ cerned the institutional and political hierarchy, recourse to an external and inde­ pendent mechanism was the only way of ensuring justice would be done; only the authority of the ICC and the support of the Security Council would encourage senior figures to submit to investigation; the nature and composition of the Court, and its applicable law, rendered it most appropriate; the ICC could be activated immediately; and there would not necessarily be a financial burden for the United Nations.159 The Security Council considered the possibility of the establishment of an ad hoc international criminal tribunal, but rejected this option on the basis that trials before an ad hoc tribunal would be expensive and slow to prosecute.160 Another   UNSC Res 1564 (18 September 2004) UN Doc S/RES/1564, para 12.  UN Secretary-General, ‘Secretary-General Establishes International Commission on Darfur’ (7 October 2004) Press Release SG/A/890. 156   UNSC, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004’ (25 January 2005) UN Doc S/2005/60 (Report of the International Commission of Inquiry on Darfur). 157   Sudan signed the Rome Statute on 8 September 2000, but has not ratified the Statute. 158   Report of the International Commission of Inquiry on Darfur, n 156, para 569. 159   Report of the International Commission of Inquiry on Darfur, n 156, para 572. 160   Report of the International Commission of Inquiry on Darfur, n 156, para 574. 154 155

154

Exclusions and Future Proposals

option was to expand the role of either the ICTR or the ICTY. This option was also rejected, as both tribunals were already struggling to meet the targets set by the Security Council in the completion strategy.161 The final option considered was the establishment of a hybrid or internation­ alised tribunal, possibly based on the Special Court for Sierra Leone (SCSL) model or that of the Special Panels for Serious Crimes in East Timor. However, this option was not considered appropriate for several reasons. One was the financial implica­ tions of this model, noting that the voluntary basis of the funding for the SCSL had demonstrated the potential weakness of this model. Moreover, such a model would require a lengthy and perhaps not feasible process of negotiating an agreement with the Government of Sudan.162 Second, given the political climate in Sudan, national judges may face serious repercussions if called to pass judgment on senior officials.163 Third, Sudanese criminal law and procedures did not comply with inter­ national human rights standards, whereas the Rome Statute ‘constitutes a selfcontained regime, with a set of detailed rules on both substantive and procedural law that are fully attuned to respect for the fundamental human rights all those involved in criminal proceedings before the Court’.164 Finally, the Report noted that the crimes committed within Darfur can be distinguished from other situations in which a hybrid tribunal has been established, in that, having been committed after 1 July 2002, the crimes committed in Darfur potentially fall within the jurisdiction of the ICC.165 As Cryer has noted, the dis­cussion by the Commission revealed an appreciation of the ‘pitfalls of the various mechanisms for ensuring accountability’,166 even though the concerns may not be justified for the hybrid model. For example, as the experience of the STL demonstrates, there is nothing to preclude the Security Council establishing a hybrid tribunal under Chapter VII. Before the referral of the situation in Darfur to the ICC by the Security Council on 31 March 2005,167 the United States reportedly pushed for a further alternative, the establishment of a special court in Arusha, Tanzania. While details of the pro­ posed court are limited,168 it appears that what was intended was a tribunal jointly created and administered by the United Nations and the African Union, to sit   Report of the International Commission of Inquiry on Darfur, n 156, para 575.   Report of the International Commission of Inquiry on Darfur, n 156, paras 578–79. 163   Report of the International Commission of Inquiry on Darfur, n 156, para 579. 164   Report of the International Commission of Inquiry on Darfur, n 156, para 580. 165   Report of the International Commission of Inquiry on Darfur, n 156, para 581. 166   R Cryer,‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195, 203. 167   UNSC Res 1593 (2005) UN Doc S/RES/1593. For discussion of this resolution, see L Condorelli and A Ciampi, ‘Comments on the Security Council Referral of the Situation in Darfur to the ICC’ (2005) 3 Journal of International Criminal Justice 590; and M Happold, ‘Darfur, the Security Council, and the International Criminal Court’ (2006) 55 International and Comparative Law Quarterly 226. 168   The suggestion was reported to have been raised during a closed briefing by the United States ahead of the discussion of the Commission’s report by the Council, see: W Hoge, ‘US Lobbies UN on Darfur and International Court’ New York Times (New York, 29 January 2005). See also Z Kaufman, ‘Justice in Jeopardy: Accountability for the Darfur Atrocities’ (2005) 16 Criminal Law Forum 343. For criticism of the proposal, see Human Rights Watch, US Proposal for a Darfur Tribunal: Not an Effective Option to Ensure Justice (15 February 2005). 161 162



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alongside the ICTR, and based on the model of the ad hoc tribunals in that it would be created by the Security Council.169 The United States argued that a ‘hybrid tribunal in Africa’ would have been ‘the better mechanism’,170 and the United States government reportedly even offered to finance the tribunal.171 The United States reluctance to refer the situation in Darfur to the ICC reflected the resistance to the ICC under the Bush Administration and its concern that the ICC should not exercise jurisdiction in respect of the nationals of a state that is not a party to the Rome Statute.172 In the United States view, referring the situation in Darfur to the ICC would legitimise the Court.173 Ultimately, the United States withdrew its objections to the referral of the situation to the ICC – and its possible veto of the resolution – when a provision providing immunity for United States peacekeepers against prosecution by the ICC was incorporated into Resolution 1593.174

ii.  The ICC and the Arrest Warrant for President Bashir Proposals for hybrid tribunals to try those accused of committing crimes in Darfur resurfaced following the application by the Prosecutor of the ICC for an arrest war­ rant in respect of President al-Bashir of Sudan in July 2008.175 That same month, the African Union’s Peace and Security Council (PSC) called for a High-level Panel on Darfur to submit recommendations on accountability and combating impunity, and the need for reconciliation.176 It also called for the Security Council to defer the investigation under article 16 of the Rome Statute.177 In February 2009, the African Union established the High-Level Panel on Darfur, headed by former South African president Thabo Mbeki. The Panel was to assess the state of prosecutions before Sudanese courts, including special courts established after the referral to the ICC.178 169  See: N Kralev, ‘US Balks at Glibal Court Use for Darfur’ Washington Times (Washington, 22 January 2005). 170   UNSC Verbatim Record (31 March 2005) UN Doc PV/5158. The representative of the US did not expand on why that option was considered to be better. 171   See Kaufman, n 168, 347, noting that the estimated expense would have been US$40–$150 mil­ lion per annum. 172   See UNSC Verbatim Record (31 March 2005) UN Doc PV/5158, 3: ‘The United States continues to fundamentally object to the view that the ICC should be able to exercise jurisdiction over the nationals, including governmet officials, of States not party to the Rome Statute. That strikes at the essence of the nature of sovereignty. Because of our concerns, we do not agree to a Security Council referral of the situation in Darfur to the ICC’. 173   See N Kristof, ‘Why Should we Shield the Killers’ New York Times (New York, 2 February 2005); W Hoge, ‘US Lobbies UN on Darfur and International Court’ New York Times (New York, 29 January 2005). 174   ibid. This is reflected in para 6 of UNSC Res 1593. 175   Prosecution Application for a Warrant of Arrest, ICC-02/05-01/09 (14 July 2008). 176   African Union Peace and Security Council ‘Communique of the 142nd Meeting of the Peace and Security Council’ (21 July 2008 AU Doc PSC/MIN/Comm(CXLII). 177   ibid, para 11. 178  See African Union High-Level Panel on Darfur (AUPD), The Quest for Peace, Justice and Reconciliation (October 2009) (High-Level Report).

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Exclusions and Future Proposals

The ICC issued the arrest warrant for President Bashir for war crimes and crimes against humanity on 4 March 2009.179 The Panel reported in October 2009.180 Its report recognised that the national judicial system could not deal adequately with the crimes being committed in Darfur.181 Nor, given the serious concerns regarding the independence and impar­ tiality of the Sudanese judicial system, was there confidence in the ability of the legal system to conduct investigations and trials.182 The Panel accordingly recom­ mended the creation of a hybrid tribunal within the Sudanese legal system.183 The report did not contain detailed proposals for the hybrid court, but suggested that it would ‘be located within the Sudanese judicial system, consisting of a combina­ tion of Sudanese and international judges, prosecutors, defence lawyers and investigators. It would apply national laws and, as far as possible, be integrated into the Sudanese legal system’.184 The hybrid court would be one of a number of mechanisms for achieving justice for crimes committed in Darfur, and it should be ‘reserved for those who appear to bear particular responsibility for planning, organising or carrying out the crimes’.185 The report suggested that other courts, including the Special Criminal Court on the Events in Darfur established in June 2005, should also contribute.186 While the African Union panel did not indicate a view as to whether the cre­ ation of such a hybrid body would support a request for the Security Council to defer the investigation under article 16 of the Rome Statute, it did note that ICC prosecutions concerning Darfur would be limited. The Panel indicated that the creation of the institution may satisfy the complementarity test in article 17 of the Rome Statue and hence render cases concerning Darfur inadmissible.187 Both the African Union and the Security Council welcomed and endorsed the report’s conclusions,188 with the African Union establishing a panel to assist in implemen­ tation of the recommendations.189 However, the Sudanese government has to date

179   Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09, P T Ch (4 March 2009). 180   High-Level Report, n 178. 181   High-Level Report, n 178, paras 246 and 248. 182   High-Level Report, n 178, para 248. 183   High-Level Report, n 178, para 248. 184   High-Level Report, n 178, para 252. 185   High-Level Report, n 178, para 254. 186   The Special Criminal Courts on the Events in Darfur were established to try crimes committed in Darfur. The Courts have jurisdiction in respect of violations of the Sudanese Criminal Code, and from November 2008, crimes under international humanitarian law. The Courts have not heard many cases, and all have concerned ordinary, rather than international crimes, committed by relatively lowlevel offenders. See: High-Level Report, n 178, paras 215–17; Human Rights Watch, Lack of Conviction: The Special Criminal Court on the Events in Darfur (2006). 187   High-Level Report, n 178, paras 254–55. 188   African Union Peace and Security Council ‘Communiqué of the 207th Meeting at the Level of Heads of State and Government’ (29 October 2009) AU Doc PSC/AHG/COMM.1(CCVII); UNSC, Security Council Press Statement on Sudan (21 December 2009) Press Release SC/9831. 189   ibid; the High-Level Implementation Panel is also led by Mr Mbeki.



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rejected any proposal for a hybrid tribunal and the involvement of international personnel or experts in its judicial system.190

C.  Specialised Chamber in the Democratic Republic of the Congo The violence in the Democratic Republic of Congo (DRC) can be divided into four interrelated conflicts, ranging from 1993 to the present. The conflict has been characterised by a high number of civilian casualties, a link to valuable natural resources, and a significant number of sexually-based crimes. An estimated 3.8 million people have been killed during the conflict.191 The conflict(s) also has significant international dimensions, with the crimes committed during the wars including those perpetrated by nationals of Rwanda, Angola, Uganda and Zimbabwe. The judicial system in the DRC is chronically underfunded, has seri­ ous issues regarding capacity, and is subject to interference by both the political and military hierarchy.192 A United Nations expert concluded in 2008 that ‘little progress has been made to date with regard to the administration of justice and the fight against impunity, and thus it seems that a climate of virtually generalised impunity persists throughout the Democratic Republic of the Congo’.193 The DRC has issued draft legislation that would enable it to implement its obligations under the Rome Statute and confer jurisdiction for the crimes within the Statute on civilian courts.194 However, until the legislation is approved by the Congolese Parliament, jurisdiction for the commission of such crimes rests with the military courts, under the Congolese Military Penal Code. While military courts have shown a willingness to initiate trials for violations of international crimes under the code, there are serious concerns regarding the use of military courts for such offences and the exercise of military jurisdiction over civilians,195 as well as the lack of any coherent strategy regarding when such cases are initiated.196   See Human Rights Watch, The Mbeki Panel Report One Year On (28 October 2010).   International Rescue Committee, Mortality in the Democratic Republic of Congo: An Ongoing Crisis (2000–2008), reliefweb.int/node/254956,. These statistics have been contested by the Human Security Report Project in 2010, but no alternative figure was provided. The IRC figure has been used, albeit cautiously, by the UN and OHCHR. 192   See, eg, Rebuilding Courts and Trust: An Assessment of the Needs of the Justice System in the Democratic Republic of Congo, Report for the International Legal Assistance Consortium and International Bar Association Human Rights (August 2009). 193   ‘Report of the Independent Expert on the Situation of Human Rights in the Democratic Republic of the Congo’ (29 February 2008) UN Doc A/HRC/7/25, para 5. 194   Loi Modifiant et Completant Certaines Dispositions du Code Penale, du Code D’orgisation et de la Competence Judiciaries, du Code Penal Militaire et du Code Judiciaire Militaire, en Application du Statut de la Cour Penale Internationale (Law Modifying and Completing Certain Provisions of the Penal Code, the Code Concerning the Organization and Competence of The Judiciary, the Military Penal Code and the Judicial Military Code, Concerning the Application of the Statute of the International Criminal Court) 195   See, eg, UNGA, Report of the Special Rapporteur on Civil and Political Rights, Including the Questions of Independence of the Judiciary, Administration of Justice, Impunity (12 September 2006) UN Doc A/61/384, paras 37–38. 196   See: Avocats Sans Frontières, Case Study: The Application of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of Congo (2009). 190 191

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The Government of the DRC referred the situation in the DRC since 1 July 2002 to the ICC in 2004.197 In his letter of referral, the President of the DRC rec­ ognised that ‘because of the exceptional situation in my country, the competent authorities are unfortunately not capable of investigating the above-mentioned crimes (crimes under international law) or of carrying out the required prosecu­ tions without the contribution of the ICC’.198 The Prosecutor announced the opening of an investigation in June 2004, and four cases have been brought before the ICC concerning the situation in the DRC, in respect of five accused.199 However, in accordance with its mandate to try only the most serious offenders, the focus of the ICC has been limited to senior leaders and those considered to have committed the gravest crimes.200 The number and severity of offences com­ mitted in the DRC, and the fact that the violence is ongoing,201 means that a great number of accused must be tried before national mechanisms if impunity is to be avoided and the cycle of violence ended.202 Moreover, as many of the crimes alleged to have been committed in the DRC occurred before 1 July 2002, the ICC will not be able to exercise its jurisdiction in relation to earlier crimes. From at least 2004, various non-governmental organisations, legal experts and others have suggested the establishment of a special international tribunal for the DRC or, failing that, specialised chambers within the Congolese legal system to try individuals accused of crimes against humanity, war crimes and genocide.203 In October 2010, the United Nations Office of the High Commissioner for Human Rights released a mapping report showing the grave violations of human rights that occurred between 1993 and 2003 in the DRC.204 The report concluded that, despite recent initiatives to reform the judicial system, the DRC justice sys­ tem has ‘neither the capability nor the credibility required in order to step up efforts to the fight against impunity for the many violations of fundamental rights 197   OTP, Press Release, ‘Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo’ (19 April 2004). For a discussion of the politics of the referral and the issues raised by prosecu­ tions at the national level, see W Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557. For discussion of self-referrals, see ch 1, sec­ tion III(C)(iii). 198   OTP, ibid. 199   Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07; Prosecutor v Bosco Ntaganda, ICC-01/04-02/06; Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10. 200   All accused are senior leaders or military commanders of armed groups. 201   eg, in June 2011, the rape of over 150 civilians was reported: UN News Center, Press Release, ‘UN Envoys Voice Outrage After Mass Rape in Eastern DR Congo’ (24 June 2011). 202   OHCHR, ‘Democratic Republic of the Congo – 1993–2003’, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003 (August 2010) (Mapping Document). 203   Human Rights Watch, Tackling Impunity in Congo: Meaningful Follow-Up to the UN Mapping Report: A Mixed Chamber and Other Accountability Measures (October 2010). See, eg, the report of the UN independent expert, suggesting ‘joint criminal chambers in appeal courts’, with a mix of inter­ national and national personnel: n 195, paras 34–38. 204   Mapping Document, n 202.



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committed . . . in the past’.205 The report considered several options for securing accountability, including: the creation of an international ad hoc tribunal for the DRC; the role of the ICC in relation to offences committed after 1 July 2002; the role of third states exercising universal jurisdiction; the creation of a hybrid tribu­ nal, based on the model of the SCSL, to operate independently from the Congolese system; and the creation of a special mixed chamber within the Congolese system, with the temporary participation of international judges and personnel.206 The report strongly preferred the final option. The main reasons advanced for the cre­ ation of a specialised chamber were: (1) the creation of a specialised chamber within the DRC justice system would be consistent with the DRC’s primary obli­ gation to try offences of international law committed on its territory; (2) it would more readily be incorporated into existing efforts to reform the law and judicial system and would develop local capacity and expertise; (3) a mixed tribunal could be more rapidly – and cheaply – established; (4) international involvement in key posts would offer greater guarantees of impartiality and independence and thus have greater credibility; (5) Congolese ownership of the process and the institu­ tion; and (6) the potential for an open-ended territorial jurisdiction.207 It was rec­ ognised, however, that such a tribunal would face significant challenges, including overcoming the issues concerning lack of credibility and capacity within the national system, securing cooperation of other states regarding foreign nationals, and ensuring adequate financing and support for the tribunal.208 The alternative of the ‘hybrid’ model, based on the SCSL, was rejected as it would be more cum­ bersome and lengthy to establish, most likely requiring a treaty between the United Nations and the DRC, it would be an ad hoc institution, with little impact on wider issues of impunity and capacity building within the DRC, and would involve a greater impact on the sovereignty of the DRC, as it required ‘handing over jurisdiction in criminal matters concerning its own nationals to an indepen­ dent international court’.209 The Government of the DRC has moved to adopt the internationalised mechan­ism. In March 2011, while addressing the United Nations Human Rights Council, the Government of the DRC announced that the Council of Ministers would adopt legislation to establish either a special international tribunal for the DRC or, failing that, specialised chambers within the Congolese legal system.210 The proposed legislation211 would establish a specialised chamber of first instance   Mapping Document, n 202, para 979.   Mapping Document, n 202, in particular, Chapter III – Judicial Mechanisms. 207   Mapping Document, n 202, paras 1043–46. 208   Mapping Document, n 202, para 1045–46. 209   Mapping Document, n 202, para 1042. 210  UNHRC ‘The Human Rights Situation in the Democratic Republic of the Congo and the Strengthening of Technical Cooperation and Advisory Services’ (21 March 2011) UN Doc A/HRC/ RES/16/35, para 6; Emmanuel-Janvier Luzolo Bambi Lessa, Minister of Justice and Human Rights, Statement of 1 March 2011 to the UNHRC, Sixteenth Session, 28 February–25 March 2011, www. un.org/webcast/unhrc/archive.asp?go=110301. 211   Avant-Projet de Loi Relative aux Spécialisées pour la Répression des Violations Graves du Droit International Humanitaire: Organisation, Fonctionnement, Droit Applicable, Compétence et Procédure 205 206

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with a presence within the Appellate Courts of Kinshasa/Matete, Lubumbashi, Bukavu and Kinsangni and, at the appellate level, within the Appellate Court of Kinshasa/Gombe, Goma and Kananga. The legal basis for the establishment of the chamber would be article 149 of the Congolese Constitution, which authorises the establishment of special jurisdictions. The Court would be directly integrated within the Congolese judicial system, on an equivalent level to existing appellate courts.212 Its substantive jurisdiction would include violations of international crimes, in particular genocide, war crimes and crimes against humanity. The Court will apply international instruments relating to human rights and international humanitarian law ratified by the DRC, including the Rome Statute (in so far as it constitutes customary international law about grave crimes in international humanitarian law);213 the Geneva Conventions;214 the Genocide Convention;215 the Torture Convention;216 the Convention on the Rights of the Child;217 and trea­ ties concerning the laws and customs of war.218 It would exercise jurisdiction based mainly on the territoriality principle, but also on the basis of active219 and passive nationality.220 The draft legislation also confers universal jurisdiction in limited circumstances on the specialised chamber.221 The temporal jurisdiction covers acts from 1990 to ‘the present’, or until a new law is written which transfers jurisdiction over these acts to the ordinary criminal jurisdiction,222 although there have been suggestions that its jurisdiction could be restricted to events occurring before 2003.223 While the United Nations Mapping Report suggested that the tribunal would have jurisdiction in respect of those per­ sons most responsible, the draft legislation does not seem to contain such a restriction.224 The draft legislation provides that the specialised chambers will (Draft Law). This discussion is based on an unofficial translation. For discussion of the proposals, see: Amnesty International, Memorandum to the Government of the Democratic Republic of the Congo (February 2011); Human Rights Watch, DR Congo: Comments on the Draft Law Establishing Specialized Rooms (14 March 2011). 212   Draft Law, p 6. 213   Draft Law, arts 15(a) and 18. 214   Draft Law, art 15(b). 215   Draft Law, art 15(c). 216   Draft Law, art 15(d). 217   Draft Law, art 15(e). 218   Draft Law, art 15(f). 219  Draft Law, art 29: the Tribunal will have jurisdiction even if the accused acquired or lost Congolese nationality after the act of which he or she is accused 220   The Draft Law is applicable to grave violations of international humanitarian law committed by a Congolese person or a foreigner outside the DRC so long as the victim had Congolese nationality at the time of the act. 221   Draft Law, art 37, provides jurisdiction in respect of a non-national but only where extradition has been refused. 222   Draft Law, art 19. 223   Human Rights Watch suggests this (n 203 above); see also the Common Position. This appears to be based on the fact that the UN Mapping Report looked only at crimes from 1993–2003. 224   Human Rights Watch has also suggested that the primary focus of the tribunal should be on persons most responsible, including those in the political and military leadership: n 203.



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have exclusive jurisdiction in respect of the crimes within its jurisdiction, although the President and Prosecutor of the First Instance Specialised Chamber have the power to refer cases of lesser gravity for prosecution to other courts.225 There is no discussion as to how the proposed specialised chamber will interact with the ICC.226 The chambers are to operate for a 10-year period from the date of the law’s adoption, or until its jurisdiction is transferred to ordinary courts.227 The draft law proposes, but does not guarantee, an international presence in the appointment of international judges and experts. The President and the counsellors (prosecutors) must be Congolese, whereas the ad litem judges would be Congolese or international appointments.228 However, there is no requirement that inter­ national judges be appointed, even on a temporary basis with the intention that they be phased out. The absence of an assured presence of international judges at the trial and appellate levels has led to criticism of the proposal due to fears regarding poten­ tial political interference and the lack of judicial independence within the DRC legal system.229 Nor is there any requirement for internationalisation in the other parts of the Court, including key positions in the prosecution, registry and defence, even on a transitional basis.230 Representatives of Congolese and international civil society have called upon the government to strengthen the international presence in the draft ‘to ensure that this presence is robust and effective’.231 There has been no agreement as to funding for the specialised chamber. However, given the existing lack of resources international assistance will most likely be required. However, the retention of the death penalty as a possible penalty in Congolese law may affect the ability of the United Nations and certain states and organisations to offer assistance to the proposed institution.

D.  An Extraterritorial Piracy Tribunal Piracy and armed robbery off the coast of Somalia has become an increasingly important issue for states in recent years,232 both in terms of security risks233 and

  Draft Law, art 23.   The Draft Law does require the tribunal to look to the laws that will implement the Rome Statute in national law, although these are yet to be adopted: Draft law, art 18. 227   Draft Law, art 19. 228   Draft Law, art 3. 229   See Human Rights Watch, DR Congo: Comments on the Draft Law Establishing Specialized Rooms (14 March 2011). 230   Provisions in the Draft Law contemplate the involvement of international personnel as prosecu­ tors and more general appointments; however, this is not mandatory. 231   Establishment of a Specialized Mixed Court for the Prosecution of Serious International Crimes in the Democratic Republic of Congo, Common Position Resulting from the Workshop Held in Goma (6–8 April 2011). 232   The International Maritime Bureau states that as at 23 May 2011, there had been a total of 211 incidents reported worldwide in 2011, of which 139 had occurred off the coast of Somalia. 26 vessels and over 500 hostages were held by Somali-based pirates. 233   There are concerns that piracy is linked to terrorism in ways not yet fully understood. 225 226

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Exclusions and Future Proposals

the economic impact on the shipping and insurance industry,234 as well as the human cost.235 The issue is linked to the instability in Somalia and the lack of the rule of law and functioning judicial and penal institutions in Somalia. While initial responses to the problem were focused on establishing a naval presence in the region to deter attacks,236 attention is increasingly being directed towards mechanisms for the prosecution of persons alleged to be responsible for acts of piracy and armed robbery. The exercise of jurisdiction in respect of piracy raises interesting legal ques­ tions, particularly for the possible creation of a hybrid tribunal. Piracy is defined in article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), as including any act of violence, detention or depredation, committed for private ends by the crew or the passengers of a private ship and directed on the high seas against another ship or against persons or property on board such ship.237 Acts of piracy must take place on the high seas, outside the jurisdiction of any state, or within the exclusive economic zone of a state.238 This definition reflects customary international law. In contrast, where acts are committed against vessels within the territorial sea of a state such acts are not ‘piracy’ but comprise ‘armed robbery at sea’. Such acts are within the jurisdiction of the coastal state and are not subject to universal jurisdiction. Piracy and armed robbery at sea may also constitute viola­ tions of other international instruments, such as the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.239 234   The risk to shipping in the Gulf of Aden has led to increased shipping costs for vessels travelling through this waters. Companies are either diverting vessels to less dangerous, but more costly routes, or incurring additional expenses in providing security and insurance cover for each vessel. Insurance premiums have increased dramatically, as have labour costs. Shipping companies and their insurers have also paid out billions in ransoms. For further discussion, see: M Sterio, ‘The Somali Piracy Problem: A Global Puzzle Necessitating a Global Solution’ (2010) 59 American University Law Review 1449. 235   Several people taken hostage by pirates have been killed and others detained for extended peri­ ods of time. For instance, four American yachters were killed by Somali Pirates in February 2011, see: E McAskill, ‘Somali Pirates Kill Four Americans’ The Guardian (Washington, 22 February 2011); two British citizens were detained for over a year as ransom hostages, see: X Rice ‘Freed British Couple Happy to be Alive after Somali Kidnap Ordeal’ The Guardian (Nairobi, 14 November 2010); and in 2009 a Syrian ship captain was murdered, see: L Madoobe ‘Somali Pirates Kill Captain, Ship Rescued’ Reuters (Mogadishu, 24 September 2009). 236   In 2008, the European Union mandated Operation Atalanta to target pirates off the coast of Somalia. Several major maritime states have combined to provide a multinational naval task force to patrol these waters and to escort vessels. 237   Art 101 also applies to acts against aircraft on the high seas. The definition also includes inciting or intentionally facilitating an act of piracy, or of voluntary participation in acts of piracy. See also the Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11, art 15. 238   United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 (UNCLOS), art 58 extends certain provisions, including those on piracy, to acts committed within the exclusive economic zone of any state. 239   Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (adopted 10 March 1988, entered into force 1 March 1992)1678 UNTS 221 (SUA Convention). While the SUA Convention removes the distinction between piracy on the high seas and attacks within the territorial waters of a state, it does not extend universal jurisdiction to attacks within the territorial sea. Moreover, its provisions do not reflect customary international law.



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States are required to cooperate to the fullest extent possible in the suppression of piracy.240 Piracy gives rise to universal jurisdiction, and any state may seize a pirate vessel on the high seas and arrest and prosecute persons suspected of acts of piracy.241 There are therefore a number of possible states that may exercise juris­ diction in respect of piracy: the state of nationality of the accused; the flag ship state; and the state capturing the accused on the basis of universal jurisdiction. However, the issue has not been one of finding a basis for the exercise of jurisdic­ tion; rather, the problem has been a lack of enforcement, including sufficient criminalisation of piracy at the national level. As piracy was considered until recently to be a crime of largely historical interest, several states do not have legis­ lation criminalising piracy, or the legislation is outdated. There are also significant variations in the definitions adopted under national law, in particular whether jurisdiction also extends to acts committed within the territorial waters of a state. The Security Council has become increasingly involved in the question of piracy off the coast of Somalia, and has recognised piracy off the coast of Somalia as exacerbating the situation in Somalia, which constitutes a threat to inter­ national peace and security.242 The Council, acting under Chapter VII of the Charter, has authorised states to undertake military and law enforcement action within the territorial waters of Somalia, including pursuing pirate vessels from the high seas into Somali waters.243 This resolution ‘make[s] the rules of international law concerning piracy on the high seas applicable also to territorial waters, inter alia permitting pursuit from the high seas into these waters’.244 It has also taken an interest in the legal and practical issues surrounding investigation and prosecu­ tion of apprehended pirates.245 Somalia is not presently capable of prosecuting pirates, as the state lacks a func­ tioning government and has insufficient resources and capacity, as well as inade­ quate national legislation, to prosecute acts of piracy. States other than Somalia   UNCLOS, art 100.   UNCLOS, art 105. This provision refers only to prosecution by the state of seizure of the vessel, not prosecution by third states, which, it has been suggested, may represent a limitation on the exercise of jurisdiction: E Kantorovich, ‘International Legal Response to Piracy off the Coast of Somalia’, ASIL Insights (6 February 2009); Sterio, n 234, 1469. Jurisdiction may, however, be based on universal juris­ diction recognised under customary international law, which pre-dated UNCLOS. Most writers recog­ nise that piracy gives rise to universal jurisdiction: eg K Randall, ‘Universal Jurisdiction Under International Law’ (1988) 66 Texas Law Review 785. 242   See, eg, UNSC Res 1976 (2011) UN Doc S/RES/1976, last preambular paragraph. 243   UNSC Res 1816 (2 June 2008) UN Doc S/RES/1816, para 7. The measures were adopted with the consent of the Transitional Federal Government of Somalia: see preambular para 11. Initially authorised for a six-month period, the authorisation has been extended on several occasions. See also UNSC Res 1846 (2008), 2 December 2008, which authorises ‘all necessary means’ within the territorial waters of Somalia to repress acts of piracy and armed robbery at sea’: para 10. See: D Guilfoyle, ‘Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’ (2008) 57 International and Comparative Law 690; K Zou, ‘Piracy and the Security Council’ (2009) 24 International Journal of Marine and Coastal Law 583. 244   T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 European Journal of International Law 399, 404. 245   eg, UNSC Res 1851 (16 December 2008) UN Doc S/RES/1851, para 3. 240 241

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Exclusions and Future Proposals

have attempted to try accused pirates before their national courts.246 While some have been successful,247 others have failed, often due to the lack of provisions criminalising piracy in national law or of basic information concerning the accused.248 States have been reluctant to detain and try suspected pirates due to implications for that state’s human rights obligations.249 However, those same human rights obligations would also preclude transfer of the detained suspects to Somali authorities, due to concerns regarding the domestic legal system and the possibility of the death penalty. There are also risks of potential claims for asylum by suspects if returned to the territory of the capturing state. To avoid this dilemma, states have cooperated with other states in the region, most notably Kenya, to provide financial and other support to enable the Kenyan authorities to try accused pirates. Several states, including the United Kingdom and the United States, as well as the European Union, have separately entered into memoranda of understanding with the Kenyan government to facilitate trials before Kenyan courts.250 The United Kingdom, the United States and the European Union also have arrangements with the Seychelles.251 Several such trials have been completed, leading to at least 150 convictions.252 However, Kenya has asserted that such agreements ended in 2010 and that the states concerned and the wider interna­ tional community have not provided adequate financial assistance to support tri­ als conducted by Kenya on behalf of the international community. Moreover, a decision of the Kenyan High Court has questioned the legal basis for trials under Kenyan law, at least in relation to acts committed before the repeal of the previous 246   For more detailed discussion of the problems arising from the prosecution of pirates before national courts, see Treves, n 244; M Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’ (2010) 33 Fordham International Law Journal 372; and M Sterio, ‘The Somali Piracy Problem: A Global Puzzle Necessitating a Global Solution’ (2010) n 234. 247   eg, in November 2010, a jury in a United States court handed down a conviction for piracy for five Somali nationals in respect of an attacking a US naval vessel off the coast of Somalia, the first conviction for piracy in the United States since 1820. A federal judge refused to overturn the conviction. 248   eg, a piracy trial before a German court is encountering significant difficulties in determining how old the accused are, and legal questions as to how German law should be applied to foreign nationals of a failed state: M Scott Moore, ‘A Precedent or a Farce? Court Faces Daunting Hurdles in Hamburg Pirate Trial’ Spiegel Online International (18 January 2011). 249   Concerns include the lengthy period of detention at sea and the delay before the accused could be brought before judicial authorities, due to the naval vessels apprehending the pirates being on an extended mission to the region. This would violate art 5 of the European Convention of Human Rights. 250   See, eg, Exchange of Letters Between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy, (2009) Official Journal of the European Union L79/49. The UK and the US signed memoranda of understanding with Kenya in December 2008 and January 2009 respectively. Canada, China and Denmark also have transfer arrangements with Kenya. 251   See, eg, Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and their Treatment after such Transfer (2 December 2009) Official Journal of the European Union L315/37. 252   The UN Report on Piracy (see n 260 below), estimates that as of May 2010, Kenyan courts had commenced 123 prosecutions and courts in the Seychelles 31; para 19.



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piracy legislation and the adoption of a revised statute that now forms the basis for prosecution.253 There is currently no international or regional254 tribunal that may exercise jurisdiction to try individuals accused acts of piracy. The ICC does not have juris­ diction in respect of piracy,255 and it is highly unlikely that the Rome Statute will be amended to incorporate this crime in future.256 The International Tribunal on the Law of the Sea, established under Part X of UNCLOS, has jurisdiction only in respect of dispute resolution between states, and cannot consider issues of indi­ vidual criminal responsibility.257 Proposals to amend the Statute of the African Court on Human and Peoples’ Rights to enable that institution to try pirates are also considered unrealistic.258 Given this situation, the Security Council requested the Secretary-General to report on possible options for prosecution and imprisonment of persons respon­ sible for acts of piracy and armed robbery off the coast of Somalia.259 In particular, the Secretary-General was to consider the creation of special domestic chambers, possibly with international components, a regional tribunal or an international tribunal. The Secretary-General reported to the Council in July 2010.260 His report considered seven options: (1) enhancing United Nations assistance to build capacity in the region; (2) the establishment of a Somali court sitting in the terri­ tory of a third state, either with or without United Nations participation (the ‘Lockerbie’ option); (3) the establishment of a special chamber within the national jurisdiction of a state in the region, without United Nations participation; (4) the establishment of a special chamber within the national jurisdiction of a state in the region, with United Nations participation; (5) the establishment of a regional 253   Hassan m Ahmed et al v Republic (Judgment) [2010] High Court of Kenya (12 May 2009). Extracts reproduced in A Cassese, G Acquaviva, M Fan and A Whiting, International Criminal Law: Cases and Commentary (Oxford, Oxford University Press, 2011) 319. 254   A regional court for piracy has been suggested: see, eg, M Bahar, ‘Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations’ (2007) 40 Vanderbilt Journal of Transnational Law 1, 81–84. 255   The ICC has jurisdiction only in respect of those crimes listed in art 5 of the Rome Statute. Piracy was not considered as coming within the jurisdiction of the ICC when the Rome Statute was negotiated. Azubuike describes this as ‘a gaping omission’: L Azubuike, ‘International Legal Regime Against Piracy’ (2009) 15 Annual Survey of International & Comparative Law 43, 55. 256   There have been no proposals to this effect and the issue was not considered at the Kampala Review Conference. Even if the ICC was conferred jurisdiction in respect of piracy, it would not be able to process the volume of cases created by piracy. Nor would individual acts of piracy be likely to satisfy the gravity threshold. The Piracy Report (see n 260 below) considered that this option was unlikely to be feasible: para 105. 257   See Sterio, n 234, 1489, arguing that the International Tribunal for the Law of the Sea may be an appropriate venue for prosecution. The Piracy Report (see n 260 below) considered that amendment to UNCLOS to expand the jurisdiction of ITLOS would not be feasible: para 106. 258   The African Court on Human and Peoples’ Rights considers the compliance of the states of the African Union with the African Charter on Human and Peoples’ Rights. The suggested change would need significant amendment of the Statute and agreement by the African Union. See Piracy Report (see n 260 below): para 107. 259   UNSC Res 1918 (27 April 2010) UN Doc S/RES/1918. 260   UNSC ‘Report of the Secretary-General on Possible Options to Further the Aim of Prosecuting and Imprisoning Persons Responsible for Acts of Piracy and Armed Robbery at Sea off the Coast of Somalia (26 July 2010) UN Doc S/2010/394 (Piracy Report).

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tribunal on the basis of a multilateral agreement among regional states, with United Nations participation; (6) the establishment of an international tribunal on the basis of an agreement between a state in the region and the United Nations; and (7) the establishment of an international tribunal by the Security Council act­ ing under Chapter VII of the United Nations Charter. The Secretary-General’s Report noted that all options for a judicial mechanism would require a potential host state to be identified; however, in the absence of a host state, the options were considered in general terms.261 It also recognised the need for cooperation with the new mechanism, including the need for the tribu­ nal itself or the host state to enter into appropriate agreements for assistance, sur­ render and sentence enforcement.262 Further, the Secretary-General emphasised the need for ‘a sufficient political and financial commitment among States . . . not only to establish a new judicial mechanism, but to sustain it’.263 Moreover, as noted by the report, a new judicial mechanism for piracy and armed robbery would be a different prospect to the tribunals in which the United Nations has been involved to date. Instead of a tribunal designed to focus on a – relatively – small number of individuals considered most responsible for international crimes, a piracy tribunal would be expected to conduct trials against those committing piracy, as well as planning and financing such activities, and may have a consider­ ably larger caseload, with no clear end to its temporal jurisdiction.264 A key issue would be whether the purpose of any new institution ‘would be to prosecute as many suspects as possible . . . or to focus on those who finance or plan acts of piracy and armed robbery at sea’.265 Other issues, concerning the jurisdictional reach of the proposals are also important, including the geographical restrictions on jurisdiction, the nationality of offenders that may be tried, and the range of crimes that can be included. While the report did not offer a conclusive recommendation as to the model to be adopted, providing an assessment of each mechanism only, it is significant in that it sets out for the first time the United Nations practice266 on, and views con­ cerning, its role in establishing and supporting tribunals, as well as its assessment of various options for international criminal justice, and the issues that may ren­ der a particular option more appropriate in a given situation. As such, a brief discussion of the issues raised by the various proposed models is warranted.267 As a general point, the report distinguished between two levels of United Nations involvement: first, ‘the term “United Nations participation” is used to refer to the participation by judges, prosecutors and/or staff selected by the United Nations in   Piracy Report, n 260, para 35.   Piracy Report, n 260, para 53. 263   Piracy Report, n 260, para 36. The report suggested that financial contribution may also be sought from the shipping industry: para 51. 264   Piracy Report, n 260, para 36. 265   Piracy Report, n 260, para 37. 266   Annex I to the report sets out what the UN considers to be its relevant practice in this area. 267   Option One is not considered here as it proposed only the extension of existing UN financial and technical assistance to build the capacity of states in the region. 261 262



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a judicial mechanism’; and second, the term “United Nations assistance” which refers to ‘technical assistance by the United Nations to assist a State or judicial mechanism to build its capacity’.268 Option two is based on the ‘Lockerbie’ option, in that it proposes the establish­ ment of a Somali court, exercising Somali jurisdiction, but sitting in the territory of a third state preferably in the region. The main advantages of this option are that locating the court in a third state would allow a secure environment for trials, while also allowing the development of capacity in the Somali system.269 It would require an agreement between Somalia and the host state. If established with United Nations participation (the Lockerbie Court did not have international participation), an agreement between the United Nations, the host state and Somalia would also be required.270 On either alternative, the extent of United Nations assistance would be significant.271 Moreover, to be acceptable the pro­ posal would require improvements to Somali legislation on piracy and to the criminal justice system, so that trials would meet international standards.272 Option three proposed the creation of a special chamber within the courts of a state(s) in the region, without United Nations participation. It would be estab­ lished under, and operate in accordance with, national law. The advantages of this model would be proximity and cost-effectiveness. However, there are concerns that there would be an insufficient number of trials to justify a special chamber, and that the chamber may draw resources from other parts of the justice system, or result in a two-tiered approach to justice. The report recognised that United Nations assistance, for example in considering amendments required to existing laws would also be necessary.273 If the special chamber were located in Somalia, jurisdictional issues would be less complex: Somalia could exercise jurisdiction on the basis of territory for attacks within its territorial waters, and on the basis of nationality or universal jurisdiction where attacks occur on the high seas. However, if the chamber was established in another state, while universal jurisdic­ tion would be available in relation to attacks on the high sea, it is not clear that there would be a basis of jurisdiction for acts occurring within the territorial waters of Somalia.274 Other issues included whether the state could be obliged to receive transfers from other states.275 Option four builds on option three, but includes United Nations participation in the special chamber. This would most likely include, at a minimum, United Nations judges within the chamber, but also United Nations prosecutors and per­   Piracy Report, n 260, para 3.   Piracy Report, n 260, para 62. 270   Piracy Report, n 260, para 62. 271   Piracy Report, n 260, para 64. 272   Piracy Report, n 260, para 65. 273   Piracy Report, n 260, para 70. 274   Piracy Report, n 260, para 70. The report indicated that Somali could ‘consent’ to the exercise of jurisdiction in these circumstances. Thus suggests that Somalia could delegate its jurisdiction to the third state, or consent to an exercise of jurisdiction that would otherwise be in violation of interna­ tional law. 275   Piracy Report, n 260, para 71. 268 269

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sonnel. The report notes that the level and nature of United Nations participation would be a matter of negotiation between the United Nations and the govern­ ment of the state concerned, ‘taking fully into account not only its capacity-­ building needs, but also its culture and legal traditions’.276 The chamber would be established under national law, but an agreement governing the modalities of the United Nations participation would be required (including the duration of the chamber and the United Nations involvement),277 and possibly also implement­ ing legislation at the national level.278 The report suggests that international judges should form the majority, so as to ensure international fair trial standards are achieved.279 The advantages for this option are stated to be: building on an exist­ ing judicial system; proximity to the crimes; capacity-building in the state and the region; strengthening the rule of law in Somalia, if Somalia judges and staff were able to participate; and cost-effectiveness.280 The risks are similar to those identi­ fied for option three, namely the possible diversion of resources from other courts in the state and the region, the development of a two-tier justice system, and the possibly limited capacity of the chamber to try large numbers of suspects. Importantly, the involvement of United Nations personnel does not affect the issues concerning the jurisdictional limits of the chamber281 and the need for cooperation as identified for option three.282 Option five proposed a regional tribunal, established by treaty, with United Nations participation283 and preferably with the involvement of Somalia. The agreement would form the legal basis for the tribunal and set out its jurisdiction,284 including the crimes within and the territorial limits on its jurisdiction.285 The advantages of this option are said to be: capacity building in the region; and help­ ing to strengthen the rule of law in Somalia; proximity to the acts,286 and, poten­ tially, a phased transfer to national personnel. Its disadvantages include the absence of a pre-existing jurisdiction with established legislation and procedures and expertise;287 possible drawing of resources from national systems; longer establishment time due the need to draft an agreement and to negotiate the

  Piracy Report, n 260, para 74.   Piracy Report, n 260, para 79. 278   Piracy Report, n 260, para 73. 279   Piracy Report, n 260, para 74. 280   Piracy Report, n 260, para 76. 281   Piracy Report, n 260, para 77. 282   Piracy Report, n 260, para 78. 283   United Nations participation would be the subject of discussion with the regional states. The report suggests that the Security Council would have to request the Secretary-General to negotiate UN participation, but this does not seem required by UN practice. Piracy Report, n 260, para 81. 284   Piracy Report, n 260, para 80. 285   Piracy Report, n 260, para 84. The issue of territorial limits is important: would jurisdiction be limited to attacks on the high seas, or to attacks within the territorial seas of the state party to the agreement. If the latter, would Somalia need to be a party for attacks within Somalia’s territorial waters to be within the jurisdiction of the tribunal? 286   Piracy Report, n 260, para 82. 287   Piracy Report, n 260, paras 83 and 85. 276 277



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crimes288 and geographical reach of the tribunal;289 greater financial resources required due to the potentially larger number of cases;290 and the additional costs involved with establishing a new institution.291 Options six and seven proposed the establishment of an international tribunal for piracy. Option six would operate on the basis of a treaty between the United Nations and a state in the region, preferably Somalia,292 while option seven would be established by a Security Council resolution under Chapter VII of the Charter. The treaty-based tribunal would be a United Nations-assisted tribunal ‘on the lines of the Special Court for Sierra Leone and the Special Tribunal for Lebanon’.293 Given the weak state of the judicial system in Somalia, the report also suggests that this option could be created by agreement with a third state in the region.294 The main advantage of a treaty-based court was the potential for capacity build­ ing in the host state, although it was recognised that this may be achieved more effectively through options three or four.295 There would also not be a phased transfer of responsibility to national personnel.296 While the treaty-based option may attract greater funding and capacity, it may not a cost-effective means of try­ ing accused.297 Moreover, the jurisdiction of the tribunal, and whether or not it incorporated elements of national law, would also have to be negotiated.298 This model, unless the agreement was concluded with Somalia, would not avoid the issues raised with other models concerning the geographical reach of the tribu­ nal299 or cooperation with other states.300 It was proposed that a piracy tribunal established by the Security Council would be similar to the ad hoc tribunals. It would be staffed entirely by international personnel, although it could recruit staff from within the region. It would prefer­ ably also be located within the region to facilitate transfers from detaining navies. The Council would be able to negotiate and adopt the tribunal’s Statute, includ­ ing extending the definition of crimes beyond that of piracy, possibly to include armed robbery at sea and financing and organising acts of piracy. Acting under Chapter VII, the Council could also extend the jurisdiction to acts committed within the territorial seas of any state in the region, particularly Somalia.301 The Council would also need to determine the personal jurisdiction of the tribunal, 288   eg, would jurisdiction extend to piracy, or also to armed robbery, and the organising and financ­ ing of such acts? 289   Piracy Report, n 260, para 85. 290   Piracy Report, n 260, para 85. 291   Piracy Report, n 260, para 86. 292   The report notes that UN-assisted tribunals have to date all been estabished by agreement with the affected state, in this case, Somalia: Piracy Report, n 260, para 90. 293   Piracy Report, n 260, para 90. 294   Piracy Report, n 260, para 90. 295   Piracy Report, n 260, para 91. 296   Piracy Report, n 260, para 92. A completion strategy would therefore be required: para 96. 297   Piracy Report, n 260, para 91. 298   Piracy Report, n 260, para 93. 299   Piracy Report, n 260, para 93. 300   Piracy Report, n 260, para 94. 301   Piracy Report, n 260, para 99.

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and whether should be restricted to ‘persons most responsible’, that is those responsible for financing and planning acts of terrorism.302 This option would not be the most cost-effective; although it would perhaps attract greater resources and capacity than a specialised chamber, its total cost would be greater than the other options suggested.303 Unless the Council established a permanent tribunal for piracy, the duration and completion strategy of the tribunal would also have to be determined.304 The Security Council considered the Secretary-General’s report during a Council meeting on 25 August 2010.305 While the Council welcomed the report it did not endorse any of the options suggested.306 The balance of opinion in the Council appeared to be against the establishment of any new judicial mechanism, with most Council members favouring United Nations assistance in strengthen­ ing the Somali judicial system and the capacity of other states in the region. Following the debate in the Council, the Secretary-General appointed a Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia in August 2010.307 The Special Adviser issued his recommendations to the Council in January 2011, following extensive consultation with states in the region, naval states and the various authorities in Somalia.308 In addition to mea­ sures directed at preventing and deterring piracy, Mr Lang recommended that three judicial mechanisms be established: two specialised courts within Somalia, one in Puntland and one in Somaliland; and a ‘specialized extraterritorial Somali court’ to be located for a transitional period in Tanzania, potentially using the premises and facilities of the ICTR in Arusha.309 The two specialised courts to be located within Somalia would not have United Nations participation (although significant United Nations assistance would be required) and would fall within option three outlined by the Secretary-General’s report. The Court in Puntland would exercise jurisdiction on the basis of the universality principle, whereas the Court in Somaliland would only exercise jurisdiction in respect of persons from Somaliland or acts committed on its territorial seas.310 The rationale behind these two courts would be to develop domestic judicial capacity within Somalia, thus enhancing respect for the rule of law within Somalia. While the proposal for the second type of mechanism, the extraterritorial Somali court, contained limited detail, it appears that it would be a Somali insti­   Piracy Report, n 260, para 100.   Piracy Report, n 260, para 101. 304   Piracy Report, n 260, para 104. 305   UNSC Verbatim Record (25 August 2010) UN Doc S/PV/6374. 306   See Presidential Statement 16 (25 August 2010) UN Doc S/PRST/2010/16. 307   UNSC, ‘Letter Dated 25 August 2010 from the Secretary-General Addressed to the President of the Security Council’ UN Doc S/2010/451. Mr Jack Lang of France was appointed. 308   UNSC, ‘Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia’ (25 January 2011) UN Doc S/2011/30 (Lang Report). 309   Lang Report, n 308, Proposal 25. See para 122 for the suggestion it should use the facilities of the ICTR. 310   Lang Report, n 308, para 119. Authorities from Somaliland were unwilling to exercise jurisdic­ tion on other bases. 302 303



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tution, established by and applying Somali law.311 While its jurisdiction would be based mainly on active nationality (most pirates are Somali nationals) it is also possible that it may exercise jurisdiction on the basis of universal jurisdiction.312 Its creation would be supported by an agreement between the Somali authorities and the host state (assuming one is found).313 An agreement would also be required between the Somali authorities and the United Nations to set out United Nations assistance to the Court. The tasks contemplated for the United Nations included support to ensure the security of the Court and pre-trial detention and the training of judges.314 It is not proposed that the Court have broader United Nations participation, and all judges and personnel would be appointed by the Somali authorities, possibly in consultation with the United Nations. The report contemplates that the international community, in particular the United Nations Development Program, the African Union and the European Union, would offer support to the three mechanisms.315 The Government of Somalia would also enter into transfer agreements with the apprehending states.316 It would be a temporary measure, with the trials to be transferred to Mogadishu once ‘the necessary secur­ ity conditions were in place’.317 There is also some reference to a hybrid institution to monitor trials and pre-trial detention as well as sentence enforcement.318 The recommendations contemplate a possible role for the extraterritorial court to provide assistance to the two courts operating within Somalia, so as to share the available experience and expertise.319 However, the three courts would remain separate institutions and would have concurrent jurisdiction. The report describes the Court as ‘an internationally supported extraterritorial Somali court [which] would be the vehicle for legal capacity-building by the international community in Somalia’.320 The extraterritorial court is justified on the basis of three reasons. First, it is more acceptable and justifiable for political reasons: it is Somali and will ultimately be transferred to Somalia, and will exercise nationality-based jurisdic­ tion. It will also build rule of law in Somalia. Second, it will enable external assist­ ance from those that may not be permitted to enter Somalia, including entry to provide training for judges and personnel. Finally, it is argued that by using the facilities of the ICTR, it will be quicker to establish and operate.321 While Mr Lang’s recommendations were welcomed by the Security Council, the reaction appeared muted.322 While recognising the need for a comprehensive   Lang Report, n 308, para 120.   Lang Report, n 308, paras 123 and 121.   Lang Report, n 308, para 124. 314   Lang Report, n 308, para 124. 315   Lang Report, n 308, para 134. 316   Lang Report, n 308, para 124. It is also contemplated that the host state may also be a party to this agreement, and that the current memoranda of understanding with Kenya may serve as a basis for the agreements. 317   Lang Report, n 308, para 129. 318   Lang Report, n 308, para 120. 319   Lang Report, n 308, para 133. 320   Lang Report, n 308, para 120. 321   Lang Report, n 308, para 123. 322   UNSC Verbatim Record (25 January 2011) UN Doc S/PV/6473. 311 312 313

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solution to the piracy issue, several Council members indicated a need to reflect further on the proposals, with some questioning the feasibility of using the ICTR facilities and the suggested time frame for establishing the extraterritorial court.323 However, in a further resolution under Chapter VII of the United Nations Charter, the Council decided ‘to urgently consider the establishment of special­ ized Somali courts to try suspected pirates both in Somalia and in the region, including an extraterritorial Somali specialized anti-piracy court’.324 The Council requested the Secretary-General to report ‘on the modalities of such prosecution mechanisms, including on the participation of international personnel and on other international support and assistance’.325 With the limited information in the proposal it is quite difficult to attempt to categorise this proposed court. The Special Adviser certainly considers it to be a ‘hybrid tribunal’,326 although this may be as the Lockerbie model was included in the list of practice annexed to the Secretary-General’s report. The Office of the Legal Adviser considered the tribunal to fall within option 3 outlined in the Secretary-General’s report (a special chamber within the national jurisdiction of a state without United Nations participation). Initially, the proposal seems closest to the Lockerbie model, being an arrangement whereby a court of one state sits on the territory of another. However, the proposal goes beyond the situation of the Lockerbie Court, with significantly more assistance provided by the United Nations, other states and regional organisations.

E.  Special Tribunal for Kenya In December 2007 violence broke out in Kenya in the aftermath of the disputed outcome of the presidential elections. The two candidates were the incumbent, President Mwai Kibaki of the Party of National Unity (PNU), and Raili Odinga of the Orange Democratic Movement (ODM). The Electoral Commission of Kenya declared on 30 December 2007 that President Kibaki had been successfully reelected. This announcement triggered violent demonstrations and attacks in six of the eight regions of Kenya. It has been estimated that more than 1000 people were killed and 300,000 more displaced as a result of this violence.327 Following the outbreak of violence, the African Union Panel of Eminent African Personalities, chaired by former United Nations Secretary-General Kofi Annan, successfully 323   See, eg, the comments of the representative of the United Kingdom – ‘we are doubtful that it would be possible to have such a court operational within the timetable envisaged’. 324   UNSC Res 1976 (11 April 2011) UN Doc S/RES/1976, para 26. 325   ibid. The Council requested that the report be issued within two months of the resolution. 326   ‘less costly than the other international and hybrid tribunals’: Lang Report, n 308, para 123. 327   For further details see: Human Rights Watch, Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Government (March 2008); International Crisis Group, Kenya in Crisis (February 2008); Kenya National Commission on Human Rights, On the Brink of the Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence (15 August 2008); Office of the High Commissioner for Human Rights, Report from OHCHR Fact-Finding Mission to Kenya, 6–28 February 2008 (2008).



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mediated a peace agreement, which detailed arrangements for power-sharing between the two opposing parties.328 The agreement also required the establish­ ment of three institutions, including the Commission of Inquiry into the PostElection Violence (known as the Waki Commission).329 In its final report, the Waki Commission identified several weaknesses in the Kenyan criminal justice system, which would make prosecution of post-election violence challenging.330 In particular, the Commission considered that there was a lack of political will to support prosecutions and a fear of the political establishment,331 as well as a weak legal system that suffered from a lack of experience and capacity, most significantly a shortage of staff that would be tasked with investigating alleged crimes.332 In addition, the legislation to implement Kenya’s obligations and the sub­ stantive crimes under the Rome Statute into domestic law had not been adopted333 and legal and practical arrangements for witness protection were inadequate.334 There were also suggestions that amnesty may be granted, at least to lower-level offenders.335 Due to these concerns, the Waki Commission recommended that a Special Tribunal for Kenya (STK) be established to ‘seek accountability against persons bear­ ing the greatest responsibility for crimes, particularly crimes against humanity, relat­ ing to the 2007 General Elections in Kenya’.336 The STK would be located within Kenya337 and would apply Kenyan law and the International Crimes Bill, once it had been enacted into Kenyan law. 338 It would comprise at least one Trial Chamber339 and an Appeals Chamber as well as the Prosecutor, Registry, Defence Office and Special Magistrates.340 The Chambers would comprise both Kenyan and international

328   Agreement on the Principles of Partnership of the Coalition Government (Party of National Unity-Orange Democratic Movement) (signed 28 February 2008). 329  The other institutions were the Truth, Justice and Reconciliation Commission and the Independent Review Commission on the General Elections held in Kenya on 27 December 2007. The Waki Commission was chaired by Mr Justice Philip Waki, a judge of Kenya’s Court of Appeal, and two international Commissioners, Mr Gavin McFadyen of New Zealand and Mr Pascal Kambale of the Democratic Republic of Congo. 330  Report of the Findings of the Commission of Inquiry into the Post-Election Violence (15 October 2008) (Waki Report). 331   Waki Report, n 330, 456–60. 332   Waki Report, n 330, 453–55 and 460–62. 333   The International Crimes Bill was first introduced in 2005, following ratification of the Rome Statute. 334   Waki Report, n 330, 455. 335   For discussion of the amnesty issue, see the Waki Report, n 330, 462–69. 336   Waki Report, n 330, Recommendation 1, 472. For ease of reference, the description of the key features and jurisdiction of the STK draws both on the recommendations of the Waki Commission and the draft Statute proposed by the Kenyan government. 337   Waki Report, n 330, Recommendation 1, 472. 338   Waki Report, n 330, Recommendation 2, 472. The Commission recommended that the Bill be fasttracked for adoption, as well as proposed legislation on witness protection: Other Recommendations 1, 476. 339   Art 19 of the Draft Statute allows for the creation of additional Trial Chambers. 340   Draft Statute, art 3.

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judges.341 The Prosecutor would be an international appointment,342 supported by a national deputy and international and Kenyan staff.343 Similarly, the Registrar would be an international appointment, supported by a national deputy,344 while the nation­ ality of the Chief Defence Counsel was not specified.345 Special magistrates would be national appointments.346 The STK would be established for an initial period of three years, subject to further review and extension by the Kenyan Parliament. Funding for the STK would be allocated by Parliament and also from grants, donations and all moneys from any other source.347 The STK would have exercised exclusive jurisdiction in respect of those respon­ sible for genocide, gross violations of human rights and crimes against humanity connected with the 2007 election violence.348 The temporal jurisdiction would be from 27 December 2007 to 28 February 2008, with the tribunal to have the power to investigate acts prior and subsequent to this period where related to crimes committed within this period.349 It would have jurisdiction in respect of crimes committed within the territory of Kenya.350 The Trial Chamber of the STK would exercise jurisdiction in respect of those bearing the greatest responsibility for crimes falling within its jurisdiction.351 The special magistrates would try cases for 341   The Presiding Judge in each Chamber and an additional judge in the Appeals Chamber would be a Kenyan national, appointed by the President in consultation with the Prime Minister, acting on the advice of the Chief Justice, and selected from those qualified to sit on the high Court of Kenya. The two remaining judges in the Trial Chamber and three judges in the Appeals Chamber would be non-­ Kenyan nationals, identified by the African Union Panel of Eminent African Personalities and appointed by the President in consultation with the Prime Minister. See Waki Report, n 330, Recommendations 7, 8 and 9, pp 474–75; Draft Statute, arts 16–18. 342   The Prosecutor would be appointed by the President of Kenya, in consultation with the Prime Minister, from a list identified by the African Union Panel of Eminent African Personalities: Waki Report, Recommendation 9, 474; Draft Statute, art 30. 343   Draft Statute, art 30. 344   Draft Statute, art 31. 345   Draft Statute, art 32. The provision states only that the appointment would be made by the President. However, given that the requirements for the position include the qualifications required for appointment to the High Court of Kenya, it is likely that only a national could meet this requirement. The deputy must be a national. 346   Draft Statute, art 26; see also the Second Schedule to the Bill, which sets out the procedure for nominating and appointing special magistrates. 347   Proposed Statute, art 58. This is subject to the condition that any grants or donations must not be for the purpose of influencing the STK. 348   Waki Report, n 330, Recommendation 10, 475; Draft Statute, arts 5, 10 and 12. Genocide was defined on the basis of the Genocide Convention: Draft Statute, art 2. Gross violations of human rights was defined as including: violation of fundamental human rights, including torture, killing, abduction and severe ill-treatment; unlawful imprisonment or other severe deprivation of liberty; rape or any other form of sexual violence; enforced disappearance; persecution; or attempting to commit such acts, see Draft Statute, art 2. The definition of crimes against humanity draws on, but does not replicate the provisions of art 7 of the Rome Statute. Most significantly, it does not include the requirement for the attack to form part of an organisational plan and the chapeau introduces a discriminatory require­ ment, namely that the attack must be based on ‘national, regional, political, ethnic, racial, cultural or religious grounds’: Draft Statute, art 2. Enforced disappearance is included as a gross violation of human right only, not as a crime against humanity. 349   Draft Statute, arts 4 and 8. 350   Draft Statute, art 8. 351   Draft Statute, art 9. The term ‘persons bearing the greatest responsibility’ was defined in art 2 as ‘a person or persons who were knowingly responsible for any or all of the following acts: planning,



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such crimes (genocide, crimes against humanity and gross violations of human rights) concerning those persons not considered to bear the greatest responsibil­ ity, as well as ordinary crimes, as defined in the Kenyan Penal Code, committed during the temporal jurisdiction of the STK.352 The Appeals Chamber would hear appeals from both the Trials Chambers and the special magistrates’ courts.353 The Waki Commission separately listed those persons it considered to bear the great­ est responsibility for election-related crimes, and placed this list in the safe-­ keeping of the African Union Panel of Eminent African Personalities. The Waki Commission proposals recognised a role for the ICC. It was recom­ mended that, should the STK not be established, the list of persons recommended for prosecution should be forwarded to the ICC Prosecutor with a request for the Prosecutor to consider proceeding with an investigation.354 On 16 December 2008, President Kibaki and Prime Minister Odinga agreed to implement the rec­ ommendations of the Waki Commission, in particular the establishment of the STK. A draft bill to establish the STK was prepared, to which a draft Statute for the Court was attached.355 However, the bill required an amendment to the Kenyan Constitution to enable the institution to be lawfully established, as the Constitution precluded the establishment of special tribunals outside the ordin­ ary judicial system. On 12 February 2009, the Kenyan Parliament failed to endorse the proposed amendment to the Constitution.356 Thereafter, the idea of the STK was largely abandoned at the national level. A subsequent attempt to pass the required amendment and legislation in August 2009 was also unsuccessful.357 The proposal to establish the STK formed part of the dialogue between the ICC Prosecutor and the Government of Kenya concerning the ICC’s potential involve­ ment in the situation in Kenya. Kenya ratified the Rome Statute on 15 March 2005 and, provided the acts in question fell within the substantive jurisdiction of the ICC, the ICC could exercise its jurisdiction in respect of the post-election violence in Kenya.358 The Prosecutor had indicated in early 2008 that his office would be moni­ toring information relating to alleged crimes within the jurisdiction of the Court.359 instigating, inciting, funding, ordering or providing other logistics which directly or indirectly facil­ itated the commission of crimes falling within the jurisdiction of the Tribunal; in determining whether a person or persons falls into this category, the Tribunal shall have regard to factors including the leadership role or level of authority or decision making power or influence of the person concerned and the gravity, severity, seriousness or scale of the crimes committed’. 352   Draft Statute, art 9(b). The special magistrates would sit in four special magistrates’ courts, each comprising a panel of three magistrates: Draft Statute, art 26. Procedure before the special magistrates’ courts would be conducted in a similar manner to proceedings in ordinary criminal courts: Draft Statute, art 43. 353   Draft Statute, art 8(2) and 46. 354   Waki Report, n 330, Recommendation 5, 473. 355   Special Tribunal for Kenya Bill, 2009. 356  The Constitution of Kenya (Amendment) Bill 2009. See Kenya State House, Press Release ‘Parliament Rejects a Local Special Tribunal’ (12 February 2009). 357   The draft Bill was introduced to Parliament, but not debated, and did not proceed any further. 358   In accordance with art 126 of the Rome Statute, jurisdiction could be exercised in respect of acts committed on Kenyan territory or by Kenyan nationals after 1 June 2005. 359   OTP Statement, ‘OTP Statement in Relation to Events in Kenya’ (5 February 2008). In March 2008, the Prosecutor requested additional information from various sources within Kenya, including

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Exclusions and Future Proposals

In July 2009, the Prosecutor met with a delegation from the Kenyan government. It was agreed that the Kenyan government would provide the Prosecutor with a report on the status of investigations and prosecutions, as well as arrangements for prose­ cution of suspects through the STK, by 30 September 2009. Failing this, the Government would refer the situation in Kenya to the ICC under article 14 of the Rome Statute.360 In July 2009, the African Union Panel of Eminent African Personalities submitted the sealed list of persons alleged to be implicated in the vio­ lence to the ICC Prosecutor, along with supporting material.361 In August 2009, a further attempt to secure the required constitutional amend­ ment to enable the creation of the STK was attempted.362 The proposed amend­ ment was based on a two-tier approach; the ICC would prosecute those bearing the greatest responsibility, while the STK would try the lower-level perpetrators.363 This bill was ultimately unsuccessful, as despite being listed for debate on two occasions, debate could not occur due to a failure to constitute a quorum.364 In late October 2009, the Prosecutor informed the Kenyan authorities that, having considered the material available, he considered that: crimes against humanity may have been committed during the post-election violence; there had been no relevant national proceedings; and the Court’s gravity threshold had been satisfied. The Prosecutor indicated that the government could refer the situ­ ation to the ICC on the basis of article 14 of the Rome Statute, or alternatively, the Prosecutor would request authorisation from the Pre-Trial Chamber to com­ mence an investigation on the basis of article 15 of the Rome Statute.365 The Prosecutor met the parties in November 2009, and emphasised the duty of his office to commence an investigation and the role of national authorities under the principle of complementarity. The Kenyan government confirmed its commit­ ment to the ICC and to ending impunity, including the establishment of a national mechanism and to cooperate with any ICC investigation. However, it declined to refer the situation to the ICC.366

the Kenya Human Rights Commission, the government, the National Commission on Human Rights and the opposition party. The Prosecutor reaffirmed that his office was monitoring the situation in February 2009: OTP, Kenya Factsheet, ‘ICC Prosecutor Reaffirms that the Situation in Kenya is Monitored by his Office’ (11 February 2009). 360  See OTP, ‘Agreed Minutes of the Meeting between Prosecutor Moreno-Ocampo and the Delegation of the Kenyan Government’ (3 July 2009). 361   OTP, Press Release, ‘Waki Commission List of Names in the Hands of ICC Prosecutor’ (16 July 2009); OTP Press Release, ‘ICC Prosecutor Receives Material on Post-Election Violence in Kenya’ (16 July 2009). 362   The Constitution of Kenya (Amendment) (No 3) (Bill No 12) of 2009, 24 August 2010 was gazet­ ted by a Kenyan MP on 26 August 2010. 363   ibid, 1–2. 364   ‘MPs Snub Imanyara Bill Debate, Yet Again’ The Standard (Kenya, 19 November 2009). 365   Letter from the ICC Prosecutor to the Kenyan Government, dated 27 October 2009. This letter is not publicly available, but its contents are described in the Prosecutor’s application for an investiga­ tion: Situation in the Republic of Kenya (Request for Authorisation of an Investigation Pursuant to Article 15) ICC-01/09, P T Ch II (26 November 2009) (Prosecutor’s Application) para 20. 366   Prosecutor’s Application, n 365, para 21, detailing the meeting held on 5 November 2009.



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On 26 November 2009, the ICC Prosecutor requested an authorisation of an investigation into the situation in Kenya.367 The application noted that the Kenyan authorities considered the establishment of a special tribunal as necessary, but that the proposal for the STK had failed. Consequently, it concluded that ‘there are no domestic prosecution for the crimes against humanity allegedly committed in Kenya, nor is there any prospect that there will be’.368 A majority of Pre-Trial Chamber II granted the request for an investigation in March 2010, finding that there was a reasonable basis to believe that crimes against humanity had been committed in Kenya.369 The ICC granted requests for summons for six suspects in two cases in March 2011,370 all of whom appeared before the ICC in April 2011.371 The Kenyan government challenged the admissibility of these cases on the basis of the complementarity principle.372 The government’s application indicated that, while the proposal for the STK had been abandoned due to a lack of support for the required legislation in the Kenyan Parliament other initiatives were ongo­ ing.373 In particular, the government proposed to adopt amendments to the appli­ cable law on the prosecution of international crimes and to undertake reform of the judicial system more generally.374 The government noted that legislation to incorporate the Rome Statute into domestic law had now been adopted.375 However, the ICC rejected Kenya’s admissibility challenge, holding that, despite   Prosecutor’s Application, n 365.   Prosecutor’s Application, n 365, para 53. The Prosecutor did note that there had been ‘a limited number of proceedings for less serious offences in connection to the crimes allegedly committed dur­ ing the post-election violence’, para 54. 369   Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09, P T Ch II (31 March 2010). The dissenting judge, Judge Hans-Peter Kaul, found that the facts in question did not con­ stitute crimes against humanity for the purposes of the Rome Statute, as there was insufficient evidence of an organisational policy, and he considered that the ICC should not exercise its jurisdiction. 370   Prosecutor v William Samoei Rutu, Henry Kiprono Kosgey and Joshua Arap Sang (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Rutu, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09-01/11, P T Ch II (8 March 2011); Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09-02/11, P T Ch II (8 March 2011). Judge Hans-Peter Kaul dis­ sented from both decisions, again on the basis that the ICC should not be exercising its jurisdiction. 371   The suspects appeared voluntarily, on 7 and 8 April. 372   Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute) ICC-01/09-02/11-26, P T Ch II (31 March 2011). See ch 1, section III(C)(iii). 373   Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute) para 43. 374   Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute). The application notes that, following the adoption of a new Constitution in 2010, national courts in Kenya will now be capable of trying cases arising from the post-election violence. Other changes strengthened the independence of relevant organs and addressed concerns as to the available legislation and the performance of national institutions. 375   International Crimes Act 2008 (entered into force 1 January 2009). This Act conferred on courts in Kenya jurisdiction in respect of the crimes in the Rome Statute. See Application, paras 57 and 58. 367 368

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proposed reforms, no investigations against those suspects were ongoing at the time of the application.376

F.  The Extraordinary Criminal Court for Liberia The Liberian civil war lasted 14 years, and comprised several armed factions. The conflict ‘was characterised by deep fissures along regional, ethnic and economic lines’.377 The 2003 Comprehensive Peace Agreement378 ending the conflict in Liberia provided for the establishment of a national truth and reconciliation com­ mission (the Commission).379 During the negotiation of the peace agreement, the creation of a war crimes tribunal was suggested by civil society groups. However, in the face of strong opposition from the armed groups, and concerns that the issue of war crimes trials would further derail the peace process, a truth and con­ ciliation process was accepted as an alternative.380 Thus the peace agreement did not include any provisions on the issues of prosecutions or amnesty, although it ‘left open the door for future judicial measures’.381 The Commission was established by an act of Parliament in 2006 (TRC Act).382 Its nine commissioners were appointed by the President, following extensive national consultations. The mandate of the Commission included to: investigate alleged violations of international law committed in Liberia from January 1979 to 14 October 2003; determine whether those incidents were isolated or formed part of a pattern; and determine those responsible for the commission of the viola­ tions.383 The TRC Act authorised the Commission to recommend prosecution for those who committed crimes against humanity384 and precluded the application of any amnesty or pardon to violations of international law and crimes against humanity.385 376   Prosecutor v William Samoei Rutu, Henry Kiprono Kosgey and Joshua Arap Sang (Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute) ICC-01/09-01/11-101, P T Ch II (30 May 2011). A virtually identical decision was issued in the second case concerning the situation in Kenya. The government appealed from these decisions, and a decision is pending. 377   Human Rights Watch, Justice for Liberia: The Truth and Reconciliation Commission’s Recommendation for an Internationalized Domestic War Crimes Court (December 2009) 378   Comprehensive Peace Agreement between the Government of Liberia and the Liberian United Front for Reconciliation and Democracy and the Movement for Democracy in Liberia and Political Parties (signed 18 August 2003) (Comprehensive Peace Agreement). 379   Comprehensive Peace Agreement, art XIII. 380   International Center for Transitional Justice, Transitional Justice and DDR: The Case of Liberia (June 2009) 20. See also Human Rights Watch, Liberia at a Crossroads: Human Rights Challenges for the New Government (30 September 2005). 381   International Center for Transitional Justice, ibid, 20. 382   An Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia (10 June 2005) (TRC Act). 383   TRC Act, art IV, s 4, also lists a number of other functions, including providing a public forum to address issues of impunity, gender-based violence and corruption. For further discussion of the TRC, see P Allen, A Weah and L Goodfriend, Beyond the Truth and Reconciliation Commission: Transitional Justice Options in Liberia, Report for the International Center of Transitional Justice (2010). 384   TRC Act, art IV, s 4(a). 385   TRC Act, art VII, s 26(g).



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The Commission issued its final report in 2009.386 It recommended a multitiered approach to accountability: trials of gross violations of human rights and international humanitarian law before an ‘extraordinary criminal court’ to be established in Liberia;387 trials of lesser violations before appropriate existing domestic courts;388 public sanctions, such as lustration;389 and a national ‘public hut’ program.390 It recognised that the Liberian justice system was weak after over a decade of civil war and prone to manipulation by political forces,391 hence the internationalised option was considered necessary to ensure credibility.392 The Commission’s report annexed a proposed statute for the creation of the Extraordinary Criminal Court for Liberia,393 ‘an internationalized domestic court’ located in Monrovia.394 The proposed court would have jurisdiction to prosecute persons referred to it by the Commission for gross violations of human rights,395 serious violations of international humanitarian law,396 acts of terrorism397 and egregious domestic crimes.398 The definitions of the international crimes in the proposed law were based mainly on those contained in the Rome Statute, but also included crimes based on treaties and customary international law at the relevant time.399 The Commission proposed a list of over one hundred individuals that could be tried before the extraordinary court, and a further list of those individu­ als recommended for trial before national courts. The proposed Statute does not   Truth and Reconciliation Commission of Liberia, Consolidated Final Report (2009) (TRC Report).   TRC Report, n 386, Recommendation 12. 388   TRC Report, n 386, Recommendation 13. 389   TRC Report, n 386,Recommendation 14. 390   TRC Report, n 386, Recommendation 15. Public huts are a traditional method of resolving con­ flict in Liberia. 391   The International Center for Transitional Justice reported that armed groups are particularly opposed to war crimes trials, especially those supportive of former President, Charles Taylor. Taylor’s arrest and transfer to the Special Court for Sierra Leone to face trial has left many groups suspicious of prosecution: n 380, 23. 392   TRC Report, n 386, Sections 1.3–1.4. 393   TRC Report, n 386, Annex 2, Statute Establishing the Extraordinary Criminal Court for Liberia (Proposed Statute). 394   Proposed Statute, art 1 and 3. Art 32(3) contemplates proceedings being conducted in other states ‘in cases that pose a national security risk’, which is to be determined by the President of Liberia and with the consent of the President of the Court. 395  These ‘gross violations’ are listed in art 12 of the Proposed Statute: murder; extermination; enslavement; torture; rape; sexual slavery; enforced prostitution; enforced sterilisation; sexual vio­ lence; enforced disappearance; persecution; deportation or forcible transfer of population; imprison­ ment or other serious deprivation of liberty; genocide; and crimes against humanity. 396   These serious violations are listed in art 13 of the Proposed Statute: murder; mutilation; attack­ ing civilians; cruel treatment; torture; taking of hostages; outrages upon personal dignity (including cruel treatment, rape, enforced prostitution, sexual slavery, sexual violence); sentencing or execution without due process; attack protected objects; collective punishment; enslavement; pillage; acts of ter­ rorism (as defined in Liberian law); and using, conscripting or enlisting children in armed conflict. 397   Proposed Statute, art 13. 398   These egregious crimes under domestic law are set out in art 14 of the Proposed Statute: merce­ narism; official oppression; murder; kidnapping; sexual assault; rape; fraud on the internal revenue of Liberia; theft or illegal disbursement and expenditure of public money; offences relating to counter­ feiting; misuse of public money, property or record; and certain economic crimes. 399   Proposed Statute, art 11(2). 386

387

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Exclusions and Future Proposals

require a focus on ‘those most responsible’,400 but the list submitted by the Commission appears to focus on leaders of the parties to the conflict as well as ‘most notorious perpetrators’.401 In addition to criminal jurisdiction, it was proposed that the Court would have administrative jurisdiction to ‘adjudicate final administrative acts of the institu­ tions and or bodies of the Republic of Liberia, determine the legality of individual and general administrative acts taken under State authority, and levy tort penal­ ties in accordance with Liberian law and international standards’.402 The Court would have concurrent jurisdiction with other courts in Liberia, other than for gross violations of human rights and serious violations of international humani­ tarian law, where it appears to have been intended that it have exclusive juris­ diction. It would have primacy in respect of national courts in Liberia.403 The Court would have the competence to ‘decide any conflict of jurisdiction between the Court and any other courts’.404 There was no mention of the proposed rela­ tionship between the Court and the ICC, although many of the acts committed would pre-date the ICC’s temporal jurisdiction.405 However, the proposed statute does contemplate the Court entering into arrangements with third states ‘that authorize foreign states, particularly those with universal jurisdiction law, to arrest, detain and prosecute any persons that the TRC determined committed [crimes within the jurisdiction of the Court]’.406 Judges would be appointed to the Court by the President of Liberia, the United Nations Secretary-General, the President of the European Union and the President of the African Union.407 The Prosecutor would be appointed by the Government of Liberia, in consultation with the Secretary-General, to be supported by Liberian and international staff. The Chief Registrar would be an international appoint­ ment. The Court would be financed by the Government of Liberia and by volun­ tary contributions from states and international organisations.408 The apparent legal basis for the Extraordinary Chamber is establishment pur­ suant to Liberian law, presumably supported by an agreement between the United 400   For criticism of this, see Human Rights Watch, Justice for Liberia: The Truth and Reconciliation Commission’s Recommendation for an Internationalized Domestic War Crimes Court (December 2009). 401   TRC Report, n 386, Recommendation 12.3. This list would not necessarily be binding on the prosecutor of the proposed court. 402   Proposed Statute, art 11(4). 403   Proposed Statute, art 32(1)–(2). 404   Proposed Statute, art 11(5)(iii). 405   Liberia signed the Rome Statute in 1998 and ratified in September 2004. However, the situation in Liberia is not the subject of a preliminary investigation by the ICC, and it is unlikely that the ICC will become involved, as most of the crimes predate the temporal jurisdiction of the ICC, which com­ menced on 1 July 2002. 406   Proposed Statute, art 32(4). Such arrangements would have to be made in consultation with the President of Liberia. 407   There would be eight judges in total: three judges would serve in the Trial Chamber, on to be appointed by the President of Liberia and two judges to be appointed by the UN Secretary-General, and five judges in the Appeal Chamber, where two judges would be appointed by the President of Liberia, and one each by the Secretary-General, the President of the European Union and the President of the African Union: Proposed Statute, art 3. 408   Proposed Statute, art 9.



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Nations and the Government of Liberia to detail the assistance the United Nations would provide to the Court, as well as arrangements on financing, United Nations participation, cooperation, security etc. However, there is no specific recommen­ dation in the TRC report to the United Nations concerning the negotiation of such an agreement. There is a recommendation to the United Nations Security Council in general terms, recommending ‘full support and endorsement of the recommendations’ and to ‘request all member states to assist Liberia in prosecut­ ing war crimes and gross human violations committed in Liberia especially those states having universal jurisdiction in international crimes’.409 However, it appears that little progress has been made in implementing the recommendations of the Commission regarding accountability, with attention focused instead on the establishment of the Independent National Commission on Human Rights. As several senior leaders, including President Sirleaf, were included in the list recommended for prosecution, there was considerable public discussion and con­ cern at this aspect of the Commission’s findings.410 Several leaders of the parties to the conflict also questioned whether prosecution was appropriate, given that they thought they had agreed to peace and reconciliation, in place of accountability.411 Concerns have also been raised as to the resources prosecutions would require. As one commentator has observed:412 Despite some improvements and exceptions to the rule, the justice system remains severely challenged by a lack of trained personnel, financial resources, legal materials, and by corruption. It can barely handle the current common crime caseload. A special tribunal would require large amounts of financial and legal resources, and raise many politically explosive problems, including what the scope and number of prosecutions should be, and what the basis for prosecution should be – notwithstanding what the TRC has recommended.

Moreover, there does not appear to be much interest on the part of the inter­national community in supporting the establishment of an extraordinary tri­ bunal, with implementation of the TRC’s recommendations left largely to the Liberian government. The availability of the death penalty may preclude the United Nations and certain states from participating or assisting the proposed tribunal.

  TRC Report, n 386, ch 21.1.   Allen, Weah and Goodfriend, n 383.   The peace agreement did not include an amnesty provision, leaving this issue to be addressed in the future. However, the parties to the negotiations considered that by agreeing to a truth and recon­ ciliation commission, the parties had agreed not to conduct prosecutions: see P Hayber, Negotiating Peace in Liberia: Preserving the Possibility for Justice, International Center of Transitional Justice (November 2007). 412   N Cook, ‘Issue Brief Forum: Recent Developments in Liberia’ (Speech delivered at the Issue Brief Forum, Washington, 20 January 2011) http://africasummit.org/program/issue-forum-series/recentdevelopments-in-liberia-address-to-the-africa-society/#Nicolas. 409 410 411

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Exclusions and Future Proposals

G.  Special Tribunal for the Trial of Hissène Habré Hissène Habré is the former president of Chad, alleged to have committed crimes against humanity, war crimes and torture from 1982 to 1990.413 He fled to Senegal following his overthrow in 1990, where he has remained in exile. A truth and rec­ onciliation commission held in Chad concluded that over 40,000 people were summarily executed or died in detention during the regime.414 Chad initiated criminal proceedings against Habré in absentia and he was convicted in 2008 of torture and killing of political opponents and sentenced to death.415 However, as Habré remains in Senegal, the judgment cannot be enforced. Proceedings against Hissène Habré commenced in Senegal before national courts in February 2000, concerning torture and crimes against humanity. However, these proceedings were dismissed by the Dakar Appeals Court as, first, Senegalese law did not incorporate international law rules concerning crimes against humanity and, second, national law did not include jurisdiction in respect of torture committed by non-nationals outside of Senegal.416 This decision was subsequently confirmed by the Senegalese Court of Cassation.417 In September 2005, a Belgian investigating judge issued an international arrest warrant in absentia against Habré in respect of crimes against humanity, torture, war crimes and other violations, together with a request to Senegal for extradition.418 The Belgian proceedings relied upon the pas­ sive personality principle, as the complainants were nationals of Belgium, with Chadian origins.419 While Senegalese authorities placed Habré under house arrest following the request for extradition, the Dakar Court of Appeal refused to order extradition, on the basis that Habré, as a former Head of State, enjoyed immunity for acts committed in the exercise of his official functions.420   See Human Rights Watch, Chad: The Victims of Hissène Habré Still Awaiting Justice (July 2005).   Ministry of Justice Commission of Inquiry on the Crimes committed by the Regime of Hissène Habré: Chad: Report of the Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habré, His Accomplices and/or Accessories: Investigation of Crimes against the Physical and Mental Integrity of Persons and their Possessions (7 May 1992). 415   The judgment was unreported. See: ‘Chad Sentences Former President to Death’ New York Times (15 August 2008) www.nytimes.com/2008/08/15/world/africa/15iht-chad.5.15339685.html. The judg­ ment has been criticised for being politicised and not conforming to international standards, in par­ ticular as the defendants tried in absentia were not notified of the proceedings. 416   Ministere Public et François Diouf Contre Hissène Habré (Accusation) Arrêt n’ 135, Chambre d’accusation de la Cour d’appel de Dakar (4 July 2000). For discussion of the early phases of these proceedings see R Brody, ‘The Prosecution of Hissène Habré – An “African Pinochet” ’ (2001) 35 New England Law Review 231. Brody suggestes that the decision to dismiss the indictment was influenced by political factors. See also F Kirgis, ‘The Indictment of a Former Head of State in Senegal’ ASIL Insights (Feb 2000). 417   Souleymane Guengueng et Autres Contre Hissène Habré (Pénal) Arrêt n’ 14 du 20-3-2001, Cour de Cassation, Première Chambre Statuant en Matière Pénale (20 March 2001). 418   Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Application) General List No 144 (16 February 2009) para 6. 419   ibid, para 4. It appears that other complainants were not Belgian nationals, so universal jurisdic­ tion may provide an alternative basis for jurisdiction. 420   Avis Sur La Demande d’Extradition de Hissène Habré, Cour d’Appel de Dakar (25 November 2005). Belgium, in its application to the ICJ, asserts that Chad had indicated it had waived any immu­ 413 414



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Senegal referred the case to the African Union, which established a panel of eminent African jurists to consider the issue.421 The jurists recommended the adoption of an ‘African option’, with Habré to be tried by an African Union Member State, preferably Senegal or Chad.422 Another option was the creation of an ad hoc tribunal, comprised of ‘five judges from the highest courts in their respective countries’423 and established by the Assembly of the African Union.424 The Assembly mandated Senegal ‘to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial’.425 Senegal set about amending its penal code and criminal procedure law to include provisions on genocide, crimes against humanity and war crimes,426 and to introduce universal jurisdiction for international crimes in certain circum­ stances.427 It was expected that these provisions, as well as existing laws criminalis­ ing torture, would form the basis of any trial of Habré. Lawyers on behalf of Habré challenged the amendments to the Senegalese leg­ islation before the Court of Justice of the Economic Community of West African States (ECOWAS Court) as particularly targeting Habré and for violating the nullum crimen sine lege principle.428 In a decision that has been rightly criticised,429 the ECOWAS Court held that Senegal could not try Habré, as the legislative amend­ ments were ex post facto laws, and hence any trial would violate the principle of non-retroactivity.430 However, more interesting for this study, the ECOWAS nity that Habré may have enjoyed as a former Head of State: see Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Application) para 5. 421   African Union, ‘Decision on the Hissène Habré Case and the African Union’ (24 January 2006) AU Doc Assembly/AU/Dec. 103 (VI). 422   African Union, ‘Report of the Committee of Eminent African Jurists on the Case of Hissène Habré’ (May 2006) (Report of the Committee) paras 27–29. 423   Report of the Committee, n 422, para 24. 424   Report of the Committee, n 422, para 23. The power of the Assembly to establish an ad hoc tribunal was based on arts 3(h), 4(h) and (o), 9(1)(d) and art 5(1)(d) of the Constitutive Act of the African Union. Other options considered were the exercise of jurisdiction by any African State party to the Torture Convention, and the African Court on Human and Peoples Rights and the Court of Justice of the African Union. However, neither of these regional bodies had jurisdiction for criminal matters at that time. 425   African Union, ‘Decision on the Hissène Habré Case and the African Union’ (2 August 2006) AU Doc Assembly/AU/Dec.127 (VII). 426   The amendments also introduced provisions to enable cooperation with the ICC. 427   Art 669 of the Penal Code, as amended, enables Senegalese courts to exercise jurisdiction in respect of non-nationals for acts committed outside Senegal for international crimes where (1) the accused is a resident of Senegal; (2) the accused is under the jurisdiction of Senegal, which seems to suggest something less than residence but perhaps more than just presence within Senegal; and (3) where Senegal has secured extradition of the accused. For further discussion see: M Niang, ‘The Senegalese Legal Framework for the Prosecution of International Crimes’ (2009) 7 Journal of International Criminal Justice 1047, 1056–58. 428   The ECOWAS Court may settle disputes between ECIWAS Member States on specified issues, including alleged violations of human rights committed by any member state. 429   Hissène Habré cl Republique du Senegal, Arrêt No ECW/CCJ/JUD/06/10, La Cour de Justice de la Communaute Economique des Etats de l’Afrique de l’Ouest (18 November 2010). This discussion is based on an unofficial translation of the original French judgment. 430   For a considered critique of the decision, see V Spiga, ‘Non-Retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga’ (2011) 9 Journal of International Criminal Justice 5 and J Hessbruegge, ‘ECOWAS Court Judgment in Habré v Senegal Complicates Prosecution in Horn of Africa’, ASIL Insights (3 February 2010).

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Court suggested that the only way the trial could proceed was to set up an ad hoc tribunal ‘in accordance with the international custom that has emerged in similar situations’.431 An ad hoc court, it was suggested, operating based on general prin­ ciples of law, would not violate the principle of non-retroactivity.432 The conclu­ sion of the ECOWAS Court on this issue is interesting, although erroneous.433 It raises the issue as to whether the legal basis or nature of a tribunal may affect the exercise of jurisdiction in respect of certain international crimes that had not been incorporated into domestic law. This issue is considered in chapter six. Analysis here will be limited to the proposals for the internationalised tribunal. It is unclear what the ECOWAS Court had in mind when it suggested an ‘ad hoc tribunal’, the nature and composition of the proposed tribunal or the method of its establishment, leaving this to Senegal to determine, presumably in consulta­ tion with the African Union. The ECOWAS Court may have been referring to the very skeletal proposals of the group of eminent African jurists discussed above, or had in mind an entirely different model. In the absence of any prospective involve­ ment of the Security Council, it is reasonable to assume that the Court was refer­ ring to an internationalised tribunal to be established within the national system of Senegal, most likely with international participation. It is also feasible that the African Union, rather than the United Nations, would be the main partner in any tribunal established. Regardless of what was being proposed, it is striking that the ECOWAS Court did not elaborate on the proposed arrangements for the Court, or its legal basis. More importantly for present purposes, the decision also lacks clarity as to the existence, scope and content of any proposed customary inter­ national law rule as to the establishment of international and internationalised courts. Following the judgment of the ECOWAS Court, the Assembly of the African Union requested the African Commission to consult with the Government of Senegal ‘to finalise the modalities for the expeditious trial of Hissène Habré through a special tribunal with an international character’.434 While the modali­ ties for the tribunal are still to be finalised,435 it appears the proposal is for a special chamber(s) to be established within the Senegalese court system, with a mix of national judges and international judges drawn from African Union member states. The President of the tribunal would be appointed by the African Union. The tribunal would have jurisdiction to prosecute those person(s) who bear the greatest responsibility for crimes against humanity, war crimes and torture com­ mitted in Chad from June 1982 to December 1990. The specialised chambers will reportedly be integrated within the Senegalese judicial system, and would have the assistance of the African Union and ECOWAS. A donors’ conference in   Hissène Habré cl Republique du Senegal, para 58.   Hissène Habré cl Republique du Senegal, para 58. 433   See Spiga, n 430. 434   African Union ‘Decision on the Hissène Habré Case’ (31 January 2011) AU Doc Assembly/AU/9 (XVI) para 9. 435   The modalities for the court and an agreement between the AU and Senegal were to be negoti­ ated at a further meeting in April 2011. 431 432

Conclusion 185 November 2010 committed sufficient financial support for the establishment of the Court, removing concerns that the trial could not be financed. In April 2011, Senegal, which had been unenthusiastic concerning its role in trying Habré following the judgment of the ECOWAS Court,436 agreed to comply with the judgment and to cooperate with the African Union to establish the tribunal.437 However, the unexpected withdrawal of the Senegalese delegation from negotia­ tions on the creation of the tribunal in late May 2011 leaves its establishment very uncertain.438 Instead, it appears that in the face of continued Senegalese reluctance to initiate proceedings, the preferred option may now have become extradition to Belgium (with the approval of Chad), despite the desire to promote ‘African’ justice.439

IV. Conclusion This chapter has examined both institutions not considered to fall within the category of hybrid or internationalised tribunals, as well as future proposals for mixed tribunals. This study will be used to supplement the examination in chap­ ter two of the existing institutions considered to be hybrid and internationalised tribunals so as to provide a comprehensive assessment of this category of tribunal. In relation to the proposals for the establishment of future hybrid and inter­ nationalised tribunals, all arise from situations affecting African states. This reinforces the perception of international criminal justice as focusing only on African states. In three of these situations, the ICC is exercising jurisdiction. These are therefore the first occasions in which we have to consider directly the implica­ tions of concurrent jurisdiction between the ICC and hybrid and international­ ised tribunals. In these situations, the proposal for the hybrid or internationalised tribunal has formed part of the dialogue concerning the appropriate role for the ICC. While the implications of this section will be considered further in subse­ quent chapters, one interesting point to note is that there is an apparent shift from a preference for ‘international’ bodies to internationalised institutions, which is consistent with the trend identified in chapter one. Moreover, even where the involvement of the affected state in accountability mechanisms is sought, there is a clear preference for an internationalised mechanism, based in domestic law and operating with varying degrees of international participation and assistance, 436   President Wade had threatened to expel Habré without trial, or to ‘return’ the case to the African Union. 437   C Tansey, Bringing Hissène Habré to Justice: Senegal to Create a Special Tribunal in Compliance with ECOWAS Court Judgment, Human Rights Brief (25 April 2011). 438   Human Rights Watch, Senegal: Habré Trial an ‘Illusion’ (9 June 2011). 439   ‘Chad Says Favour Habré Extradition to Belgium’, Reuters (22 July 2011). Senegal’s initial pro­ posal for extradition to Chad were criticised on the basis he would most likely face torture in Chad, and were subsequently withdrawn: ‘Senegal suspends Hissene Habre’s extradition to Chad’ BBC News (10 July 2011).

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Exclusions and Future Proposals

rather than the more ‘international’ hybrid models seen in chapter two. This study now turns, in the following chapter, to examine a number of issues raised by the practice: first, what factors are driving the development of hybrid and internationalised tribunals; and, second, is there a definition of a hybrid and internationalised tribunal.

4 Hybrid and Internationalised Tribunals: In Search of a Definition I. Introduction The previous chapters have detailed the existing practice concerning the estab­ lishment of hybrid and internationalised tribunals. This chapter turns to two questions: first, what factors are driving the demand for these institutions; and second, is there a definition of an internationalised or hybrid tribunal or at least a number of distinguishing features that render this category distinct from other tribunals and mechanisms? In chapter two, several reasons were advanced justifying the development of hybrid and internationalised tribunals as a mechanism for international criminal justice.1 First, there has been a shift from a preference for trials before inter­ national criminal courts in all circumstances to an increased awareness of the import­ance of national trials and the need to better balance state sovereignty with accountability.2 This shift is also reflected in the principle of complementarity and the emerging principle of subsidiarity, whereby it is recognised that states should bear the primary responsibility for trials for international crimes.3 The role of the international community, in particular the United Nations, is increasingly to pro­ vide assistance to facilitate domestic trials in accordance with international stand­ ards, rather than establishing further international mechanisms. Second, there is a need to address ‘impunity gaps’ resulting from the limited jurisdiction and resources of international mechanisms, in particular the International Criminal Court (ICC).4 Third, there is an increased recognition that building capacity within the legal system of the affected state is also an important aim of inter­ national criminal justice, and will contribute to developing and sustaining the rule of law within the affected state.5 Finally, it was hoped that a mixed mechan­ ism would draw on the strengths of both the international and the domestic mod­ els, while hopefully avoiding the disadvantages of both.6 The first section of this   See ch 2, section I.   See ch 2, section I. 3   See ch 1, section II(D) and ch 1, section III(C)(iii). 4   See ch 1, section IV. 5   See ch 2, section I. 6   See ch 2, section I. 1 2

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chapter assesses the existing practice to determine the extent to which such factors have driven, and continue to drive, demand for hybrid and internationalised tri­ bunals, as well as whether further factors have emerged. This enables a review as to whether the justifications for reliance on hybrid and internationalised tribunals have changed as practice has developed, as well as providing guidance as to the circumstances in which such tribunals may be established in future. The chapter then turns to address the second question, whether there is a definition of hybrid and internationalised tribunals. While there is extensive literature on the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the ICC,7 there has been comparatively little attention directed at hybrid and internation­ alised tribunals.8 Most commentators and policy-makers tend to refer to ‘hybrid and inter­nationalised tribunals’ as a generic category. It has been observed that ‘the general “species” of internationalized tribunals is highly heterogeneous; the circumstances of their creation are extremely different; their degree of “inter­ nationalisation” is far from uniform; the scope of their jurisdiction is varied; their modes of functioning are hardly comparable’.9 This degree of ‘ad-hocism’ makes it difficult to identify any conclusive definition for hybrid and internationalised tribunals, and there is certainly no uniformly agreed definition. Most commen­ taries have adopted a general description of this type of tribunal by reference to the existing examples tribunals, and then proceeded to concentrate on a specific tribunal or a particular issue.10 There has been little substantive academic engage­ ment as to whether or not there is a definition of a hybrid and internationalised tribunal, or indeed whether they are in fact a single category.11 Any attempt at 7   On the International Criminal Court, see, eg: W Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010); C Stahn and G Sluiter, The Emerging Practice of the International Criminal Court (Leiden, Martinus Nijhoff, 2008); R Lee, The International Criminal Court: The Making of the Rome Statute (The Hague, Kluwer International, 1999). On the ICTY and the ICTR, see: W Schabas, The UN International Criminal Tribunals: the former Yugoslavia, Rwanda and Sierra Leone (Cambridge, Cambridge University Press, 2006); and G Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford, Oxford University Press, 2006). 8   The main studies in English on the topic of hybrid and internationalised tribunals are: C Romano, A Nollkaemper, and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004); K Ambos and M Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg, Max Planck Institute, 2003). For a French text, see: A Martineau, Les jurisdictions pénales internationalisées: un nouveau modèle de justice hybrid? (Paris, Pedone, 2007). 9   A Pellet, ‘Internationalized Courts: Better Than Nothing . . . ’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 437. 10   eg, H Bertleman noted that the ECCC is one of a number of second generation ‘hybrid’ tribunals, and then proceeds to examine the issue of judicial independence: H Bertleman, ‘International Standards and National Ownership? Judicial Independence in Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia’ (2010) 79 Nordic Journal of International Law 341. 11   The main exceptions to this approach are S Nouwen, ‘Hybrid Courts: The Hybrid Category of a New Type of International Crimes Courts’ (2006) 2 Utrecht Law Review 190; L Condorelli and T Boutruche, ‘Internationalized Criminal Courts: Are they necessary?’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 428; and C Damgaard, Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues (Berlin, Springer, 2008).



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characterising a tribunal as falling within this category is generally done by distin­ guishing existing examples of these courts from international or national models, or by focusing on the features that the existing institutions have in common. This approach is evident in the judgments of the tribunals themselves.12 However, this ignores the often significant differences between such institutions, in particular the varying legal bases. Moreover, it does not suggest what may be an essential feature of an institution falling within the category of hybrid and internation­ alised tribunals. Various commentators have suggested that certain ‘core elements’ of hybrid and internationalised tribunals exist.13 This chapter examines the existing practice to assess whether there is a definition or at least definitive features that would enable classification of a particular institution as a hybrid or internationalised tri­ bunal. Both the existing tribunals studied, as well as the excluded and proposed tribunals, are assessed against the following factors: criminal judicial function; duration; participation of international personnel; location; involvement of the international community, in particular the United Nations; funding mechanism; legal basis, personality and powers; and jurisdiction, including the temporal, ter­ ritorial, personal and material jurisdiction of the tribunal. The search for a defini­ tion is not merely an academic exercise. As Nouwen notes, the ‘search for defining elements becomes all the more pertinent with new courts emerging that partly share characteristics but are themselves again slightly different’.14 The clear need for further clarification is highlighted by the study of the emerging practice con­ cerning proposed tribunals in chapter three, which shows a range of different mechanisms that are being labelled ‘hybrid and internationalised tribunals’.

II.  What is Driving the Demand for Hybrid and Internationalised Tribunals? Before discussing what the study of practice reveals about the factors driving pro­ posals for the establishment of such models, there are two general points to high­ light. First, the study demonstrates the selective nature of international criminal 12   eg, the Appeals Chamber of the SCSL in the Taylor Immunities Decision compared the SCSL with the existing international criminal tribunals, namely the ICC, the ICTY and the ICTR, and used the shared characteristics as the basis for its conclusion that it was an ‘international criminal tribunal’ for the purpose of determing the application of any immunity to be extended to Taylor: Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004) (Taylor Immunity Decision). For further discussion, see ch 6, section III(D)(i). 13   Nouwen, eg, examined practice against several core features and concluded that the only com­ monality is the presence of panels of international and national judges: see Nouwen, n 11. Condorelli and Boutrouche assert three features: ‘the exercise of a judicial function, the fact that they are charac­ terized by a truly international element combined with internal elements, and their ad hoc nature’: see Condorelli and Boutrouche, n 11. 14   Nouwen, n 11, 193.

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justice.15 The existing hybrid and internationalised tribunals and the situations for which further such tribunals have been proposed are by no means the only situa­ tions in which international crimes have been committed. Even when combined with the situations and cases in respect of which the ICTY, the ICTR and the ICC have exercised jurisdiction, as well as trials at the national level (both in affected states and by third states exercising universal jurisdiction), the ‘coverage’ of inter­ national crimes is by no means comprehensive. There are other situations requir­ ing international assistance and equally deserving of support that have not been the focus of international efforts to secure accountability. For example, despite the significant presence of the international community in Afghanistan, there has been little progress in securing accountability in relation to violations committed during three decades of conflict. The Bonn Peace Accord ‘did not address the issue of transitional justice and no mechanism was established to deal with abuses of the past’.16 While the Afghan Independent Human Rights Commission reported that during that period, millions had been killed or disabled, thousands jailed and tortured, several million displaced and countless raped,17 the United Nations and other actors operating in Afghanistan have not supported an inter­ national or internationalised mechanism.18 Instead, questions concerning accountability have been deferred in favour of maintaining peace and security, and many of those viewed as essential to the implementation of the peace agree­ ment have been implicated in serious violations.19 This must be contrasted with the approach adopted in Iraq, in particular the rapid establishment of the Iraqi High Tribunal.20 Therefore, reliance on the model of hybrid and internationalised tribunals in a limited number of situations has not closed – and will not close – the accountability ‘gap’ completely. As Mendez notes, hybrid and international­ ised tribunals are a potential mechanism only, and will not fill all accountability ‘gaps’ or be appropriate in all situations.21 Such institutions will only be consid­ ered where there is sufficient political will for their establishment, both at the national and the international level.22 15   R Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge, Cambridge University Press, 2005), in particular the discussion at 210–11. 16  A Nader Nadery, ‘Peace or Justice? Transitional Justice in Afghanistan’ (2007) 1 International Journal of Transitional Justice 173, 174. 17   See P Gossman, Transitional Justice and DDR: The Case of Afghanistan, International Center for Transitional Justice (June 2009) 3. 18  For suggestions that an internationalised mechanism should be established, see: A Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 10–11; and L Dickinson, ‘Transitional Justice in Afghanistan: The Promise of Hybrid Tribunals’ (2002–03) 31 Denver Journal of International Law and Policy 23. 19   Nader Nadery, n 16, 448. 20   See ch 2, section VII. 21  P Mendez, ‘The New Wave of Hybrid Tribunals: A Sophisticated Approach to Enforcing International Humanitarian Law or an Idealistic Solution with Empty Promises’ (2009) 20 Criminal Law Forum 53. 22   A Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ n 18, 10–11.



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A second general point is that the development of the hybrid and internation­ alised tribunal as a mechanism for international criminal justice has not been sys­ tematic. Dickinson commented that ‘such courts have been conceived in an ad hoc way, the product of on the ground innovation rather than grand institutional design’.23 This haphazard approach is reflected in the design and key features of the tribunals. It is clear that there is not one prescribed model or design, with each institution quite different from the other. Moreover, the existing models by no means exclude or limit other innovations in this area in response to new situa­ tions, and the range of possible options may be limited potentially only by the creativity of those involved in their establishment and design. The following discussion of factors driving the continued demand for hybrid and internationalised tribunals examines two main issues: the circumstances leading to the establishment of the hybrid and internationalised existing tribunals (and proposed tribunals); and the significance of whether other mechanisms were available.

A.  Circumstances Leading to Establishment Given the ad hoc nature of their development, it is perhaps too simplistic to say that the existing tribunals were established in difficult and very different circum­ stances. The International Judges and Prosecutors Programme (IJPP) and the Special Panels for Serious Crimes (SPSC) in East Timor were developed in the midst of an international territorial administration, shortly after the end of an armed conflict.24 In each situation, the United Nations mission was authorised by the Security Council and exercised complete legislative and executive control of the territory. Both missions also faced a decision as to whether to provide account­ ability for the actions of a previous repressive regime, to concentrate on violations of international humanitarian law and human rights law committed during the armed conflict, or whether to expend resources on re-establishing a failed judici­ ary so as to enable accountability for future, ‘ordinary’ crimes committed during the period of administration and beyond. There was no real process of consulta­ tion or negotiation with local actors in either territory; instead the decisions reached and the priorities decided by the United Nations missions were imposed on the territory. The Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon represent a more balanced, negotiated process.25 All three were established in response to a request from the affected state for assistance in providing accountability for 23   L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295, 296. 24   See ch 2, sections IV and V. 25   See ch 2, sections II, III and VIII.

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crimes alleged to have been committed, yet the situation leading to the request was different in each case. Sierra Leone had suffered a violent armed conflict since 1991, a conflict that was ongoing during the negotiation process and which had rendered Sierra Leone one of the poorest states in the world, with a virtually nonexistent judicial system. Cambodia sought assistance to provide accountability in relation to the violations of human rights law – and possibly international human­ itarian law – committed by a former repressive regime some 20 years prior to the request. However, supporters of the Khmer Rouge were still active, with former members holding senior posts in the then current government, and an insurgency led by the Khmer Rouge came to an end only during the negotiation process. Cambodia’s courts were functioning, yet were subject to allegations of corrup­ tion, partiality and political interference with the judicial process. Lebanon required assistance, at least initially, in response to a single act of violence, the assassination of former Prime Minister Hariri. Yet the politically-motivated vio­ lence in Lebanon was ongoing and, as negotiations for a tribunal continued, assist­ance was also requested for the investigation and trial of those believed to be responsible for further attacks. The Lebanese judicial system was operational, yet there were concerns that it lacked the independence to conduct trials of this nature, which would likely be subject to pressure from key actors in Lebanon and the region. There were significant security risks to national officials and a tense political and security situation, with wider implications for the stability of Lebanon and the region. The Security Council had previously established a clear link between acts of terrorism and security in Lebanon and international peace and security. Despite the affected state exercising the initiative in requesting international assistance, the negotiations revealed varying degrees of willingness on the part of the affected state to cede jurisdiction to the institution to be established. Both the SCSL and the Special Tribunal for Lebanon (STL) were a joint negotiation process, leading to a large degree of United Nations involvement in the design and eventual operation of each tribunal. The establishment of the tribunal had the support of the Security Council in both cases. This support extended, in the case of Lebanon, to establishing the STL by a binding resolution pursuant to its powers under Chapter VII of the Charter when domestic political factors in Lebanon precluded the ratification of the STL Agreement. In contrast, the Cambodian government was less willing to cede sovereignty to the United Nations and refused to allow the United Nations greater control of the ECCC. Negotiations were protracted, and often tense, with the United Nations with­ drawing at one stage. The process was conducted without the support of the Security Council, although certain permanent members, in particular the United States, were involved at various stages. Although the General Assembly supported the negotiation process – and requested the Secretary-General to resume talks with Cambodia – it did not present to Cambodia the same political and legal threat as a possible Chapter VII resolution imposing a tribunal would have done.



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The Iraqi High Tribunal (IHT) was established following a controversial inter­ national armed conflict and occupation of Iraq by coalition forces.26 Decisionmakers also faced the issue of whether a future tribunal should address the violations of the previous regime, which stretched over a 30-year period, or con­ centrate on current, security-related crimes during the occupation which the national courts may not be equipped to process. The judicial profession in Iraq had been targeted by the previous regime and those judges that did remain were tainted by association. Although the IHT was designed in the context of an occu­ pation, with considerable input and support from the occupying powers, there appears to have been some consultation with relevant national actors in its design, in particular the retention of the death penalty as a sentencing option. The avail­ ability of the death penalty and the circumstances in which the occupation of Iraq came about limited the involvement of the United Nations and certain states with the IHT. This factor, along with the resistance of the United States at the time to international criminal justice mechanisms, may explain why there are fewer inter­ national elements in the IHT Statute. The impetus for the creation of the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC) was the completion strategy of the ICTY and the need for that tribunal to transfer cases to national jurisdictions.27 The cases that were to be referred had arisen during a violent armed conflict, with both inter­ national and internal elements, some 10 years before the creation of the WCC. There were, however, significant concerns that the national jurisdictions required assistance to conduct trials referred from the ICTY, in terms of their capacity to handle complex and sensitive cases, the risk of partiality and the need to guarantee trials in accordance with international minimum standards. Designing and estab­ lishing the WCC was a negotiated process between the ICTY, the Office of the High Representative for Bosnia and Herzegovina (OHR) and, to a more limited extent, national actors. The process was supported, but not directed, by the Security Council as an essential component of the completion strategy of the ICTY. This variation in the context of the existing tribunals is also reflected in the proposals for future tribunals. Similar to Sierra Leone, Burundi requested inter­ national assistance from the United Nations to support an international criminal tribunal to address serious violations during over three decades of civil war and violence.28 The tribunal, if adopted, will have been the result of negotiations between the United Nations and the government, in consultation with civil soci­ ety both within and outside Burundi. The current proposals for an Extraordinary Criminal Court for Liberia and the Specialised Chamber for the Democratic Republic of Congo arose from the recommendations set out in the independent reports of a truth and reconciliation commission and a United Nations Human Rights Council mapping mission, respectively.29 Both states have experienced   See ch 2, section VII(B) and (C).   See ch 2, section VI(A) and (B). 28   See ch 3, section III(A). 29   See ch 3, section III(C) and III(F). 26 27

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lengthy periods of armed conflict and violence, and have weak judicial systems. However, in contrast to the Special Tribunal for Burundi, whatever may result from these proposals will be an institution whose creation and design is driven by and acceptable to the respective governments. The government will be res­ponsible for drafting the legislation required to establish these tribunals, although at least in the Democratic Republic of Congo (DRC), this will be in consultation with affected communities, civil society groups and international non-­governmental organisations. It also remains unclear what the role, if any, the United Nations will have in the design and operation of these proposed tribunals. The proposals for the Special Tribunal for Kenya also arose from the findings of a national commission, mandated by an African Union-established panel to investigate election-related violence in Kenya.30 The suggested legislation was the response of the Kenyan government to that report and for calls from within Kenya and inter­ nationally to ensure accountability for those instigating and perpetrating the violence. However, the relatively short time period within which the violence occurred, and the trigger for the violence (ie a disputed election), distinguishes the situation in Kenya from others considered here. The proposed tribunals for Darfur and to try Hissène Habré arise from situa­ tions of armed conflict and serious violations of human rights law. In relation to Darfur, that situation is ongoing, and has attracted the attention of the Security Council leading to a referral to the ICC.31 The proposal by the African Union for a special chamber for Darfur is an attempt to reassert ‘African’ justice for inter­ national crimes, so as to both preserve the sovereignty of a member state, Sudan, but also to ensure accountability for international crimes. In contrast, the crimes of which Habré stands accused occurred several years ago.32 The African Union proposal for the special tribunal to try Habré was also directed at trying to ensure an African trial, although not before the courts of the territorial state (Chad), as opposed to a trial of a former African leader before the courts of a European power (Belgium) on the basis of extraterritorial jurisdiction. The proposals for internationalised tribunals in these circumstances are thus linked to the concerns of the African Union and its Member States that international criminal justice, in particular the ICC33 and the exercise of universal jurisdiction by mainly European states,34 is directed mainly at African states.   See ch 3, section III(E).   See ch 3, section III(B). 32   See ch 3, section III(G). 33   This concern is evident in the reaction of the African Union to the arrest warrant issued in respect of President Bashir of Sudan, with the African Union calling for Member States not to cooperate with the court in surrendering President Bashir to the Court. The African Union has also called on the Security Council to defer the proceedings in respect of Darfur, Kenya and Libya under art 16 of the Rome Statute. See the most recent decision of the African Union: On the Implementation of the Assembly Decisions on the International Criminal Court – Doc. EX.CL/670(XIX), 17th African Union Summit (1 July 2011) AU Doc Assembly/AU/Dec.366(XVII). 34   For discussion of the African Union position regarding universal jurisiction, see ch 1, section II(D). 30 31



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The proposal for the extraterritorial piracy tribunal is distinctive in relation to the other tribunals and proposals discussed.35 However, although the issue of piracy seems to be remote from an armed conflict or situation characterised by serious human rights violations, the problem of piracy off the coast of Somalia arises mainly due to the failure of the Somali authorities to prevent and punish acts of piracy. This is a result of the collapse of the governmental authorities in Somalia following the protracted internal conflict within Somalia. Piracy has an international dimension, in that it affects the interests of the international com­ munity in the unimpeded transit of cargo, freedom of shipping and navigation, and has possible links to terrorism. The Security Council has recognised that piracy constitutes a threat to peace and security, at least in the region, and the process for the establishment of a tribunal will likely be driven by the Council. Despite the differences in the context to these tribunals, there are a number of similarities that can be traced in the circumstances in which such tribunals have been established. First, all established and proposed tribunals have resulted from either a situation of armed conflict, generally internal in nature, although perhaps with external elements, or a situation in which significant human rights violations have been committed within a state. In several situations, the armed conflict or human rights violations were ongoing. Second, that situation has resulted either in a complete collapse of the state and the need for international intervention, a weakening of the judicial system or uncertainty concerning the proper function­ ing of governmental authorities (including the courts) within the state. Third, the acts that have been committed are of concern to the international community, such as genocide, crimes against humanity, war crimes, terrorism and piracy. Fourth, in all cases there have been concerns regarding the ability of the national legal system to conduct the investigation and prosecution of crimes committed during and as a result of that situation. Such concerns include: the lack of resources required to conduct complex trials, including physical and financial resources and qualified personnel; inadequately qualified or experienced lawyers and judges; the risk that the legal system is subject to perceived or actual bias; the likelihood of political interference with the investigatory and judicial process; legal barriers, such as inadequate substantive and procedural law at the national level, or barriers to prosecution such as amnesty provisions, immunity or statutes of limitation; and security concerns. Fifth, in all cases the relative strength of the bargaining position of the parties, in particular the affected state, has impacted upon the extent to which the sovereignty of that state has been preserved and it has been able to retain control over the design and operation of the tribunal. Finally, although the crimes have predominantly been committed within the ter­ ritory of one state, many of the situations have an international dimension. This may mean, for example, that some likely accused, victims and evidence may be located outside the territory of the affected state and that cooperation from other states may be required.   See ch 3, section III(D).

35

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In Search of a Definition

Thus we can already see several factors driving the development of this model: (1) a desire to preserve state sovereignty in the face of potential international intervention; (2) the need to ensure accountability for the commission of crimes of concern to the international community; (3) the need to assist the national system to conduct trials, by reforming legislation, bolstering capacity even on a temporary basis and/or to insulate the trials from political interference or allega­ tions of perceived or actual bias; (4) the need to avoid domestic ‘blocks’ such as amnesty provisions, immunity etc; and (5) the desire to ensure that trials meet international fair trial standards. Some situations also call for enhancing national capacity, either by training, resources or simply exposure to complex trials and a ‘rule of law’ culture. These factors assist in explaining in part why some of the institutions considered in section II of chapter three should not be considered as hybrid or internationalised tribunals. With the exception of the Serbian War Crimes Chamber (SWCC), it can be seen that these excluded institutions were not driven by all of these factors. In particular, although these institutions arose from situations in which crimes of concern to the international community had been committed, and for which there was a demand for accountability, the International Military Tribunal (IMT), the Tokyo Tribunal and the Lockerbie Court were not concerned in any sense with the development of capacity at the national level or with strengthening the national legal system.

B.  Existence of an International Criminal Tribunal with Jurisdiction Another relevant factor is the availability of the ICC or another international criminal tribunal with jurisdiction in respect of the crimes in question. The initial view that hybrid and internationalised tribunals should only be established when there was no international criminal tribunal available reflected the preference for international mechanisms discussed in chapter one.36 For example, Cassese notes that one of the circumstances required before an internationalised option should be considered is ‘the lack in the international community, or in the United Nations, of the political will to deal with this matter at the international level by setting up an international tribunal proper’.37 The early examples of hybrid and internationalised tribunals certainly addressed situations that fell outside the jurisdiction of the ICC, mainly as these tribunals exercised jurisdiction in respect of acts that had been committed before the commencement of the ICC’s temporal jurisdiction on 1 July 2002. For example, the relevant events in Cambodia, Sierra Leone, East Timor, Kosovo and Bosnia occurred before 1 July 2002.38 Moreover, despite suggestions to the contrary, the Security Council did not establish an   See ch 1, section III.   A Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’, n 18, suggesting that that this would also apply where there is no hope for finding the funding for an ‘expensive international criminal tribunal’. 38   Many of the acts within the jurisdiction of the IHT also occurred before the commencement of the ICC’s jurisdiction. 36 37



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international ad hoc tribunal in respect of East Timor, Cambodia or Iraq. This was one factor leading to the selection of a hybrid or internationalised model in these cases. However, the existence of an international tribunal with concurrent jurisdic­ tion will not necessarily preclude the creation of a hybrid or internationalised model. Both the IJPP and WCC operated alongside the ICTY in Kosovo and Bosnia. The need for national level initiatives reflected the fact that the ICTY could not cope with all cases arising in the region.39 Moreover, the creation of the ICTY, without the support of the Federal Republic of Yugoslavia, also raised legit­ imacy issues.40 Both the IJPP and the WCC were incorporated – eventually – as part of an accountability system,41 with the ICTY responsible for more senior offenders, and the internationalised tribunals responsible for the medium and low-level offenders. Other situations for which a hybrid or internationalised tribunal has been cre­ ated fell outside the jurisdiction of the ICC as the acts were not committed on the territory or by the nationals of a state party to the Rome Statute and there was no prospect of a Security Council referral to the Court (eg Iraq42) or because the alleged acts would not fall within the substantive jurisdiction of the ICC (eg Lebanon43). Similarly, the ICC would also be precluded from examining some of the situations leading to proposals for further tribunals. It would not be able to examine the situations in Burundi, Liberia and Chad (Habré) as the acts in ques­ tion were committed largely before 1 July 2002. Moreover, as the ICC cannot exercise jurisdiction in respect of acts of piracy, it could not consider acts of piracy off the coast of Somalia, either on the high seas or in the territorial waters of any state. However, some recent proposals do arise in connection with situations in respect of which the ICC may, at least potentially, exercise jurisdiction. This pro­ vides an opportunity to examine how the availability of the ICC as a possible mechanism for justice has impacted upon the demand for hybrid and inter­ nationalised tribunals and the likely relationship between these two mechanisms.44 The first situation in which the possibility of concurrent jurisdiction arose was in relation to the situation in Darfur. Here, the preference for international models, 39   L Dickinson, ‘The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo’ (2003) 37 New England Law Review 1059, 1066. 40   ibid, 1066. 41   W Burke-White, ‘The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina’ (2008) 46 Columbia Journal of Transnational Law 279. 42   Iraq is not a state party to the Rome Statute. The Prosecutor did conduct a preliminary examina­ tion regarding alleged crimes committed by United Kingdom forces in Iraq; the UK being a state party. However, while he found evidence that war crimes may have been committed, the acts alleged to have occurred were not of sufficient gravity to warrant investigation by the ICC: OTP, ‘OTP Response to Communications Received Concerning Iraq’ (9 February 2006). 43   The ICC may not exercise jurisdiction with respect to acts of terrorism, unless they constitute a crime against humanity or a war crime: art 5, Rome Statute. In any event, Lebanon is not a state party to the Rome Statute. 44   This is considered further in relation to the principle of complementarity in ch 6, section IX(B).

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In Search of a Definition

in particular the ICC, is clearly reflected in the approach of the Commission of Inquiry for Darfur, which strongly favoured referral to the ICC rather than any form of mixed mechanism.45 It was only the resistance of the United States to the ICC itself that led the United States to consider anything other than a purely international mechanism. Even then, the United States proposal had significant international dimensions, and seemed quite removed from the existing hybrid and internationalised models. Once its particular concerns were addressed, the United States withdrew its opposition to the ICC referral, and the international option was adopted. The preference for an international model for Sudan is per­ haps understandable, particularly at the time of the referral, as the Sudanese authorities had shown no willingness to undertake meaningful investigations into the alleged crimes. There was no political will at the national level to establish a mixed institution. Given the extent and nature of the acts being committed, and the involvement of governmental authorities in their commission, the Council was willing to set aside Sudanese sovereignty in favour of accountability. Here, the ICC and a hybrid were considered to be competing options, and the international model was preferred. The situation concerning the DRC is also an interesting context in which to consider the dynamic between the ICC and hybrid and internationalised tribu­ nals. The ICC may exercise jurisdiction in respect of the situation in the DRC, at least concerning acts committed in the DRC after 1 July 2002.46 Yet, in accordance with its mandate to try only the most serious crimes, it has focused its attention on a limited number of cases. This leaves a considerable number of individuals to be subjected to some other form of justice mechanism. This would include those individuals accused of committing crimes before 1 July 2002, as well as those indi­ viduals accused of crimes committed after this date, but who will not be subject to investigation by the ICC. Thus, unlike the proposals for Kenya and Darfur, the role of the proposed internationalised tribunal for the DRC is not to ‘strip’ the ICC of jurisdiction by constituting national proceedings that would render the ICC proceedings inadmissible through an application of the complementarity principle. In fact, the DRC government has already suggested that it considers the ICC to be the most appropriate forum for the conduct of these cases and has not taken any steps to challenge the admissibility of cases before the ICC.47 Instead, the proposed tribunal would supplement the ICC proceedings, by addressing the crimes that will not be considered by the ICC, in particular those crimes commit­ ted before 2002. As such, the proposed tribunal would be a complementary, rather than an alternative or competing, mechanism to the ICC. The prosecution 45   UNSC, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004’ (25 January 2005) UN Doc S/2005/60 (Report of the International Commission of Inquiry on Darfur). See also the discussion in ch 3, section III(B)(i). 46   See ch 3, section III(C). 47   See, eg, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) ICC-01/04-01/07 OA 8, A Ch (25 September 2009) para 68.



What is Driving Demand?

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of crimes committed in the DRC would therefore be an exercise in ‘burden-­ sharing’ between the ICC and the DRC.48 The more recent proposals for the Special Tribunal for Kenya and the Special Chamber for Darfur show a different relationship between the ICC and hybrid and internationalised mechanisms. In relation to Kenya, the ICC made clear its interest in the situation in Kenya from a very early stage.49 The possible establish­ ment of an internationalised mechanism was an important feature of the dialogue between the ICC Prosecutor and the Kenyan government as to whether the Prosecutor would exercise his proprio motu power to request the authorisation of an investigation. The inability of the Kenyan government to gain parliamentary support for the legislation to enable the establishment of the Special Tribunal for Kenya in effect resulted in the exercise of jurisdiction by the ICC. Had the tribunal been established, it appears likely that the Prosecutor would not have requested an investigation, assuming of course that domestic proceedings were initiated and conducted in good faith.50 Therefore, the attempt by the Kenyan government to establish the Special Tribunal for Kenya was directed at avoiding the exercise of jurisdiction by the ICC, and should be viewed as an effort to preserve Kenyan sovereignty in respect of accountability for violations committed during the postelection violence. In the view of the government, some internationalisation was to be preferred over forced ‘surrender’ to an international process. Kenya appears determined to resist the exercise of jurisdiction by the ICC, concentrating instead on legislative and judicial reform and capacity building at the domestic level. Unfortunately, abandonment of the proposal for the Special Tribunal for Kenya by the Kenyan government has denied us the prospect of a decision from the ICC as to whether an internationalised tribunal would satisfy the complementarity principle.51 The proposal from the African Union for an internationalised tribunal for Darfur following the issue of an arrest warrant in respect of President Bashir of Sudan demonstrates the potential role of such institutions in the exercise of juris­ diction by the ICC. The proposal is described as a national proceeding that would preclude the admissibility of cases under the complementarity principle.52 The proposal is also a factor that may influence the Security Council to consider favourably the possibility of requesting the ICC to defer proceedings under article 16 of the Rome Statute.53 Thus, the driving factor behind the proposal is to ‘block’ the exercise of jurisdiction by the ICC and to preserve Sudanese sovereignty, rather than to facilitate the development of capacity within Sudan. However, it is recognised that some element of international or at least African Union involve­ ment in the tribunal will be required, given the state of the Sudanese judicial system and the risk of political interference. It was the view of the African Union   See ch 1, section III(C)(iii).   See ch 3, section III(E).   See ch 6, section IX. 51   See ch 6, section IX. 52   See ch 1, section III(C)(iii). 53  ibid. 48 49 50

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panel that an internationalised model, which preserves Sudanese sovereignty but which may also enable prosecution in accordance with international standards, offers the best option for the African Union and Sudan. However, the establish­ ment of an internationalised tribunal for Sudan appears a remote possibility at present, given Sudan’s refusal to cooperate with ICC. Moreover, it is highly unlikely that any national or internationalised tribunal would exercise jurisdic­ tion in respect of President Bashir, which means that even if such a tribunal was established, it may not render the case against Bashir inadmissible before the ICC.

C.  The Applicable Legal Framework A further issue that can be identified from the study of practice is the extent to which the inadequacies of the legal framework at the domestic level is driving the demand for hybrid and internationalised tribunals. In respect of several of the tribunals examined, the conduct in question had not been criminalised as an international crime under domestic law, and may perhaps not have been crim­ inalised even as an ordinary crime. Establishing a hybrid or internationalised tribunal may therefore provide a mechanism for either enforcing international crimes by international law directly or to introduce international crimes into domestic law, either generally or for the purposes of the hybrid or international­ ised tribunal only. For example, the SCSL relied on the imposition of inter­national law directly, through the inclusion of international crimes in the SCSL Agreement and the SCSL Statute. In comparison, the ECCC Law, the IHT Statute and United Nations Transitional Administration in East Timor (UNTAET) Regulation 2000/15 adopted the second approach and introduced into domestic law various international crimes for the purpose of the ECCC, the IHT and the SPSC respec­ tively.54 For several states, introducing international crimes into domestic law was also connected to the need to implement obligations under the Rome Statute, and to include the crimes within the Rome Statute so as to be able to rely on the com­ plementarity principle. For example, Kenya linked the establishment of the Special Tribunal for Kenya to its implementation of its obligations under the Rome Statute and incorporation of the crimes under the Rome Statute into domestic law.55 As further states ratify the Rome Statute and are encouraged to criminalise the core crimes in article 5 of the Rome Statute, the impact of this incentive may be reduced. Other inadequacies with the domestic legal framework or barriers to jurisdiction at the domestic level may also lead to the adoption of a hybrid or internationalised tribunal. The operation of statutes of limitation, national laws extending amnesty to potential defendants and immunity applica­ ble under international law may also lead to a demand for greater internationali­ sation of the accountability process. For example, the potential application of the 54   For the consistency of this approach with the nullum crimen sine lege principle, in particular the prohibition against retroactive criminal law, see ch 6, section II. 55   See ch 3, section III(E).



Is There a Definition?

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amnesty contained in the Lomé Accord to any trials before courts in Sierra Leone was one of the factors leading to the selection of a hybrid tribunal as the appropri­ ate judicial mechanism.56

D. Conclusion This section has demonstrated that virtually all of the existing and proposed hybrid and internationalised tribunals have been established or suggested in the context of an armed conflict or situation in which serious human rights violations have occurred. The possible exception is the STL, which arose following an act of domestic terrorism, albeit one that had serious implications for stability in Lebanon and regional peace and security. In all situations, including the STL, it was considered that the courts of the affected state would be unable to prosecute perpetrators at all, or in accordance with international standards, without inter­ national support. The section also identified a number of factors driving the demand for hybrid and internationalised criminal tribunals. These include several of those factors identified in chapter two, namely: the need to balance state sover­ eignty with accountability for international crimes; the need to guarantee inde­ pendence and impartiality in a weak judicial system; the trend towards domestic prosecution, facilitated by international assistance; the desire to build capacity at within the domestic criminal justice system; and the presence of an inadequate legal framework or potential barriers to prosecution at the domestic level. Moreover, while initially the lack of a permanent international criminal court was one factor driving reliance on hybrid and internationalised tribunals, in many circumstances it is the existence of the ICC and the threat of the exercise of its jurisdiction that is now prompting states to develop hybrid and internationalised models. Reliance on such models may lead to the ICC Prosecutor deciding not to initiate an investigation, or a decision that cases are inadmissible before the ICC due to the application of the complementarity principle.57

III.  Is There a Definition of a Hybrid and Internationalised Tribunal? As outlined above, there is no generally accepted definition of a ‘hybrid and inter­ nationalised tribunal’. Instead, most studies tend to refer to this category of tribu­ nals without providing a definition, or alternatively suggest a definition based on the similarities between the existing models that have been established. This is also the usual approach adopted by the various tribunals whenever they have to   See ch 6, section IV(B)(ii).   For further discussion, see ch 6, section IX.

56 57

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In Search of a Definition

assess their nature. To address this weakness in the literature, this section seeks to provide a definition of the category of hybrid and internationalised tribunals. It does so by assessing the existing tribunals considered to be hybrid and inter­ nationalised tribunals against several possible defining criteria, namely: whether the institution performs a criminal judicial function; the duration of the tribunal; the participation of international personnel; the location of the tribunal; the involvement of the international community, in particular the United Nations; the funding mechanism for the tribunal; the legal basis, legal personality and powers of the tribunal; and the jurisdiction of the tribunal (temporal, territorial, personal and material). Unlike other studies, which concentrate on a limited number of the existing tribunals, this section will also assess more controversial inclusions, such as the IHT, as well as tribunals that are generally excluded from this category and proposals for future tribunals that have been labelled ‘hybrid or internationalised’.

A.  Criminal Judicial Function All tribunals established to date that are considered to be hybrid or international­ ised perform a criminal judicial function. Any administrative or civil function, such as resolving disputes between other courts or the payment of compensation, is incidental to the primarily criminal nature of proceedings. This distinguishes a hybrid or internationalised tribunal from other mechanisms created and operated with international participation that do not exercise a criminal judicial function, such as a truth and reconciliation commission, a property claims commission or a civil claims commission, as well as those institutions considered in chapter three that exercise investigative functions, for example the United Nations International Independent Investigation Commission, the International Commission Against Impunity in Guatemala and the Bhutto Commission.58 However, this criterion does not of itself distinguish such tribunals from other international or national institutions with a criminal judicial function, such as the ICC, the ad hoc tribu­ nals and domestic courts, including those operating on the basis of universal jurisdiction. It is thus a feature of a hybrid or internationalised criminal tribunal, but not a defining characteristic that renders a particular criminal tribunal hybrid or internationalised in nature.

B.  Duration of the Tribunal It has been suggested that to qualify as a mixed tribunal, a tribunal must have been created as an ad hoc or temporary response to a specific situation.59 This criterion is reflected in the current examples of hybrid and internationalised tri­   See ch 3, section II(D).   Condorelli and Boutroche, n 11, 429.

58 59



Is There a Definition?

203

bunals, as well as the proposals for further tribunals outlined in chapter three. The SCSL is working towards achieving its completion strategy with its final trial awaiting a first instance judgment.60 The STL and ECCC have a limited existence and will close once their specific mandate has been fulfilled.61 The SPSC com­ pleted operations in 2005, although there appears the possibility that the SPSC will be reactivated with funding and support from international donors.62 This arrangement, however, will operate on a separate legal basis to the SPSC as origi­ nally conceived, namely domestic law adopted by East Timor and supported by various agreements with international donors.63 Even those tribunals established within an existing national system are consid­ ered to be ‘special’ or transitional institutions, and are not intended to operate with international participation on a permanent basis. For example, the WCC has already transferred responsibility for the functions of the international registry to national authorities, and has reversed the composition of panels so that inter­ national judges are now in the majority, and will be phased out completely at the end of the extended transitional period.64 The international involvement in the IHT has decreased following the completion of its more high-profile cases.65 While the IJPP is still operational, albeit now under the mandate of the European Union Rule of Law Mission (EULEX), it is not intended that international par­ ticipation remain indefinitely. Once the cases transferred from the United Nations Interim Administration Mission in Kosovo (UNMIK) are finalised and as the national system stabilises, the expectation is that the participation of international judges will be phased out.66 The practice concerning proposed tribunals also sup­ ports this feature. All of the suggested tribunals are either ad hoc responses or institutions that will function with international involvement for a transitional period only. For example, the proposed Special Tribunal for Kenya would have been established for an initial duration of three years only.67 However, while it can be said that the temporary nature of such tribunals is a common feature of a hybrid or internationalised tribunal, it cannot be a defining feature, for all the duration of the tribunal allows is for us to distinguish these courts from perma­ nent international courts, namely the ICC, and ‘ordinary’ domestic courts. Other examples of institutions that are not considered to be hybrid or internationalised tribunals, such as the ad hoc tribunals and the Lockerbie Court, were also tem­ porary institutions created in response to a particular situation.

  See ch 2, section II(B).   See ch 2, section III(C) and section VIII(C). 62   See ch 2, section V(C). 63   See ch 2, section V(C). 64   See ch 2, section VI(C). 65   See ch 2, section VII(D). 66   See ch 2, section IV(C) and IV(D). 67   See ch 3, section III(E). 60 61

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In Search of a Definition

C.  Participation of International Personnel Perhaps the most clearly defining feature of a hybrid or internationalised tribunal is the mixed composition of the tribunals studied, particularly regarding the participation of international judges. The ICTY, the ICTR and the ICC engage international personnel. Judges of the ICTY and ICTR are elected by the General Assembly, from a list of nominations from Member States prepared by the Security Council.68 There is no requirement that a judge from Rwanda or the states of the former Yugoslavia be appointed to the court. Judges to the ICC are elected by the Assembly of State Parties and in their appointment states must take account of the need for representation of the principal legal systems of the world and equitable geographical representation.69 Unlike the position regarding con­ tentious cases before the International Court of Justice, there is no provision in the Rome Statute for the appointment of an ad hoc judge where the state in which a situation leading to the exercise of the Court’s jurisdiction has occurred is not represented on the Court.70 In contrast, domestic courts comprise national per­ sonnel, appointed in accordance with national legal provisions and procedures. All tribunals currently regarded as hybrid or internationalised allow for the par­ ticipation of international judges sitting alongside national judges. The presence of national judges clearly distinguishes such tribunals from the ad hoc tribunals, the International Military Tribunal and the Tokyo Tribunal, and the ICC. The presence of international judges differentiates hybrid and internationalised tribu­ nals from national courts in the affected state, the courts of third states exercising universal jurisdiction and institutions such as the Lockerbie Court and the Serbia War Crimes Chamber. The practice raises two questions concerning the involvement of international judges: first, must such participation be mandatory; and, second, must inter­ national judges form the majority on each trial and appellate panel? In relation to the first question, five of the existing tribunals detailed require the participation of international judges on each panel: the STL; SCSL; SPSC; ECCC; and the WCC (at least for the transitional period). The proposals for the Special Tribunal for Burundi, the Special Tribunal for Kenya, the Extraordinary Criminal Court for Liberia, the special chamber for Darfur, and the special tribunal to try Hissène Habré all require the participation of international judges. In contrast, in Kosovo, the appointment of international judges to a panel is optional, and is only required where a party has requested it or where the Department of Justice (now EULEX) requires it. Similarly, in the original version of the IHT Statute, the participation of judges was possible, but not required, and the ability to appoint international 68   The process is the same for ad litem judges, although the election process happens separately: ICTY Statute, arts 13, 13bis and 13ter; ICTR Statute, arts 12, 12bis and 12ter. 69   Rome Statute, art 36. States are also required to take into account the need for a fair representa­ tion of female and male judges. 70   cf art 31 of the Statute of the International Court of Justice.



Is There a Definition?

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judges was restricted further in the revised 2005 version of the IHT Statute.71 More recent proposals, such as that for the Specialised Chamber for the DRC, also provide that the participation of judges would be optional.72 Thus practice appears to establish a requirement that at least the possibility of participation by inter­ national judges must be available to render a tribunal a hybrid or internation­ alised criminal tribunal. This requirement would seem to exclude from this category the proposed extraterritorial piracy court, which does not allow for the participation of international personnel, at least as the proposal is currently framed.73 With respect to the second question, whether international judges must form the majority on a particular panel, the practice suggests that the answer is in the negative. The ECCC does not require a majority of international judges on each panel, relying instead on the ‘super-majority’ requirement to manage concerns of political interference and potential bias.74 The IHT also did not require a majority of international judges, even where the option to appoint international judges was used.75 Moreover, at least in its initial phases, the IJPP did not require a majority of international judges on each panel.76 This is also the position with some of the proposals for future internationalised tribunals. Of the proposals that provide for international judges and also set out details concerning the composition of the judicial panels, only three – the Special Tribunal for Burundi, the Special Tribunal for Kenya and the Extraordinary Criminal Court for Liberia – would require a majority of international judges on each panel. However, the experience of the ECCC,77 the IHT78 and the early stages of the IJPP79 suggest that, while a majority of international judges may not be a definitive characteristic, it should at least be a desirable feature, particularly where the hybrid or internationalised mechanism is being introduced to address concerns regarding the capacity, independence and impartiality of the national legal system.   See ch 2, section VII(C) and VII(D).   See ch 3, section III(C). 73   See ch 3, section III(D). 74   See ch 2, section VIII(C). 75   See ch 2, section VII(D). 76   In Kosovo, the initial UNMIK regulation had provided for the appointment of individual inter­ national judges to a panel, thus resulting in a panel in which international judges could be in the minority. This provision was subsequently amended after it became apparent that the impact of inter­ national judges was being restricted as the national judges were simply out-voting the international appointment. As a result, international judges must now form the majority on any mixed panel. See ch 2, section IV(C). 77   The super-majority requirement for the ECCC does not appear to have prevented political inter­ ference with the ECCC. eg, see Open Society Justice Initiative, Political Interference at the Extraordinary Chambers in the Courts of Cambodia (June 2010); S Linton ‘Safeguarding the Independence and Impartiality of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 327; Bertelman, n 10. 78   The decision not to engage international judges for the IHT was criticised. Several commentators have suggested that the appointment of international judges, particularly judges from Muslim coun­ tries that had served on the ICTY and ICTR, to sit alongside Iraqi counterparts would have enhanced the legitimacy and perceived impartiality of the IHT. See ch 2, section VII(D). 79   See n 76. 71 72

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In Search of a Definition

The practice is less certain in relation to international participation in other organs of the tribunals. The range of options includes: international appoint­ ments holding the senior positions in the Prosecution and the Registry (SCSL, STL, SPSC and, during the transitional period, the WCC); ‘shared’ responsibility in key functions (as in the co-prosecutors and co-investigating judges in the ECCC); optional appointment of international personnel to key roles, such as prosecutors (IJPP); national appointments in key positions, with international deputies (ECCC – office of administration); and provision of international ‘advis­ ers’ to assist various organs (IHT). Thus participation of international personnel other than judges cannot be said to be a defining characteristic.

D.  Location of the Tribunal It is not a requirement of the hybrid or internationalised tribunal that the tribunal must sit in the territory of the affected state. While most of the tribunals studied do sit within the territory of the state in which the crimes occurred, it is recog­ nised that security concerns may justify locating the tribunal elsewhere, either completely (as with the STL, which is located in The Hague80) or for particularly sensitive cases such as the trial of Charles Taylor before the SCSL, which is also being held in The Hague.81 A tribunal may also be located outside of the affected state on an interim or transitional basis, as is the proposal for the extraterritorial piracy tribunal. In the case of the Habré tribunal, the proposed tribunal would sit in a state other than the state in which the crimes were committed due to the pres­ ence of the accused in Senegal.

E.  Involvement of the International Community, in particular the United Nations Another factor that has been suggested as a defining characteristic is the participa­ tion of the United Nations in the creation and operation of the tribunal.82 Is the suggested requirement for United Nations involvement borne out by practice? And, if so, is the participation of the Security Council in particular required? 80   STL Agreement, art 8(1). The reasons justifying locating the STL away from the territorial state of the alleged crimes were not stated in the Secretary-General’s report, but there is no doubt that the volatile situation in Lebanon and the potential danger to the security of the STL and its personnel was an important consideration. 81   The SCSL has also utilised the option in the SCSL Agreement to sit away from its seat in Sierra Leone ‘if circumstances so require’. In March 2006, the President requested the Government of the Netherlands and the President of the ICC to facilitate the conduct of the trial of Charles Taylor by the SCSL in the Hague, using the facilities of the ICC (later switched to the facilities of the STL). Concern as to implications for security in the region was cited as the reason for the request. Taylor was trans­ ferred to the Hague for trial on 20 June 2006. 82   Condorelli and Boutruche note that the link with the UN is ‘mainfested in two ways: first, the aims of these tribunals are those of the United Nations, and secondly the United Nations participation in the creation of the courts’: Condoreli and Boutruche, n 11, 429.



Is There a Definition?

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Several of the tribunals studied in this chapter do have a link to the United Nations, and several of those are linked to the Security Council. The SCSL was established by an agreement between the United Nations and the Government of Sierra Leone, the United Nations participates extensively in its operation, and the Security Council was involved in the process leading to its creation. Similarly, the STL was created on the basis of a Security Council resolution, and the United Nations is substantially engaged in its operation. The IJPP and SPSC operated as part of a United Nations administration of territory, and responsibility for the overall supervision of UNMIK and UNTAET rested with the Security Council. The ECCC is also a tribunal with significant United Nations participation, although it retains less control over the tribunal than other existing hybrid and internationalised tri­ bunals studied. However, it was the General Assembly that drove the negotiation process leading to the ECCC, and the Security Council has had no significant involvement with the process leading to the establishment of the ECCC. There is a more limited connection between the United Nations and the WCC. The WCC was initiated as part of the completion strategy of the ICTY, and arrangements were negotiated between the ICTY (a subsidiary organ of the Security Council) and the Office of the High Representative (OHR) (established by the Dayton Peace Agreement and supported by the Security Council). The Security Council received reports from both the OHR and the President of the ICTY on the proposals for the WCC.83 However, since the WCC has been estab­ lished, the only involvement of the Security Council has been to receive informa­ tion on the number of ICTY cases referred to the WCC as part of the regular reporting requirement of the ICTY on the completion strategy.84 It does not receive separate reports or briefings on the performance of the WCCC. The IHT also has limited connection to the United Nations. There is a link to the Security Council, in that the IHT was established by the transitional author­ ities created by the occupying powers of Iraq, pursuant to international humani­ tarian law as supplemented by Security Council Resolution 1483 and subsequent resolutions of the Council. However, the United Nations did not participate in the arrangements for the IHT, or its creation and operation. In fact, due to the insistence that the death penalty be retained as a sentencing option, the United Nations instructed its personnel and certain subsidiary organs, including the ICTY and the ICTR, that they could not assist or support the IHT in any way, even by providing training or advice.85 The Secretary-General argued that to do so would be inconsistent with the United Nations position on the death penalty. 83   eg, UNSC, ‘Report on the Judicial Status of the International Criminal Tribunal for the former Yugoslavia and the Prospects for Referring Certain Cases to National Courts’ (2002) UN Doc S/2002/678. 84   UNSC Res 1534 (26 March 2004), UN Doc S/RES/1534 (2004) para 6. 85   In October 2004, the Secretary-General refused to allow UN support for training of judges and prosecutors at the IHT. Secretary-General Annan reiterated on several occasions that ‘UN officials should not be directly involved in lending assistance to any court or tribunal that is empowered to impose the death penalty’: UN Press Conference, 22 October 2004. See also: M Simons, ‘Iraqis Not Ready for Trials: UN to Withhold Training’ New York Times, 22 October 2004.

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In Search of a Definition

Of the proposed tribunals, the United Nations is only formally involved with the Special Tribunal for Burundi and the extraterritorial piracy court, both of which have been considered by the Security Council. Thus, practice suggests that the participation of the United Nations is not a definitive feature of a hybrid or internationalised tribunal. This is confirmed by the discussion concerning the proposed options for a piracy tribunal, which suggests that the involvement of the United Nations is optional.86 Nor is the involvement of the Security Council required. Such a requirement would have the effect of restricting the availability of such tribunals to situations in which there is a link to international peace and security. This approach would also ignore the role that the General Assembly may perform in securing accountability for human rights violations. Moreover, there is certainly no reason why other international or regional organisations could not cooperate with a state to establish a hybrid or inter­ nationalised tribunal. The European Union is already taking a role in relation to the IJPP as part of its mission in Kosovo. The emerging practice suggests that the African Union will have an increasingly important role to play in designing and supporting internationalised tribunals, given that many current conflicts affect African states. In fact, the majority of the current proposals for hybrid and inter­ nationalised tribunals concern African states, and the African Union is taking the lead, or at least is heavily involved, in two of these proposals: the special chamber for Darfur and the special tribunal to try Hissène Habré. Similarly, it is possible that a group of states, acting independently of a regional organisation or association, could cooperate to create a tribunal, most likely by a treaty. Higonnet notes that a hybrid tribunal:87 could be established with several states or international coalitions acting in concert and without any United Nations involvement at all, especially since there are many places where the United Nations has a negative reputation and its imprimatur could actually harm the perception of a court’s legitimacy.

This could be an appropriate solution where a conflict has affected several neigh­ bouring states, such as the Great Lakes region. It has also been suggested in rela­ tion to acts of terrorism with international dimensions.88 However, it is not certain whether such a tribunal would fall within the category of hybrid and inter­ nationalised tribunals. Although there would presumably be judges from the affected states, unless there was the possibility for participation of at least judges from other states without a clear link to the crimes or judges appointed by the United Nations, the requirement that there be at least the possibility of the par­

  See ch 3, section III(D).   E Higonnet, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’ (2005–06) 23 Arizona Journal of International and Comparative Law 348, 355. 88   eg, it has been suggested that Pakistan and India could cooperate to establish by treaty a tribunal to deal with those individuals connected with the terrorist attacks in Mumbai in July 2008: see R Gulati, ‘The Need for a Special Tribunal to Try Acts of Transnational Terrorism in South Asia: The 26/11 Mumbai Attacks’, Draft Paper (July 2011), on file with author. 86 87



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ticipation of international judges will not be satisfied.89 While such a tribunal, if established by a treaty and operating separately to the legal systems of the affected state(s), will clearly be international in nature, it would not be a hybrid or inter­ nationalised model, and would more properly be characterised as a regional body. Another alternative is that a state could invite participation by a third state in national proceedings in respect of international crimes or serious human rights vio­ lations, independent of any involvement of the United Nations. This may take the form of seconding judges of the third state to sit on courts in the affected state. The new arrangements in relation to East Timor may fall into this model, whereby Brazil and Portugal have entered into agreements with the Government of East Timor and the United Nations Development Program to facilitate the provision of judges to sit within the courts of East Timor.90 However, again, without more, it may be difficult to categorise this example as a hybrid or internationalised tribunal. Arguably, such an institution could only be considered an ‘internationalised’ tribunal where the judges are provided by that state on behalf of the international community, not just as a form of legal and technical assistance offered by the donor state. This may be difficult to establish, particularly where the state providing the judges is a former colonial power, as Portugal is in relation to East Timor, and may be acting owing to shared ties and a sense of historical or moral obligation rather than to protect the interest of the international community in accountability for international crimes. A further difficulty with characterising the arrangements in East Timor as interna­ tionalised in the sense used here is that the international judges may be involved in all types of cases, and are not restricted to cases concerning serious crimes. There have also been suggestions that ICC itself could establish a hybrid court with a state as part of the dialogue surrounding the exercise of jurisdiction by the ICC, and to give effect to the principle of complementarity.91 The ICC does pos­ sess international legal personality and can enter into agreements with inter­ national organisations and states.92 However, while it is possible that the ICC could provide technical assistance to a hybrid or internationalised tribunal in the form of advice and training, the establishment of a hybrid or internationalised tribunal is not within the powers conferred on the ICC by the Rome Statute. Nor is it likely that such a step would fall within its implied or inherent powers.93   See this ch 4, section III(C) above.   See ch 2, section V(D). 91   R Lipscomb and P Mendez, ‘The New Wave of Hybrid Tribunals: A Sophisticated Approach to Enforcing International Humanitarian Law or an Idealistic Solution with Empty Promises’ (2009) 20 Criminal Law Forum 53. 92   Rome Statute, art 4 provides: ‘The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’. The ICC has entered into a relationship agreement with the United Nations (Relationship Agreement between the International Criminal Court and the United Nations (2004) 2283 UNTS II-1272), a headquarters agreement with the Netherlands (Headquarters Agreement between the International Criminal Court and the Host State, 7 June 2007) and agreements with states concerning enforcement of sentences. 93   For discussion of implied and inherent powers, see D Akande, ‘The Competence of International Organisations and the Advisory Jurisdiction of the International Court of Justice’ (1998) 9 European Journal of International Law 437. 89 90

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In Search of a Definition

In conclusion then, not only is the involvement of the United Nations not a defining characteristic, this criterion does not distinguish other institutions with international elements from those considered to by hybrid or internationalised in nature. In particular, there was significant United Nations and Security Council involvement in the arrangements for the Lockerbie Court, and the ICTY and the ICTR are subsidiary organs of the Council. The Security Council also plays a role in the operation of the ICC, where its jurisdiction is based on a referral by the Council to the Court. Moreover the United Nations, and often the Security Council, was part of the process establishing several of the non-judicial mechan­ isms discussed in chapter three.94 The United Nations provides extensive techni­ cal and financial assistance to national systems. None of these situations are considered to create a hybrid or internationalised tribunal. Thus even were the involvement of the United Nations to be considered a general characteristic of such tribunals, it does not, of itself, make a tribunal hybrid or internationalised in nature or allow us to distinguish such tribunals from other types of institution.

F.  Funding Mechanism At least initially, the move to establish hybrid and internationalised tribunals was motivated by the expense of the ad hoc tribunals.95 Mixed tribunals were seen as a cheaper and more efficient alternative.96 However, while the existing hybrid and internationalised tribunals generally have proven to be less expensive than the ICTY and the ICTR they are still not ‘cheap’.97 In fact, when the limited number of individuals some of these institutions will try is taken into account, the cost per defendant may be significantly higher than the costs before the ICTY and the ICTR.98 Moreover, the desire to manage the budgets of these tribunals has led to chronic under-funding, which has on several occasions threatened the continued

  See ch 3.   R Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice 541; S Roper and L Barria, Designing International Criminal Tribunals (Aldershot, Ashgate Publishing, 2006) ch 5. 96   eg, see D Cohen, ‘Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future’ (2002) 61 Asia Pacific Issues 1. 97   All tribunals generally overspend their initial estimates significantly. The ECCC has already spent almost double the initial estimate (US$56.3 million), and there are suggestions that its final cost will be closer to US$338 million: S Ford, ‘How Leadership in International Criminal Law is Shifting From the US to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts’ (2011) 55 St Louis Law Journal 953. For further discussion of financing the ECCC, see T Ingadottir, ‘Financial Challenges and their Possible Effects on Proceedings’ (2006) 4 Journal of International Criminal Justice 294. 98   Perhaps the clearest example of this is the ECCC, which may only try five accused. Based on cur­ rent estimates of final costs, the cost per indictee may be close to US$70 million. As Bates notes, this makes the ECCC ‘likey to be one of the most expensive experiments of transitional justice ever’: A Bates, Transitional Justice in Cambodia: Analytical Report, British Institute of International and Comparative Law (October 2010) 3, projetatlas.univ-paris1.fr/IMG/pdf/ATLAS_Cambodia_Report_ FINAL_EDITS_Feb2011.pdf. 94 95



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operation and the achievement of their mandate.99 The former United Nations Secretary-General recommended that the United Nations must:100 ensure the provision of adequate resources for the restoration of the rule of law and the establishment of transitional justice, including a viable and sustainable funding mechan­ism. Where United Nations-sponsored tribunals are to be established, this should include at least partial funding through assessed contributions.

Despite this suggestion, practice is inconsistent regarding the funding mechan­ ism of the hybrid and internationalised tribunals and there is no requirement that funds come from assessed contributions. Practice suggests at least four possible options for funding mixed tribunals.101 First, the tribunal could be funded by the United Nations using assessed contributions, as is the case with the SPSC and the IJPP, although funding was part of the budget of the associated peacekeeping mis­ sion and not separately dedicated to the tribunal.102 The SCSL has received some funding from assessed contributions, as an emergency measure in 2004 and 2005,103 and a further request for assistance was submitted in late 2010.104 Second, funding could come from states or regional organisations such as the European Union or African Union in the form of voluntary contributions. Such contribu­ tions could be either financial or ‘in kind’ contributions, such as the provision of 99   The Special Court for Sierra Leone experienced a severe funding shortage in 2004, which threat­ ened its continued operation. The Secretary-General informed the Security Council that there would be a shortfall in voluntary contributions and that the available funds would only carry the Court through its second year (ie to 30 June 2004): see ‘Letter Dated 26 February 2004 from the SecretaryGeneral addressed to the President of the Security Council (Special Court for Sierra Leone)’ (2004) UN Doc S/2004/182. The SPSC also suffered from chronic under-investment in the system: C Reiger and M Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, Report for the International Centre for Transitional Justice (March 2006). 100   Report of the Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and PostConflict Societies’ (23 August 2004) UN Doc S/2004/616. 101   See also T Ingadottir, ‘The Financing of Internationalised Courts and Tribunals’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 271. 102   Funding for the SPSC was through the UNTAET budget, with no separate budget for the SPSC, which was funded as part of the District Court at Dili. The financing of the IJPP was divided between the budget of UNMIK (based on assessed contributions) and the Kosovo Consolidated Budget, although the staff of the IJPP were paid from the UNMIK budget. Both were supplemented by volun­ tary contributions. 103  Following the funding crisis in March 2004, the Secretary-General, with the consent of the Security Council, requested from the General Assembly a subvention of up to US$40 million to cover operating costs for the remainder of 2004 and 2005: see ‘Letter Dated 10 March 2004 from the President of the Security Council addressed to the Secretary-General (Special Court for Sierra Leone)’ (2004) UN Doc S/2004/183; UNGA, ‘Request for a subvention to the Special Court for Sierra Leone: Report of the Secretary-General’ (2004) UN Doc A/58/733. The General Assembly authorised a payment of up to US$16.7 million for 2004 (UNGA Res 58/284 (2004) UN Doc A/RES/58/284) and up to US $33million for 2005 (UNGA Res 59/294 (2005) UN Doc A/RES/59/294), although only US$31.2 million was actu­ ally required for 2005. 104   UNGA, ‘Report of the Secretary-General, Request for a subvention to the Special Court for Sierra Leone’ (11 November 2010) UN Doc A/65/670, requesting a subvention of up to US$17,916,560 to cover the operation of the SCSL from 1 November 2010 until its scheduled completion on 29 February 2012. The General Assembly authorised a subvention of US$12, 239,344, with up to a further US$9,882,594: UNGA Res 65/259 (11 April 2011) UN Doc A/RES/65/259.

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materials or services and the secondment of personnel, including judges. Private donors may also make voluntary contributions.105 Third, the affected state could contribute some or all of the costs of the tribunal, generally through its normal budgetary process. This commitment may be reflected in the agreement between the United Nations and the affected state concerning the establishment of the tri­ bunal.106 Finally, funding could be based on a combination of any of the above options. The practice does suggest that there is usually some international dimension to the funding of a hybrid or internationalised tribunal, although there is no set ‘share’ or model of financing. However, international assistance in the financing of the tribunal cannot of itself be a definitive factor. Otherwise any arrangement whereby a state or international or regional organisation offered financial assist­ ance to a national institution would ‘internationalise’ that institution. The general exclusion of the SWCC from this category of tribunals suggests that more than ‘mere’ financial assistance is required.107 Although minimising the costs and max­ imising efficiency are still factors that are considered when deciding whether to adopt a hybrid or internationalised tribunal,108 this factor does not seem to be given the same emphasis it once was, or at least not overtly. There is a greater awareness of the likely costs of such mechanisms. However, the certainty of their funding does not appear to have improved, as evidenced by the lack of detail as to funding arrangements for the proposed tribunals studied in chapter three.109

G.  Legal Basis, Legal Capacity and Powers While the legal basis of the tribunals studied is discussed in greater detail in the next chapter, it is necessary to consider the issue briefly here. The practice reveals that there is no single legal basis for the tribunals considered to be hybrid or inter­ nationalised that have been established to date. The existing tribunals have been established by a number of legal mechanisms, including: an agreement between the United Nations and the affected state (SCSL and initially proposed for the STL); by the Security Council acting under Chapter VII of the United Nations (the STL); by transitional administrations or occupying powers effectively acting 105   eg, Microsoft Singapore donated US$100,000 to the ECCC. Neither the ECCC Law or the ECCC Agreement precludes private donations: see A Kamhi, ‘Private Funding for Public Justice: The Feasibility of Donations to the Cambodia Tribunal’ (2007) 48(2) Harvard International Law Journal 581. 106   eg, the STL Agreement provides that the United Nations will provide 51% of funding, with the Government of Lebanon to provide the remaining 49%: art 5. Moreover, UNSC Res 1757 provides that if contributions from Lebanon are not sufficient, the Secretary-General may accept voluntary contri­ butions: UNSC Res 1757 (2007) UN Doc S/RES/1757, para 1(c). 107   See ch 3, section II(B). 108   Financing and expense was one of the factors considered by the Secretary General in the various options discussed for thr proposed piracy tribunal: UNSC, ‘Report of the Secretary-General on Possible Options to Further the Aim of Prosecuting and Imprisoning Persons Responsible for Acts of Piracy and Armed Robbery at Sea off the Coast of Somalia (26 July 2010) UN Doc S/2010/394. 109   eg, there has been no discussion as to funding for the Specialised Chamber in the Democratic Republic of Congo, see ch 3, section III(C).



Is There a Definition?

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as the sovereign (IJPP, SPSC, IHT and possibly the WCC); and under national law, supported by an agreement between the United Nations and the affected state (ECCC). Other legal bases could certainly be contemplated, for example: a court established by treaty between two states;110 a court created as a subsidiary organ by the General Assembly;111 or a court established under the auspices of a regional organisation such as the African Union.112 Thus it cannot be said that a particular method of establishment or legal basis is a definitive characteristic of such tribunals. The legal basis may be a factor that is relevant in deciding whether to establish a tribunal. For example, establishing a tribunal based on national law may be achieved more quickly than when an agreement has to be negotiated with the United Nations for the establishment of a tribunal. However, given the difficulty some states studied here have encountered in achieving the required parliamen­ tary support for national legislation, this assumption may not always be correct.113 Similarly, the practice is not uniform concerning the legal capacity of the tribu­ nals. Some have international legal personality and can enter into agreements with states and other organisations in their own right (the SCSL and the STL).114 Others have legal personality under national law only.115 Thus the existence – or absence – of international legal capacity is also not a defining feature. Certain commentators have suggested that the absence of so-called ‘Chapter VII powers’, or of the ability to require third states to comply with its orders, is a defining feature of a hybrid or internationalised tribunal.116 The affected state may be required to comply with orders of the tribunal, either as a matter of treaty law117 or by virtue of a binding resolution of the Security Council.118 However, as discussed in more detail in chapter six, none of the tribunals studied are able to require third states to comply with their orders, although those tribunals may request them to do so.119 Instead, such tribunals are required to negotiate agree­ ments with the state concerned (assuming the tribunal has legal capacity), rely on voluntary cooperation or use existing arrangements of the state for extradition and mutual legal assistance. This does distinguish these tribunals from the ad hoc   See ch 5, section III.   See ch 5, section V.   This appears to be what was proposed for the tribunal for Habré, although the actual legal basis would have been Senegalese law. See ch 3, section III(G). 113   eg, the Special Tribunal for Lebanon (see ch 2, section III) and the Special Tribunal for Kenya (see ch 3, section III(E)). 114   The SCSL Agreement and the STL Agreement provide that the SCSL and the STL have juridical capacity: SCSL Agreement, art 11; STL Agreement, art 7. 115   In contrast, to the SCSL and the STL, the ECCC Agreement does not mention juridical capacity, suggesting that the ECCC was not intended to exercise international legal personality. However, in practice, the ECCC appears to have entered into agreements, at least with sponsors. 116   See Nouwen, n 11, also concluding that difficulties with securing cooperation ‘does not mean that it [the ability to secure cooperation] is a defining feature of hybrids as such’, 212 117   eg, the SCSL Agreement requires the Government of Sierra Leone to cooperate with the tribunal (art 17), as does the ECCC Agreement regarding Cambodia (art 25) . 118   STL Agreement, art 15. Depending on the view of the legal basis of the STL, this may apply either as a decision of the Council, or as a matter of treaty law, see further ch 5, section II. 119   See ch 6, section VIII(B). 110 111 112

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tribunals, which can require cooperation from states, and from the ICC, which has its own provisions on cooperation.120 Yet, the absence of such powers in the tribunals established to date does not mean that this is a defining characteristic; rather, it means that the Security Council has not conferred such powers on a hybrid or internationalised tribunal. It is certainly open for it to do so, and the SCSL has in the past requested, albeit unsuccessfully, that Chapter VII powers be extended to it.121 As noted above, the Security Council has conferred such powers on an investigatory body in the past, and the United Nations International Independent Investigation Commission (UNIIIC) could require the cooperation of Syria.122 While the absence of ‘Chapter VII powers’ may have serious implica­ tions for the successful operation of the tribunal, particularly where the situation has significant international elements, and should be a factor that is considered when designing an appropriate mechanism, it is not an essential or distinguishing characteristic of such tribunals.

H.  Jurisdiction: An Introduction The jurisdictional reach of a tribunal refers to the competence of a specific tribu­ nal to adjudicate cases that may be brought before it. Tribunals ‘cannot prosecute cases involving individuals, territories and crimes that are not either explicitly or implicitly within their powers, that is, their jurisdiction’.123 The jurisdiction of a tribunal comprises four elements: ratione temporis (temporal jurisdiction); ratione loci (territorial jurisdiction); ratione personae (personal jurisdiction); and ratione materiae (substantive or material jurisdiction). If a tribunal is to end impunity, it is necessary to consider carefully the conduct and individuals that may be examined by the tribunal. To achieve the principle of non-impunity, ideally the tribunal’s jurisdictional reach should be as wide as possible and cover all relevant time periods, geographical locations, conduct and individuals. Defining the ‘jurisdictional reach’ of a criminal tribunal is also significant as this can affect the legitimacy and effectiveness of the tribunal. Restrictions as to the temporal and territorial jurisdiction of a tribunal will limit the conduct that may be the subject of proceedings before the tribunal.124 Focusing on a certain time period, geographical location or type of crime may mean that the tribunal does not provide a comprehensive examination of the conflict or its context and may preclude from consideration significant incidents   See further ch 6, section VIII and IX.   The former President of the SCSL, Geoffrey Robertson, wrote to the Security Council on 9 June 2003 requesting the Council to adopt a resolution under Chapter VII of the UN Charter calling on states to cooperate with the Court: SCSL, Press Release, ‘Court President Requests UN Security Council’s Chapter VII Powers’ (11 June 2003). 122   UNSC Res 1636 (2005) UN Doc S/RES/1636, para 11(b). 123   W Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge, Cambridge University Press, 2006) 123. 124  For discussion, see Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 15. 120 121



Is There a Definition?

215

or offences committed against or by certain groups. This may alienate some elements of the affected society and detract from the tribunal’s contribution to reconciliation. Similarly, a limited personal jurisdiction may exclude key individ­ uals or groups from the tribunal’s reach, while choice of the material jurisdiction will dictate the conduct that is to be criminalised and how that conduct is clas­ sified, whether as an international or ‘serious’ crime, or as an ‘ordinary’ crime under domestic law. For example, a tribunal that is to concentrate on offences committed by only one party to a conflict may give rise to allegations of bias or, where the tribunal is established by or with the support of the victorious party, the suggestion that the tribunal is dispensing ‘victor’s justice’. However, the tribunals studied here do not operate in an ideal context, and the designers of the internationalised and hybrid tribunals have had to make many compromises. The aim of achieving accountability for serious crimes has had to be balanced against other important considerations. First, the tribunals are faced with limited financial and material resources, and it would not be feasible for the tribunal to try each individual and each offence committed during an armed conflict. The alleged perpetrators may number in the hundreds, or even the thousands, and any legal institution would struggle to resolve such a large number of cases. This neces­ sitates difficult choices as to which conduct and individuals should be the focus of the tribunal’s activities so as not to overstretch the available resources. Second, the tribunals depend on the political will of the United Nations and Member States. They also depend on the support of the territorial state, in which much of the evid­ ence will be found, and the majority of the victims, witnesses and perpetrators are located. Domestic politics and sensitivities, and assertions of state sovereignty, will also impact upon the jurisdictional regime that is adopted. Finally, the selection of the jurisdictional regime will be determined in part by the applicable legal frame­ work. This section considers whether the study of practice reveals any common or distinguishing features in the jurisdictional basis of the tribunals studied.

I.  Temporal Jurisdiction Temporal jurisdiction refers to the period of time in respect of which a tribunal may exercise its jurisdiction. The decision as to the temporal jurisdiction of a tri­ bunal demonstrates how the extent of the tribunal’s jurisdiction must be balanced against competing considerations, such as resources, the applicable legal frame­ work and the political will to support the tribunal. Whether or not the conflict or other situation in which the crimes are being committed is ongoing is also a relevant factor. The designers of the tribunals studied have adopted different approaches to this issue, often reflecting different priorities. The IHT has the most extensive temporal jurisdiction, ranging from 17 July 1998 to 1 May 2003.125 The extensive jurisdiction raises concerns as to the resource 125   While this time period will capture many of the main incidents that occurred during the regime, it excludes consideration of acts occurring during the occupation of Iraq.

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implications and the risk of overloading the IHT. Recognising this, the prosecu­ tion decided to concentrate on a limited number of mini-trials concerning sig­ nificant events during the regime. The ECCC has a more restricted temporal jurisdiction, limited to the period from 17 April 1975 to 6 January 1979. This period coincides exactly with the duration of the Khmer Rouge regime. It does, however, exclude acts of the Khmer Rouge committed before it seized power and after it was removed from power, including the insurgency that was conducted for several decades after the regime was ousted. At the other end of the spectrum, the STL is to investigate a single event, the assassination of Prime Minister Hariri.126 Its temporal jurisdiction is theoretically restricted to a single date, 14 February 2005.127 The WCC and the IJPP are not subject to restrictions as to temporal juris­ diction. The WCC is a permanent national structure and as such will continue to operate after the five-year transitional period. The IJPP has considered cases concerning events occurring after the conflict,128 although it has not tried cases concerning violations committed during the previous Serbian regime. There was no restriction as to the commencement date of the jurisdiction of the SPSC in relation to international crimes,129 and the SPSC could have exercised jurisdiction in respect of offences committed before the international administration, includ­ ing acts committed during the Indonesian occupation of East Timor. However, although the Serious Crimes Unit did investigate some earlier incidents,130 it decided to focus on the events of 1999 so as to best utilise scarce resources.131 The SCSL may exercise jurisdiction in respect of crimes committed after 30 November 1996 as it was felt that this date ‘had the benefit of putting the Sierra Leone conflict in perspective without unnecessarily extending the temporal juris­   STL Statute, art 1.   The STL Statute provides for the tribunal to exercise jurisdiction for ‘connected attacks’ occur­ ring in Lebanon between 1 October 2004 and 12 December 2005 which are of a similar nature and gravity, and also to attacks committed after 12 December 2005 and up to any later date that may be agreed between the United Nations and the Government of Lebanon, with the consent of the Security Council. See ch 2, section III(C). 128   Cases have been heard or are currently pending for alleged crimes committed during the March 2004 riots (see the Esmin Hamza and Minor A.K. case, and the Kurteshi and Sylejmani case), serious criminal offences (the Ejupi case), terrorism and terrorist-related offences (the Morina case) and crim­ inal acts committed during the self-determination/independence demonstrations in February 2007 (the Kurti case). For further details of individual cases, see Humanitarian Law Center in Kosovo, Trials for Ethnically Motivated Crimes and War Crimes in Kosovo (2007). 129   The District Court in Dili has exclusive jurisdiction in respect of the domestic crimes of murder and sexual offences only where those crimes were committed in the period between 1 January 1999 and 25 October 1999: UNTAET reg 2000/11, s 10.2; UNTAET reg 2000/15, s 2.3. This restriction was also applied to the crime of torture in UNTAET reg 2000/11, but was not duplicated in UNTAET reg 2000/15, so presumably torture was not subject to the same restriction. 130   The Serious Crimes Unit abandoned an investigation of the Santa Cruz massacre of 1991. It also investigated instances occurring in late 1998 that were closely related to the later violence: C Reiger and M Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect International Center for Transitional Justice (March 2006). 131   All indictments issued related to events occurring between 1 January 1999 and October 1999. Events occurring after October 1999 were left to be dealt with by the ordinary criminal justice system: ibid. 126 127



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diction of the Special Court. It would also ensure that the most serious crimes committed by all parties and armed groups would be encompassed’.132 The selec­ tion of this date was controversial133 and argued to be ‘a significant limitation’,134 as it excluded from the reach of the SCSL perpetrators of crimes committed in the five year period from the commencement of the conflict to the signing of the Abidjan Agreement.135 As the conflict was ongoing when the SCSL was estab­ lished, the end date for the temporal jurisdiction of the SCSL was left unspecified, although the prosecution has not issued indictments for acts committed beyond the end of the conflict. Furthermore, as the SCSL upheld the Lomé Accord amnesty,136 there was – in theory – a dual start date for the temporal jurisdiction of the SCSL. In respect of the international crimes, jurisdiction commences on 30 November 1996, whereas jurisdiction in respect of national crimes commences on 7 July 1999, the date the amnesty was granted.137 However, this was never a practical issue, as the Prosecutor did not include charges under domestic law in any indictment. This lack of consistency in the practice is also present in the proposals for fur­ ther tribunals. Of the current proposals, the majority impose some sort of tempo­ ral restriction on the court’s jurisdiction. For several proposed tribunals, the suggested temporal jurisdiction is quite extensive (for example, Burundi, Liberia and the DRC). Others, in particular the Special Tribunal for Kenya, would have a more focused mandate. As the conflict and violations are ongoing in Darfur, it is not clear whether the proposed special chamber would have a fixed temporal jurisdiction or whether it would be left open-ended. Similarly, it is not clear whether the proposed extraterritorial piracy court would have a restriction as to its temporal jurisdiction. Thus, we cannot say that there is a common approach to setting the temporal jurisdiction of such tribunals. At best, the majority of the tribunals studied or proposed have a fixed, rather than open-ended, temporal   ibid, para 27.   Four possible dates were considered: 23 March 1991 (the date the conflict is generally accepted to have commenced); 30 November 1996 (the date of the Abidjan Agreement); 25 May 1997 (the date of the coup d’état by the AFRC against the government); and 7 January 1999 (the date the offensive against Freetown was launched by the RUF/AFRC). The first date was rejected as it ‘would create a heavy burden for the prosecution and the Court’. The third possibility was considered to have a polit­ ical connotation and would suggest that the SCSL was aimed at the coup d’état. Similarly, the last option would concentrate efforts on the attack on Freetown and would exclude from consideration attacks on rural areas and the countryside: see UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915, para 26. 134   N Stafford, ‘A Model war Crimes Court: Sierra Leone’ (2004) 10 ILSA Journal of International and Comparative Law 117, 127. 135   See N Fritz and A Smith, ‘Current Apathy for Coming Anarchy: Building the Special Court for Sierra Leone’ (2002) 25 Fordham International Law Journal 391, 411–12. 136   Prosecutor v Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-04-15-PT-060, A Ch (13 March 2004). See discussion of this decision in ch 5. 137   Art 5 is omitted from the list of offences to be covered by the exclusion of the amnesty in art 10 of the SCSL Statute. See: Fritz and Smith, n 135, 412; M Frulli, ‘The Special Court for Sierra Leone: Some Preliminary Comments’ (2000) 11 European Journal of International Law 857, 859; and A TejanCole, ‘The Special Court for Sierra Leone: Conceptual Concerns and Alternatives’ (2001) 1 African Human Rights Law Journal 107, 116. 132 133

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jurisdiction. Yet within those that have a fixed temporal jurisdiction, the range of periods that have been selected is great, from a single event to crimes committed over the course of several decades.

J.  Territorial Jurisdiction As discussed in chapter one, territorial jurisdiction is most frequently relied upon as a basis for the exercise of jurisdiction by states, and is reflected in the constitu­ ent instruments of several of the tribunals studied here, for example the SCSL.138 All of the tribunals and the proposed tribunals, with the exception of the tribunal proposed for the trial of Hissène Habré, may exercise jurisdiction based on the territorial principle. This may also be extended to include jurisdiction based on objective and subjective territoriality; that is when parts of the alleged crime were committed on the territory of the state.139 Several of the tribunals may also exercise jurisdiction extraterritorially, including on the basis of universal jurisdiction. For example, the IHT may exercise extraterri­ torial jurisdiction on the bases of nationality and permanent residency.140 The SPSC was able to exercise universal jurisdiction in relation to the crimes under inter­ national law within its subject matter jurisdiction,141 although no indictments were issued on this basis.142 The WCC, as a national court, may exercise extraterritorial jurisdiction in a number of circumstances, in particular where the accused is alleged to have committed an offence that Bosnia is required by international law to punish.143 The proposals for the piracy tribunal and the tribunal to try Hissène Habré are significant developments in international practice in that, in each case, universal jurisdiction may be the only basis upon which the jurisdiction of the proposed tribunal relies. In respect of the proposed tribunal to try Habré, Senegal has no connection to the alleged crimes, which occurred in Chad, other than the 138   Art 1(1) of the SCSL Statute requires that the crimes must have been committed within the ter­ ritory of Sierra Leone. 139   eg, the indictment in respect of Charles Taylor, former President of Liberia, is based on the objec­ tive territorial approach, as Taylor has been charged with acts planned and instigated in Liberia, but carried out in the territory of Sierra Leone: Prosecutor v Charles Ghankay Taylor (Indictment) SCSL03-01-PT (7 March 2003). There is no evidence that Taylor ever entered the territory of Sierra Leone. The use of an objective approach to territoriality does not appear to have been challenged by defence counsel. 140   IHT Statute, art 1(b). Extraterritorial jurisdiction was included so as to enable the investigation of crimes committed outside Iraqi territory as part of the wars against Iran and Kuwait. 141   UNTAET reg 2000/15, s 2.1. The regulation defines ‘universal jurisdiction’ as ‘jurisdiction irre­ spective of whether: (a) the serious criminal offence was committed within the territory of East Timor; (b) the serious criminal offence was committed by an East Timorese citizen; or (c) the victim of the serious criminal offence was an East Timorese citizen’: s 2.2. 142   Despite arguments to the contrary, the SPSC accepted that it was limited to exercising territorial jurisdiction in relation to the national crimes within its material jurisdiction. Accordingly, the SPSC concluded that it had no jurisdiction to try an accused alleged to have raped an East Timorese woman in West Timor: Prosecutor v Leonardus Kasa (Judgment) Case No 11/CG/2000, T Ch (9 May 2001). 143   Criminal Code of Bosnia and Herzegovina, art 12.



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presence of Habré in Senegal. It is recognised that the basis for its jurisdiction is at least in part universal jurisdiction, as well as jurisdiction conferred by treaties to which Senegal is a party.144 Similarly, if a state other than Somalia was to become involved in establishing the proposed piracy tribunal, the jurisdiction of the tribu­ nal would be limited to universal jurisdiction in respect of piracy on the high seas. It may also have jurisdiction in respect of acts occurring within the territorial waters of Somalia based on some form of authorisation by the Security Council, arguably requiring the consent of Somalia.145 Until these proposals were advanced, it was possible to say that a common characteristic was that all hybrid and inter­ nationalised tribunals operated primarily on the basis of territorial jurisdiction. However, in the light of these proposals, it may no longer be possible to assert the jurisdictional basis as a defining characteristic. The possible implications of this conclusion are considered in chapter five.146

K.  Personal Jurisdiction Personal jurisdiction refers to the individuals falling within the jurisdiction of a particular tribunal. Restrictions as to the individuals within a tribunal’s jurisdic­ tion may include: the exclusion of corporate defendants;147 prohibitions against the prosecution of minors and juveniles;148 a requirement as to the nationality of the accused;149 a stipulation that the accused must have, or has had, a particular 144   V Spiga, ‘Non-retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga’ (2011) 9 Journal of International Criminal Justice 5. 145   See discussion of proposed jurisdiction in ch 3, section III(G). 146   See further ch 5, section VI. 147   This may preclude consideration of the actions of private military and security companies uti­ lised in a conflict, eg, Executive Outcomes, a private company engaged by the Government of Sierra Leone at various stages of the conflict. See: J Webster, ‘Sierra Leone – Responding to the Crisis, Planning for the Future: The Role of International Justice in the Quest for National and Global Security’ (2001) 11 Indiana International and Comparative Law Review 731, 766–69. 148   The inclusion of jurisdiction in respect of individuals aged between 15 and 18 years at the time of commission of the offence in the SCSL Statute triggered a vigorous debate: SCSL Statute, art 7. However, the SCSL Prosecutor announced that he would not prosecute individuals younger than 18 years at the time of commission of the offence, as children cannot be considered to be among those who bear the greatest responsibility from crimes and thus did not satisfy the seniority criterion: SCSL Prosecutor, Press Release, ‘Special Prosecutor Says He Will Not Prosecute Children’ (2 November 2002). For further discussion, see D Amann, ‘Calling Children to Account: The Proposal for a Juvenile Justice Chamber in the Special Court for Sierra Leone’ (2002) 29 Pepperdine Law Review 167; S Bald, ‘Searching for a Lost Childhood: Will the Special Court for Sierra Leone Find Justice For Its Children?’ (2003) 18 American University International Law Review 537; A McDonald, ‘Sierra Leone’s Shoestring Special Court’ (2002) 84 International Review of the Red Cross 121, 133–36. 149   eg, the restriction of the personal jurisdiction of the IHT to Iraqi nationals or residents of Iraq (IHT Statute, art 1(2)) excludes several groups of potential defendants including: members of coalition forces alleged to have committed crimes during the Gulf wars and the subsequent occupation of Iraq; nationals of any state involved in international armed conflicts with Iraq, eg nationals of Iran or Kuwait; and mem­ bers of Al Q’aeda or other terrorist organisations that may have assisted in the commission of crimes within the jurisdiction of the tribunal; and nationals of western powers who are alleged to have acted in support of the previous regime and to have been complicit in the crimes committed by the regime. Other tribunals in Iraq may consider such conduct: M Frank, ‘Trying Times: The Prosecution of Terrorists in the Central Criminal Court of Iraq’ (2006) 18 Florida Journal of International Law 1. For further

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political allegiance;150 and the exclusion151 – or inclusion152 – of peacekeepers. These restrictions are not without controversy, and may have the effect of exclud­ ing an important group of offenders. A further form of restriction on the personal jurisdiction of a tribunal is the criterion of seniority and/or the requirement that the accused bears the ‘greatest responsibility’ for the crimes committed. It is this form of restriction that may be a potential defining characteristic of a hybrid or internationalised tribunal. The development of the seniority criterion can be traced to the completion strategy of the ICTY.153 As part of this strategy, the Security Council imposed a seniority criterion, which called upon the tribunals to ensure that any new indict­ ments ‘concentrate on the most senior leaders suspected of being most responsi­ ble for crimes within the jurisdiction of the relevant Tribunal’.154 Other cases were to be referred to national jurisdictions. The Referral Bench of the ICTY has inter­ preted the phrase ‘most senior leaders’ to cover individuals ‘who, by virtue of their position and function in the relevant hierarchy, both de jure and de facto, are alleged to have exercised such a degree of authority that it is appropriate to describe them as among the ‘most senior’ rather than ‘intermediate’.155 The Referral Bench considered criteria such as the permanence and duration of the leadership role, the levels of superior leadership (if any), any political positions of responsibility of the accused (for example negotiating with international ele­ ments), and the number of individuals under the command and control of the accused. The Pre-Trial Chamber of the ICC has relied on similar factors when assessing questions of gravity as part of assessing the admissibility of a case.156 discussion, see: J Alvarez, ‘Trying Hussein: Between Hubris and Hegemony’ (2004) 2 Journal of International Criminal Justice 319, 321; and M Bassiouni, ‘Post-Conflict Justice in Iraq: An Appraisal of the Iraqi Special Tribunal’ (2005) Cornell International Law Journal 327, 359. 150   The ECCC is restricted to looking at leaders of the Khmer Rouge, a political regime: ECCC Law, art 1. 151   Tribunals have been excluded from investigating acts of peacekeeping forces, either by restric­ tions as to their personal jurisdiction (eg a nationality requirement as in the IHT Statute) or by the provisions of the applicable status of forces agreement or relevant national law. See CPA Order 17 (27 June 2004), which excluded all personnel of the Coalition Provisional Authority and the multinational force from the exercise of jurisdiction by the Iraqi courts and UNMIK reg 2000/47, which similarly excluded UNMIK, KFOR and their personnel from the jurisdiction of the courts in Kosovo. 152   The SCSL is the only tribunal to include a provision concerning jurisdiction with respect to conduct by peacekeepers. Criminal acts allegedly committed by peacekeepers remain within the pri­ mary jurisdiction of the sending state, unless that state is unwilling or unable to prosecute, in which case the SCSL, with the authorisation of the Security Council, may do so: SCSL Statute, art 1(2). This provision was not utilised. For further discussion, see R Cryer, ‘A “Special Court” for Sierra Leone?’ (2001) 50 International and Comparative Law Quarterly 435, 440–41; and A McDonald, n 148, 132–33. 153   See ch 1, section III(B)(iii). 154   UNSC Res 1534 (2004) UN Doc S/RES/1543, para 5. Previous resolutions recognised the impor­ tance of concentrating on the prosecution and trial of the most senior leaders, but had only done so in non-operative paragraphs: see UNSC Res 1503 (2003) UN Doc S/RES/1503, preambular para 7. 155   Prosecutor v Dragomir Milutinovi´c (Decision on Referral of Case Pursuant to Rule 11bis) ICTY98-29/1-PT, Referral Bench (8 July 2005) para 22. 156   See, eg, Prosecutor v Lubanga (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04-01/06, P T Ch I (10 February 2006) paras 54–55. The Pre-Trial Chamber con­ sidered that the ICC should concentrate on the highest-ranking perpetrators, as they were the ones best situated to prevent or stop the commission of crimes, and thus their prosecution would maximise



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The suggestion that a requirement to focus only on senior leaders or those ‘most responsible’ is a definitive feature of a hybrid or internationalised tribunal does not appear to be reflected in the practice. The SCSL157 and the ECCC158 are currently the only tribunals studied that are subject to an express seniority requirement. The personal jurisdiction of the SCSL is limited by article 1 of the SCSL Statute to those ‘persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law . . . including . . . those leaders who, in committing such crimes, have threatened the establish­ ment of and implementation of the peace process in Sierra Leone’. Neither the SCSL Statute nor the SCSL Agreement expressly defines the term ‘greatest respon­ sibility’. The inclusion and phrasing of this provision generated several exchanges between the Secretary-General and the Security Council, which provide some guidance as to the meaning intended. In Resolution 1315, the Security Council clearly indicated its preference that the SCSL have a limited personal jurisdiction, limited to those ‘who bear the greatest responsibility’.159 In interpreting the term ‘greatest responsibility’, the SCSL has paid regard to the correspondence between the Secretary-General and the Security Council.160 The ECCC Law restricts the personal jurisdiction of the ECCC to senior leaders of Democratic Kampuchea and those most responsible for the crimes falling within the ECCC’s subject matter and temporal jurisdiction.161 This seniority requirement is also reflected in the guidance provided to the co-investigating the deterrent effect of the Court. However, note the comments of the Appeals Chamber on this issue: Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’) ICC-01/04-169-US-Exp, A Ch (13 July 2006) para 73. 157   SCSL Statute, art 1. 158   The ECCC Law restricts the personal jurisdiction of the ECCC to senior leaders of Democratic Kampuchea and those most responsible for the crimes falling within the ECCC subject matter and temporal jurisdiction: art 2. This seniority requirement is also reflected in the guidance provided to the co-investigating judges and the co-prosecutors in the ECCC Agreement: see arts 5(3) and 6(3). Suggestions that a wider personal jurisdiction should be granted, allowing greater prosecutorial dis­ cretion in deciding which individuals to investigate, were rejected by the Government of Cambodia: D Boyle, ‘Establishing the Responsibility of the Khmer Rouge Leadership for International Crimes’ (2002) 5 Yearbook of International Humanitarian Law 167. 159   UNSC Res 1315 (2000) UN Doc S/RES/1315, para 3. 160   The Security Council had indicated its preference that the SCSL have a limited personal jurisdic­ tion – to those ‘who bear the greatest responsibility’: UNSC Res 1315 (2000) UN Doc S/RES/1315, para 3. The phrasing of this provision generated several exchanges between the Secretary-General and the Security Council, with the Secretary-General calling for the term ‘persons most responsible’, which, he suggested, would allow the Prosecutor greater discretion in determining who to prosecute. The Security Council preferred the formulation eventually adopted, arguing that this provided a clearer mandate for the tribunal. See UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915; UNSC, ‘Letter Dated 22 December 2000 from the President of the Security Council Addressed to the Secretary-General’ (2000) UN Doc S/2000/1234; UNSC, ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40. 161   ECCC Law, art 2. Suggestions that a wider personal jurisdiction should be granted, allowing greater prosecutorial discretion in deciding which individuals to investigate, were rejected by the Government of Cambodia: Boyle, n 158.

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judges and the co-prosecutors.162 Four of the five accused to appear before the ECCC are considered to have been senior leaders of the Khmer Rouge, ‘due to their de facto and de jure hierarchical authority’.163 They are charged, additionally or in the alternative, as persons ‘most responsible’.164 Seniority has been equated to membership of the main Khmer Rouge Central Committee, with all four accused members of the Central Committee and the Standing Committee.165 None of the accused directly challenged their classification as senior leaders in the closing order.166 The fifth accused, Kaing Guek Eav (alias Duch), was charged not as a senior leader of the Khmer Rouge, but as one most responsible for the crimes committed during the relevant period. In fact, it has been suggested that the term ‘most responsible’ was included in the ECCC law specifically to permit prosecu­ tion of Duch.167 The co-investigating judges considered that his responsibility was ‘due both to his formal and effective hierarchical authority and his personal par­ ticipation as Deputy Secretary then Secretary of S21, a security centre that was directly controlled by the Central Committee’.168 The accused has appealed the Trial Chamber’s finding that he was a person ‘most responsible’ on the basis that, as a prison head, he could not be considered most responsible as he had no authority to decide the fate of individual prisoners and merely carried out the orders of the Standing Committee.169 It is not clear from the limited public infor­ mation available whether the five individuals the subject of investigation in Cases 003 and 004 are senior leaders or those most responsible.170 However, the fact that   ECCC Agreement, arts 5(3) and 6(3).   Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) 002/19-09-2007-ECCCOCIJ, OCIJ (15 September 2010) para 1327. 164   The Statement of the Co-Prosecutors of 18 July 2007 identified five suspects, although, report­ edly, the ECCC may have charged a maximum of eight individuals, all considered senior leaders: ‘Cambodian Genocide Tribunal to Try Up to 8 Defendants, Hire More Staff ’, The Associated Press (Cambodia, 13 February 2008). For discussion of the leadership structure of the Khmer Rouge and possible defendants, see M Bunyanunda, ‘The Khmer Rouge on Trial: Whither the Defence’ (2001) 74 Southern California Law Review 1581. 165   Nuon Chea, second in command to Pol Pot, was the Deputy Secretary of the Central Committee, the Deputy Secretary of the Standing Committee of the CPK and the Acting Prime Minister from September 1976 until sometime in late 1977. Ieng Sary was the Deputy Prime Minister for Foreign Affairs; Khieu Samphan was the President of the State Presidium; and Ieng Thirith was Minister of Social Affairs. For more details of their respective roles, see the ‘Role of the Charged Persons’ section in the Closing Order. 166   All accused appealed from the closing order, but not on the basis of personal jurisdiction. 167   S Heder, ‘Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes’ in J Ramji and B van Schaak (eds), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (Lewiston, Edward Mellen Press, 2005) 410. 168   Kaing Guek Eav alias ‘Duch’ (Amended Closing Order) 001/18-07-2007-ECCC-OCIJ, OCIJ (8 August 2008) para 129. The Trial Chamber agreed with the co-investigating judges that the accused was one of the most responsible, even though he was not a senior leader of the Khmer Rouge: Kaing Guek Eav alias ‘Duch’ (Judgment) 001/18-07-2007/ECCC/TC, T Ch (26 July 2010) para 25. 169   Kaing Guek Eav alias ‘Duch’ (Appeal Brief by the Co-Lawyers for Kaing Guek Eav alias ‘Duch’ Against the Trial Chamber Judgement of 26 July 2010) 001IIS-07-2007-ECCC/SCC, Supreme Court Ch (18 November 2010). Hearings were held in March 2011, and judgment is pending. 170  The statement of the International Co-Prosecutor referred only to ‘suspects who the Co-Prosecutor believes are responsible for the alleged crimes and fall within the jurisdiction of the ECCC’: Statement by the International Co-Prosecutor Regarding Case 003, 9 May 2011. In contrast, the national Co-Prosecutor indicated her belief that the suspects ‘were not either senior leaders or 162 163



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they are being considered as part of a joint criminal enterprise suggests that they may be at the leadership level of the Khmer Rouge.171 Where a seniority requirement is included, one question is whether the require­ ment is one of jurisdiction or merely guidance to the Prosecutor as to how prosecutorial discretion should be exercised. In the ICTY, rule 28(A) of the ICTY Rules of Procedure and Evidence (RPE) requires the Bureau to review the indictment for seniority when the indictment is submitted by the Prosecutor, hence making the review of seniority part of the confirmation process.172 This amendment to the rules was, however, controversial and was not duplicated by the judges of the ICTR. Under the Rome Statute, the Pre-Trial Chamber must confirm the admissibility of any case for which an indictment is sought, including a review of whether the case is of sufficient gravity.173 An ICC Trial Chamber has indicated that any challenges to an indictment on the basis of gravity must take place before the decision on the confirmation of charges is filed, other than in exceptional circumstances.174 The SCSL has had a mixed approach to this ques­ tion. Trial Chamber I determined that ‘the issue of personal jurisdiction is a juris­ dictional requirement, and while it does of course guide the prosecutorial strategy, it does not exclusively articulate prosecutorial discretion’.175 It based this conclu­ sion on the correspondence between the Secretary-General and the Security Council, finding that the first term ‘greatest responsibility’ was a jurisdictional criterion, while the second part, that is the words ‘those leaders who, in commit­ ting such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’, offered guidance to the Prosecutor.176 In contrast, when Trial Chamber II faced the same question, it held that the term ‘greatest responsibility’ merely offered guidance to the Prosecutor, based on a different those who were most responsible’: Statement by the National Co-Prosecutor regarding Case File 003, 10 May 2011. 171  See ECCC, Statement of the Acting International Co-Prosecutor: Submission of Two New Introductory Submissions (8 September 2009). 172   The Bureau is a regulatory body of the ICTY, which comprises the President, Vice-President and the presiding judges of the Trial Chambers, and consults on all major questions relating to the func­ tioning of the ICTY. 173   Rome Statute, arts 17 and 18. See also art 19, which enables the ICC to satisfy itself as to its juris­ diction in any case brought before it and to determine the admissibility of a case in accordance with art 17. 174   Prosecutor v Katanga and Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)) ICC-01/04-01/07, T Ch II (16 June 2009), in par­ ticular para 49. This finding was not disturbed upon appeal, although the Appeals Chamber stressed that in refraining to comment on the finding of the Trial Chamber on this issue, it did not necessarily mean that it agreed with the Trial Chamber’s interpretation: Prosecutor v Katanga and Chui (Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) ICC-01/04-01/07 OA 8, A Ch (25 September 2009) para 38. Moreover, there is an obligation on a state wishing to challenge the admissibility of a case to do so at the earliest opportunity: Rome Statute, art 19(5). 175   Prosecutor v Fofana et al (Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on behalf of Accused Fofana) SCSL-04-14-PT, T Ch (3 March 2004) para 27. This finding was restated by the Trial Chamber in its final judgment in the CDF case: Prosecutor v Fofana and Kondewa (CDF Case) (Judgment) SCSL-04-14-T, T Ch I (2 August 2007) para 91. 176   See n 159.

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interpretation of the correspondence between the Secretary-General and the Security Council.177 On appeal from the judgment of Trial Chamber II, the Appeals Chamber agreed with the latter approach, and held that the only work­ able interpretation of article 1(1) of the SCSL Statute is that it merely guides the Prosecutor.178 It based its conclusions on the structure of the Court, specifically the status of the Prosecutor as an independent organ of the Court, as well as prac­ tical considerations. In particular, the Appeals Chamber held it to be ‘inconceiv­ able’ that an indictment could be struck out on this basis ‘after a long and expensive trial’.179 In contrast, while the ECCC has not considered the issue in any detail, it appears to have considered the terms ‘senior leaders’ and ‘those most responsible’ as a jurisdictional requirement.180 This may be as article 2 is included in Chapter II, entitled ‘Competence’, which suggests that the article is linked to the jurisdictional competence of the ECCC.181 The issue may receive greater judi­ cial attention now that it forms the basis of one of Duch’s grounds of appeal.182 It is argued here that the better view is that adopted by Trial Chamber I of the SCSL, which is that the requirement in article 1(1) of the SCSL Statute is a jurisdictional requirement that may – and must – be considered by the SCSL. This is supported by the drafting history of the SCSL Statute itself, as outlined above.183 The test concerning the seniority criterion should be that, prima facie, the individual in question falls within the category of persons bearing the greatest responsibility. The Court should take into account the facts as pleaded in the indictment sought or the request for confirmation of charges and should not require additional evidence.184 Discretion should be allowed to the prosecution to   Prosecutor v Brima, Kamara and Kanu (Judgment) SCSL-04-16-T, T Ch II (20 June 2007) para

177

653 178   Prosecutor v Brima, Kamara and Kanu (Appeal Judgment) SCSL-04-16-A, A Ch (22 February 2008) para 282. The Trial Chamber in that case had reached the same conclusion: Prosecutor v Brima, Kamara and Kanu (Judgment) SCSL-04-16-T, T Ch II (20 June 2007). 179   ibid, para 283. 180   eg, both closing orders issued by the co-investigating judges have found that the charged persons fell within the personal jurisdiction of the ECCC by satisfying the ‘senior leaders’ or ‘persons most responsible’ requirement: Kaing Guek Eav alias ‘Duch’ (Closing Order) 001/18-07-2007-ECCC-OCIJ, OCIJ (18 July 2007) para 129; Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) 002/19-09-2007-ECCC-OCIJ, OCIJ (15 September 2010) paras 1327–28. 181   In contrast, the equivalent provision in the SCSL Statute is not expressly linked to competence. See S Morrison, ‘Extraordinary Language in the Courts of Cambodia: Interterpreting the Limiting Language and Personal Jurisdiction of the Cambodian Tribunal’ (2008–09) 37 Capital University Law Review 583. 182   See n 169. 183   Various exchanges between the Security Council and the Secretary-General demonstrate that the Council was concerned to limit the jurisdiction of the SCSL to those who played a leadership role, and ultimately led to the inclusion of the words ‘persons who bear the greatest responsibility’: see UNSC, ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40; UNSC ‘Letter Dated 24 January 2001 from the Chargé d’Affaires a.i. of the Permanent Mission of Iraq to the United Nations Addressed to the Secretary-General’ (26 January 2001) UN Doc S/2001/85; and UNSC, ‘Letter Dated 12 July 2001 from the Secretary-General Addressed to the President of the Security Council’ (13 July 2001) UN Doc S/2001/693. 184   This is the approach adopted by the ICTY in referral cases under Rule 11bis, see: Prosecutor v Radovan Stankovi´c (Decision on Referral of Case Under Rule 11bis) ICTY-96-23/2-PT, Referral Bench (17 May 2005).



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establish those facts during the trial phase. Only where the seniority criterion can­ not be satisfied on a prima facie basis should the Court intervene, including, if necessary, by referring the case back to the Prosecutor for reconsideration. Concerns as to the stage at which such a review may occur may be resolved by providing that any review of the seniority of an accused must occur at a prelimi­ nary stage, before the confirmation of an indictment. Any challenge to admissibil­ ity on this ground must be required to be made and heard before the confirmation of charges. Other tribunals are not subject to a seniority and/or gravity requirement and, while they may in practice concentrate on senior leaders to utilise limited resources more effectively, they can and have tried lower-level offenders. For example, the personal jurisdiction of the IHT is not restricted to persons most responsible or the most serious offenders. The prosecutorial strategy has focused on several mini-trials, each examining a major incident or campaign. The IHT has tried and convicted several senior and high-profile officials, most notably the former President, Saddam Hussein, the former head of the General Intelligence Directorate, the former Vice-President, the Chief Judge of the Revolutionary Court, the former defence minister and the former deputy Prime Minister. However, while the intention was that only the highest-level perpetrators were to be prosecuted,185 with intermediate and lower-level offenders to be prosecuted before the ordinary Iraqi courts, some ‘low-level’ accused have been tried and convicted by the IHT.186 The STL Statute does not contain a seniority criterion. However, as it is assumed that the actual assassin was killed in the explosion, the investigation and prosecution strategy will be focused on those who planned and ordered the attack, rather than the actual perpetrators. Neither the WCC nor the IJPP are restricted as to the level of the offender. This probably reflects the role that the ICTY exercises in the region in trying cases concerning senior leaders and those most responsible, leaving the trials of intermediate and lower-level accused to courts in the region, including the WCC and the IJPP. The experience of the SPSC replicated the early stages of the ICTY. Lacking a restriction as to the level of accused, most persons indicted were lower-level offenders, often charged with single crimes unrelated to the political violence. The General Prosecutor concentrated on instances of murder, identifying ten priority cases.187 The arrival of an international deputy-prosecutor general facilitated a more selective strategy with increased resources dedicated to investigating more serious offenders and those with the greatest responsibility. However, although 185   Coalition Provisional Authority advisers recommended that the IHT should follow the lead of the SCSL and concentrate on high-level offenders, limiting numbers to no more than 20 to 25 offend­ ers. The Iraqi Governing Council had originally suggested hearing some 6,000 cases before the IHT: see T Parker, ‘Prosecuting Saddam: The Coalition Provisional Authority and the Evolution of the Iraqi Special Tribunal’ (2005) 38 Cornell International Law Journal 899, 903. 186   eg, the ‘lesser accused’ in the Dujail trial were Ba’th Party officials from Dujail, and did not hold significant rank or office in the Hussein regime. 187   The Serious Crime Unit applied the following criteria: the number and type of victims; the seri­ ousness of the crimes and their political significance; and the availability of evidence.

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many of the East Timorese accused held positions of authority within the militia organisations, the majority were low in the overall chain of command. From 2003 onwards, the prosecution moved to indict more senior figures within the Indonesian military and police structures, including several of those not indicted by the Ad Hoc Court in Indonesia.188 However, due to Indonesia’s refusal to extradite its nationals for trial in East Timor, the cases against senior figures did not proceed. Of the proposed tribunals, the proposals for the Special Tribunal for Burundi, the Special Chamber for Darfur, the Special Tribunal for Kenya and the Habré tribunal all incorporate a requirement that the tribunal focus on those ‘most responsible’ for the commission of the crimes within the tribunal’s jurisdiction. Despite recommendations that such a requirement should be included, the pro­ posed legislation for the Specialised Chamber for the DRC and the Extraordinary Criminal Court for Liberia do not include a restriction limiting the personal juris­ diction to those ‘most responsible’. The issue is as yet unresolved in respect of the proposed extraterritorial piracy court, although there have been suggestions that the court would concentrate on those accused of financing and organising acts of piracy off the coast of Somalia rather than individual perpetrators.189 To conclude, the existing practice does not support a requirement for the tri­ bunal to focus on senior leaders or commanders or those most responsible as a defining characteristic of hybrid and internationalised tribunals. However, the practice does suggest that this may be emerging as a likely feature, particularly where there is not an international court able to exercise jurisdiction in respect of the most senior offenders. This reflects a need to prioritise valuable and often scarce resources. Hence, even where there is not a formal restriction as to senior­ ity, the practice shows that the tribunals often adopt an approach that focuses on senior leaders and commanders as part of the prosecutorial strategy or at the admissibility stage. The need to focus on senior leaders and those most responsi­ ble may also justify the involvement of the international community, as it is often the higher-level offenders that are least likely to face trial at the national level, particularly where the regime implicated in those crimes remains in power. However, other international criminal tribunals have a similar focus, including the ad hoc tribunals (at least since the adoption of the completion strategy), the ICC (as part of the gravity requirement) and the IMT and Tokyo Tribunal.190 National institutions may also adopt a strategy whereby criminal prosecution is directed at senior-level offenders, while lower-level participants are offered amnesty from prosecution.191 Thus, while a limited personal focus may be a com­   See discussion in ch 2, section V(C).   See ch 3, section III(D). 190   Both the IMT and the Tokyo Tribunal were established to prosecute the ‘major war criminals’. See Charter of the IMT, art 1; and Charter of the IMTFE, art 1. 191   National truth commissions may offer amnesty to lower-level offenders in return for coopera­ tion. See, eg, the East Timor CAVR; the South African Truth Commission; and the Truth and Reconciliation Commission in Sierra Leone (although see ch 6, section IV(B)(ii) as to whether the SCSL can override amnesty granted under the Lomé Agreement). 188 189



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mon feature, it cannot as yet be considered to be a defining feature of a hybrid and internationalised tribunal.

L.  Material Jurisdiction The material jurisdiction of a tribunal refers to the range of conduct that is within the jurisdiction of that tribunal, and how that conduct is characterised. Selecting the material jurisdiction of a tribunal requires deciding first which conduct is to be subjected to criminal enforcement and, second, which law will be used to enforce that conduct.192 Descriptions of hybrid and internationalised tribunals refer to the ‘mixed’ applicable law of the tribunal; that is, the tribunal has jurisdic­ tion in respect of some conduct that is criminalised by international law and other conduct that is criminalised by national law only.193 It is this element that is said to distinguish the category of hybrid and internationalised tribunals from the inter­ national criminal tribunals, which exercise jurisdiction only in respect of crimes under international law, and from national proceedings, which try individuals on the basis of national law only. It has been suggested that the need to secure accountability for international ‘core’ crime renders an issue an international one and justifies the internationalisation of the applicable order and the bypassing of state sovereignty.194 The primary aim of this section is to assess the extent to which a mixed material jurisdiction is a defining characteristic of a hybrid and internationalised tribunal. However, before examining this issue, this section will take the opportunity to draw from the study of practice the factors that influence the selection of a tribu­ nal’s material jurisdiction. The study of practice demonstrates that many factors influence the selection of the material jurisdiction of a particular tribunal. These include: (1) the relevant applicable law, both at the national and international level; (2) the state of the applicable law at the time the conduct occurred (nullum crimen) and any provisions on non-retroactive application of criminal law; (3) whether the threshold elements of the international crimes are likely to be established; (4) the nature and extent of the criminal conduct that is alleged to have occurred; and (5) non-legal factors.

i.  Factors for the Inclusion of International Crimes An assessment of the available applicable law at both the national and interna­ tional level entails considering whether the conduct is criminalised by customary  Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 15.   See the definition provided by Dickinson, eg: ‘Such courts are “hybrid” because both the institu­ tional apparatus and the applicable law consist of a blend of the international and the domestic’: Dickinson, ‘The Promise of Hybrid Courts’, n 23, 295. 194   F Mégret, ‘A Special Tribunal for Lebanon: The UN Security Council and the Emancipation of International Criminal Justice’ (2008) 21 Leiden Journal of International Law 485, 507. 192

193

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international law, by a treaty to which the affected state is a party or by the domes­ tic law of the affected state. The available legal framework will, in many cases, dictate the balance between international and domestic crimes included in the legal instruments of the tribunal. If conduct is not criminalised under domestic law, or is criminalised only as an ‘ordinary’ crime, there are a number of alterna­ tives.195 First, it may be necessary to criminalise the international crimes directly as a matter of international law, which will be possible where the legal basis for the tribunal is either a Security Council resolution (the ICTY and the ICTR) or a treaty establishing the tribunal (the SCSL). Second, international crimes may be incorporated directly into, and apply as, domestic law. This is generally achieved through legislation at the national level, which is most likely to be required if the affected state is a dualist system. The crimes may be incorporated into domestic law either as part of the legislation establishing the tribunal,196 or as part of a wider review of the domestic law, perhaps as part of the process of implementing the Rome Statute into domestic law.197 All of the tribunals and proposed tribunal established as a matter of domestic law adopt this approach.198 The nature of the legal system of the affected state and its relationship with crimes established by international law will therefore be relevant. Also potentially relevant are any legal barriers to the exercise of jurisdiction at the national level, such as amnesties, immunities or statutes of limitation. The presence of such barriers may require that international crimes are criminalised directly by international law, rather than as part of domestic law.199 Second, it is necessary for designers of tribunals to consider the state of the applicable law at the time the conduct occurred. This is necessary to prevent a violation of the nullum crimen sine lege principle.200 There are two aspects to this issue. First, where the conduct was not criminalised at the domestic level, but was recognised as an international crime at the international level, this will lead to a need either to rely on international law directly, or to incorporate international crimes into the domestic legal framework. Second, and in the converse situation, where conduct is not criminalised under international law, the tribunal will have to rely instead on ‘ordinary crimes’ criminalised under domestic law. For exam­ ple, while the ECCC may exercise jurisdiction only in respect of grave breaches committed during the international armed conflict between Cambodia and Vietnam, it may not exercise jurisdiction in respect of the non-international armed conflict in Cambodia. Assuming that the rebellion and other acts of vio­ 195   Of course, in this situation, the conduct must have at least been criminalised under international law, or else risk violating the nullum crimen principle. See further ch 6, section II. 196   The ECCC Law, eg, incorporates several international crimes into Cambodian law, for the pur­ poses of trials before the ECCC only: ECCC Law, arts 4, 5 and 6. 197   It was proposed that the international crimes within the jurisdiction of the Special Tribunal for Kenya would be those incorporated into Kenyan law by the International Criminal Court Bill, which was already before the Kenyan parliament. See ch 3, section III(E). 198   For further discussion as to which tribunals are established by domestic law, see ch 5, sections IV and V. 199   Discussed in more detail in ch 6, sections III, IV and VI. 200   See further ch 6, section II.



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lence in Cambodia met the threshold of intensity required for the existence of a non-international armed conflict,201 as Cambodia was not a state party to Additional Protocol II to the Geneva Conventions during the relevant period, jurisdiction would have to be based upon the notion that common article 3 to the Geneva Conventions gave rise to individual criminal responsibility. However, as the Group of Experts concluded, it is very difficult to argue that customary inter­ national law recognised such criminality by 1975,202 and to exercise jurisdiction on this basis would violate the nullum crimen principle. Third, designers of tribunals must consider whether the conduct in question is likely to satisfy the key elements of the crimes that could potentially be included within the material jurisdiction of the tribunal. In making this decision, those designing the tribunal will not have all the evidence available to them, and will need to be satisfied that there is reasonable basis to suggest that the crimes in question were committed. Designers may be assisted in this regard – but are not bound – by the reports of previous investigative commissions, expert groups or rapporteurs, or by information made available by the United Nations, states and other organisations.203 In relation to international crimes, this decision requires examining whether the evidence would satisfy the so-called ‘threshold’ or context elements of the crimes. This may include consideration of, for example: for geno­ cide, whether the acts were directed at a group protected by the definition of genocide and whether a ‘genocidal intent’ was present; for war crimes, whether the crimes were committed in connection with an armed conflict, and whether that conflict was international or non-international; and for crimes against humanity, whether the acts were committed in the context of a widespread or systematic attack against the civilian population. To illustrate, the crime of geno­ cide was not included within the material jurisdiction of the SCSL due to the ‘lack of evidence that the massive, large-scale killing in Sierra Leone was at any time perpetrated against an identified national, ethnic, racial or religious group with an intent to annihilate the group as such’.204 Similarly, in situations that are not considered to constitute an armed conflict, such as the terrorist attacks in 201   For further discussion, see S Ratner, J Abrams and J Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 3rd edn (Oxford, Oxford University Press, 2009) 325–27. 202   UNGA, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135’ (15 March 1999) UN Doc A/53/850, para 75. This was two years before the ICRC elaborated the laws of internal armed conflict in APII, which does not include any provisions on crim­ inality. Moreover, although the ICTY has recognised that criminal responsibility for violations of com­ mon article 3 to the Geneva Conventions existed by the time of the Yugoslav war this statement was most likely premature, and did not reflect the existing state practice: E La Haye, War Crimes in Internal Armed Conflicts (Cambridge, Cambridge University Press, 2008) 170–72; Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, n 123, 231–36. In any event, this recognition was still some 15 years after the events in Cambodia. 203   eg, designers of the STL were assisted by the evidence collected by the UNIIIC. See ch 2, section III(B). 204   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (4 October 2000) UN Doc S/2000/915, para 13. The Security Council did not include the crime of genocide in its recommendation to the Secretary-General in UNSC Res 1315 (2000) UN Doc S/RES/1315.

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Lebanon205 or the post-election violence in Kenya,206 it will not be possible to include war crimes within the material jurisdiction of the tribunal. These legal issues are, of course, not the only consideration in determining the balance of national and international crimes to be included within the material jurisdiction of a particular tribunal. Domestic and international politics and sen­ sitivities, and assertions of state sovereignty, will also impact upon the regime adopted. For example, a state may consider it an assertion of its sovereignty for conduct to be tried under domestic law, rather than international law. It may view international law as having been imposed by the international community and as extending beyond the obligations that the state has accepted as a matter of treaty law. This may be of particular concern where it is proposed to rely on the provi­ sions in the Rome Statute and the state concerned is not a party to that treaty.207 Addressing such concerns may be important to secure domestic support for the tribunal, particularly where there is a sense that the government, in agreeing to a tribunal, has conceded too much authority to the United Nations or other states, or where the tribunal has been imposed. Of course, it may be a condition of the provision of international assistance that the crimes committed be recognised as international crimes and tried as such, thus precluding reliance on ordinary crimes under domestic legislation. This may be the case where the tribunal is being established in an attempt to rely on the principle of complementarity to prelude the exercise of jurisdiction by the ICC.208 Linked to this is the perception that characterising acts as international crimes is somehow superior to character­ ising the same behaviour as a crime under domestic law,209 even though from a legal and practical perspective, relying on ordinary crimes under national law may offer important advantages.210 205   The assassination of Hariri did not occur within a situation of armed conflict, either inter­ national or non-international in nature. Thus there was no possibility of including terrorism as a violation of international humanitarian law in the STL Statute. 206   The post-election violence in Kenya is not considered to have amounted to an internal armed conflict. This is reflected in the prosecutorial strategy of the ICC, with the ICC seeking charges in respect of crimes against humanity only. 207   The Statute of the IHT and UNTAET reg 2000/15 both draw heavily on the provisions of the Rome Statute, although neither state was a party to the Rome Statute at the time. 208   The provisions of the Rome Statute that would likely be relied on are arts 17(1)(c) and 20(3). Art 20(3) refers to ‘the same conduct’ not the same crimes, thus it appears that a domestic trial in respect of the same conduct, even though that conduct is characterised as an ordinary crime, would preclude a new trial before the ICC: J Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford, Oxford University Press, 2008) 118–25. 209   This view is evident in the initial approach of the ECCC to the inclusion of domestic crimes. In the Closing Order in Case 001, the Co-Investigating Judges, while noting that the alleged conduct could constitute both crimes under international law and crimes under Cambodian law, it was prefer­ able to ‘accord such acts the highest available legal classification, in this case: crimes against humanity or grave breaches’: Kaing Guek Eav alias ‘Duch’ (Amended Closing Order) 001/18-07-2007-ECCCOCIJ, OCIJ (8 August 2008) para 152. Following an appeal by the Co-Prosecutors, the Pre-Trial Chamber held that the ‘domestic crimes of torture and premeditated murder are not subsumed by the international crimes’, as they featured material elements distinct to the international crimes: Kaing Guek Eav alias ‘Duch’ (Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias ‘Duch’) 001/18-07-2007-ECCC/OCIJ, PT Ch II, (5 December 2008) paras 83–84. 210   See this ch 4, section III(L)(iii).



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Finally, where there is any doubt as to whether a particular crime should be included in the material jurisdiction of a tribunal, there is the related question as to which entity should make the final decision as to its inclusion: the designers of the tribunal or the judges or the prosecution of the tribunal itself?211 The practice shows two distinct approaches to this question. One approach is for the designers of the tribunal to predetermine the issue and not to include crimes within the material jurisdiction where doubt exists. This can be seen in the approach taken in relation to the SCSL Statute (excluding genocide), the STL Statute (excluding crimes against humanity) and the ECCC Law (excluding violations of inter­ national humanitarian law in non-international armed conflicts). This approach has been criticised, with commentators suggesting that a broad subject matter jurisdiction should be granted to such tribunals, leaving the determination as to whether those crimes could be substantiated to the Prosecutor and ultimately the judges.212 The other approach is to leave it for the prosecution, and the judges of the tri­ bunal, to determine which charges are substantiated. The study of existing prac­ tice suggests that in many circumstances, prosecutors will not bring charges where there is doubt that the elements of a crime will be satisfied or that the legal frame­ work is inadequate. For example, the Serious Crimes Unit in East Timor did not issue indictments in respect of war crimes, given the uncertainty as to whether an armed conflict existed in East Timor, the nature of that conflict and the applicable legal regime.213 The Serious Crimes Unit and the General Prosecutor appear to have taken the view that the violence surrounding the transition did not consti­ tute an armed conflict, or else that the legal status of the territory – and hence the applicable legal regime – was too uncertain. Where dubious indictments are issued, perhaps as a result of bias or unfamiliarity with the law, tribunals have refused to convict or appellate panels have overturned convictions, as shown by the practice of the IJPP regarding genocide.214 Similarly, prosecutors in Kosovo have not indicted individuals with crimes against humanity, perhaps due to the

 Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 15.   eg, S Beresford and S Muller, ‘The Special Court for Sierra Leone: An Initial Comment’ (2001) 14 Leiden Journal of International Law 635, 642. 213   Kress notes that ‘this threshold issue cannot be satisfactorily explored without touching on the international legal status of Indonesia’s presence in East Timor since 7 December 1975’: C Kress, ‘The 1999 Crisis in East Timor and the Threshold of the Law on War Crimes’ (2002) 13 Criminal Law Forum 409, 421. See also S Linton, ‘Prosecuting Atrocities at the District Court of Dili’ (2001) 2 Melbourne Journal of International Law 414. 214   In the years of operation under UNMIK, the courts in Kosovo issued four indictments for geno­ cide, with none resulting in convictions. In the Vucˇkovi´c case, two Kosovo Serbs were indicted for geno­ cide, and convicted at first instance by a panel comprising a majority of national judges. However, the Supreme Court, with a panel consisting of a majority of international judges, reversed the conviction on the basis that the facts estabished at trial did not support a genocide conviction: Prosecutor v Vucˇkovi´c  , Supreme Court of Kosovo (31 August 2001), quoted from W Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes” ’ (2003) 1 Journal of International Criminal Justice 39 at 63. See also OSCE Mission in Kosovo, Kosovo War Crimes Trials: A Review, September 2002, 50. 211

212

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uncertainty as to whether the crime has been incorporated in domestic law.215 However, the risk of this approach is that proceedings may be commenced and convictions entered, despite concerns as to whether the applicable law supports the inclusion of such charges. Perhaps the most worrying instances of this are the convictions by the IHT for offences in non-international armed conflicts, and charges based on the definition of crimes against humanity in the Rome Statute being applied to conduct over 20 years before its adoption.216 Cryer suggests that the decision as to which entity shall make this determina­ tion is governed, at least in part, by whether the drafters perceive the tribunal in question to be a ‘safe’ tribunal. He argues that ‘[T]he trend is for the creators of international criminal courts to take a wider view of the definitions of crimes when they are not to be subject to their jurisdiction than when they are’.217 It is difficult to see to what extent this theory is validated in the practice of the hybrid and internationalised tribunals. The personal and temporal jurisdiction of the tri­ bunals and their context often effectively preclude nationals of states other than the territorial state. The horizontal model that is applied to these tribunals in respect of immunity and state cooperation also acts to minimise the possibility of trials of nationals of other states, at least in the absence of a binding resolution of the Security Council.218 Thus one would expect that the tribunals would have been conferred with extensive material jurisdiction. However, while this is argu­ ably so in relation to the IHT, the SPSC, the IJPP and the WCC, it is true to only a limited extent as to the ECCC, and not true for the SCSL and the STL. There are two possible views of this finding. First, this may suggest that states are more will­ ing to subject their nationals to uncertain and potentially expansive material jurisdiction before internationalised courts, particularly where restrictions as to the personal jurisdiction will focus efforts on leaders of a previous regime. Alternatively, this may speak more to the caution of the Security Council in enabling the establishment of hybrid tribunals, the political factors at play and the need to limit resources.

ii.  Must Hybrid and Internationalised Tribunals Exercise Jurisdiction in Respect of International Crimes? In terms of international crimes, five of the seven existing hybrid and internation­ alised tribunals may exercise jurisdiction in respect of genocide, the SCSL and the 215   As in Bosnia, the offence of crimes against humanity was not incorporated into the criminal code of the former Yugoslavia, and there were concerns that reliance on this would violate the nullem crimen principle as found in Kosovan law. The ICTY has found that acts in Kosovo constituted crimes against humanity: Prosecutor v Limaj et al (Judgment) ICTY-03-66-T, T Ch II (30 November 2005), para 228; Prosecutor v Haradinaj et al (Judgment) ICTY-04-84-T, T Ch I (3 April 2008) para 122. 216   See Y Shany, ‘Does One Size Fit All?’ (2004) 2 Journal of International Criminal Justice 338, 344. 217  Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 15, 233. 218   See ch 5, section VI.



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STL being the exceptions. Of the proposed tribunals, the Special Tribunal for Burundi, the Specialised Chamber for the DRC, the Special Tribunal for Kenya and the Extraordinary Criminal Court for Liberia would be able to exercise juris­ diction in respect of the crime of genocide.219 The offence of crimes against humanity is included within the material jurisdiction of all the tribunals and pro­ posed tribunals studied, with the exception of the STL and the proposed piracy court. In fact, the STL Statute is the first constituent instrument of an internation­ alised or international criminal tribunal not to include jurisdiction in respect of crimes against humanity. Jurisdiction in respect of war crimes is also generally included within the material jurisdiction of the tribunals, reflecting the back­ ground to establishment of the tribunals studied, many of which have been estab­ lished either in the context of an ongoing armed conflict or a recently ended conflict. The ECCC is an exception in that the armed conflict in question – the international armed conflict between Cambodia and Vietnam – had ended two decades before the establishment of the ECCC. The exceptions to the inclusion of war crimes within the jurisdiction of the tribunal are, again, the piracy court and the STL, as well as the Special Tribunal for Kenya. Thus, with the exception of the proposed piracy tribunal and the STL, all existing and proposed tribunals studied may exercise jurisdiction in respect of at least one of the ‘core’ international crimes: genocide; crimes against humanity; and war crimes. The material jurisdiction of the STL is difficult to reconcile with the suggested requirement for a mixed material jurisdiction. As discussed in chapter two, its material jurisdiction comprises only crimes under Lebanese law, including com­ mitting ‘terrorist acts’ and conspiring to commit terrorist acts.220 The United Nations Secretariat had considered including the terrorist acts ‘as murder or other inhumane acts of similar gravity causing great suffering or serious injury to body or to mental health’ as crimes against humanity within the STL Statute.221 While recognising that there were significant differences between the attacks committed in Lebanon and attacks committed elsewhere, the Secretariat considered that ‘the 14 attacks committed in Lebanon could meet the prima facie definition of the crime, as developed in the jurisprudence of international criminal tribunals’, including the requirement for a pattern or plan.222 However, due to a lack of sup­ port amongst Security Council members for the inclusion of jurisdiction for 219   It is unclear whether the material jurisdiction for the proposed special chamber for Darfur would include genocide. The African Union Expert Panel report does not list genocide as one of the crimes to have occurred in Darfur. Its recommendation for the hybrid tribunal refers only to jurisdic­ tion for ‘international crimes’ without listing those crimes. However, as it is contemplated that the hybrid tribunal would be considered as part of the admissibility test for cases from Darfur, and the ICC has already issued charges for genocide in respect of President Bashir, a hybrid tribunal without juris­ diction for genocide would not operate to render ICC cases inadmissible. See ch 3, section III(B). 220   STL Statute, art 2. 221   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon’ (15 November 2006) UN Doc S/2006/893, para 23. 222   ibid, para 24. Commentators have supported the suggestion that the attacks in Lebanon may have satisfied the elements of a crime against humanity: see N Jurdi, ‘The Subject-Matter of the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1125, 1127.

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crimes against humanity, the material jurisdiction of the STL was restricted to offences under Lebanese law.223 The material jurisdiction of the STL therefore does not extend to any crimes criminalised directly by international law. Does this mean that jurisdiction in respect of at least one international crime is not a requirement of a hybrid or internationalised tribunal? One possible response is that the ‘international’ element of mixed applicable law is satisfied even where its jurisdiction is limited to domestic crimes, provided the tribunal ‘applies to those domestic crimes forms of individual criminal responsibility, which are almost uniquely international in character’.224 While the STL Statute provides that the applicable substantive law of the tribunal is to be Lebanese law, article 3, entitled ‘individual criminal responsibility’ allows for individual responsibility on the basis of joint criminal enterprise and command responsibility, both of which are not commonly recognised in domestic law, at least in respect of ordinary crimes.225 However, it is suggested here that this is not really a satisfactory response, as something more than just applying an inter­ national procedural rule or mode of responsibility is warranted to justify the involvement of the international community. A better way to consider the issue is to recognise that acts of terrorism, includ­ ing the terrorist acts within the jurisdiction of the STL, are crimes of concern to the international community. This is confirmed by the various Security Council resolutions that have determined that terrorist acts, including the attacks against Hariri, are threats to international peace and security. It is this link to inter­ national peace and security, rather than the classification of the conduct itself as a ‘core’ international crime, which provides the international element in the appli­ cable law of the STL Statute and justifies the internationalisation of the judicial proceedings. As Mégret notes,226 a single murder might arguably have a greater impact on international peace and secu­ rity than a very territorially contained genocide, for example, and might trigger a series of devastating criminal consequences of the utmost concern to international criminal tribunals as well.

The Lockerbie Court confirms that the Security Council may well consider how to secure criminal responses to terrorist acts that threaten international peace and security, even though the crimes are ultimately defined by national law.227 It is thus suggested that the ‘international’ element of a tribunal’s substantive jurisdiction is satisfied by the inclusion of the core crimes (genocide, crimes against humanity and war crimes) or by the inclusion of jurisdiction, even under domestic law, in respect 223   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon’ (15 November 2006) UN Doc S/2006/893, para 23. 224   M Milanovi ´c , ‘An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1139, 1139. 225   ibid, 1142. Milanovi ´c  notes that this may violate the principle of legality, which is discussed in greater detail in ch 6, section II. 226   F Mégret, n 194, 507–08. 227   See discussion of the Lockerbie Court in ch 3, section II(C).



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of an incident that has consequences for international peace and security. Even though the conduct in question may not constitute an international crime per se, it is still a crime of international concern. This position is now somewhat clouded by a recent decision of the Appeals Chamber of the STL. In a somewhat novel procedure,228 the Appeals Chamber issued a decision on the applicable law before the Tribunal.229 In particular, the Chamber held that, although article 2 of the STL Statute meant that ‘the Tribunal must apply the provisions of the Lebanese Criminal Code, and not those of inter­ national treaties ratified by Lebanon or customary international law to define the crime of terrorism’,230 these sources ‘can provide guidance to the Tribunal’s inter­ pretation of the Lebanese Criminal Code’.231 The Appeals Chamber concluded that ‘as domestic law those Lebanese provisions may be construed in the light and on the basis of the relevant international law rules’.232 The relevant international law was the Arab Convention for the Suppression of Terrorism 1998233 and cus­ tomary international law on terrorism.234 After reviewing various treaties, resolu­ tions of the United Nations General Assembly and Security Council, and the legislative and judicial practice of states, the Appeals Chamber concluded that there was, in fact, a rule of customary international law that criminalises terror­ ism, at least in times of peace.235 This was despite both the Prosecution and the Defence Office ‘both forcefully assert[ing] that there is currently no settled defini­ tion of terrorism under customary international law’.236 The Appeals Chamber continued: This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threat­ ening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national 228   Rule 68(G) of the STL RPE enables the Pre-Trial judge, after submission of an indictment by the Prosecutor, to ‘submit to the Appeals Chamber any preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to exam­ ine and rule on the indictment’. On 21 January 2011, the Pre-Trial Judge submitted to the Appeals Chamber 15 questions of law raised by the indictment: Order on Preliminary Questions Addressed to the Judges of the Appeals Chamber pursuant to Rule 68, Paragraph (G) of the Rules of Procedure and Evidence, STL-11-01/I/AC-RC176bis, PT Judge (21 January 2011). 229   Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I/AC/R176bis, A Ch (16 February 2011) (Decision on the Applicable Law). 230   Decision on the Applicable Law, paras 43–44. 231   Decision on the Applicable Law, para 45. 232   Decision on the Applicable Law, para 45, emphasis in original. See also para 62: ‘We conclude instead that although the Tribunal may not apply those international sources of law directly because of the clear instructions of Article 2 of the Tribunal’s Statute, it may refer to them to assist in interpreting and applying Lebanese Law’ (emphasis in original). 233   Decision on the Applicable Law, paras 63–82. 234   Decision on the Applicable Law, para 83. 235   Decision on the Applicable Law, para 85 and para 102. The Appeals Chamber also commented that ‘the conclusion is warranted that a customary rule is incipient (in statu nascendi) which also cov­ ers terrorism in time of armed conflict . . .’, para 109. 236   Decision on the Applicable Law, para 83.

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or international authority to take some action or to refrain from taking it; (iii) when the act involves a transnational aspect.

The Appeals Chamber observed that this customary international law defini­ tion was in one aspect wider than the definition adopted under Lebanese law, in that the Lebanese provision limited the means by which the terrorist act could be perpetrated.237 It then concluded that it could widen the definition of terrorism to be applied by the STL to take into account the elements of the crime of terrorism under customary international law in interpreting the scope of the relevant provi­ sions under Lebanese law.238 This ‘revision’ was justified by the Appeals Chamber as follows:239 But the allegations falling under the jurisdiction of the Tribunal have been uniquely regarded by the United Nations Security Council as a ‘threat to international peace and security’ and have also justified the establishment of an international tribunal entrusted with the task of prosecuting and trying the alleged authors of those attacks. This patently proves that those terrorist attacks were considered by the Security Council as particu­ larly grave acts of terrorism with international implications. Thus, faced with this criminal conduct and the Security Council’s response to it, the Tribunal, while fully respecting Lebanese jurisprudence relating to cases of terrorism brought before Lebanese courts, cannot but take into account the unique gravity and transnational dimension of the facts at issue, which by no coincidence have been brought before an international court. The Tribunal therefore holds that it is justified in interpreting and applying Lebanese law on terrorism in light of international standards on terrorism, given that these standards specifically address transnational terrorism and are also binding on Lebanon.

This decision is significant for the present discussion for several reasons. First, the Chamber recognised the gravity of these acts and that their significance to the international community justified the Security Council’s actions in establishing the tribunal. This supports the assertion that what is required for a mixed appli­ cable law is that the material jurisdiction of the tribunal includes at least one crime that is of international concern. As is suggested above, it is the link with international peace and security that is used by the Chamber to justify the inter­ nationalisation of the Lebanese definition of terrorism. Second, although the merits of the decision have been queried,240 the STL will probably now draw on aspects of the supposed customary international law crime of terrorism advanced

237   Decision on the Applicable Law, para 113. eg Lebanese law would not include terrorist acts com­ mitted by handguns. The Appeals Chamber noticed that the customary definition was narrower in some respects than Lebanese law, in that: ‘(i) it only deals with terrorist acts in time of peace; (ii) it requires both an underlying criminal act and an intent to commit that act; and (iii) it involves a trans­ national element’. 238   Decision on the Applicable Law, para 124. 239   Decision on the Applicable Law, para 124. 240   eg, see B Saul, ‘Legislating from A Radical The Hague: The UN Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’ (2011) 677 Leiden Journal of International Law 24.



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by the Appeals Chamber in investigations and trials.241 This makes it more diffi­ cult to argue that the material jurisdiction of the STL is limited to crimes under domestic Lebanese law. Third, future proposals for hybrid or internationalised tribunals concerning terrorist acts may now take advantage of the customary international law crime of terrorism suggested by the Appeals Chamber. This may make it more likely that tribunals established in future will include terrorism as a crime under customary international law, rather than or in addition to acts of ter­ rorism as criminalised by the relevant national law. Finally, an interesting feature of the interlocutory decision is the ease with which the Appeals Chamber declared that it ‘is not bound by the definitions or classifications set out in the [STL] Statute, which reflect the political perspectives of the Statute’s framers’.242 While it is certainly for a tribunal to determine the relevant facts and how they should be characterised, it is not so clear that a tribunal is empowered effectively to redefine the crimes contained within its material jurisdiction, particularly when the existence of a crime under customary international law is controversial.243 The ambitious approach of the Appeals Chamber and its willingness to import ele­ ments of a customary international law crime into the application of national provisions may provide a precedent for tribunals established in future to draw on definitions of crimes under international law to interpret crimes under domestic law within their jurisdiction. It may also make states increasingly cautious as to whether a tribunal will abide by any political agreement as to the nature of the crimes a tribunal will examine and the applicable law. The proposed piracy tribunal also supports the assertion that the international component of the material jurisdiction of a hybrid or internationalised tribunal is not limited to genocide, crimes against humanity and war crimes. Piracy, at least when committed on the high seas, is a crime recognised by international law, which gives rise to universal jurisdiction. The proposals for a piracy tribunal rec­ ognise that a hybrid or internationalised tribunal could be established to investi­ gate and try suspected pirates. Although there are variations in the proposals as to whether the tribunal would also be able to exercise jurisdiction in respects of acts of armed robbery committed within the territorial waters of a state, all proposals would confer jurisdiction for piracy per se. Member States do not appear to have objected to the suggestion of the creation of a hybrid or internationalised tribunal with jurisdiction in respect of piracy, thus the crime of piracy should be consid­ ered as falling within the range of crimes for which such a tribunal may be estab­ lished in future. This recognises that piracy, at least when committed on the high seas, has long been a crime recognised by international law, and one which gives rise to universal jurisdiction. Thus conferring jurisdiction on the basis of the 241   It is likely, however, that this will be challenged in cases before the STL, as both the Prosecution and the Defence Office did not agree that a definition of terrorism existed as a matter of customary international law. 242   Decision on the Applicable Law, para 14. 243   Although one could suggest that this is what the ICTY did in the Tadic decision: Prosecutor v Tadi´c (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72, A Ch II (2 October 1995) (Tadi´c Jurisdiction Decision).

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UNCLOS definition (which reflects customary international law) is equivalent to conferring jurisdiction for one of the core crimes. Moreover, even if jurisdiction is conferred for acts of armed robbery within the territorial seas of a state, there is also, at least in the context of acts of piracy off the coast of Somalia, a link to inter­ national peace and security, evidenced by the various Security Council resolu­ tions and the involvement of the Security Council in attempting to resolve the situation, including through supporting criminal justice mechanisms. Piracy and armed robbery at sea thus also constitute crimes of international concern as a result of their link to international peace and security. If the range of international crimes is not limited to genocide, crimes against humanity and war crimes, which other crimes may be considered for inclusion in the material jurisdiction of hybrid or internationalised tribunals in future? As noted in chapter two, the ECCC may exercise jurisdiction in respect of attacks on protected persons and objects as prohibited by the Vienna Convention on Diplomatic Relations 1961,244 as well as in respect of the destruction of cultural property in times of armed conflict as prohibited by the 1954 Hague Convention.245 Are there other crimes that may be included within the material jurisdiction of a hybrid and internationalised tribunal in future? Torture is one possible candidate for inclusion. While torture has been included as a crime against humanity or a war crime in the statutes of several of the tribu­ nals studied,246 as well as in the statutes of the international tribunals,247 it may also be considered a crime independent of these core crimes. As Ratner, Abrams and Bischoff conclude ‘[T]he widespread adherence of states to the Torture Convention, coupled with the jus cogens nature and non-derogability of the ban 244   Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 (VCDR). See: ECCC Law, art 8. Cambodia has been a party to the VCDR since 31 August 1965. In April 1975, the regime detained personnel in the French Embassy and then removed and murdered Cambodian husbands of foreign diplomatic personnel: UNGA, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135’ (15 March 1999) UN Doc A/53/850, para 79. The Group of Experts had commented that offences may have been com­ mitted under the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons. However, Cambodia only acceded to this Convention on 27 July 2006. This may be why the ECCC Law refers to the VCDR instead. However, the VCDR does not establish individual criminal responsibility for violations, thus inclusion of this provision may violate the nullum crimen principle. For further discussion of the VCDR, see E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 3rd edn (Oxford, Oxford University Press, 2008). 245  Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 294 UNTS 290. See ECCC Law, art 7. Cambodia has been a party to the Hague Convention since 1962. The Hague Convention applies only to the damage to or destruction of cultural property committed in connection with an armed conflict (see arts 18 and 19), thus only incidents connected to the conflict with Vietnam (or a possible internal armed conflict) would give rise to criminal responsibility. The Group of Experts had recommended that additional evidence would need to be gathered on this question before including offences under the Hague Convention in the jurisdiction of the ECCC: para 76; UNGA, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135’ (15 March 1999) UN Doc A/53/850. For further discussion of the Hague Convention, see R O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge, Cambridge University Press, 2006). 246   eg, torture is included both as a war crime and a crime against humanity in the SCSL Statute and in the ECCC Law: SCSL Statute, arts 2(f) and 3(a); ECCC Law, arts 3, 5 and 6. 247   See, eg, Rome Statute, arts 7(1)(f) and 8(2)(ii).



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on torture, suggests that customary international law recognizes torture as a free­ standing international crime’.248 The International Law Commission included the crime of torture as a separate international crime in the draft statute for the ICC.249 In fact, torture has already been included as a separate crime within the material jurisdiction of an internationalised tribunal, the SPSC.250 While the definition of torture adopted for the SPSC draws upon the definitions of torture found in the relevant international instruments, in particular the Torture Convention, it does not incorporate the requirement for the torture to have been inflicted by or sanc­ tioned by a public official.251 This has led various commentators to suggest that this ‘might well widen the concept of torture beyond customary international law and treaty law’.252 While Swart suggests that one of the purposes of this section may have been to incorporate torture into domestic law, it is clear that it was con­ sidered to be primarily an international crime,253 as demonstrated in it being included within the list of international crimes in respect of which the SPSC could exercise universal jurisdiction.254 However, the SPSC never had cause to discuss the scope and legality of section 7, as no indictments were issued including a charge of torture under that section.255 Referring to the inclusion of torture in sec­ tion 7, Shany has queried ‘why the international prohibition against torture – a 248   Ratner et al, n 201, 122. See also A Cassese, International Criminal Law, 2nd edn (Oxford, Oxford University Press, 2008) 151. cf R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge, Cambridge University Press, 2010) 352, noting that torture is not considered ‘an international crime punishable as such by an inter­ national court or tribunal’ (emphasis in original). 249   International Law Commission, ‘Draft Statute for an International Criminal Court’ (1994) Vol II Yearbook of the International Law Commission, 38, 67–68 (art 20(e)). 250   UNTAET reg 2000/15, s 7. Torture is also included as a crime against humanity and a war crime: ss 5.1(f), 6.1(a)(ii) and 6.1(c)(i). 251   The Torture Convention requires the torture to have been committed ‘by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity’: art 1(1). Similarly, the UNGA Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires the pain and suffering to have been inflicted ‘by or at the instigation of a public official’: UNGA Res 3452(XXX) (9 December 1975) UN Doc A/RES/30/3452. By contrast, s 7.1 defines torture for the purpose of the regulation as ‘torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confes­ sion, punishing him/her for an act he/she or a third person has committed or is suspected of having committed, or humiliating, intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind’. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 252   B Swart, ‘Internationalised Courts and Substantive Criminal Law’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 302. See also: S Linton, ‘Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor’(2001) 5 Melbourne University Law Review 122; S Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’ (2001) 12 Criminal Law Forum 185, 210; and K Ambos and S Wirth, ‘The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000’ (2002) 13 Criminal Law Forum 1. 253   Swart, ibid, 302–03. 254   See UNTAET reg 2000/15, s 2.1, listing genocide, crimes against humanity, war crimes and tor­ ture as the crimes in respect of which universal jurisdiction may be exercised. 255   C Reiger and M Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, International Center for Transitional Justice (March 2006) 23.

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crime which reportedly occurred with great frequency during Saddam Hussein’s rule – was not incorporated in the [IHT] Statute’.256 Another interesting possibility is the inclusion of the crime of aggression within the material jurisdiction of future hybrid or internationalise tribunals. ‘Crimes against peace’ were included in the material jurisdiction of the IMT and the Tokyo Tribunal257 and were included in the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind.258 However, the crime was not included within the material jurisdiction of the ICTY in 1993, as members of the Security Council wished to avoid the tribunal determining responsibility for the conflict.259 It was included within the material jurisdiction of the ICC, but the exercise of that jurisdiction was deferred until a definition of the crime had been agreed at a review conference.260 Writing before the 2010 Review Conference for the ICC, Cryer et al state that: ‘[A]ggression is widely regarded as a crime under customary international law, although at present there is no universally agreed definition and no international court or tribunal which can try offenders’.261 It has been recognised as a crime under customary international by domestic courts262 and incorporated as a crime in domestic legislation.263 However, there have been no trials for the crime of aggression at the national or international level since the years following the end of WWII. Only one of the tribunals studied, the IHT, may exercise jurisdiction in respect of conduct that may have constituted the crime of aggression. However, the IHT may exercise jurisdiction only in respect of the domestic offence of ‘the abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of Iraq against an Arab country’ in the IHT Statute.264 Kress argued that the reliance on this provision by the drafters of the IHT Statute represented a failure to include the crime of aggression as an international crime   Shany, n 216, 343.   Charter of the IMT, art 6(a); Charter of the IMTFE, art 5(a); see also Control Council Law no 10 (art II(1)(a)). Both the IMT and the Tokyo Tribunal, as well as several military tribunals rendered convictions in respect of crimes against peace. 258   International Law Commission, ‘Report of the International Law Commission Covering the Work of its Sixth Session, 3 June–28 July 1954’ (1954) [II] Yearbook of the International Law Commission, 151 (art 2(1)). 259   Ratner et al, n 201, 137, referring to J O’Brien, ‘The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’ (1993) 87 American Journal of International Law 639, 645. 260   Rome Statute, art 5(2). 261   Cryer et al, An Introduction to International Criminal Law and Procedure, n 248, 312. 262   R v Jones and Milling [2006] UKHL, 45 ILM 988. Although the House of Lords recognised that the crime of aggression constituted a crime under customary international law, it held that, as the crime had not been incorporated into UK criminal law, the appellants could not rely on that crime as a defence for their own actions in unlawfully entering military bases to ‘prevent’ the military operation in Iraq. For discussion see: C Villarino Villa, ‘The Crime of Aggression Before the House of Lords: Chronicle of a Death Foretold’ (2006) 4 Journal of International Criminal Justice 866. For discussion of the case at the Court of Appeal Stage, see R Cryer, ‘Aggression at the Court of Appeal’ (2005) 10 Journal of Conflict and Security Law 209. 263   See A Cassese, International Criminal Law, n 248, and sources cited at fns 8 and 9. 264   IHT Statute, art 14(3). 256 257



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within the jurisdiction of the IHT.265 He asserted that this provision is not a codi­ fication of international principles on the crime of aggression, but a more limited provision aimed at criminalising conduct that may threaten the security of other Arab states.266 As such, it would not extend to the use of force against Iran, a nonArab state, or attacks against Israel during the Gulf War and complicity in Palestinian violence against Israeli civilians.267 Further, Kress lamented the ‘down­ grading’ of waging a war of aggression into a domestic crime.268 The provision does not appear to have been tested, as no charges have been brought before the IHT based on this provision. The ICC Review Conference in July 2010 adopted a definition of the crime of aggression, at least for the purposes of the exercise of jurisdiction by the ICC.269 While that definition has been criticised270 and it is unlikely that the ICC will exer­ cise jurisdiction in respect of the crime of aggression in the foreseeable future,271 the adoption of a definition opens up the prospect that the crime of aggression may be included in the constituent instruments of future tribunals. However, aggression differs from other international crimes, in that it may only be commit­ ted where a state has committed an act of aggression, ‘and therefore raises ques­ tions on international law regarding State responsibility for aggressive acts’.272 It also raises the issue of how individual criminal responsibility for the crime of aggression is to be reconciled with the primary responsibility of the Security Council for the maintenance of international peace and security273 and its power to make determinations as to the occurrence of an act of aggression.274 These 265   C Kress, ‘The Iraqi Special Tribunal and the Crime of Aggression’ (2004) 2 Journal of International Criminal Justice 347. 266   ibid, 348. 267   Alvarez, n 149. 268   Kress, n 265, 348. 269  Assembly of State Parties, ‘The Crime of Aggression’ Res RC/Res.6 (adopted 11 June 2010), Review Conference of the Rome Statute (Kampala, 31 May–11 June 2010). 270   eg, M Weed, International Criminal Court and the Rome Statute: 2010 Review Conference, US Congressional Research Service (10 March 2011), setting out US concerns with the definition adopted. For further discussion, see C Wenaweser, ‘Reaching the Kampala Compromise on Aggression: The Chair’s Perspective’ (2010) 23 Leiden Journal of International Law 883; N Blokker and C Kress, ‘A Consensus Agreement on the Crime of Aggression: Impressions from Kampala’ (2010) 23 Leiden Journal of International Law 889; and C Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”? Introducing Debates and Voices on the Definition of “Aggression” ’ (2010) 23 Leiden Journal of International Law 875. 271   The amendments to the Rome Statute will have be ratified or accepted by states: Rome Statute, art 121(5). Moreover, the proposed amendment as to when the ICC may exercise jurisdiction over the crime of aggression (art 15bis) provides that the ICC may only exercise jurisdiction in respect of acts of aggression committed one year after the amendments have been accepted or ratified by 30 states and following a decision to be taken after 1 January 2017 that the ICC should commence the exercise of jurisdiction in respect of the crime of aggression: art 15bis (2) and (3) and equivalent provisions in art 15ter (Security Council referrals). The amendments also allow states to ‘opt-out’ of ICC jurisdiction for the crime of aggression other than where the situation is referred to the ICC by the Security Council (art 15bis(4)). 272   Cryer et al, n 248, 317. See also: Y Dinstein, ‘The Distinction Between War Crimes and Crimes Against Peace’ (1995) 24 Israeli Yearbook on Human Rights 1. 273   UN Charter, art 24 and c VII. 274   UN Charter, art 39.

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issues were squarely raised in the negotiations surrounding the definition of aggression for the Rome Statute and the conditions on which the ICC should be able to exercise jurisdiction in respect of the crime of aggression.275 Akande has suggested that there may be limits in respect of the circumstances in which an international criminal tribunal may exercise jurisdiction with respect to the crime of aggression.276 He notes that, unlike the other crimes within the jurisdiction of the ICC, to convict an individual of the crime of aggression, it will be necessary for the Court to make a prior determination about a state’s legal responsibility for acting in a manner contrary to the United Nations Charter.277 This will necessarily entail considering the acts of any state involved, and the availability of defences under international law, for example, whether the act in question was a valid exer­ cise of the right to self-defence. Akande argues that the ICC should only exercise jurisdiction with respect to the crime of aggression with the consent of the state(s) concerned. This would mean limiting the exercise of its jurisdiction to nationals of those states that have accepted the jurisdiction of the ICC in respect of the crime of aggression and in situations which the Security Council has referred to the ICC for investigation.278 Similar concerns may apply to the establishment of a hybrid or internation­ alised criminal tribunal with jurisdiction in respect of the crime of aggression. Given that aggression necessarily involves two states – at least one ‘aggressor’ state and the ‘victim’ state – there will be two states potentially able to exercise jurisdic­ tion. International law recognises that the national courts of both the aggressor state and the victim state may exercise jurisdiction to try individuals for the crime of aggression, the aggressor state on the basis of nationality and the victim state on the basis of territorial jurisdiction. The courts of third states would not have juris­ diction, as international law does not recognise universal jurisdiction in respect of the crime of aggression, unlike other international crimes within the jurisdiction of the ICC and the tribunals studied. Internationalising the courts of the aggressor 275   For discussion, see: M Schuster, ‘The Rome Statute of an International Criminal Court and the Crime of Aggression: A Gordian Knot in Search of a Sword’ (2003) 14 Criminal Law Forum 1; R Clark, ‘Rethinking Aggression as a Crime and Formulating its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court’ (2002) 15 Leiden Journal of International Law 859. 276   D Akande ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’ (2011) University of Oxford Legal Research Paper Series, Paper No 10 of 2011. 277   Akande, ibid, 15. Although para 1 of draft 8bis restricts the crime of aggression to leaders of states, para 2 defines an ‘act of aggression’ as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’. The effect of these two paragraphs ‘is that the ICC may not convict a State leader of the crime of aggression unless it has been proved that the State in question had planned or committed an act of aggression’. 278   Akande argues that the exercise of jurisdiction based on a referral to the ICC is based on consent, as the state has consented to the exercise of Chapter VII powers by the Security Council by virtue of becoming a member of the United Nations. This approach is reflected in the proposed amendments adopted by the Review Conference, in particular art 15bis(5), which provides that where a state is not a party to the Rome Statute ‘the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’. This exclusion does not apply in the case of Security Council referrals.



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state or a hybrid tribunal established by agreement between the aggressor state and the United Nations to allow trials of its nationals will not be controversial. However, it may be more sensitive were the courts of the victim state to be inter­ nationalised or a hybrid court established by an agreement between the victim state and the United Nations, in an attempt to try nationals of the aggressor state without the consent of the aggressor state. Such an institution would also face the cooperation issues discussed in chapter six.279 A hybrid tribunal established by the Security Council to operate with the participation of either (or possibly both) of the victim state or the aggressor state would, most likely, be less controversial. However, the creation of a hybrid or internationalised tribunal in circumstances where the interests of two states are directly raised would be a step beyond the existing practice, which has focused to date on international crimes generally within a state.

iii.  Factors for the Inclusion of Ordinary Crimes Much of the conduct criminalised by international law is also criminalised as an ordinary crime under domestic law, for example the crimes of murder, assault and rape. There are a number of reasons that may justify including crimes under national law within the material jurisdiction of an internationalised or hybrid tri­ bunal. First, the inclusion of offences under domestic law enables the tribunal to exercise jurisdiction where international law does not fully criminalise the con­ duct in question. For example, jurisdiction under domestic law was included in the SCSL Statute as the conduct in question was identified as ‘a specific situation or an aspect of it was considered to be either unregulated or inadequately regu­ lated under international law’.280 The appropriate provisions under national law were included so as to eliminate any gap in the material jurisdiction of the tribu­ nal.281 Second, drafters may include an offence as defined under national law where there is no consensus as to whether the crime, or an accepted definition of the crime, exists at the international level. As noted above, this was probably the main reason justifying the use of the definition of terrorism under the Lebanese Criminal Code in the STL Statute. At the time of drafting of the STL Statute, there was no consensus as to whether the crime of terrorism, or an accepted definition   See ch 6, section V(A) and V(B).   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (4 October 2000) UN Doc S/2000/915, para 19. 281   The decision by the SCSL Prosecutor not to rely on the domestic crimes within the SCSL Statute has resulted in acquittals on some charges. eg, in the CDF trial, the accused were charged with pillage as a war crime. However the Trial Chamber held that ‘an essential element of pillage is the unlawful appropriation of property’ and that the destruction by burning of property does not constitute pil­ lage’: Prosecutor v Fofana and Kondewa (CDF Case) (Judgment) SCSL-04-14-T, T Ch I (2 August 2007) para 166. The Appeals Chamber confirmed this finding, noting that if pillage included wanton destruc­ tion, there would have been no need to include jurisdiction in respect of the Malicious Damage Act 1861: Prosecutor v Fofana and Kondewa (CDF Case) (Appeal Judgment) SCSL-04-14-A, A Ch (28 May 2008) para 408. 279 280

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of the crime, existed at the international level. This is reflected in the absence of a comprehensive definition of terrorism in a universal treaty. The Security Council may have relied on the definition of terrorism under the Lebanese Criminal Code in the STL Statute due to disagreement amongst Member States as to whether a definition of the international crime of terrorism exists.282 Drawing on the domes­ tic definition of the crime avoids the use of a definition of terrorism or terrorist acts as found in the various terrorism conventions283 or a definition based on cus­ tomary international law.284 A reference to the definition of terrorism in article 1 of the Arab Convention for the Suppression of Terrorism 1998, to which Lebanon is a party,285 was included in a preliminary draft of the STL Statute but was later deleted, reportedly at the request of a permanent member of the Security Council.286 It may also have been why Iraqi law was used to try conduct that may have constituted aggression. Third, reliance on crimes under domestic law may eliminate a possible viola­ tion of the nullum crimen principle, which is particularly important when the temporal jurisdiction was a number of years ago and neither international law nor domestic law criminalised the conduct in question as an international crime at the relevant time.287 Fourth, the inclusion of offences under national law may enable a full record of the context and range of crimes that have been committed during the conflict. For example, the original approach towards the IHT Statute was crit­ icised for minimising the emphasis placed on ‘everyday’ crimes committed by the Hussein regime against its own people, focusing instead on the armed conflicts in which Iraq engaged during the regime. While many of these crimes would not satisfy the requirements of genocide or crimes against humanity, it was suggested that the exclusion of these everyday crimes would obscure the true nature of the crimes committed by the regime.288 Shany, commenting on the original version of the IHT Statute, argued that to include more domestic crimes within the jurisdic­ tion of the IHT would have ‘produced a more complete picture of the criminal practices allegedly committed by the Ba’ath regime’. In particular, he noted that the domestic offences of murder, sexual offences, torture and destruction of and damage to property should have been included, given the apparent frequent 282   Member States have been engaged in debate for several decades as to whether there is a common definition of terrorism, with the main cause for division the issue of whether the actions of ‘freedom fighters’ should be included in the definition, or whether the definition should require an examination of the underlying cause of the attack. While this dispute remains unresolved, states have been reluctant to accept that a generally accepted definition of terrorism exists. 283   Few treaties contain a comprehensive definition of terrorism, avoiding the political difficulties by instead listing specific acts that are considered terrorist acts. 284   For the argument that a definition of terrorism exists as a matter of customary international law, see A Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’ (2006) 4 Journal of International Criminal Justice 933; and B Saul, Defining Terrorism in International Law (Oxford, Oxford University Press, 2006). 285   Lebanon ratified this convention on 31 March 1999. 286   Jurdi, n 222, 1128, fn 18. 287   This aspect is discussed in further detail in ch 6, section II. 288   Shany, n 216.



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commission of these crimes during the Hussein regime. The revisions made in the 2005 version of the IHT Statute appear to have partly addressed these concerns.289 Fifth, there is often a perception, justified or otherwise, that offences under domestic law will be easier for the prosecution to establish than the international crimes. Proving an isolated instance of murder under domestic law does not require the prosecution to prove the existence of a widespread or systematic attack against the civilian population, or an organisational plan or policy, as would be required to establish a crime against humanity. This has the advantage of ensuring successful convictions, more ‘easily’ and most likely more quickly, and with less expense. This may explain why the Serious Crimes Unit and the SPSC con­ centrated on charging lower-level offenders with single incidents under the Indonesian Penal Code, in particular murder, in the initial phases of the SPSC’s operation.290 The ability to avoid the evidentiary burdens of proving some of the international crimes has also been advanced as justifying the inclusion of a greater number of offences under national law in the jurisdiction of the IHT.291 Against these possible advantages of including ordinary crimes must be bal­ anced certain risks. First, a too-great reliance on ordinary crimes risks minimising the impact of events and a failure to present the wider context, such as the system­ atic nature of the incidents and the involvement of the state or senior leaders. For example, the early prosecution strategy of the Serious Crimes Unit was questioned as risking trial records being focused on individual acts and failing to place the act within the wider context of the violence in East Timor.292 Second, there may be several deficiencies in the national legal provisions to be applied. For example, Jurdi highlighted several deficiencies in the Lebanese definition of terrorism,293 in particular the requirement that the terrorist act must utilise explosive devices, inflammable materials, poisonous or incendiary products or infectious or   ibid. See discussion in ch 2, section VII(C).   The Commission of Experts reporting to the Security Council on progress in East Timor and Indonesia noted that there had been a lack of a consistent prosecution strategy or focus, and that inves­ tigations had targeted low-level offenders: UNSC, ‘Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999’ (2005) UN Doc S/2005/458, paras 60–62. Reiger and Wierder noted that at least one prosecutor had ‘indicated that domestic charges were used in the early indictments, as they were easier (and cheaper) to investigate and prove’: C Reiger and M Wierda, The Serious Crimes Process in TimorLeste: In Retrospect, International Center for Transitional Justice (March 2006) 19. 291   Shany, n 216. 292   However, after the first indictment for murder as a crime against humanity was issued in the Los Palos case (Public Prosecutor v Joni Marques and 9 Others, Case No. 9/2000) prosecutorial strategy shifted so that the majority of killings were charged as crimes against humanity. Several earlier indict­ ments were also amended to charge murder as a crime against humanity instead of a domestic crime under the Indonesian Penal Code. eg, in Prosecutor v Lino De Carvalho, Case No 10/2001, the accused was originally charged with one charge of murder and three counts of maltreatment. The SPSC granted leave to amend the indictment, and a new indictment was filed in May 2001 charging the accused with crimes against humanity, including one count of murder and two counts of inhumane acts. 293   Jurdi, n 222, 1125. Art 314 of the Lebanese Penal Code defines terrorist acts as ‘all acts designed to create a state of alarm which are committed by means such as explosive devices, inflammable materials, poisonous or incendiary materials or infectious or microbial agents likely to create a public hazard’. 289 290

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microbial agents or other means that cause public hazard. This would preclude the prosecution of assassinations using guns, as although the impact of the assas­ sination would be to terrorise the population, a gun of itself does not cause a public hazard.294 In fact, it was to avoid this limitation that the Appeals Chamber of the STL turned to the customary international law crime of terrorism.295 Third, there may be significant practical problems in applying domestic legal provisions. For example, the use of the 1956 Penal Code of Cambodia for the ordinary crimes within the ECCC Law potentially creates a number of problems. Primary and sec­ ondary sources on the Penal Code are scarce, and fail to update the law from its adoption until 1975. Moreover, the extent to which its contents remained in force during subsequent governments is not clear. Judges, prosecutors and defenders have not applied the law for a considerable time, and are likely to be unfamiliar with its provisions and their application and provisions of the law may be incon­ sistent with more recently developed international standards.296

iv.  Is There a Requirement for the Jurisdiction of Hybrid and Internationalised Tribunals to Include Ordinary Crimes under Domestic Law? Most of the tribunals studied may exercise jurisdiction in respect of ordinary crimes under domestic law. However, the number and nature of domestic crimes included varies. The practice reveals two general approaches to the inclusion of national crimes. First, where the tribunal is established as a national institution it may exercise jurisdiction in respect of a range of crimes under national law. For example, the IJPP and the WCC have jurisdiction in respect of all offences set out in the Provisional Criminal Code of Kosovo and the Criminal Code of Bosnia and Herzegovina. The Court may be granted primacy vis-à-vis other national courts only in respect of certain crimes, but, in theory at least, it may also exercise con­ current jurisdiction for a wide range of crimes under national law. The second approach is to include a more restricted range of crimes under national law within the tribunal’s substantive jurisdiction. This is seen in the approach to the material jurisdiction of the SCSL, the ECCC, the STL, the SPSC and the IHT. However, there is nothing in the background to these tribunals that suggests that ordinary crimes under national law must be included in the material jurisdiction for a tri­ bunal to be considered a hybrid or internationalised tribunal. The practice reveals that, even where such crimes are included in the material jurisdiction of a tribunal, there is no obligation to bring charges based on crimes under domestic law. A reluctance to charge conduct under domestic provisions may arise from some of the legal barriers at the national level that led to the need for international assistance in the first place. For example, the SCSL Prosecutor   ibid, 1136.   Decision on the Applicable Law, n 229. 296   See Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’, n 252, and Ratner et al, n 201. 294 295



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did not issue any indictments based on the crimes under Sierra Leonean law included in the SCSL Statute, most likely due to concerns that prosecution for such crimes was precluded by the amnesty provision in the 1996 Lomé Agreement. Before the ECCC, even though charges have been brought on the basis of crimes under Cambodian law,297 the Trial Chamber has so far been unable to convict an accused for such crimes, due to the Chamber’s concerns regarding the legality of extending the statute of limitations for crimes under domestic law.298 The exceptions to the inclusion of crimes under domestic law in the material jurisdiction of these tribunals are the proposals for the Special Tribunal for Burundi,299 the proposed Habré tribunal,300 the Specialised Chamber for the DRC301 and possibly the proposed piracy tribunal.302 Does the existence of excep­ tions mean that a mixed material jurisdiction is not a requirement for a hybrid or internationalised tribunal? It is suggested here that an answer to this question requires consideration of the legal basis of the tribunal and how it has been estab­ lished, as well as whether the international crimes within the jurisdiction of a tri­ bunal are criminalised directly by international law or as a matter of domestic law. The international criminal tribunals, namely the ICC, the ICTR and the ICTY, all provide for the exercise of material jurisdiction for international crimes directly under international law. The IMT and the Tokyo Tribunal also tried international crimes directly. The SCSL also falls within this model, as the Court’s jurisdiction 297   Charges of homicide and torture were included in the closing order in respect of Duch (follow­ ing an appeal by the Co-Prosecutors): Kaing Guek Eav alias ‘Duch’ (Amended Closing Order) 001/18-07-2007-ECCC-OCIJ, OCIJ (8 August 2008), as amended by the Pre-Trial Chamber in the Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias ‘Duch’, 001/18-07-2007ECCC/OCIJ, PT Ch II, (5 December 2008). Charges of homicide, torture and religious persecution were included in the closing order in respect of Case 002: Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) 002/19-09-2007-ECCC-OCIJ, OCIJ (15 September 2010). 298   Prosecutor v Kaing Guek alias ‘Duch’ (Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes) 001/18-07-2007/ECCC/TC, T Ch (26 July 2010). The international and Cambodian judges were divided over the issue of whether art 3new of the ECCC Law, which purported to extend the 10-year limitation period for domestic crimes, was lawful. As the Chamber was unable to reach a super-majority in favour of an affirmative decision, the Chamber could not either acquit or convict the accused for crimes under domestic law. The Co-Investigating Judges in Case 002 did not form a view as to the applicability of the statute of limitations and decided instead to leave the decision on this issue to the Trial Chamber: Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) para 1574. For further discussion see ch 6, section VI. 299   The proposal for the Special Tribunal for Burundi suggests its jurisdiction would be restricted to ‘the crime of genocide, crimes against humanity and war crimes’: UNSC, ‘Report of the Assessment Mission on the Establishment of an International Commission of Inquiry for Burundi’ (11 March 2005) UN Doc S/2005/158, para 61. It is possible that this may be expanded to include crimes under domestic law. See ch 3, section III(A). 300   The African Union plan would see the special chambers exercise jurisdiction with respect to the crimes of genocide, crimes against humanity, war crimes and torture. See ch 3, section III(G). 301   The draft law for the Specialised Chamber for the DRC suggests that the Chamber will be estab­ lished to try individuals accused of international crimes. There is no suggestion that crimes under domestic law will be included within the Chamber’s material jurisdiction. See ch 3, section III(C). 302   It is not yet clear what the material jurisdiction of the proposed piracy proposal would be. Its jurisdiction may consist of piracy only, as defined by UNCLOS and customary international law. Alternatively, it may use definitions of piracy under domestic law and also armed robbery at sea. See ch 3, section III(D).

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for international crimes is not dependent on the incorporation of those crimes into domestic law. In contrast, those tribunals that have been established by domestic law are exercising jurisdiction in respect of the international crimes indirectly, as a matter of domestic law. So, for example, the WCC draws on the international crimes as incorporated into Bosnian law by the Socialist Federal Republic of Yugoslavia (SFRY) and Bosnia and Herzegovina Criminal Codes. The ECCC relies on the international crimes incorporated into Cambodian law by the ECCC Law. So, where a tribunal is established on the basis of a Security Council resolution or a treaty, the practice suggests that ordinary crimes can be included, although there is nothing to suggest that such crimes must be included. However, the absence of ordinary crimes under domestic law, particularly in combination with the absence of other indicative factors, may suggest that the tribunal in ques­ tion is an international court, and does not fall within the category of hybrid or internationalised tribunals. However, where the tribunal is created by domestic law and all crimes within its jurisdiction are incorporated into and apply as a mat­ ter of domestic law, there is no requirement for further ordinary crimes under domestic law to be included in the material jurisdiction of the tribunal. The Special Tribunal for Burundi, the proposed Habré tribunal and the Specialised Chamber for the DRC would fall into this latter category.

v. Conclusions In conclusion, the practice suggests that it is a defining characteristic of a hybrid and internationalised tribunal that its material jurisdiction must include at least one crime of concern to the international community, even if that crime is incor­ porated into and defined by domestic law. The link to a crime of international concern justifies the intervention of the international community in the sover­ eignty of the affected state. In contrast, practice suggests that where a tribunal is established by the Security Council or a treaty, there is no requirement that crimes under domestic law be included in the material jurisdiction of the tribunal. However, the absence of such crimes may indicate that the tribunal in question is more likely to be a ‘purely’ international criminal tribunal, rather than a hybrid or internationalised tribunal. Where the tribunal is established under national law, recent practice suggests that there is no requirement for the inclusion of addi­ tional ‘ordinary’ crimes under national law. Thus a mixed material jurisdiction is not a defining feature of a hybrid or internationalised tribunal, although it may be indicative.

M.  Relationship with Other Institutions Another suggested criterion is the tribunal’s relationship with other institutions, in particular, the national courts of the affected state.303 Here, again, the practice is   Again, see Nouwen, n 11.

303



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inconsistent. The STL and SCSL are stand-alone institutions, intended to operate outside the United Nations system and the legal systems of Sierra Leone and Lebanon. The ECCC and the IHT, while formally sitting within the national legal system, are effectively self-contained units. The SPSC and the WCC operate within an existing court, but are specialist structures. The IJPP is the only tribunal that does not have a separate structure. Generally speaking then, hybrid and internationalised tribunals are either specialised chambers within an existing structure, that operate with comparative independence, or they are stand-alone institutions. However, this need not always have to be the case. There is also no requirement that a hybrid or internationalised tribunal have exclusive or even primary jurisdiction for crimes within its jurisdiction.304

N.  Conclusion: Is there a Definition? This study of practice reveals that there is no comprehensive definition of a hybrid or internationalised tribunal. There do appear to be several defining features: (1) the tribunal performs a criminal judicial function; (2) the temporary or tran­ sitional nature of such institutions (or at least the international component); (3) there must be at least the possibility of the participation of international judges sitting alongside national judges and for international involvement in other organs of the tribunal; (4) the provision of international assistance in the financ­ ing of the tribunal, although this on its own will not internationalise an otherwise national institution; (5) a mix of international and national elements in the mate­ rial jurisdiction of the tribunals, or at least that the crimes within the jurisdiction are of concern to the international community; and (6) the involvement of a party other than the affected state, such as the United Nations, a regional organisation or another state(s). The STL, SCSL, WCC, SPSC, IJPP and ECCC clearly satisfy all of these criteria. The IHT, a more controversial example, would also satisfy these criteria, at least in its original formation, given the extensive role of the United States and the pos­ sibility for the participation of international judges and advisers. The Lockerbie Court and the SWCC would be excluded as there was no possibility for inter­ national judges or personnel to participate in proceedings. This also appears to be the case with the proposed piracy tribunal, which as currently contemplated does not allow for the appointment of international judges. The IMT and the Tokyo Tribunal would be excluded as there was no prospect of national judges partici­ pating, and also possibly as these institutions did not include crimes under national law. The institutions in section II(D) of Chapter III are excluded as they do not exercise a judicial function. However, even within those institutions satisfying these criteria, there is still a wide range of diversity. Having now conducted this study, it is possible to catego­ rise the various international and national mechanisms for international criminal   See further discussion in ch 6, section VIII(A)(i).

304

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justice on a sliding scale by looking at the extent and degree of international involvement. At one end are the ‘true’ international criminal tribunals, the ICTY and the ICTR. Established by a Security Council resolution under Chapter VII of the Charter, these tribunals are subsidiary organs of the United Nations and rep­ resent justice designed and implemented by the United Nations. The ICC also belongs in this category of tribunals, although it is not yet as global in its reach. Having been created by treaty, in the absence of a Security Council referral, it imposes obligations only for those states party to the Rome Statute. Yet, the grow­ ing number of parties to the Rome Statute and the possibility of Security Council referrals to the ICC confer on the ICC a broader universal character. However, even where a situation is referred to the ICC by the Security Council, the ICC retains greater respect for the sovereignty of the affected state, as it is required to apply the principle of complementarity.305 The next level of international involvement would be a so-called hybrid tribu­ nal. This is a true blending of the national and international in one institution. There is considerable international involvement in its design, establishment and operation. Most importantly, the tribunal operates on the basis of international law directly, and will generally have been established by a treaty between the affected state and the United Nations or by the Security Council acting under Chapter VII of the United Nations Charter.306 Hybrid tribunals more closely approximate an international tribunal, although their legal basis and the provi­ sions of their constituent instrument remain relevant.307 In particular, where a tribunal is established by agreement between the affected state and the United Nations, it is a less intrusive option for the sovereignty of the affected state. However, a hybrid tribunal will generally allow a far greater role and level of con­ trol for the United Nations in the design and operation of the tribunal, thus this option represents a greater surrender of sovereignty than the internationalised model discussed below. The SCSL and the STL are the only existing examples of this model, although the proposal for the Special Tribunal for Burundi contem­ plates the establishment of a hybrid tribunal. The third category would consist of internationalised tribunals – essentially domestic institutions but with significant participation from other states or from international organisations including the United Nations. Many of the tribunals studied here fall within this category of tribunal. This category includes courts within United Nations (or other) territorial administration (IJPP, SPSC, WCC); courts established by an occupying power (IHT, at least in the initial stages); courts established under national law, but with substantial international partici­ pation and generally supported by an agreement on the modalities of inter­ national involvement (ECCC). Moreover, all but two of the proposals for future tribunals would be considered internationalised tribunals, the piracy tribunal and the Special Tribunal for Burundi being the exceptions. This option is more   See ch 1, section III(C)(ii) and (iii).   Other possible legal bases for hybrid tribunals are considered in ch 5. 307   See discussion in ch 6. 305 306



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respectful of state sovereignty, particularly where the affected state is in a strong bargaining position relative to the international community. It also offers the best potential for capacity-building at the domestic level, and for national ‘ownership’ of the process. That this category is the most dominant in terms of proposals for future tribunals reflects the shift away from international models, including per­ haps hybrid tribunals, in favour of facilitating trials at the domestic level wherever possible. However, as an internationalised tribunal is more closely linked to the domestic legal system, it is also more exposed to any risks inherent in that system, for example the risk of political interference. Particularly where the affected state has retained significant control in the design and operation of the tribunal, the ability of the tribunal itself and participating entities (for example, the United Nations) to address such issues may be limited. The fourth category would be the provision of ‘assistance’ by other states or international organisations, usually on an ad hoc basis. This would include, for example, the dispatch of forensic experts to assist in an investigation, the second­ ment of staff to train judges or lawyers, or financial or material contributions toward the operation of a specific institution or a defined project. International assistance does not have to be addressed at supporting an entire court but could instead be targeted at a particular aspect of the process, such as investigation or prosecution.308 The SWCC would fall into this final category, as would the justice initiatives in Guatemala and East Timor. It would also include the proposed piracy courts in Puntland and Somaliland, but not the proposed extraterritorial court in Arusha, which has more significant involvement.309 It is also certainly arguable that the IHT would fall within this category, following the revision of the IHT Statute in 2005.310 This model respects state sovereignty, and enables the affected state to draw on the resources and expertise of the international commun­ ity, without sacrificing control of the accountability process. This also has the potential to increase capacity within the national legal system. However, it may not be effective at insulating the process from political interference or other pres­ sures and at ensuring the tribunal meets minimum international standards. It is suggested that this category would also include sui generis arrangements whereby a state has agreed to host a tribunal or trial conducted by the courts of another state on its territory, without any further international elements, for example the Lockerbie Court and the proposed extraterritorial piracy court. The final category would comprise trials before the national courts of the affected state, without international assistance. This option is consistent with the sovereign right of a state to try crimes committed within its territory. It does not, however, address the risks that such trials may not occur, or may occur in a way that is politicised or not consistent with international minimum standards. It may also have limited impact on developing capacity. A further concern is that trying serious violations of international law before domestic courts risks minimising   See the institutions discussed in ch 3, section II(D).   See ch 3, section III(D). 310   See ch 2, section VII. 308 309

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the interest of the international community in their successful prosecution. This category would not include trials before courts of third states on the basis of uni­ versal jurisdiction, which are more intrusive of the sovereignty of the affected state and represent the interest of the international community in accountability for international crimes. It is submitted that such trials should perhaps be consid­ ered a separate category, most likely placed between pure international tribunals and hybrid tribunals. A further question is whether the absence of a comprehensive definition mat­ ters. It is argued here that the absence of a definition of a hybrid or internation­ alised tribunal is not critical for four reasons. First, as was outlined above, it is possible to predict the types of situations in which such tribunals are likely to be proposed. Second, several criteria have been identified that will allow the exclusion of certain institutions from this category. Third, it is already possible to distinguish between ‘hybrid’ and ‘internationalised’ tribunals. Finally, and most importantly, the nature of a tribunal and its classification as ‘hybrid or inter­ nationalised’ does not necessarily allow us to address satisfactorily the legal issues such tribunals face. Questions surrounding the applicability of an amnesty provi­ sion or the immunity of a head of state are not immediately resolved by describing something as ‘hybrid’ or ‘internationalised’. While such a classification can be a useful first step, of greater importance is a proper analysis of the legal and juris­ dictional basis and the constituent instruments of the particular tribunal. It is this analysis, rather than the classification as hybrid or internationalised, that will allow an informed and legally justifiable decision on difficult legal issues. Accordingly, the next two chapters consider the possible legal and jurisdictional bases of the existing and proposed hybrid and internationalise tribunals, and the significance of that analysis for potential legal barriers to the exercise of jurisdic­ tion, such as amnesty, immunity, cooperation, statutes of limitation, application of the nullum crimen principle and ‘overlap’ of jurisdiction with both national and international institutions.

5 Legal and Jurisdictional Bases of Hybrid and Internationalised Tribunals I. Introduction Chapter two described the background to the establishment of the existing exam­ ples of hybrid and internationalised criminal tribunals. It highlighted the different contexts within which these tribunals have been established and, in particular, demonstrated how the manner in which questions of sovereignty and legal, polit­ ical and financial factors influence the negotiation process – if any – and the design, structure and operation of a tribunal. Chapter three extended the study of existing state practice in the establishment of such tribunals to incorporate institutions that have been proposed in the past or are currently being considered, and which may be viewed as hybrid or internationalised in nature. It also outlined several institu­ tions and arrangements that, while having an international dimension, do not fall within the category of hybrid and internationalised tribunals. This study of practice revealed that there are a number of criteria that can be used to classify an institution as a hybrid or internationalised tribunal, as discussed in chapter four. That chapter also identified that the category of hybrid and inter­nationalised tribu­ nals is part of a spectrum of international criminal justice mechanisms. Within that spectrum, the category of hybrid and internationalised tribunals can be separ­ ated into two sub-categories: tribunals with international participation that more closely approximate international tribunals such as the ICTY and the ICC (hybrid tribunals); and tribunals more closely linked to the national system created and operated with international assistance (internationalised tribunals). However, simply classifying an institution as either a hybrid or an internation­ alised tribunal does not resolve the complex legal questions that such institutions are required to address, such as the applicability of immunities accorded to state officials by international law. Instead, it is necessary to look in greater detail at the legal basis and constituent instruments of the tribunal in question. Certain institu­ tions may have the power to compel compliance with their orders by third states and international organisations, including the power to secure the surrender of suspects, while others are restricted to requesting international cooperation utilis­ ing existing domestic arrangements as to extradition and mutual legal cooperation.

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Tribunals may have varying relationships with the domestic legal regime. Certain tribunals may be able to override domestic and international immunities or amnesties, whilst others may not. Examining the legal basis for each tribunal permits an examination of the key powers and competences of the tribunal and the applicable legal regime. It is directly relevant to the issues outlined above and is one of the most significant indicators of how effective the tribunal will be. Accordingly, the first section of this chapter will assess the differing legal bases of the hybrid and internationalised tribunals. It finds that, using the legal basis of each tribunal as the key criterion, existing practice identifies two legal bases for hybrid tribunals. First, hybrid tribu­ nals may be established by the United Nations Security Council acting under Chapter VII of the United Nations Charter. Second, hybrid tribunals may be established by treaty, generally between a state and the United Nations. In con­ trast, internationalised tribunals are established pursuant to national law, albeit in a context that may have significant international elements. Such institutions may be supported, but not established, by an agreement between the United Nations and the government of the affected state. The second section of this chapter explores the nature of the jurisdiction that is exercised by each existing and proposed tribunal, and how and by whom, such authority has been conferred. This study considers four possible bases for the jurisdiction of the tribunals: the principle of territorial jurisdiction conferred on a court acting as a national institution of the territorial state; the delegation of juris­ diction from a state – normally the territorial state – to a hybrid tribunal; jurisdic­ tion conferred on the hybrid tribunal by the international community, as the crimes within its subject matter jurisdiction are considered to give rise to univer­ sal jurisdiction (so-called ‘floating’ universal jurisdiction); and jurisdiction con­ ferred on a hybrid tribunal by the Security Council acting under Chapter VII of the Charter. It concludes that the notion of ‘floating’ universal jurisdiction is not yet an accepted basis of jurisdiction for an international criminal tribunal. An analysis of the nature of the jurisdiction conferred on a tribunal, and the mechan­ ism by which it was conferred, may assist in determining key legal questions, such as whether an amnesty or immunity conferred by international law is applicable. A number of these key legal issues are then considered in chapter six.

II.  Tribunals Established by the Security Council A.  The Power of the Security Council to Establish an Ad Hoc Tribunal Before the establishment of the ICTY by Security Council Resolution 827 in 1993, the generally accepted legal basis for the creation of an international criminal



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tribunal was an international agreement, most likely to have been negotiated under the auspices of the General Assembly. This was certainly how the establishment of a permanent international court was contemplated. As the United Nations SecretaryGeneral noted in his report on the proposed establishment of the ICTY:1 [T]he approach which, in the normal course of events, would be followed in establish­ ing an international tribunal would be the conclusion of a treaty by which the State parties would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body . . . Such an approach would have the advantage of allowing for a detailed examination and elaboration of all the issues pertaining to the establishment of the international tribunal. It would also allow the States participating in the negotiation and conclusion of the treaty fully to exercise their sovereign will, in particular whether they wish to become parties to the treaty or not.

However, in addition to the advantages of a treaty-based approach, the Secretary-General also identified several disadvantages of a treaty-based approach, namely, the length of time required to negotiate the treaty and then to secure the required number of ratifications, as well as the risk that the states most needed to support the institution created would not become parties to the treaty. In the light of these disadvantages and the need for the expeditious creation of the tribunal, the Secretary-General recommended that the Security Council establish the tribu­ nal by a decision under Chapter VII of the Charter, as a measure to maintain or restore international peace and security.2 He noted that ‘[T]his approach would have the advantage of being expeditious and of being immediately effective as all States would be under a binding obligation to take whatever action is required to carry out a decision taken as an enforcement measure under Chapter VII’.3 Based on this recommendation, the Security Council unanimously adopted Resolution 827, establishing the ICTY. Although several Council members recognised the novelty of this approach only two, China and Brazil, indicated that their vote in favour of Resolution 827 should not be considered as supporting the use of Chapter VII as a general legal basis to for the creation of international criminal tribunals in future.4 The Government of the Federal Republic of Yugoslavia criti­ cised the legal approach, arguing that the United Nations Charter did not provide a mandate for the Security Council to establish an international criminal court by resolution, and that article 29 of the United Nations Charter did not support the establishment of an independent body, such as a judicial tribunal, as a subsidiary organ of the Council.5 1  UNSC, ‘Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’ (3 May 1993) UN Doc S/25704, para 17. 2   ibid, paras 20–22. 3   ibid, para 23. 4   The representative of China stated that the vote ‘should not be construed as our endorsement of the legal approach involved’. Similarly, the representative of Brazil commented that ‘[O]ur positive vote . . . should not be construed as an overall endorsement of legal formulas involved in the Statute of the International Tribunal’. 5   Letter dated 19 May 1993 from the Chargé D’Affaires A.I. of the Permanent Mission of Yugoslavia (Serbia and Montenegro) to the UN addressed to the UN Secretary-General (1993) UN Doc A/48/17-S/25801.

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A year later, the Security Council relied upon the same legal basis to establish the ICTR by adopting Security Council Resolution 955. China and Brazil, while restating their view that an international criminal tribunal should be established by a treaty, did not vote against the resolution.6 Rwanda, which happened to have a seat on the Council at the time, although initially supportive of the establish­ ment of the tribunal, ultimately voted against Resolution 955. However, its objec­ tions related to certain features of the ICTR, rather than any question as to the legality of its establishment.7 The main difference between the situation in the former Yugoslavia and that in Rwanda was that the atrocities in Rwanda had ceased by the time Resolution 955 was adopted, and had been largely confined to the territory of Rwanda.8 The legality of the legal basis of the establishment of the ICTR and ICTY was challenged by defendants before both tribunals. In the Tadi´c decision,9 the Appeals Chamber of the ICTY rejected the defence submissions that it had not been law­ fully established, based on the following reasons. First, the Appeals Chamber found that the Security Council had a very wide, but not unlimited, discretion to invoke its Chapter VII powers by determining a situation to be a threat to inter­ national peace and security. An armed conflict, even of a non-international character, ‘would still constitute a “threat to the peace” according to the settled practice of the Security Council’.10 Second, once the Council has made a determin­ ation that a particular situation is a threat to international peace and security, it has a wide margin of discretion as to the measures that it may take under articles 41 and 42 of the Charter.11 Third, although the creation of an international crim­ inal tribunal is not a measure expressly listed in article 41, the list of measures in article 41 is not exhaustive, and ‘the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41’.12 Fourth, it was not beyond the powers of the Security Council, which may not exercise judicial functions, to establish as a subsidiary organ a tribunal that may do so.13 Fifth, recognising the significant discretion that the Council has to choose the measures it wishes to use to restore peace, the tribunal was lawfully established as a measure under Chapter VII.14 Finally, the Chamber rejected the claim that the primacy granted to the ICTY was a violation of the sovereignty of states, noting that enforcement measures taken by the Charter under Chapter VII are an excep­ tion to the principle of non-intervention in article 2(7) of the United Nations

  China abstained and Brazil voted in favour of the resolution.   UNSC Verbatim Record (8 November 1994) UN Doc S/PV/3453.   See discussion in ch 1, section III(B)(ii). 9   Prosecutor v Tadi´c (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72, A Ch II (2 October 1995) (Tadi´c Jurisdiction Decision). 10   ibid, paras 28–30, at 30. 11   ibid, para 31. 12   ibid, paras 32–36, at 36. 13   ibid, paras 37–38. 14   ibid, paras 39–40. 6 7 8



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Charter.15 Subsequent challenges to the legality of establishment of the ICTY before the tribunal and in other fora have been consistently rejected.16 Similar arguments were raised before the ICTR. In Kanyabashi, the defence raised two arguments against the Tribunal’s legal basis.17 First was the suggestion that the establishment of a tribunal by a Security Resolution, rather than by a multilateral treaty established though the United Nations General Assembly, vio­ lated the principle of state sovereignty and of the sovereignty of Rwanda in par­ ticular. In response to this submission, the Trial Chamber noted that ‘membership of the United Nations entail certain limitations upon the sovereignty of the Member States’, and that the government of Rwanda itself had called for the cre­ ation of the ICTR18. Accordingly, it held that19 establishment of the Tribunal through a Resolution under Chapter VII of the United Nations Charter and with the participation of the Government of Rwanda, rather than by a treaty adopted by the Member States under the auspices of the General Assembly, did not violate the sovereignty of the Republic of Rwanda and that of Member States of the United Nations.

The second submission was that ‘the Security Council lacked the competence to establish an ad hoc Tribunal under Chapter VII of the UN Charter’.20 The Trial Chamber rejected the defence argument that the conflict in Rwanda did not pose a threat to international peace and security as it had been internal in nature. Recognising that ‘[T]he question of, whether or not the conflict posed a threat to international peace and security is a matter to be decided exclusively by the Security Council’,21 the Chamber also took judicial notice of the ‘external’ impact of the conflict, including the resultant refugee crisis and the risk that the conflict would spread to neighbouring regions.22 Moreover, the Council’s powers under Chapter VII were not restricted to situations involving an international armed conflict.23 The Trial Chamber also adopted the conclusion in the Tadi´c case that the list of measures in article 41 of the United Nations Charter is not exhaustive.24   ibid, paras 49–53.   See, eg, Prosecutor v Slobodan Miloševi´c (Decision on Preliminary Motions) ICTY-99-37-PT, PT Ch (8 November 2001), where the defendant argued that the ICTY had no legal basis, having not been established by a treaty. For a comprehensive discussion of this and other challenges, see: C Damgaard, Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues (New York, Springer, 2008) 293–303. 17   Prosecutor v Joseph Kanyabashi (Decision on the Defence Motion on Jurisdiction) ICTR-96-15T, T Ch II (18 June 1997). This decision was not appealed. Similar issues were raised in Prosecutor v Édourad Karemera et al (Decision on Defence Motion, Pursuant to Rule 72 of the Rules of Procedure and Evidence, Pertaining to, inter alia, Lack of Jurisdiction and Defects in the Form of the Indictment) ICTR-98-44-T, T Ch II (25 April 2001). The Trial Chamber dismissed the motion on the basis it did not have jurisdiction to review the legality of Security Council Resolution 955: paras 23–28. 18   Prosecutor v Kanyabashi, paras 13–14. 19   ibid, para 15. 20   ibid, para 7. 21   ibid, para 21. 22  ibid. 23   ibid, paras 23–24. 24   ibid, para 27. 15 16

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It is now accepted that the Security Council can establish international criminal tribunals acting pursuant to its powers under Chapter VII of the United Nations Charter where the Council has determined the situation in question constitutes a threat to international peace and security. All challenges to the ICTR and the ICTY on the basis of their method of establishment have been rejected. The Council’s role in international criminal justice was further confirmed by the adoption of the Rome Statute, which recognises a significant role for the Council: first, in referring cases to the ICC (article 13); and, second, the ability to request the deferral of investigations or prosecutions (article 16). As shown by the study of practice, proposals for the establishment of international criminal tribu­ nals by the Security Council have been made, although not acted upon in other situations, for example in relation to Cambodia,25 East Timor26 and Burundi.27 Thus practice supports the conclusion that the Security Council may establish inter­national criminal tribunals as a measure to restore or maintain international peace and security under Chapter VII of the United Nations Charter. However, it is suggested that there are limits to these powers in relation to criminal tribunals, in addition to the general limits, if any, on the powers of the Security Council when acting under Chapter VII.28 First, the Security Council may only establish ad hoc tribunals in response to particular situations and could not establish a permanent institution. The Secretary-General noted in relation to the ICTY: ‘[A]s an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration of inter­ national peace and security in the territory of the former Yugoslavia’.29 This reflects the temporary nature of initiatives of the Council, which are in response to specific situations. Second, the jurisprudence of the ICTY and the ICTR and the practice of the Security Council itself suggest that the support of the state(s) directly affected by the atrocities has been an important factor in the establish­ 25   In relation to Cambodia, the Report of the Group of Experts indicated its view that the Security Council could establish an international criminal tribunal for Cambodia under Chapter VII of the UN Charter: UNGA, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135’ (15 March 1999) UN Doc A/53/850 (Report of the Group of Experts for Cambodia) paras 141–42. 26   The Commission of Inquiry for East Timor recommended the establishment of an international ad hoc tribunal: UNGA, ‘Report on the Joint Mission of the Special Rapporteurs and Representatives, Situation of Human Rights in East Timor’ (10 December 1999) UN Doc A/54/660 (Rapporteurs’ Report); UNGA, ‘Report of the International Commission of Inquiry on East Timor to the SecretaryGeneral’ (January 2000) UN Doc A/54/726- S/2000/59, para 153. For further discussion see ch 2, sec­ tion V(B). 27   The Arusha Peace and Reconciliation Agreement for Burundi originally requested the Security Council to establish an international criminal court for Burundi: see ch 3, section III(A). 28   The Security Council is required to act in accordance with the UN Charter, including the pur­ poses and principles of the Charter (art 24(2)), which include an obligation to act ‘in conformity with the principles of justice and international law’ (art 1(1)). For discussion of the limits on the exercise of its powers by the Council, see M Shaw, International Law, 6th edn (Cambridge, Cambridge University Press, 2008) 1268, in particular the sources cited at fn 316. 29  UNSC, ‘Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’ (3 May 1993) UN Doc S/25704, n 1, para 28.



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ment of the tribunals.30 While it is not suggested that such tribunals can only be established with the consent of the states concerned, support for the tribunal by the affected states enhances its legitimacy and may make it more likely that the tribunal will be able to secure cooperation from that state.31 Finally, as the Security Council is establishing a judicial institution, ‘[t]he organization of the International Tribunal should reflect the functions to be performed by it’.32 It has also been suggested that alternative provisions in the United Nations Charter could form the legal basis for the Council to establish a tribunal. In par­ ticular, article 29 allows the Council to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’ and Chapter VI of the Charter confers on the Council broad powers for international peace and securi­ ty.33 The main difference between relying on Chapter VII and the powers in other articles of the Charter is that measures adopted by the Council under Chapter VI of the Charter are recommendatory only and ‘the Court would, as a legal matter, have to rely upon the willingness of States to carry out those recommendations’.34 As the Group of Experts for Cambodia noted, the significance of this distinction may not be significant in practice, particularly where the affected state has requested assistance and is willing to cooperate in establishing the tribunal.35 While this may be a possible legal basis for the creation of future hybrid tribunals, it has not been utilised by either the existing or proposed tribunals studied.

B.  Can the Security Council Establish a Hybrid or Internationalised Criminal Tribunal? Having established that the Council may establish an ad hoc international crimi­ nal tribunal as a measure for the maintenance or restoration of international peace and security acting under article 41 of the United Nations Charter, the next issue is whether this power extends to the creation of a hybrid or internationalised tribunal. Assuming that the required link to a threat to international peace and security can be established, there appears to be no legal reason that would pre­ clude the Council establishing a hybrid tribunal; that is, a mixed tribunal that has 30  In Tadi´c , the ICTY Appeals Chamber noted that Bosnia had supported and offered to cooperate with the ICTY. The ICTR in Kanyabashi also commented on the role of the Government of Rwanda in establishing the ICTR. See W Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge, Cambridge University Press, 2006) 53. 31   Cooperation is discussed further at ch 6, section V. 32  UNSC, ‘Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’, para 69. 33   Report of the Group of Experts for Cambodia, para 142, noting that ‘This chapter (especially Article 36) has served as a basis for consent-based peacekeeping and has formed a basis for other con­ sent-based activities by the Council’. The Appeals Chamber of the SCSL has also suggested that Chapter VI could have provided a basis for the Council’s activities in relation to the establishment of that insti­ tution: Prosecutor v Fofana, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the United Nations, Appeals Chamber, 25 May 2004, para 19. 34   Report of the Group of Experts for Cambodia, n 25, para 144. 35   ibid, para 143.

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more international elements and operates effectively separately from domestic law. The Council had previously established the United Nations International Independent Investigation Commission (UNIIIC), which was a mixed institution operating under Lebanese law.36 This is not to say that the different nature of a hybrid tribunal may present greater practical difficulties if established in this manner than an international criminal court. In particular, hybrid courts rely to a greater extent on cooperation from the affected state, for example in the appoint­ ment of national judges and in carrying out the tribunal’s requests and orders. Imposing such a tribunal without the consent or at least the cooperation of the government of the affected state may have significant implications for the opera­ tion of the tribunal. In contrast, there is no practice supporting the competence of the Council to impose an internationalised tribunal that is established by national law and operates within the domestic judicial system (outside the context of territorial administration, discussed below). It is suggested that for the Security Council to do so would be very difficult, as this would amount to the Council purporting to amend directly national law and systems. While it could direct the state concerned to undertake the necessary measures to establish such a tribunal,37 and such a direction would be binding on that state by virtue of article 25 of the United Nations Charter, resolutions of the Council do not have direct effect in national legal systems and require action by the state concerned to give effect to such reso­ lutions as a matter of domestic law. Moreover, while states must often amend national law to give effect to obligations arising from Security Council resolu­ tions, the Council does not direct them as to whether and how to amend domestic law; each state has significant discretion as to how it gives effect to such obliga­ tions as a matter of domestic law. Accordingly, the Council could not establish directly an institution that operates under the domestic law of a Member State. There is certainly no precedent for the Council issuing such a resolution and the practice does not consider this as a possible legal basis for an internationalised tribunal. As discussed in the next section, the accepted practice is for an inter­ nationalised tribunal to be established on a voluntary basis by the authorities of the state concerned, potentially with assistance from the United Nations regulated by an agreement.

C.  The Ambiguous Legal Basis of the STL The issue of whether the Council can establish a hybrid or internationalised tribu­ nal under Chapter VII of the United Nations Charter is raised by the establish­ ment of the Special Tribunal for Lebanon (STL). The legal basis of the STL is   UNSC Res 1595 (2005) UN Doc S/RES/1595, and discussion in ch 2, section III(A).   eg, a resolution could provide that ‘The Council decides that the Government of State A shall establish a special chamber under the law of State A, with international participation, to try crimes of . . .’. 36 37



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unclear. As originally envisioned, the legal basis for the STL was to be the STL Agreement, to which the STL Statute was attached.38 This would have meant that the STL was established by a treaty between the United Nations and the Government of Lebanon. It would thus have had the same legal basis as the Special Court for Sierra Leone, discussed in the next section. The STL Agreement would have been the source of all legal obligations and the STL Statute the constituent instrument of the STL. As a treaty, the STL Agreement would have been binding only on Lebanon and the United Nations, and not third states such as Syria.39 However, the STL Agreement provided that it would enter into force the day after the Government of Lebanon notified the United Nations that the legal require­ ments for entry into force have been complied with.40 This included ratification of the agreement by the Lebanese Parliament.41 Ratification was never secured and the STL was unilaterally established by the Security Council acting under Chapter VII of the United Nations Charter in Resolution 1757, which annexed the STL Agreement and STL Statute. The key provision of Resolution 1757, article 1, provides: 1.  Decides, acting under Chapter VII of the Charter of the United Nations, that: (a) The provisions of the annexed document, including its attachment, on the estab­ lishment of a Special Tribunal for Lebanon shall enter into force on 10 June 2007, unless the Government of Lebanon has provided notification under Article 19 (1) of the annexed document before that date; (b) If the Secretary-General reports that the Headquarters Agreement has not been concluded as envisioned under Article 8 of the annexed document, the location of the seat of the Tribunal shall be determined in consultation with the Government of Lebanon and be subject to the conclusion of a Headquarters Agreement between the United Nations and the State that hosts the Tribunal; (c)  If the Secretary-General reports that contributions from the Government of Lebanon are not sufficient to bear the expenses described in Article 5(b) of the annexed document, he may accept or use voluntary contributions from States to cover any shortfall;

The government did not provide the notification required by paragraph 1(a) of Resolution 1757. The Secretary-General therefore took steps to establish the STL on the basis that the STL Agreement had entered into force on 10 June 2007. This raises the question of the effect of Resolution 1757 on the legal basis of the STL. There are two possibilities. First, that the Security Council brought into force the STL Agreement as a treaty by virtue of a Security Council resolution binding on Lebanon under Chapter VII of the Charter. The STL Agreement, together with the STL Statute, would form the constituent instruments of the STL. The STL should, consequently, be considered to be a treaty-based institution, similar to the   For further detail, see ch 2, section III.   Vienna Convention on the Law of Treaties, art 34. See discussion concering the Special Court for Sierra Leone, below. 40   STL Agreement, art 19. 41   Lebanese Constitution, art 52. 38 39

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SCSL and the ICC (see below). Alternatively, Resolution 1757 incorporated the STL Agreement and the STL Statute into its terms and thus it is the resolution itself – and the Council’s powers under Chapter VII of the Charter – that pro­ vided the legal basis for the STL. As such, the STL is closer to the ICTY and the ICTR than the SCSL. However, on either view, what is clear is that Lebanese domestic law does not form the legal basis for the STL. Therefore the STL may be distinguished from the ECCC, the IHT, the IJJP, the SPSC and the WCC, which are all based in national legislation.42 Both of these options depend upon the Security Council’s use of its binding Chapter VII powers, as they require a coercive action by the Security Council, namely, the imposition of arrangements for the STL in the absence of the consent of Lebanon. The Security Council has determined that terrorist acts,43 and the assassination of Rafik Hariri in particular,44 are threats to international peace and security, thus satisfying the threshold for the use of its Chapter VII powers. The Security Council had previously issued directions to states under Chapter VII in respect of the UNIIIC.45 Thus it appears that the Security Council was entitled to take action under Chapter VII with regards to the situation in Lebanon following the assassination of former Prime Minister Hariri. These two options are now considered in further detail.

D.  The STL as a ‘Treaty-Based’ Tribunal The first option, which views the STL as a treaty-based institution, poses several interesting questions. Resolution 1757 purports to bring unilaterally into force a treaty negotiated between a Member State and the United Nations, and then to amend key provisions of that treaty without the formal consent of one of the par­ ties, Lebanon.46 The Security Council has thus in effect either overridden the   Discussed below.   See, eg, UNSC Res 1373 (2001) UN Doc S/RES/1373; UNSC Res 1566 (2004) UN Doc S/RES/ 1566; UNSC Res 1805 (2008) UN Doc S/RES/1805 preambular para 1; and, in the context of Lebanon, UNSC Res 1636 (2005) UN Doc S/RES/1636 – ‘terrorism in all its forms and manifestations consti­ tutes one of the most serious threats to international peace and security’, preambular para 3. 44   UNSC Res 1757 (2007) UN Doc S/RES/1757, preambular para 13; UNSC Res 1644 (2005) UN Doc S/RES/1644, preambular para 9; and UNSC Res 1636 (2005) S/RES/1636, preambular para 19. 45   In particular, Res 1636 requires Syria to ‘detain those Syrian officials or individuals whom the Commission considers as suspected of involvement in the planning, sponsoring or perpetrating of this terrorist act’ and imposes the same obligations to cooperate with the UNIIIC as are placed upon the Government of Lebanon pursuant to Resolution 1595: para 11. For further discussion see: ch 2, section III(A) and ch 3, section II(D). 46   Res 1757 amends two provisions of the STL Agreement. First, para 1(b) of Res 1757 amends art 8 of the STL Agreement, which provides for the negotiation and agreement of a headquarters agreement between the Government of Lebanon, the United Nations and the government of the state to host the STL. This was amended to allow for the headquarters agreement to be concluded between the United Nations and the host state only, although negotiations are to be in consultation with the Government. Second, para 1(c) of Res 1757 amends the funding mechanism in art 5(b) of the STL Agreement, such that the Secretary-General may accept voluntary contributions to address any shortfall in the funds to be provided by the Government of Lebanon. 42 43



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requirement for the ratification of the STL Agreement by Lebanon, or it has sub­ stituted its own approval for the consent of Lebanon. As Professor Fassbender notes ‘the Council could be said to have substituted a binding decision made under Chapter VII of the United Nations Charter for the missing ratification of the [STL] Agreement by Lebanon’.47 The first question to be asked then is, is Resolution 1757 consistent with the powers of the Security Council, even when the Security Council is acting under Chapter VII of the Charter? Imposing and amending treaty obligations is not one of the measures available to the Council as listed in article 41 of the Charter. However, as noted above, the list of measures in article 41 is a non-exhaustive list. A number of resolutions have been suggested as possible precedents for the Security Council exercising its powers under Chapter VII of the Charter so as to affect treaty-based arrangements. For example, Security Council resolutions excluding peacekeepers of non-state parties from the jurisdiction of the ICC have been suggested as an example of where the Security Council has overridden the terms of a negotiated treaty.48 Yet, in this case, the possibility of such Security Council resolutions was contemplated by the Rome Statute itself.49 The resolu­ tions in question arguably fell within the scope of article 16 of the Rome Statute and did not result in the suspension of the ICC treaty regime.50 Perhaps a more apt precedent is the argument that a referral of a situation to the ICC by the Security Council imposes the legal framework of the Rome Statute on a state that is not a party to that instrument, including the provisions in the Rome Statute on complementarity51 and the unavailability of immunities for state officials.52 However, even in this situation, what is clear is that a referral to the ICC by the Council does not make the state a party to the Rome Statute itself; rather, as the ICC must exercise its jurisdiction in accordance with its Statute it is argued that ‘a non-party to the Statute is bound by the Statute in the case of a referral – in the sense that it is bound to accept the jurisdiction of the Court and legality of the Court’s operation in accordance with its Statute’.53 It is so bound because of the obligation under article 25 of the United Nations Charter to implement the decisions of the Security Council, not because the Council has imposed the Rome Statute directly.

47   B Fassbender, ‘Reflections on the International Legality of the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1091, 1096. 48   Fassbender, ibid, 1100, fn 35, referring to UNSC Res 1422 (2002) UN Doc S/RES/1422 and UNSC Res 1487 (2003) UN Doc S/RES/1487. 49   Rome Statute, art 16. 50   There was some debate as to whether the resolutions, which requested the ICC not to investigate or prosecute any alleged violations by nationals of non-party states to the Rome Statute participating in peacekeeping operations, were of a type that was contemplated by art 16. For further discussion, see ch 1. 51   Rome Statute, arts 17, 18 and 19, see discussion in ch 1, section III(C)(iii). 52   Rome Statute, art 27, see discussion in ch 6, section III(B). 53  D Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of Internatinal Criminal Justice 333, 341.

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The Security Council has on several occasions encouraged states to sign or rat­ ify multilateral agreements,54 to return to treaty arrangements,55 or to reaffirm their obligations under treaties of which the state is already a party.56 It has also acted to exclude the application of certain treaty obligations.57 Moreover, the Security Council has arguably incorporated the substance of treaty provisions into its own binding resolutions.58 In Resolution 1718, perhaps the most extreme instance of the imposition of obligations to date, the Security Council decided that the Democratic People’s Republic of Korea ‘shall act strictly in accordance with the obligations applicable to parties under the Treaty on the NonProliferation of Nuclear Weapons and the terms and conditions of its International Atomic Energy Agency (IAEA) Safeguards Agreement’.59 However, on no occa­ sion has the Security Council indicated that these obligations apply as a matter of treaty law; that is that the state has become a party to the treaty itself by virtue of a Security Council resolution. It is certainly not generally accepted that the Security Council could impose a treaty regime on a state.60 Talmon suggests that while the Security Council may impose certain obligations found in a treaty on states, ‘it cannot, as a rule, impose whole treaties, since they contain not just substantive 54   In Res 687 the Security Council invited Iraq to ratify the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and their Destruction: see UNSC Res 687 (1991) UN Doc S/RES/687, para 7. 55   In Res 1718, the Security Council demanded that the Democratic People’s Republic of Korea retract its withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons (para 3) and return to the treaty and the safeguards agreement (para 4): see UNSC Res 1718 (2006) UN Doc S/RES/1718. 56   In Res 687, the Security Council invited Iraq to ‘reaffirm unconditionally its obligations’ under the Treaty on the Non-Proliferation of Nuclear Weapons and the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare: paras 11 and 7. 57   In Res 1483, the Security Council arguably excluded certain aspects of international humanitar­ ian law that would otherwise have been applicable to the situation in Iraq. See: UNSC Res 1483 (2003) UN Doc S/RES/1483; R Cryer,‘The Security Council and International Humanitarian Law’ in S Breau and A Jachec-Neale (eds), Testing the Boundaries of International Humanitarian Law (London, British Institute of International and Comparative Law, 2006) 268–73. 58   This recent practice of the Security Council has been described as ‘international legislation’, in that it imposes obligations of a ‘general and abstract character’ and is not directed at a single state, individual or organisation: see S Talmon, ‘The Security Council as World Legislature’, (2005) 99 American Journal of International Law 175, 175–77. The most notable example of Security Council legislation is Res 1373 (2001), in which the Security Council incorporated several of the substantive obligations contained in the International Convention for the Suppression of the Financing of Terrorism, which at the time was not in force. For further discussion see: UNSC Res 1373 (2001) UN Doc S/RES/1373; P Szasz, ‘The Security Council Starts Legislating’ (2002) 96 American Journal of International Law 901; and E Rosand, ‘Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight Against Terrorism’ (2003) 97 American Journal of International Law 333. 59   UNSC Res 1718 (2006) UN Doc S/RES/1718, para 6. 60   For a contrary view, see Szsaz, n 58, 903 (suggesting that, in principle, Res 1373 could have made the Convention binding by making participation in the convention obligatory or by providing that all provisions, rather than the final clauses were binding on all states); and L Lopez, ‘Uncivil Wars: The Challenge of Applying International Humanitarian Law to Internal Armed Conflicts’ (1994) 69 New York University Law Review 916, 954–57 (suggesting that the Security Council could make the provi­ sions of the Geneva Conventions and their Protocols applicable to specified conflicts or states, includ­ ing through modifying the provisions in the Conventions concerning applicability).



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obligations, but also purely technical or administrative provisions whose imposi­ tion will not be necessary to address a threat to international peace and security’.61 It would thus have been an unprecedented step for the Council to have acted using its powers under Chapter VII to create the STL as a treaty-based body. Even assuming that the Security Council was competent to bind Lebanon to a treaty, its action raises a significant question as to whether Resolution 1757 repre­ sented an unauthorised intrusion into the domestic legal and political affairs of a Member State in contravention of article 2(7) of the United Nations Charter. Resolution 1757 was adopted by 10 votes in favour, with five abstentions.62 Several members of the Security Council voiced their concern that the resolution was an unacceptable intervention in the sovereignty of Lebanon.63 For example, the rep­ resentative of China stated that invoking Chapter VII to override internal legisla­ tive organs will ‘create a precedent of Security Council interference in the domestic affairs and legislative independence of a sovereign state. Such actions are likely to undermine the authority of the Council’.64 The representative of Indonesia noted that the resolution bypassed constitutional procedures and national processes, and that the Security Council should not be involved in an exercise of interpreting, let alone assuming control of a state’s constitutional requirements. Mégret notes that it is of particular interest that the Council had intervened in the national processes of a democratic state, and that:65 the precedential and signalling effect of the Council being seen as bypassing democratic institutions is, all other things being equal, bad for the United Nations’ democracy pro­ motion efforts, especially in cases of breaches of international peace and security that remain relatively contained.

He further observes that:66 [O]ne might consider that the normative threshold for using Chapter VII to impose a judicial institution should probably be higher when democratic arrangements are pres­ ent and require a demonstration that a particular democratic decision is manifestly so unconducive to restoring international peace and security that the Council needs to step in.

Even those Security Council members that supported the adoption of Resolution 1757 appeared to appreciate the gravity of the Council’s action, stressing that the action was only taken due to the impasse within Lebanon and emphasising that   Talmon, n 58, 186.   Votes in favour: Belgium, Congo, France, Ghana, Italy, Panama, Peru, Slovakia, United Kingdom and the United States. Abstentions: China, Indonesia, Qatar, Russian Federation, South Africa. See: UNSC Verbatim Record (30 May 2007) S/PV/5685. 63   South Africa indicated its opinion that the Security Council cannot bypass a state’s constitutional procedures. China considered that domestic constitutional procedures should be followed. Russia viewed Res 1757 as ‘an encroachment upon the sovereignty of Lebanon’: UNSC Verbatim Record (30 May 2007) S/PV/5685. 64   UNSC Verbatim Record (30 May 2007) S/PV/5685, para 4. 65   F Mégret, ‘A Special Tribunal for Lebanon: The UN Security Council and the Emancipation of International Criminal Justice’ (2008) 21 Leiden Journal of International Law 485, 491. 66  ibid. 61 62

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the STL Agreement had been negotiated with the consent of the Prime Minister of Lebanon and approved by a majority of the Lebanese Parliament.67 However, while Resolution 1757 may be politically questionable, and is argu­ ably inconsistent with the Security Council’s own demands for respect for the territorial sovereignty and independence of Lebanon,68 article 2(7) of the United Nations Charter does not limit the enforcement powers of the Security Council under Chapter VII of the Charter. Thus, once the Security Council has indicated that a situation constitutes a threat to international peace and security and that it is utilising its powers under Chapter VII of the Charter, the resulting action can­ not, at least legally, be considered an undue interference in domestic affairs.69 Similar arguments have been raised in the context of the establishment of other international tribunals and have generally been ignored by the Council and dis­ regarded by the courts in question.70 A further issue raised by the interpretation of Resolution 1757 as imposing a treaty-based arrangement is whether the resolution would therefore violate provi­ sions of the Vienna Convention on the Law of Treaties (VCLT).71 It has been sug­ gested that the Security Council may have acted in violation of specific provisions of the law of treaties through ‘coercing’ the participation of Lebanon.72 The Security Council must act in conformity with international law, even in pursu­ ance of its objectives of maintaining international peace and security.73 Articles 51 and 52 of the VCLT provide that a treaty is void where the consent to be bound or conclusion of the treaty has been procured by coercion. However, article 51 relates 67   The United Kingdom noted that the resolution was a response to a request from the Lebanese government. Slovakia and the United States emphasised that all other means had been exhausted. Peru commented that the resolution took into account the position of the majority of the Lebanese parlia­ ment, reflected ‘exceptional political circumstances’ and must not constitute a precedent beyond this case: UNSC Verbatim Record (30 May 2007) S/PV/5685. 68   This demand has been included in several Security Council resolutions concerning Lebanon, eg, UNSC Res 1595 (2005) UN Doc S/RES/1595, preambular para 1. 69   Shehadi and Wilmshurst suggest that resolutions in relation to the Lockerbie trial and the conflict in Côte d’Ivoire are also instances of the Council overriding constitutional or legislative arrangements: N Shehadi and E Wilmshurst, ‘The Special Tribunal for Lebanon: The UN on Trial?’ Middle East Programme Briefing Paper (July 2007). However, as is noted, in the Lockerbie case, the resolution was passed with the consent and cooperation of the United Kingdom and the United States. Moreover, the resolutions concerning Côte d’Ivoire were passed as part of an ongoing peace process. 70   See discussion of the legal basis of the ICTY and the ICTR, this chapter, section II(A). 71   Vienna Convention on the Law of Treaties (adopted 22 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (VCLT), although technically, the Vienna Convention on the Law of Treaties between States and International Organisations (adopted 21 March 1986, not yet entered into force) would apply. 72   See the discussion in Fassbender, n 47, 1101–04. 73   The Security Council must act in accordance with the provisions of its constituent instrument, the Charter. In particular, under art 24(2) of the Charter, the Security Council must act in accordance with the Purposes and Principles of the Charter, which declare that one of the aims of the United Nations is to resolve international disputes by peaceful means and ‘in conformity with the principles of justice and international law’. For judicial recognition of this limit, see Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States) (Provisional Measures, Order of 14 April 1992) [1992] ICJ Rep 14, the dis­ senting opinions of Judge Weeramantry (65) and of Judge Bedjaoui (46).



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to coercion of the representative of a state, not coercion of the state itself. Similarly, although article 52 does apply to coercion of the state itself, it refers only to coer­ cion by the use or the threat of the use of force. Thus neither provision applies to the situation found in Resolution 1757. Yet, while the Security Council may not have violated specific provisions of the law on treaties, it is questionable whether the Security Council can, or should, interfere with such a fundamental principle of international law as the requirement for consent to be bound by treaty obliga­ tions.74 Article 103 of the Charter confers on the Charter – and any binding Security Council resolutions derived from it – priority over the provisions of other agreements. However, this is usually considered to suspend treaty obliga­ tions and to ‘replace’ them with Chapter VII obligations, rather than amending the terms of the treaty itself or to create new treaty-based obligations.75 While this act of ‘coercion’ by the Security Council may be damaging to both the integrity of the law of treaties and to the Security Council’s credibility, only the representative of the Russian Federation appeared to have questioned directly the legal basis for unilaterally imposing a treaty.76

E.  Resolution 1757 as the Legal Basis for the STL The second option is that Resolution 1757, rather than the STL Agreement, pro­ vided the legal basis for the STL. According to this option, the Security Council has incorporated the obligations set out in the STL Agreement into the binding provisions of Resolution 1757,77 and therefore those obligations apply not by vir­ tue of the STL Agreement and the law of treaties, but as directions from the Security Council. In this sense the STL is a tribunal established by the Security Council acting under Chapter VII of the Charter. This raises directly the question framed at the start of this section, namely whether the Council may establish hybrid or internationalised tribunals utilising its powers pursuant to Chapter VII of the Charter. There has been no suggestion that the Security Council cannot establish a hybrid tribunal as a measure to restore or maintain international peace and security. This objection was not raised in discussion surrounding the adop­ tion of Resolution 1757, but this could be attributed to the ambiguity as to the legal basis being used. It would appear that the Security Council considered that, provided utilising an internationalised or hybrid tribunal is a measure for the maintenance or restoration of international peace and security, it may take such action. It may be that, in the case of Lebanon, the support of the Government of   Fassbender, n 47. See also Shehadi and Wilmshurst, n 69, 9.   Fassbender, n 47, 1100 – ‘The Council can break treaties but it cannot make treaties’. 76   The representative of the Russian Federation commented that: ‘The arrangement chosen by the sponsors [of the resolution] is dubious from the point of view of international law. The treaty between the two entities – Lebanon and the United Nations – by definition cannot enter into force on the basis of a decision by only one party’.’: UNSC Verbatim Record (30 May 2007) S/PV/5685. 77   UNSC Res 1757 refers to the ‘annexed document, including its attachment’, rather than naming the STL Agreement. 74 75

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Lebanon and part of the Lebanese community influenced the Council to ‘impose’ a tribunal on Lebanon.78 Of course, as a practical matter, unilaterally establishing a hybrid or internationalised tribunal, which rely to a far greater extent on national involvement and support, may prove to be a futile exercise where the affected state is unlikely to extend cooperation voluntarily.79

F.  Which Option Did the Council Intend? It is difficult to determine which option the Security Council intended when it adopted Resolution 1757. In support of option one, while Resolution 1757 does not expressly refer to the STL Agreement, the language used replicates that of the law of treaties, using terms such as ‘enters into force’, referring to article 19 of the STL Agreement and leaving the text of the STL Agreement intact, rather than incorporating key provisions into the text of the resolution. Moreover, it is diffi­ cult to detect an intention to ‘establish’ the STL by Resolution 1757. When the Security Council established the ICTY and the ICTR, it included clear wording to that effect – ‘decides hereby to establish an international tribunal’ – in Resolutions 827 and 955. It used similar language when establishing the UNIIIC.80 This lan­ guage is missing from Resolution 1757. In fact the debate surrounding the adop­ tion of the resolution suggests that it was not the intention of the Security Council to establish the STL as a Chapter VII body. For example, the representative of the United Kingdom stated that while Resolution 1757 was intended to be binding, the use of Chapter VII powers ‘carries no other connotations’.81 Was the United Kingdom suggesting that the resolution was not intended to establish the Tribunal? As noted earlier, several other members of the Council referred to the application of principles of the law of treaties, which would be unnecessary if the STL was established by the Security Council using its Chapter VII powers. States also emphasised the consent to be bound by the treaty by some parts of the Lebanese political structure and society. Moreover, Resolution 1757 does not contain the language on state cooperation found in the resolutions establishing the ICTY and the ICTR, and there are key differences between the STL and those tribunals.82 These factors suggest that option one was intended by the Council. Yet, while states considered the implications of the resolution for the domestic sovereignty of Lebanon, none mentioned the serious concerns that this option raises for the law of treaties. In support of option two, as noted above, some of the wording of Resolution 1757 could support the incorporation of the STL Agreement into the provisions of Resolution 1757. The STL Agreement and the 78   As noted above, several members of the Council commented on the support of the Government and Lebanese community. 79   The representative of South Africa made this point, noting that Lebanese ownership was essential to the success of the STL: UNSC Verbatim Record (30 May 2007) S/PV/5685, 4. 80   See UNSC Res 1595 (2005) UN Doc S/RES/1595, para 1. 81   UNSC Verbatim Record (30 May 2007) S/PV/5685. 82   The implications of these differences will be considered in ch 6, section V.



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STL Statute are annexed to the resolution. The resolution and the debate sur­ rounding its adoption are ambiguous and, given the difficult legal questions the resolution presents, this ambiguity may well be deliberate. The STL has not had to resolve the issue of its legal basis, although it is likely that it will face a challenge as to the legality of its establishment once a trial com­ mences. While recognising that both options outlined above are possible inter­ pretations of the Tribunal’s legal basis, the Appeals Chamber has effectively deferred a decision as to its legal basis until the issue is raised directly. In its inter­ locutory decision on the applicable law, the Appeals Chamber proceeded to inter­ pret the provisions of the STL Statute in accordance with the relevant international rules on treaty interpretation.83 It commented: [T]hat is so whether the Statute is held to be part of an international agreement between Lebanon and the United Nations or is regarded instead as part of a binding resolution adopted by the Security Council under Chapter VII of the United Nations Charter, an issue we need not decide upon at this juncture’.84

The Chamber therefore applied the rules on treaty interpretation set out in the Vienna Convention on the Law of Treaties, holding that these rules applied as customary international law ‘to any internationally binding instrument, whatever its normative source’.85 It observed, however, the view of the International Court of Justice in the Kosovo Advisory Opinion that care must be exercised in relying only on the Vienna Convention principles to interpret Security Council resolu­ tions, the nature of which requires other factors to be taken into account. 86 Accordingly, the Chamber concluded that:87 in so far as the provisions of this Tribunal’s Statute have entered into force on the basis of Security Council Resolution 1757 (2007), the Appeals Chamber will also take into account such statements made by members of the Security Council in relation to the adoption of the relevant resolutions, the Report of the UN Secretary-General on the Establishment of the Tribunal . . . and the object and purpose of those resolutions (in keeping with the Kosovo Opinion of the ICJ), as well as the practice of the Security Council.

G. Conclusion It is clear is that without Resolution 1757 and the binding powers of the Security Council under Chapter VII of the United Nations Charter, the STL would not exist. Thus it must be said the STL cannot be considered a ‘true’ treaty-based 83   Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I/AC/R176bis, A Ch (16 February 2011) (Decision on the Applicable Law) para 26. 84   ibid, para 26. 85   ibid, para 26. 86   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) 22 July 2010, para 94–96. 87   Decision on the Applicable Law, para 27.

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institution like the SCSL. Instead, its legal basis must lie in Resolution 1757. Either the Council has bound Lebanon as a party to the STL Agreement without its con­ sent or it has bound Lebanon to the terms of the agreement by incorporating those terms into the text of a Security Council resolution binding upon Lebanon. It is submitted here that the second option should be preferred; as this option avoids the possible implications for the law of treaties and the principle of consent to be bound by treaty-based obligations. However, both options required the Council to be acting pursuant to its powers under Chapter VII of the Charter. Therefore, under either option, the STL should be considered a ‘Chapter VII tri­ bunal’. Resolution 1757 can therefore be considered a precedent for the establish­ ment of a hybrid tribunal by the Council acting under its Chapter VII powers. This would distinguish the STL from the treaty-based tribunals, currently the SCSL and the ICC. However, it is recognised that the STL is different from the ICTY and the ICTR in that it is not considered to be a subsidiary organ of the Security Council or part of the United Nations structure. In particular, unlike the ICTY and the ICTR, it does not report to the Security Council. As it is not funded by assessed contribu­ tions, it is also under no obligation to report to the General Assembly. The last report of the Secretary-General on the implementation of Resolution 175788 was submitted in February 2009, shortly before the transfer of investigative functions from UNIIIC to the STL in March 2009.89 Instead, the STL reports to a manage­ ment committee90 and the President of the STL issues an annual report to the United Nations Secretary-General and the Government of Lebanon in accordance with article 10(2) of the STL Statute.91 The annual report is forwarded to the Council by the Secretary-General,92 but the reports have not to date been dis­ cussed by the Council, nor has the President presented the report to the Council. However, it is submitted that, provided the distinction between the STL and the ad hoc tribunals is recognised, whether option one or option two is preferred may make little difference to resolving the legal issues the STL faces. For example, as is discussed in chapter six, issues such as immunity and state cooperation will be determined by reference to the text of Resolution 1757 and the STL Agreement (however adopted), with due consideration given to the significance of the role of 88   Res 1757 requested the Secretary-General to report regularly on implementation of the resolu­ tion: see UNSC Res 1757 (2007) UN Doc S/RES/1757, para 3. The Secretary-General submitted four reports to the Council. 89   The Secretary-General indicated that this would be the last report to the Council, but stated that he ‘will continue to ensure that the Special Tribunal is able to achieve its mandate in the most effective manner’: UNSC, ‘Fourth Report of the Secretary-General Submitted Pursuant to Security Council Resolution 1757 (2007)’ (24 February 2009) UN Doc S/2009/106, para 30. 90   STL Agreement, art 6. Arrangements for this Committee are based on those for the SCSL. The President reports to the Management Committee on a monthly basis: The President, The STL Six Months On: A Bird’s Eye View (October 2009) para 2. 91  Two reports have been issued: STL, Annual Report (2009–2010) (2010); STL, Second Annual Report (2010–11) (2011). 92  See, eg, UNSC, ‘Letter Dated 11 March 2010 from the Secretary-General Addressed to the President of the Security Council’ (29 March 2010) UN Doc S/2010/159.



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the Security Council in establishing the tribunal. The STL does offer, however, a possible precedent for the creation of a hybrid tribunal by the Security Council.

III.  Tribunals Established by Treaty A General As outlined in the previous section, until the creation of the ICTY and the ICTR, the traditional method of establishment of an international court was through the negotiation of a treaty. While the treaties establishing institutions such as the ICC have been negotiated on a multilateral basis, there is no requirement that an inter­ national criminal tribunal be established by more than two states. The advantage of establishing an institution on the basis of a treaty is that the states participating in the negotiations have had input into its provisions and may determine whether or not to become a party to the treaty. The creation of the institution is thus con­ sistent with the exercise of sovereignty by the state concerned. This is, however, also one of the disadvantages; the states most affected or necessary for the proper operation of the tribunal may decide not to become parties to the treaty. Other possible disadvantages include the influence of political and ‘sovereignty’ con­ cerns in the negotiation of key provisions; the time taken for the treaty to be adopted and to enter into force; the possibility that states may file reservations if permitted to do so by the treaty;93 and the fact that only states that are party to the treaty will be bound by its provisions.94 The last factor may be significant in deter­ mining the circumstances in which establishing a tribunal on the basis of a treaty is appropriate, as discussed in chapter six. A further potential disadvantage is demonstrated by the experience of the STL. Treaties are generally subject to some form of domestic approval process, which, if not able to be fulfilled, may preclude the state from giving its consent to be bound to the treaty.95 There are currently two examples of tribunals established on the basis of a treaty: the International Criminal Court and the Special Court for Sierra Leone (SCSL). The ICC was established by a multilateral treaty, the Rome Statute, and is consistent with the traditional view of such institutions being established by a multilateral treaty.96 However, the SCSL differs from the ICC in that, instead of being established by a treaty between states, the SCSL was established by a treaty 93   VCLT, art 19 provides that a state may enter reservations to a treaty unless prohibited from doing so by the terms of the treaty itself, or where the reservation in question is contrary to the object and purpose of the treaty. 94   VCLT, art 34. 95   As was discussed above, while a treaty was originally intended as the legal basis for the STL, the STL Agreement was never formally ratified by Lebanon as the required parliamentary majority was not obtained. Instead, the Security Council brought the STL Agreement into force on the basis of its powers under Chapter VII of the Charter: ch 2, section III(B). 96   Rome Statute of the International Criminal Court.

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between the United Nations and Sierra Leone.97 This was the first, and is to date the only, occasion on which this legal basis has been utilised.98 As noted by Damgaard, the creation of an institution by a treaty between the United Nations and a state ‘represents a significant departure from the traditional method of establishing an international criminal judicial body by way of an international treaty between two or more states’.99 Yet, although the United Nations SecretaryGeneral noted that the SCSL was a ‘treaty-based sui generis court’,100 he did not raise any concerns regarding its legal basis. Neither did members of the Council in the discussion surrounding the vote on Resolution 1315.101 While the legal basis of the SCSL has been challenged by the accused,102 subsequent practice suggests that this method of establishment is now accepted as a possible legal basis for a hybrid or internationalised tribunal. For example, a negotiated treaty was considered as the preferred legal basis for the STL. It has also been considered as a possible option in a number of situations considered here, such as Burundi103 and the pro­ posals for a piracy tribunal.104 This legal basis has also been adopted for institu­ tions other than courts, for example, the CICIG (International Commission against Impunity in Guatemala).105 As the international community has increas­ ingly turned to hybrid and internationalised tribunals, it appears that a negotiated agreement, rather than the imposition of a mechanism, is the preferred course for the Security Council. A negotiated agreement is less intrusive of the sovereignty of the affected state, is consistent with the renewed emphasis on facilitating domestic involvement in prosecutions, and is more likely to be perceived as legitimate domestically and to secure cooperation from domestic authorities. While the ICC has been established by an agreement between states, the practice does not provide any precedent for the establishment of a hybrid tribunal by an agreement between two or more states. As mentioned previously,106 it is difficult to determine the extent to which such an institution would be a hybrid 97  Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (16 January 2002) (SCSL Agreement). 98   Note, however, the proposed legal basis of the STL, discussed above. 99   Damgaard, n 16, 307. 100   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915, para 9. 101   UNSC Verbatim Record (14 August 2000) UN Doc S/PV/4186. No substantive statements were issued and Res 1315 was adopted unanimously. 102   Discussed below, section III(B). 103   The assessment mission to Burundi considered the SCSL as a possible precedent for the pro­ posed Burundi tribunal: see: UNSC, ‘Report of the Assessment Mission on the Establishment of an International Commission of Inquiry for Burundi’ (11 March 2005) UN Doc S/2005/158, para 59 and ch 3, section III(A). 104   Option six of the UN Report considered an international piracy tribunal established by an agree­ ment between the United Nations and a state in the region, preferably Somalia: UNSC, ‘Report of the Secretary-General on Possible Options to Further the Aim of Prosecuting and Imprisoning Persons Responsible for Acts of Piracy and Armed Robbery at Sea off the Coast of Somalia (26 July 2010) UN Doc S/2010/394. See dicussion at ch 3, section III(D). 105   See Agreement between the United Nations and the State of Guatemala on the Establishment of an International Commission against Impunity in Guatemala (12 December 2006) (CICIG Agreement). See also ch 3, section II(D). 106   See discussion in ch 4.



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tribunal as defined in this study where the states involved are states that would be exercising jurisdiction on territorial or nationality principles. In such a situation, there would not be anything representing the international interest in trials that is usually the role of the United Nations in such agreements. Whether such an insti­ tution could be considered a hybrid will depend on the circumstances and the terms of the agreement itself. To illustrate, suppose that State A and State B agree to create a tribunal to try those accused of violations during an international armed conflict between those two states, rather than trying such individuals in their own domestic legal sys­ tems. The agreement provides for the appointment of judges and other personnel from both State A and B to the tribunal, its material jurisdiction includes inter­ national crimes and crimes under the law of State A and some under the law of State B, and the court sits in State A, but is separate and distinct from the courts in State A. It is quite clearly not a national court of either state, and is a hybrid of two national systems, but may not be a hybrid for our purposes. However, suppose a third state, State C, which is not involved in the conflict, is also a party to the agreement and agrees to provide finance and some judges and personnel from State C, and for the tribunal to sit in the territory of State C. In this case, the tribu­ nal is more likely to be considered a hybrid tribunal. Thus, arguably, a hybrid tri­ bunal can only be established by an agreement between states where a third state, the United Nations or another organisation is a party to that agreement and acts to represent the interests of the international community in accountability. As will be seen in the following examination of the legal basis of the SCSL, establishing a tribunal by treaty can raise several issues, including challenges to the legal basis of the court both as a matter of international and domestic law, concerns that one of the parties has acted ultra vires in entering into the treaty, and the application of the law of treaties to the agreement.107 In the case of the SCSL, the effect of the involvement of the Security Council in the design and cre­ ation of the SCSL must also be considered. The challenges encountered by the SCSL are given attention here as they illustrate some of the potential limits of this legal basis as a method for the creation of a criminal court.

B.  Legal Challenges to the Establishment of the SCSL As had been the experience of the ICTR and the ICTY, the SCSL faced a number of challenges to the legality of its establishment and to the exercise of its jurisdic­ tion. The United Nations Secretary-General outlined the legal basis of the SCSL as follows:108 107   Techincally the VCLT does not apply to the SCSL Agreement. Instead, the relevant instrument would be the Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations (adopted 21 March 1986), which has not yet entered into force. However, many of the provisions of the VCLT also apply as customary international law. 108   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915, para 9.

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The legal nature of the Special Court, like that of any other legal entity, is determined by its constitutive instrument. Unlike either the International Tribunals for the Former Yugoslavia and for Rwanda, which were established by resolutions of the Security Council and constituted as subsidiary organs of the United Nations, or national courts established by law, the Special Court, as foreseen, is established by an Agreement between the United Nations and the Government of Sierra Leone and is therefore a treaty-based sui generis court of mixed jurisdiction and composition. . . . As a treatybased organ, the Special Court is not anchored in any existing system (i.e., United Nations administrative law or the national law of the State of the seat) which would be automatically applicable to its non-judicial, administrative and financial activities.

Article 1 of the SCSL Agreement clearly states ‘There is hereby established a Special Court for Sierra Leone’. Moreover, the preamble to the SCSL Statute pro­ vides ‘Having been established by an Agreement between the United Nations and the Government of Sierra Leone’. The SCSL is thus a treaty-based institution.109 In this sense, the SCSL has more in common with the ICC than the ICTY and the ICTR, which were established by the Security Council by a resolution under Chapter VII of the United Nations Charter. The Security Council has referred to the SCSL as having been established by the SCSL Agreement110 and the Appeals Chamber of the SCSL has confirmed this status on several occasions.111

i.  The SCSL as a ‘Chapter VII’ Court It has been suggested that the involvement of the Council in the establishment of the SCSL rendered the establishment of the SCSL an exercise of the powers of the Security Council acting under Chapter VII of the Charter.112 As outlined in chap­ ter two,113 the initial request for the creation of the SCSL came from the President of Sierra Leone. The Security Council then requested the Secretary-General to 109   This legal status is widely recognised by commentators: see S Beresford and A Muller, ‘The Special Court for Sierra Leone: An Initial Comment’ (2001) 14 Leiden Journal of International Law 635, 636; J Cerone, ‘The Special Court for Sierra Leone: Establishing a New Approach to International Criminal Justice’ (2002) 8 ILSA Journal of International and Comparative Law 379, 381; M Frulli, ‘The Special Court for Sierra Leone: Some Preliminary Comments’ (2000) 11 European Journal of International Law 857, 858; H Jallow, ‘The Legal Framework of the Special Court for Sierra Leone’ in K Ambos & M Othamn (eds), New Approaches in International Justice: Kosovo East Timor, Sierra Leone and Cambodia (Freiburg, Max Planck Institute, 2003); M Scharf ‘The Special Court for Sierra Leone’ (October 2000) ASIL Insights. 110   UNSC Res 1688 (2006) UN Doc S/RES/1688, preambular para 2 – ‘Recalling that the Special Court for Sierra Leone (“the Special Court”) was established by Agreement between the United Nations and the Government of Sierra Leone on 16 January 2002 (“the Agreement”) pursuant to its resolution 1315 (2000) of 14 August 2000’. 111   See, eg: Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004) para 35, ‘The Special Court is established by the Agreement between the United Nations and the Government of Sierra Leone’; and Prosecutor v Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-04-15-PT-060, A Ch (13 March 2004) para 14, ‘The Special Court, although established by an agreement between the United Nations and the Government of Sierra Leone’. 112   See, eg, the arguments of the defendant in the Taylor case: Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004). 113   ch 2, section II(B).



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negotiate the agreement for the Court, although the Council continued to be con­ sulted and to take an interest in the key provisions of the SCSL Agreement and Statute.114 Before acting under Chapter VII of the Charter, the Security Council must make a determination as to whether the situation in question represents a threat to the restoration or maintenance of international peace and security.115 The Council had previously determined that the situation in Sierra Leone consti­ tuted ‘a threat to international peace and security in the region’.116 In Resolution 1315, the Council reiterated that ‘the situation in Sierra Leone continues to con­ stitute a threat to international peace and security in the region’ and recognised that in the particular circumstances of Sierra Leone, a credible system of justice and account­ ability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and mainten­ ance of peace.117

Accordingly, the threshold for the operation of Chapter VII of the Charter has been satisfied and it was open to the Security Council to utilise its powers under article 41 of the Charter to establish an international tribunal as a measure to restore international peace and security. However, the Security Council did not act under Chapter VII; it merely requested the Secretary-General to negotiate an agreement with Sierra Leone for the establish­ ment of a tribunal. Resolution 1315 can be contrasted with Resolutions 955 and 827 establishing the ICTY and the ICTR, respectively, which included the words ‘Acting under Chapter VII of the Charter of the United Nations’. While the inclusion of the term ‘Acting under Chapter VII’ is a matter of custom or practice only, the absence of these words in Resolution 1315 creates a strong presumption that the Security Council was not relying upon its powers under Chapter VII of the Charter. Moreover, the Security Council did not establish the SCSL by Resolution 1315 as it did not ‘decide’ to establish the SCSL. There is no decision of the Security Council with which Sierra Leone – or other states – could be required to cooperate.118 At most, Resolution 1315 is a non-binding recommendation from the Security Council acting under article 39 of the Charter. In contrast, Resolutions 955 and 827 used the words ‘decides hereby to establish an international tribunal’.119 Similarly, Resolution 114   This is seen in the exchange of letters between the Secretary-General and the Security Council on issues such as limiting the jurisdiction of the SCSL to those who played a leadership role: see UNSC, ‘Letter Dated 12 January 2001 from the Secretary-General Addressed to the President of the Security Council’ (2001) UN Doc S/2001/40; UNSC, ‘Letter Dated 24 January 2001 from the Chargé d’Affaires a.i. of the Permanent Mission of Iraq to the United Nations Addressed to the Secretary-General’ (26 January 2001) UN Doc S/2001/85; and UNSC, ‘Letter Dated 12 July 2001 from the Secretary-General Addressed to the President of the Security Council’ (13 July 2001) UN Doc S/2001/693. 115   UN Charter, art 39. 116   See, eg, UNSC Res 1270 (1999) UN Doc S/RES/1270 and UNSC Res 1132 (1997) UN Doc S/RES/1132. 117   UNSC Res 1315 (2000) UN Doc S/RES/1315, preambular paras 7 and 13. 118   UN Charter, art 25. 119   UNSC Res 955 (1994) UN Doc S/RES/955, para 1; UNSC Res 827 (1993) UN Doc S/RES/827, para 1.

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1595, which established the UNIIIC, also used clear words: ‘Decides . . . to establish an international independent investigation Commission’.120 Resolution 1315 can also be contrasted with Resolution 1757, concerning the establishment of the STL. Although Resolution 1757 did not decide to establish the STL, it differs from Resolution 1315, in that the Council decided to bring into force the provisions of the STL Agreement.121 There is therefore a decision with which the Government of Lebanon is required to comply, and one that led to the establishment of the STL.122 The assertion that the SCSL is a ‘Chapter VII’ body thus relies on an overly expan­ sive interpretation of Resolution 1315 and the Council’s powers for international peace and security. This approach is inconsistent with the practice of the Council, which generally requires mandatory language (such as ‘decides’) and reference to the Council acting under Chapter VII, to engage the Council’s powers. Moreover, it is highly unlikely that states would be willing to accept that any action of the Council that may have a link to international peace and security is an exercise of the Council’s powers under Chapter VII of the Charter and hence potentially binding on Member States. Similarly, it is unlikely that Member States would accept an alternative view of the impact of the Council’s involvement with the SCSL. The Appeals Chamber of the SCSL in the Taylor Immunities Decision suggested that ‘[T]he Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community’.123 This approach to the impact of the Council’s involvement is inconsistent with the law of international organisations, and the recognition that such organisations, in particular the United Nations, have separate legal personality. The involvement of the Council cannot make a treaty between the United Nations and a state binding – at least as a matter of treaty law – on all Member States of the United Nations. Having been established by a treaty and not by one of the principal organs of the United Nations, the SCSL cannot be, and has not been, considered a subsid­ iary organ of the United Nations. It does not report directly to the Security Council as do the ICTY and the ICTR,124 nor did it report initially to the General Assembly.125 As with the STL, the President of the SCSL reports to the United   UNSC Res 1595 (2005) UN Doc S/RES/1595, para 1. See ch 3, section II(D).   UNSC Res 1757 (2007) UN Doc S/RES/1757, para 1.   For further discussion, see this Ch section II. 123   Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004) para 38, emphasis in original. 124   Res 1315 required the Secretary-General to report periodically to the Security Council on the implementation of the resolution: para 8. This obligation appears to have been interpreted as operat­ ing only until the SCSL was established. 125   Following a subvention of funds to the SCSL, the General Assembly requested the Court to develop a completion strategy: UNGA Res 58/284 (2004) UN Doc A/RES/58/284. The General Assembly has subsequently been kept informed of the SCSL’s progress on achieving that strategy via the audit reporting presented to the General Assembly by the UN Office of Internal Oversight Services (OIOS): see UN OIOS, ‘Audit Report: Audit of the Special Court for Sierra Leone’ (31 March 2011) Assignment No AA2010/290/01. 120 121 122



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Nations Secretary-General and the Government of Sierra Leone on an annual basis.126 The SCSL reports to a management committee, comprising representa­ tives of important contributors to the Court, as well as representatives of the United Nations and the Government of Sierra Leone.127 The SCSL has remained on the agenda of the Council.128 The Secretary-General has reported to the Council on the activities of the SCSL as part of the reporting requirement for various United Nations missions in Sierra Leone129 and the Council has consid­ ered the Court within the context of the sanctions regime imposed on Sierra Leone.130 The Council was involved in the transfer of Charles Taylor to the SCSL, and then to the Netherlands, to stand trial. This involvement extended to the adoption of a resolution under Chapter VII of the Charter to lift a travel ban on Taylor, and to provide the Netherlands with a legal basis under national law for hosting the trial of Taylor in The Hague.131 The Council has restated its support for the Court on several occasions in presidential statements and in the preamble to various Council resolutions.132 Most recently, it has addressed the situation of the remaining fugitive, ‘Urging all States to cooperate with and render assistance to the Special Court for Sierra Leone, or any institution to which the Special Court has transferred his case, to bring Johnny Paul Koroma to justice if he is found to be alive, and calls on him to surrender’.133 The Council has emphasised the import­ance of the trial of Charles Taylor and supported the completion strategy of the SCSL.134 The President and Prosecutor of the SCSL have briefed the Council on at least three occasions on various issues, including funding shortfalls, the completion strategy and the trial of Charles Taylor.135 126   This is required by the SCSL Statute, art 25. Seven annual reports have so far been issued by the Court. 127   SCSL Agreement, art 7. The Appeals Chamber has rejected a defence application that the role and composition of the Management Committee was inconsistent with the independence of the SCSL: Prosecutor v Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence)) SCSL-2004-14-AR72(E), A Ch (13 March 2004). 128   Res 1315 stated that the Council would remain seized of the matter: para 9. 129   See, eg, UNSC, ‘Twenty-Sixth Report of the Secretary-General on the United Nations Mission in Sierra Leone’ (20 September 2005) UN Doc S/2005/596. 130   See, eg, UNSC Res 1940 (2010) UN Doc S/RES/1940 and UNSC, ‘Report of the Security Council Committee Established Pursuant to Resolution 1132 (1997) Concerning Sierra Leone’ (30 December 2010) UN Doc S/2010/659. 131   UNSC Res 1688 (16 June 2006) UN Doc S/RES/1688. 132  See, eg, UNSC Res 1886 (2009) UN Doc S/RES/1886; UNSC Res 1941 (2010) UN Doc S/RES/1941; UNSC Presidential Statement 63 (2005) UN Doc S/PRST/63; UNSC Presidential Statement 23 (2007) UN Doc S/PRST/23. 133   UNSC Res 1940 (29 September 2010) UN Doc S/RES/1940, preambular para 8. The resolution also called upon ‘all States to cooperate with the International Criminal Police Organisation (INTERPOL) in apprehending and transferring Johhny Paul Koroma, if he is found to be alive’: preambular para 9. 134   UNSC Res 1941 (29 September 2010) UN Doc S/RES/1941 included the following provision: ‘Reiterating its appreciation for the work of the Special Court for Sierra Leone, stressing the importance of the trial of former Liberian President Charles Taylor by the Court, welcoming the completion of all the other cases, as well as effective outreach on the trials at the local level, reiterating its expectation that the Court will finish its work as soon as possible, and calling upon Member States to contribute gener­ ously to the Court and the proposed Residual Special Court’: preambular para 11. 135   See UNSC Verbatim Record (24 May 2005) UN Doc S/PV/5185; UNSC Verbatim Record (8 June 2007) UN Doc S/PV/5689; UNSC Verbatim Record (16 July 2009) UN Doc S/PV/6163.

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The subsequent practice shows that, while the Council did not establish the SCSL by Resolution 1315, it has remained involved in its continued operation. However, this involvement is insufficient to transform the Court into something other than a treaty-based institution. Instead, what distinguishes the SCSL from the STL is that, without the involvement of the Council in the establishment of the STL by Resolution 1757, the STL would simply not exist. In contrast, the SCSL would exist solely on the basis of the SCSL Agreement, although it is recognised that, at the political level, the support of the Security Council secured the involve­ ment of the United Nations in the SCSL. Moreover, the Council was involved with several of the institutions considered in chapter three, for example, the Lockerbie Court and the International Commission Against Impunity in Guatemala. These institutions are not considered to have been established by the Council; rather, their legal basis is considered to be the agreement between the UK and the Netherlands (Lockerbie) and between the United Nations and Guatemala (CICIG). Thus the correct characterisation of the legal basis of the SCSL is as a treaty-based institution and not a tribunal created by the Security Council.

ii.  Unlawful Delegation of Powers The Appeals Chamber of the SCSL has also rejected suggestions that the request from the Security Council represented an unlawful delegation of powers by the United Nations.136 It concluded that the question of whether the Security Council has the power to delegate its powers to the Secretary-General was not in issue in relation to the SCSL. The Chamber considered that Resolution 1315 was clearly a request from the Security Council to the Secretary-General, which he was empow­ ered to perform pursuant to articles 97 and 98 of the Charter. Further, it accepted that the United Nations is generally understood to have treaty-making powers so as to enable it to enter into agreements with states and other international organi­ sations, this power being implied as necessary for the performance of its functions and as a feature of its legal personality.137 Fulfilling the request did not require a delegation of power from the Security Council.138 Similarly, the issue of whether the Secretary-General had the power to conclude the SCSL Agreement of his own volition was also considered irrelevant, as he was requested to do so by the Security Council.139 Nor did the Chamber consider that the United Nations acted ultra vires in entering into the SCSL Agreement, as the Security Council is not required to maintain control of an institution that is not a subsidiary organ140 and the 136   Prosecutor v Fofana n 33. See also Prosecutor v Gbao (Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court) SCSL-2004-15-AR72(E), A Ch (25 May 2004). 137   Reparations for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174. 138   Prosecutor v Fofana, n 136, para 16. 139   ibid, para 17. 140   ibid, para 26.



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existence and activities of the SCSL do not restrain the Security Council in the performance of its functions under Chapter VII of the Charter.141

iii.  Arguments Based on a Violation of the Constitution of Sierra Leone Several defendants challenged the lawfulness of the Tribunal’s establishment based on an alleged violation of the Constitution of Sierra Leone. Section 120 of the Constitution vests the judicial power of Sierra Leone in the judiciary, estab­ lished under Chapter VII of the Constitution. Section 108 of the Constitution provides that any bill altering the structure of the judicial system may not become law until after it has been passed by parliament and approved at a referendum.142 It has been suggested that the SCSL Agreement altered the judicial system of Sierra Leone through the creation of a parallel jurisdiction not contemplated by the Constitution and ousting the supervisory jurisdiction of the Supreme Court of Sierra Leone.143 These changes arguably required confirmation at a referendum, which did not occur. Instead, the Ratification Act was promulgated pursuant to the general power of the President to enter into treaties, subject to ratification by Parliament.144 The Appeals Chamber rejected this ‘unconstitutional’ argument, labelling the submission as ‘erroneous, if not fallacious’.145 It advanced four reasons for its conclusion.146 First, the Ratification Act states that the SCSL is not to form part of the judiciary of Sierra Leone.147 Second, the SCSL has separate judicial capacity, including the power to enter into treaties, a power which national courts do not have.148 Third, as a treaty-based organ, the SCSL does not operate within the existing domestic legal system. Instead, it operates within the   ibid, paras 27–29.   Constitution of Sierra Leone, s 108(3). 143  Art 125 of the Constitution of Sierra Leone provides that: ‘The Supreme Court shall have supervisory jurisdiction over all other Courts in Sierra Leone and over any adjudicating authority; and in exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers’. The Supreme Court also has exclusive original jurisdiction in respect of ‘all matters relating to the enforce­ ment or interpretation of any provision of this Constitution’ and ‘where any question arises whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law or under this Constitution’: art 124. Tejan-Cole notes that incorporating the SCSL Agreement into Sierra Leone required ‘substantial amendments to entrenched provisions of the Constitution’: A Tejan-Cole, ‘The Special Court for Sierra Leone: Conceptual concerns and alterna­ tives’ (2001) 1 African Human Rights Law Journal 107, 114. See also M Bohlander, ‘The Transfer of Cases from International Criminal Courts to National Courts’ (2004), working paper (copy on file with the author) 28; and Beresford and Muller, n 109, 641. 144   Constitution of Sierra Leone, s 40(4). 145   Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction) SCSL-2004-15-AR72(E), SCSL-2004-14-AR72(E), SCSL-2004-16-AR72(E), A Ch (13 March 2004) para 48. 146   Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction) paras 49–52. 147   Special Court Agreement, 2002 (Ratification) Act 2002 (Ratification Act), s 11(2). 148   SCSL Agreement, art 11. 141 142

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inter­national legal system. Finally, the SCSL is clearly established outside the national court system. The Appeals Chamber concluded that ‘[T]he establish­ ment of the Special Court under article 1 of the Special Court Agreement fulfils the relevant constitutional requirements and the appropriate procedures were certainly followed’.149 The Appeals Chamber’s findings on this issue are worrying for several reasons. The first, third and fourth reasons are effectively the same, and the second reason does not resolve the issue of whether constitutional provisions have been com­ plied with. It is also debatable as to whether it is appropriate for the SCSL to review compliance with domestic constitutional provisions, particularly where neither party to the SCSL Agreement had raised any objection and both clearly considered that they were bound by the SCSL Agreement. Although the Appeals Chamber of the ICTY considered that it had jurisdiction to consider the legality of its establishment,150 it did not address issues of the impact of its establishment on the domestic law of states. In any event, the legal basis of the ICTY, which is based on the authority of the Security Council acting under Chapter VII of the Charter, is different to that of the SCSL. Where a tribunal is established by a treaty, the inherent power to review the legality of a tribunal’s establishment should not extend to confirming that states parties have complied with domestic constitutional or other provisions. If this argument was extended to the Rome Statute, it would require the ICC to consider challenges to its authority based on a possible violation of constitutional law by any one of its Member States. The Appeals Chamber of the SCSL itself reached this conclusion in a separate deci­ sion, where it had been asked to review the legality of article 10 of the SCSL Statute, the provision concerning the applicability of amnesties. It commented that:151 [t]he decision in Tadic upon which Kallon’s counsel relied as authority for the submis­ sion that this Court can pronounce on the lawfulness of its own establishment is not apt. The ICTY is not a treaty-based Tribunal, nor did the Tadic case involve the validity of the provisions of a treaty but rather the extent of the powers of the Security Council, an authority established by the UN Charter.

Even if entering into the SCSL Agreement did violate the Constitution of Sierra Leone, the violation would not render the SCSL Agreement void unless the viola­ tion was ‘manifest and concerned a rule of fundamental importance’, as required by article 46 of the VCLT. While con­stitutional rules are generally considered to be of fundamental importance, it is certainly not demonstrable that the violation 149   Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction) para 53. 150   Prosecutor v Tadi´c (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72, A Ch II (2 October 1995) (Tadi´c Jurisdiction Decision). The Appeals Chamber relied upon the SCSL Agreement, its RPE and the decision in Tadi´c to ‘provide that basic and indispensable mandate’ to determine the legality of its own creation: Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction) n 145, para 37. 151   Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction), n 145, para 62.



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here was manifest.152 The position can also be contrasted with the situation in relation to the STL, discussed above, where constitutional procedures were clearly not complied with, and looked unlikely to be satisfied in the future. The Security Council addressed the possible violation in that situation by establishing the tri­ bunal pursuant to its powers under Chapter VII of the Charter.

iv.  National Institution Arguments Defendants also submitted that the SCSL was not an international institution but a court within the judicial system of Sierra Leone. This would require proceedings in the SCSL to comply with the Constitution of Sierra Leone, including permitting a defendant to make habeas corpus applications to the Supreme Court of Sierra Leone.153 The argument that the SCSL is a national judicial institution rests on two grounds. First, on the hybrid nature of the SCSL, which, it was submitted, distin­ guished the tribunal from the ICC, the ICTY and the ICTR.154 Second, it was argued that although the SCSL Agreement established the SCSL, the Ratification Act imported the SCSL into the judicial structure of Sierra Leone, rendering the SCSL a national court.155 This argument may be quickly dispelled. Section 11(2) of the Ratification Act states that ‘the Special Court shall not form part of the Judiciary of Sierra Leone’, and section 13 provides that ‘offences prosecuted before the Special Court are not prosecuted in the name of the Republic of Sierra Leone’. The memorandum of objects and reasons attached to the Ratification Act stresses that the Ratification Act is ‘to make provision for the ratification and implementation of the Agreement’ and to provide ‘the details needed to effectuate the exercise of jurisdiction by the Court’. The Ratification Act functions as implementing legisla­ tion only; it does not establish a domestic criminal tribunal with international assistance, nor can it convert an otherwise international institution into a domestic court. The SCSL has consistently, and correctly, rejected any argument to the con­ trary. For example, in Prosecutor v Brima, the Appeals Chamber held that, as the SCSL Agreement was created pursuant to international instruments, it could not come into force without an instrument of ratification. However, this instrument of ratification did not transform the SCSL into a domestic court.156 152   A Aust, Modern Treaty Law and Practice, 2nd edn (Cambridge, Cambridge University Press, 2007) 312–13. 153   The Supreme Court of Sierra Leone has supervisory jurisdiction over all other courts in Sierra Leone, which includes the power to issue writs of habeas corpus: Constitution of Sierra Leone, s 125. 154   Oral submissions on behalf of defendant Kamara: Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction) n 145, para 22. 155   Various provisions of the Ratification Act were relied upon in support of this argument, includ­ ing s 2, which grants the SCSL legal capacity in Sierra Leone, and s 20, which provides that orders of the SCSL will have the same effect as an order of a Sierra Leone court. 156   Prosecutor v Brima (Ruling on the Application for the Issue of a Writ of Habeas Corpus Filed by the Applicant) SCSL-03-06-PT, T Ch (22 July 2003). See also Prosecutor v Kondewa (Decision on the Urgent Defence Application for Release from Provisional Detention) SCSL-03-12-PT, T Ch (21 November 2003); and Prosecutor v Fofana (Decision on the Urgent Defence Application for Release from Provisional Detention) SCSL-2003-11-PD, T Ch (21 November 2003).

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C. Conclusion In conclusion, the SCSL is a treaty-based institution. Despite the involvement of the Council in its establishment and continued operation, the SCSL is not an institution created by the Security Council. It is established by a treaty between the United Nations and the Government of Sierra Leone. It thus demonstrates that a treaty may be used to establish a hybrid tribunal. The practice does not, however, suggest that an internationalised tribunal can be established by a treaty. Instead internationalised tribunals are created under national law, although their establishment may be – but is not always – supported by a treaty between the affected state and the United Nations. Thus a treaty establishing an institution should be distinguished from a treaty regulating the provision of United Nations (or other) assistance to or participation in the operation of a tribunal. An example of this latter type of agreement is the agreement between the United Nations and the Government of Cambodia in support of the ECCC.

IV.  Tribunals Established Under National Law, With International Elements The study of practice revealed that the legal basis for the creation of an internation­ alised tribunal is the domestic law of the affected state. However, there is no one mechanism or approach to creating such tribunals. This section demonstrates that this category may include courts created: (1) by United Nations territorial adminis­ tration authorities (the IJPP and the SPSC); (2) by states acting as occupying powers under international humanitarian law (the IHT); (3) by domestic laws enacted by domestic authorities, supported by international entities exercising supervisory powers (the WCC); and (4) by domestic laws adopted by domestic authorities fol­ lowing negotiation with the United Nations. The participation of the United Nations in the tribunal and key features of the tribunal may be regulated by an agreement between the United Nations and the state.

A.  Tribunals Established Under International Administration or During Military Occupation i  United Nations Administration of Territory: The Legal Basis of the IJPP and the SPSC Although there had been precedents for the involvement of the United Nations in governance tasks,157 the mandates of the civilian components of both UNMIK and   C Stahn, ‘The United Nations Transitional Administrations in Kosovo and East Timor: A First

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UNTAET were considered ‘unprecedented in scope and complexity’.158 Debate ensued as to whether the Security Council was competent to establish missions with such wide-ranging mandates and, if so, where the legal basis for that competence lay.159 One suggestion was that both the former Yugoslavia and Indonesia had either consented to, or acquiesced in, the establishment of an international territorial administration in a territory they had formerly controlled.160 The Security Council hinted at the presence of such consent in both Resolutions 1244 and 1272.161 However, the Security Council did not rely on consent alone as the basis for the ter­ ritorial administration as to do so would have tied the continued operation of the missions to ongoing consent. For political reasons also, relying on consent was unacceptable.162 Moreover, a consent-based mission would not ensure that other states would recognise the authority of the mission and cooperate so as to enable the mission to function. Thus the Security Council invoked its powers under Chapter VII of the Charter to establish both missions.163 It now appears generally accepted that both resolutions were a valid exercise of the Security Council’s powers under Chapter VII of the Charter, and that article 41 of the Charter is sufficiently wide so as to support the imposition of international territorial administration as a measure to restore or maintain international peace and security.164 Analysis’ (2001) 5 Max Planck Year Book of United Nations Law 105; and R Wilde, ‘From Danzig to East Timor and Beyond: The Role of International Territorial Administration’ (2001) 95 American Journal of International Law 583. 158   M Matheson, ‘United Nations Governance of Postconflict Societies’ (2001) 95 American Journal of International Law 76, 79. 159  See: Matheson, ibid; Wilde, n 157; Stahn, n 157; F Kirgis, ‘Security Council Governance of Postconflict Societies: A Plea for Good Faith and Informed Decision Making’ (2001) 95 American Journal of International Law 579; M Ruffert, ‘The Administration of Kosovo and East Timor by the International Community’ (2001) 50 International and Comparatove Law Quarterly 613; M Rothert, ‘UN Intervention in East Timor’ (2001) 39 Columbia Journal of Transnational Law 257; and B Kondoch, ‘The United Nations Administration of East Timor’ (2001) 6 Journal of Conflict and Security Law 245. 160   The consent of the former Yugoslavia was said to be found in the acceptance of the basic princi­ ples of the administration, as set out in Annex 2 to UNSC Res 1244 (1999) UN Doc S/RES/1244. The consent of Indonesia (de facto authority) and Portugal (de jure) authority were to be found in the agreement providing for the popular consultation and acceptance of the general principles of the administration at a meeting in September 1999. 161   UNSC Res 1244 (1999) welcomed the acceptance by the Federal Republic of Yugoslavia of the principles to move toward a resolution of the Kosovo crisis (attached as Annex 2 to the Resolution): preambular para 9. UNSC Res 1272 (1999) UN Doc S/RES/1272 recalls the agreement between Indonesia and Portugal and agreements between the United Nations and the Governments of Indonesia and Portugal on the proposed referendum: preambular para 2. 162   The validity of the consent of the former Yugoslavia was questioned due to the military air strikes and other measures. To rely on consent alone in East Timor would have validated Indonesia’s annexation of the territory as lawful. 163   UNSC Res 1244 and 1272 both provide that the Security Council acted under Chapter VII. 164   This is the conclusion drawn by the majority of the commentators listed in n 159. States have also apparently accepted that the scope of the Council’s powers extends to territorial administration. Although there has not been a further example of extensive involvement by the United Nations in the administration of a territory, this may be attributed not to any doubt as to the legal basis, but rather a preference on the part of the Security Council and the United Nations to avoid undertaking such wideranging functions. For further discussion, see C Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge, Cambridge University Press, 2008) 650.

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The effect of the resolutions establishing these transitional administrations was to suspend for the duration of the transitional period the residual powers of the former Yugoslavia in respect of Kosovo and whatever authority Indonesia had exercised in relation to East Timor. The United Nations assumed full responsibil­ ity for the administration of the territories and was effectively to act as the govern­ ment of each territory. However, the United Nations did not become the sovereign; instead sovereignty was suspended and the United Nations adminis­ tered the territory on behalf of the local population and the international com­ munity.165 As missions established pursuant to the powers of the Security Council under Chapter VII, UNMIK and UNTAET were subsidiary organs of the Security Council under article 29 of the United Nations Charter. As such, the missions were required to report to the Security Council on a regular basis and their man­ date was subject to review, modification and termination by the parent organ, the Security Council.166 The IJPP and SPSC were created as part of the United Nations administration of the respective territories under the authority conferred on the missions by Resolutions 1244 and 1272.167 Both were established by regulations promulgated by the respective Special Representative of the Secretary-General (SRSG), and the EULEX mission in Kosovo continues to operate on the basis of the legal authority of Resolution 1244. Given the context of their creation, the legal nature of the IJPP and the SPSC is somewhat unclear.168 It has been observed that the regula­ tions adopted by international transitional administrations may have a dual char­ acter.169 The regulations are based on and their authority flows from the provisions of the United Nations Charter and the powers of the Security Council under Chapter VII of the Charter.170 In this sense, the regulations are international instruments and reflect the interest of the international community in the admin­ istration of the territory. Stahn notes that ‘[R]egulations adopted by UNMIK and UNTAET within the course of their administration are . . . formally international legal Acts of subsidiary organs of the Security Council’.171 The international nature of these acts is what renders such acts distinct from ‘ordinary’ legislative and administrative acts by states.172 However, ‘not all acts of international administra­ 165   A Yannis, ‘The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics’ (2002) 13 European Journal of International Law 1037, 1048. 166   D Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 British Yearbook of International Law 413. 167   See ch 2, sections IV and V. 168   The legal basis of the SPSC varied after the independence of East Timor in May 2002. This period subsequent to independence will not be considered here. 169   See discussion in the following sources: Stahn, n 157; Ruffert, n 159; and R Wilde, ‘The Complex Role of the Legal Adviser when International Organizations Administer Territory’ (2001) ASIL Proceedings 251. 170   See J Cerone and C Baldwin, ‘Explaining and Evaluating the UNMIK Court System’ in C Romano, A Nollkaemper, and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 41. 171   Stahn, n 164, 650. 172  ibid.



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tions are exclusively international in nature’.173 Such regulations may be addressed to a specific territory, may constitute part of the domestic law of that territory and have direct effect at the national level.174 This reflects the dual functions of the SRSG and of the missions themselves. At least during the transitional period UNMIK and UNTAET operated not only as a subsidiary organ of the Security Council but also as the effective government of the territory concerned. What does this duality mean for the legal basis of the IJPP and the SPSC? At least in theory, these institutions may also enjoy the same duality; that is their founding instruments operate both as international acts of the Security Council under article 41 of the Charter and also as domestic legal instruments. Does this mean the institutions established by those instruments (that is the IJPP and SPSC) are international or national in nature, or a combination of both? Wilde argues that the correct method of assessing the legal basis of an instrument potentially possessing a dual character is to consider which role the international organisa­ tion is fulfilling when it promulgates the regulation and to ask whether the regula­ tion is an exercise of international legal capacity, or a governmental act.175 Similarly, Stahn suggests several criteria to determine whether an act forms part of the domestic legal order, namely: the form of the act; the content of the act; the ‘regulatory intention of the author of the act’, including whether the act ‘is adopted by international authorities on behalf of or in cooperation with domestic institutions’.176 It is thus necessary to examine the regulatory acts establishing the IJPP and the SPSC. Both institutions were established by regulations of UNMIK and UNTAET rather than a resolution adopted by the Security Council. The regulations were published at the domestic level and gazetted in an Official Gazette maintained by the mission. The first regulation authorising the use of international judges and prosecutors in Kosovo, UNMIK Regulation 2000/6, was expressed to be ‘for the purpose of assisting in the judicial process in Kosovo’.177 UNMIK Regulation 2000/64, which extended the role of international judges and prosecutors, was stated to be ‘for the purpose of ensuring the independence and impartiality of the judiciary and the proper administration of justice’. It also recognised ‘the respon­ sibility of the international civil presence to maintain civil law and order and promote and protect human rights’ as well as that security threats that may ‘undermine the independence and impartiality of the judiciary and impede the ability of the judiciary to properly prosecute crimes which gravely undermine the peace process and the full establishment of the rule of law in Kosovo’.178 UNTAET Regulation 2000/11 was stated to have been adopted for the purpose of ‘regulating the functioning and organization of the courts during the period of  ibid.   For further discussion see Stahn n 164, 650–55. 175   Wilde, n 169. 176   Stahn, n 164, 651. 177   UNMIK reg 2000/6, preamble. This wording was repeated in subseqent regulations amending this regulation, eg reg 2000/34. 178   UNMIK reg 2000/64, preamble. 173 174

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the transitional administration in East Timor’.179 Regulation 2000/15 was adopted ‘for the purpose of establishing panels with exclusive jurisdiction over serious criminal offences’. Both regulations refer to the regulation having been adopted after ‘consultation with the National Consultative Council’,180 while Regulation 2000/15 also recalled the recommendations of the International Commission of Inquiry of East Timor.181 All regulations provided that the regulation was adopted by the respective SRSG on the basis of the authority conferred on him by the Council and referred to the initial regulation setting out the authority of the administration within the territory.182 They also set out arrangements for the domestic judicial system and were clearly intended to take effect directly at the domestic level. Thus these regulations indicate that, in each case, the Special Representative of the Secretary-General acted in his domestic capacity, and did not act to establish the IJPP or the SPSC as international legislative acts. Although it is the authority of the Security Council that has ‘opened the legal order of the territories so as to allow for direct application of the regulatory Acts of the respec­ tive administration’, these acts still constitute part of the domestic legal order of the administered territory.183 This would base the legal authority of these bodies in domestic law. This approach has been confirmed by the International Court of Justice, which in discussing the nature of the Constitutional Framework,184 commented:185 The Court observes that UNMIK regulations . . . are adopted by the Special Representative of the Secretary-General on the basis of the authority derived from Security Council resolution 1244 (1999), notably its paragraphs 6, 10 and 11, and thus ultimately from the United Nations Charter. The Constitutional Framework derives its binding force from the binding character of resolution 1244 (1999) and from inter­ national law. In that sense it therefore possesses an international character . . . At the same time, the Court observes that the Constitutional Framework functions as part of a specific legal order, created pursuant to Resolution 1244 (1999), which is applicable only in Kosovo and the purpose of which is to regulate, during the interim phase estab­ lished by Resolution 1244 (1999), matters which would ordinarily be the subject of internal, rather than international, law. . . .The Constitutional Framework therefore took effect as part of the body of law adopted for the administration of Kosovo during the interim phase. The institutions which it created were empowered by the Constitutional Framework to take decisions which took effect within that body of law.   UNTAET reg 2000/11, preamble.   ibid. The National Consultative Council was established by UNTAET and served as a forum for conultation with local actors: See UNAET reg 1999/2. 181   Discussed in ch 2, section V(B). 182   UNMIK reg 1999/1 (as amended) for Kosovo and UNTAET reg1999/1 for East Timor. 183   Stahn, n 164, 653; Ruffert, n 159, 623; and M Bothe and T Marauhn, ‘The United Nations in Kosovo and East Timor – Problems of a Trusteeship Administration’ (2000) 6 International Peacekeeping 152, 229. 184   The Constitutional Framework for Provisional Self-Government was set out in UNMIK reg 2001/9, adopted by the SRSG on 15 May 2001. 185   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) 22 July 2010, paras 88–89. 179 180



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While the Constitutional Framework addressed different issues to those raised by the establishment of transitional justice mechanisms, the discussion of the effect of the UNMIK regulations by the ICJ is relevant to other regulations, including those establishing the IJPP. The conclusion that UNMIK Regulation 2000/64 and UNTAET Regulations 2000/11 and 2000/15 form part of the domestic law of Kosovo and East Timor respectively is supported by the practice of the IJPP and the SPSC, both of which have operated as domestic tribunals. Each tribunal applied the law stipulated by the relevant regulations as the law of the territory concerned. Neither the IJPP nor the SPSC asserted any binding authority based on the United Nations Charter in order to enforce their orders or to obtain the cooperation of states, including the Federal Republic of Yugoslavia (now Serbia) and Indonesia. This conclusion is also supported by the action – or inaction – of the Security Council regarding the serious crimes process in each territory. The Security Council did not display any sense of ‘ownership’ of the SPSC or the IJPP. Key decisions, including the creation of the processes themselves, were made within the mission hierarchy, and not instigated by the Security Council. Although the processes operated within restraints set by the Security Council, particularly with regard to the relationship between these processes and other international courts (ICTY in Kosovo) and national courts (accountability process in Indonesia for East Timor), there was no system of reporting to the Security Council in respect of serious crimes issues beyond the normal mission reporting structure. This limited the possibility of obtaining Security Council support for enforcement of orders and issues of coop­ eration and the Security Council has not taken action to reinforce the serious crimes process in a territory which the United Nations administered under its authority. Thus it appears that the Security Council itself did not consider the tribunals to possess an international character or to have a legal basis in Chapter VII of the Charter. The conclusion that the SPSC and the IJPP are domestic institutions is logical, particularly when one considers other actions taken by the missions. Both UNTAET and UNMIK created transitional governmental institutions and were responsible for establishing institutions to draft interim constitutions.186 There has been no suggestion that the transitional governments or institutions were inter­ national in character, or that they drew their authority from the Council’s powers under the Charter. Instead, all transitional institutions were considered to be domestic in nature, albeit institutions which received significant international assistance. There is no justification for conferring upon the SPSC and the IJPP international character and authority where other governmental institutions are national in nature. Accordingly, the legal basis of these tribunals lies in domestic law and the tribunals operated as domestic courts with international participation.

186   For East Timor, see UNTAET reg 2001/2 and UNTAET reg 2001/21. For Kosovo, see UNMIK reg 2001/9.

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ii.  International Civilian Administration: The War Crimes Chamber for Bosnia and Herzegovina As noted in chapter two, the establishment of the WCC was closely linked to the completion strategy of the ICTY. In the absence of appropriate impartial national mechanisms, the Security Council supported the ‘expeditious establishment’ and ‘early functioning’ of the WCC to enable the referral of cases from the ICTY to domestic courts in the region.187 However, the Security Council did not take any action to establish the WCC beyond encouraging donations from interested states. Instead, the WCC was to be established within the structure of the existing national court, the federal-level State Court of BiH. While the law on the State Court had been imposed by a decision of the OHR,188 the same legal basis was not used to establish the WCC. Instead, this was achieved by an amendment to the existing law on the State Court, using national procedures and approved by the Parliaments of both entities and the federal Parliament.189 The support of the domestic authorities was secured by the agreement between the OHR and the Government of BiH on the establishment of the special chamber.190 Its establish­ ment thus rests on the authority of the domestic institutions rather than the pow­ ers of the OHR under the DPA, although the OHR could have imposed the amendments if the national authorities had failed to act. Even if it were to be argued that the State Court itself, of which the WCC is a part, rests on the power of the OHR, if we apply the notion of ‘functional duality’ outlined above, it is clear that in taking the step of establishing the State Court, the OHR was acting in his domestic capacity, and that the decision was intended to have direct effect in the domestic legal order.191 Moreover, despite the support of the Security Council for the creation of the WCC and its connection to the ICTY completion strategy, it is clear that the Security Council did not establish the WCC by resolution under Chapter VII or otherwise. Whilst the Security Council receives information on the WCC in the reports submitted by the ICTY as part of the completion strategy, that informa­ tion is focused on the number of referrals from the ICTY. The Security Council takes no role in enforcing compliance with the orders of the WCC, which is left to normal domestic mechanisms and international and regional agreements on extradition and mutual legal assistance. Thus it is clear that the WCC operates as   UNSC Res 1503 (2003) UN Doc S/RES/1503, preambular para 11.   See ch 2 section VI(B). 189   Law on Amendments to the Law on the State Court of Bosnia and Herzegovina, Official Gazette of BiH 9/04. At the federal level the amendments were approved. 190  Agreement Between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and for the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina (1 December 2004). 191   See discussion in relation to UNMIK and UNTAET above. 187 188



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a national judicial institution, with international assistance for the transitional period of five years, as extended. As the ICTY Referral Bench concluded: [T]he State Court of Bosnia and Herzegovina, of which the War Crimes Chamber is a component, is a court which has been established pursuant to the statutory law of Bosnia and Herzegovina. It is thus a court of Bosnia and Herzegovina, a “national court”.192

iii.  Courts Established During Military Occupation: The Iraqi High Tribunal The legal status of the IHT is connected to the status and powers of the Coalition Provisional Authority (CPA), as an occupying power in Iraq, and the powers of the Iraqi Governing Council.193 As Roberts writes ‘[T]here is no dispute about the fact that between April 2003 and 28 June 2004 there was a foreign military occupation in Iraq’.194 The Security Council recognised the legal status of the occu­ pation in Resolution 1483.195 It is permissible under international humanitarian law (or the law of armed conflict) for an occupying power to enact legislative measures ‘in order to restore, and ensure, as far as possible, public order and safety’.196 However, the assumption is that ‘occupying powers should respect the existing laws and economic arrangements within the occupied territory, and should generally make as few changes as possible’.197 Yet, in relation to Iraq, Resolution 1483 and subsequent Security Council resolutions advanced wider aims for the occupation, including the restoration of institutions for representative governance and a process leading to an internationally recognised representative government of Iraq.198 The CPA ‘embarked upon a programme of action involving an extensive 192   Prosecutor v Stankovi´c (Decision on Referral of Case Under Rule 11bis) ICTY-96-23/2-PT, Referral Bench (17 May 2005) para 26. 193   See discussion in ch 2, section VII(B). 194   A Roberts, ‘The End of Occupation: Iraq 2004’ (2005) 54 International and Comparative Law Quarterly 27, 30. The existence of an occupation is a question of fact. Art 42 of the Hague Regulations provides that ‘territory is considered occupied when it is actually placed under the authority of the hostile army’. The more widely accepted view is that the ongoing violence between coalition forces and insurgents did not affect the status of the occupation: Roberts, 33–34; I Bantekas, ‘The Iraqi Special Tribunal for Crimes Against Humanity’ (2004) 54 International and Comparative Law Quarterly 237, 238. 195   The preamble noted the ‘specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers’. As discussed in ch 2, the CPA also recognised its status as an occupying power in promulgating CPA reg 1 (16 May 2003). 196   Hague Regulations, art 43. In so doing, the occupying power ‘must respect, unless absolutely prevented, the laws in force in the country’. See also art 64 of the fourth Geneva Convention. For a discussion of these provisions in the context of Iraq, see M Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 661. 197   Roberts, n 194, 36. cf the view of Schwenk, who argued that ‘[E]ven though the legislative power of the military occupant is theoretically limited, practically it includes jurisdiction over the entire civilian life of the enemy population if the occupation extends over a considerable period of time’: E Schwenk, ‘Legislative Power of the Military Occupant Under Article 43, Hague Regulations’ (1945) 54 Yale Law Journal 393, 415. 198   UNSC Res 1483 (2003) UN Doc S/RES/1483, para 8.

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transformation in the way Iraq is governed’.199 It has been suggested that several of the legislative reforms introduced exceeded the authority accorded to the CPA under international law, in particular the reform of the Iraqi economy.200 In terms of the establishment of the IHT, the IHT Statute was annexed to an order of the CPA delegating authority to the Iraqi Governing Council.201 This del­ egation of authority was subject to certain terms and conditions,202 and the CPA Administrator reserved the right to amend the IHT Statute – or any elements of crime or rules of procedure developed for the IHT – where required in the interest of security.203 Therefore, while the IHT was established notionally by the Iraqi Governing Council, the authority to do so flowed from the CPA, and the CPA retained control over the Iraqi Governing Council and the IHT Statute. This sug­ gests that the Iraqi Governing Council did not establish the IHT as the representa­ tive body of a sovereign state, but as a body operating at the request of the occupying powers.204 In this sense, the IHT is a body established by the CPA, on behalf of the occupying powers, while the sovereignty of Iraq was suspended during the period of occupation.205 As Stahn concludes, ‘The [IHT] Statute was therefore formally created by a subordinate body of the occupying powers on the basis of delegated occupation authority’.206 199  K Kaikobad, ‘Problems of Belligerent Occupation: The Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, April/May 2003-June 2004’ (2005) 54 International and Comparative Law Quarterly 253, 254. The breadth of the aims of the CPA have led various commenta­ tors to suggest that the law of occupation should not apply to Iraq, arguing that it is ill-suited to the tasks undertaken in Iraq: D Scheffer, ‘Beyond Occupation Law’ (2003) 98 American Journal of International Law 842; and arguing for a United Nations governance, as in Kosovo and East Timor: M Ottonlenghi, ‘The Stars and Stripes in Al-Fardos Square: The Implications for the International Law of Belligerent Occupation’ (2004) 72 Fordham Law Review 2177, 2214. For the contrary view, see E Benvenisiti, ‘The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective’ (2003) 23 Israeli Defence Forces Law Review 1, 17. 200   See M Murphy, ‘A “World Occupation” of the Iraqi Economy? How Order 39 will create a semisovereign state’ (2004) Connecticut Journal of International Law 445; A Bali, ‘Justice Under Occupation: Rule of Law and the Ethics of Nation-Building in Iraq’ (2005) 30 Yale Journal of International Law 347; C McCarthy, ‘The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq’ (2005) 10 Journal of Conflict and Security Law 43; G Fox, ‘The Occupation of Iraq’ (2005) 36 Georgetown Journal of International Law 195. 201   Commentators have suggested that the CPA attempted to bypass the laws of occupation through establishing the Iraqi Governing Council: see Bantekas, n 194. Similarly Paust has argued that ‘the UN Security Council and the occupying powers cannot lawfully dictate that an unelected occupyingpower-appointed body, however prestigious, actually represents the authority and sovereignty of the Iraqi people’: J Paust, ‘The United States as Occupying Power over Portions of Iraq and Special Responsibilities Under the Laws of War’ (2004) 27 Suffolk Transnational Law Review 1, 19. 202   See ch 2, section VII(B). 203   CPA Order 48 (10 December 2003), s 1(6). 204  As Zolo states: ‘No one imagines that the Governing Council, which has neither legislative authority nor independent financial resources at its disposal, is actually the power that willed this spe­ cial Tribunal into existence, and can maintain and finance it’: D Zolo, ‘The Iraqi Special Tribunal: Back to the Nuremberg Paradigm?’ (2004) 2 Journal of International Criminal Justice 313, 315. See also M Scharf, ‘Is it International Enough? A Critique of the Iraqi Special Tribunal in Light of the Goals of International Justice’ (2002) 2 Journal of International Criminal Justice 330, 331. 205   Sovereignty is not exercised by the occupying power during the period of occupation. Instead, there is is recognition that the legitimate authority is ‘temporarily displaced’ or suspended: Ottonlenghi, n 199, 2184; M Bothe, ‘Occupation, Belligerent’ in 4 Encyclopedia of Public International Law 64, 65. 206   Stahn, n 164, 379.



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The authority of an occupying power to establish criminal tribunals is limited by the law of occupation, in particular the fourth Geneva Convention,207 which presumes that the legal system of the occupied territory should continue.208 Existing penal laws are to remain in force, other than where they constitute a threat to security or an obstacle to the operation of the Convention. The occupy­ ing power may introduce penal provisions only where essential to fulfil its obliga­ tions under the Convention, to maintain orderly government and to ensure its own security.209 An occupying power is obliged to detain and to prosecute persons alleged to have committed grave breaches of the Geneva Conventions.210 This would include the obligation to enact the necessary legislation criminalising such conduct, should it not exist under the laws of the occupied territory.211 Where it has done so, the occupying power may utilise its own military courts to enforce its penal provisions,212 provided those courts comply with specified procedural safe­ guards.213 Alternatively, the occupying power may allow for enforcement before existing domestic tribunals.214 The IHT adopts neither of these options. Instead, it is a new tribunal, established under domestic law, an option that is neither pro­ vided for in the fourth Geneva Convention nor required in order to respect inter­ national humanitarian law.215 Moreover, the temporal jurisdiction of the IHT predates the armed conflict, and permits the IHT to try offences committed by the previous regime from 17 July 1968.216 The material jurisdiction of the IHT is also more extensive than is required by international humanitarian law, as it includes jurisdiction in respect of genocide and crimes against humanity, as well as a number of crimes under domestic law.217 It is therefore highly questionable that the establishment of the IHT as a ‘special tribunal’ was consistent with inter­ national humanitarian law. 218

207   Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS (1950) 287–417 (GCIV). 208   GCIV, art 64. 209   GCIV, art 64(2). 210   GCIV, art 146, which applies to occupying powers: see common art 2 and art 64(3). 211   This flows from the reference to enact legislation considered essential to ensure for respect for GCIV: see art 64. Art 146 imposes an obligation to detain and to prosecute persons suspected of com­ mitting grave breaches of the conventions. See the United Kingdom Manual on the Law of Armed Conflict, para 11.26, n 54. Moreover, each state that is acting as an occupying power has this obligation under both treaty and customary international law: Paust, n 201, 15. 212   GCIV, art 66. 213   GCIV, art 67. 214   Commentators generally agree as to the availability of these two options. eg, Sassoli, n 196, 675. Several commentators also mention a third option, requesting the Security Council to establish an international criminal tribunal: D Tarin, ‘Prosecuting Saddam and Bungling Transitional Justice in Iraq’ (2005) 45 Virginia Journal of International Law 467, 473. 215   Sassoli, n 196, 675. 216   IHT Statute, art 1. 217   See ch 4, section III(L)(iii). 218   eg, C Doebbler, ‘An Intentionally Unfair Trial’ (2007) 5 Journal of International Criminal Justice 264 – ‘the creation of the IST by an occupying power violated international humanitarian law’, 268; Bantekas, n 194; Stahn, n 164, 378.

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It is possible that the Security Council conferred a more expansive mandate for transitional justice on the CPA.219 The list of objectives provided by the United Kingdom and United States to the Security Council (and approved by it) for the administration of post-war Iraq included ‘promoting accountability for crimes and atrocities committed by the previous Iraqi regime’.220 Security Council Resolution 1483 affirmed the need to promote accountability for crimes and atrocities committed by the previous Iraqi regime, albeit in a non-binding para­ graph.221 The Council also appealed to Member States ‘to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice’.222 These provisions may have authorised a wider power to create, in consultation with the Iraqi Governing Council, the IHT. The creation of the IHT may also be considered part of the CPA’s mandate to ‘work towards the restoration of conditions of stability and security’. Addressing the violations committed by the previous regime; in particular the trial of Saddam Hussein and his associates, may have contributed to improving the security situation. The European Court of Human Rights appeared to conclude that the IHT was established based on Resolution 1483 and not the powers of the occupying powers under international humanitarian law.223 Assuming, for present purposes, that the IHT was lawfully established either by the occupying powers under the law of occupation or under the authorisation provided by Resolution 1483, its legal basis lies in domestic law, as the occupying power acts in place of the sovereign authorities in the occupied territory during the period of occupation. Moreover, if we adopt the ‘dual functionality’ approach, it is clear that, in establishing the IHT, the CPA was functioning as a domestic actor and not as an international actor. Accordingly the IHT should be consid­ ered an institution established under domestic law. It should therefore have the same status as a domestic court, even though it exists largely distinct from the domestic court system. Any doubts as to the legality of the IHT were removed following the transfer of authority from the CPA to the Iraqi Interim Government in June 2004. The IHT has subsequently been endorsed by the Iraqi authorities and was confirmed by the 2005 Constitution.224 Thus, for the period following the transfer of power from the CPA to local Iraqi authorities on 28 June 2004, the

219   eg, it is recognised that Resolution 1483 and subsequent resolutions authorised the coalition forces and the CPA to undertake tasks not normally permitted by the law of occupation. 220   UNSC, ‘Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council’ (8 May 2003) UN Doc S/2003/538. 221   UNSC Res 1483 (2003) UN Doc S/RES/1483, preambular para 11. 222   UNSC Res 1483 (2003) UN Doc S/RES/1483, para 3. 223   Al-Saadoon and Mufdhi v The United Kingdom (Judgment) European Court of Human Rights, Application No 61498/08 (2 March 2010) para 17, stating ‘Pursuant to UNSCR 1483 . . . provision was made by CPA Order No 48, of 10 December 2003, for the setting up of an Iraqi Tribunal to try mem­ bers of the previous Iraqi regime alleged to have been responsible for crimes and atrocities’ (emphasis added). 224   See ch 2, section VII(C).



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position of the IHT as a national court is even clearer. The IHT is a domestic institution, established by Iraqi law, albeit operating with international assistance.

B.  Tribunals Established Under National Law, Operating with International Assistance: The ECCC The ECCC is a national judicial institution, albeit one that is operating with sig­ nificant participation and assistance from the United Nations.225 It differs from the examples of the IJPP, the SPSC, the WCC and the IHT as it was not estab­ lished in the context of a United Nations territorial administration, occupation or international governance. While Cambodia had been subject to a more limited form of United Nations governance from February 1992, the mandate of the United Nations Transitional Authority in Cambodia (UNTAC) ended in September 1993.226 UNTAC was responsible for exercising governmental author­ ity as a transitional co-governor during a transitional period, as provided for by the 1991 Paris Accords on the Political Settlement of the Cambodia Conflict.227 The main achievements of UNTAC were ‘that it laid the political and legal foun­ dations for the Cambodian elections and some foundations for the country’s transition to a new constitutional system’.228 However, it did not establish mechan­isms for accountability for previous human rights violations. As was outlined in chapter two, the ECCC was the result of a negotiated process between the United Nations and the Cambodian government, with the support of a group of interested Member States. Unlike the position with the SCSL, the Cambodian government was not willing to accept effective United Nations own­ ership of the tribunal. Instead, it took the step of establishing the ECCC pursuant to national law, the ECCC Law,229 rather than establishing the tribunal by a treaty with the United Nations, as was the model adopted for the SCSL and proposed for the STL. Thus the adoption of the ECCC Law can be considered an assertion of Cambodia’s sovereignty and of its ‘primary’ right to investigate and try violations committed within its territory. Having been established by domestic law, the ECCC is a domestic institution and forms part of the Cambodian legal order, albeit that it in practice operates largely separate to the Cambodian legal system. Personnel at the ECCC indicate that ‘This idea of Cambodian “ownership” is widely accepted by the United Nations side of the court administration, which

225   There is general consensus that the ECCC is a national institution: eg, G Acquaviva, ‘New Paths in International Criminal Justice? The Internal Rules of the Cambodian Extraordinary Chambers’ (2008) 6 Journal of International Criminal Justice 129, 130, and sources cited therein. 226   UNSC Res 745 (28 February 1992) UN Doc S/RES/745. 227   Agreement on the Political Settlement of the Cambodia Conflict of 23 October 1991 (1992) 31 ILM 183, see art 3. 228   Stahn, 164, 278. 229   Art 2 of the Special Law provides that the ECCC ‘shall be established’ by the law.

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views its role as, in essence, one of support for the process, in accordance with international standards’.230 The General Assembly provided the authority for the Secretary-General to negotiate the ECCC Agreement and approved its terms before the United Nations signed the instrument. However, Resolution 57/225B does not form the legal basis of the ECCC but rather approved the United Nations support for the tribu­ nal.231 The General Assembly had indicated key items it expected the arrange­ ments for the tribunal to address, such as the requirement for its jurisdiction to be restricted to senior leaders, the need to meet international standards and to ensure the impartiality and independence of the judiciary.232 However, this is best con­ sidered as the General Assembly indicating to the Secretary-General and the Government of Cambodia the terms upon which United Nations assistance was to be provided. The Security Council was not involved in the establishment of the ECCC, and there is some doubt that it could have acted under Chapter VII of the United Nations Charter to establish a tribunal in circumstances where there was no threat to international peace and security, the violations in question having been committed some 20 years previously.233 As the Group of Experts concluded, the exercise by the Council of its powers under Chapter VII in such circumstances would have been ‘unprecedented’.234 Moreover, the threat of a veto from China precluded the Council adopting a Chapter VII resolution, and the absence of a credible threat of Security Council intervention probably contributed to the Cambodian government’s reluctance to concede control over the tribunal. Thus the ECCC was not established by and is not a subsidiary organ of either the General Assembly or the Security Council. This raises the question of whether the General Assembly could have acted to establish the ECCC.235 While the primary responsibility for the maintenance of international peace and security lies with the Security Council, this is not an exclusive competence.236 The General Assembly may ‘discuss any questions or any 230   D Cohen, ‘“Hybrid” Justice in East Timor, Sierra Leone and Cambodia: “Lessons Learned” and Prospects for the Future’ (2007) 43 Stanford Journal of International Law 1, 28, quoting an interview with Michelle Lee. 231   S Williams, ‘The Cambodian Extraordinary Chambers – A Dangerous Precedent for International Justice? (2004) 53 International and Comparative Law Quarterly 227. The question as to whether the General Assembly could have acted to establish a tribunal as a subsidiary organ is discussed in the next section. 232   UNGA Res 57/228 (18 December 2002) UN Doc A/RES/57/228, see paras 2–6. 233   D Orentlicher, ‘International Criminal Law and the Cambodian Killing Fields’ (1997) 3 ILSA Journal of International Comparative Law 705, 710. D Boyle, ‘Establishing the Responsibility of the Khmer Rouge Leadership for International Crimes’ (2002) Yearbook of International Humanitarian Law 167, 181, states that a draft Chapter VII resolution supporting the establishment of an interna­ tional tribunal was circulated to the Security Council by the United States delegation in May 1998. 234   ‘Report of the Group of Experts for Cambodia n 25, para 142. The experts, however, considered that ‘arguments can be made that the continued impunity of the Khmer Rouge in the face of popular demands for justice constitutes a threat to the peace of the region and that criminal accountability would help address this matter’, para 141. 235   Report of the Group of Experts, n 25, para 146. 236  UN Charter, art 24. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.



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matters within the scope of the present Charter’.237 Other than when the Security Council is dealing with the same matter,238 the General Assembly ‘may make rec­ ommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters’.239 In particular, the General Assembly can consider issues concerning the maintenance of international peace and security.240 The General Assembly may also establish subsidiary organs ‘as it deems necessary for the performance of its functions’.241 However, although the General Assembly may commission reports on the establishment of a tribunal and can establish a judicial body as a subsidiary organ, it does not have the competence to compel the establishment of a hybrid or internationalised criminal tribunal with which Member States are required to cooperate. This is because the powers of the General Assembly are recommendatory only. Consequently, it may only provide a mandate for the United Nations to enter into an agreement to establish a hybrid tribunal (for example, it could perform the role the Security Council fulfilled in relation to the establishment of the SCSL) or to enter into negotiations for United Nations support of an internationalised tribunal (as with the ECCC). While the General Assembly can recommend to the state(s) con­ cerned that a tribunal be established, the Assembly is dependent on the consent of that state for those recommendations to be carried out. The establishment of the ECCC is supported by the ECCC Agreement between the United Nations and the Government of Cambodia. What is the significance of the ECCC Agreement for the legal basis of the ECCC? Although the ECCC is the subject of the ECCC Agreement, this does not make it a treaty-based organ; as noted above the ECCC Law and not the ECCC Agreement is the constitutive instru­ ment of the tribunal.242 Unlike the SCSL Agreement, the ECCC Agreement does not ‘establish’ the ECCC.243 The ECCC Agreement is only ‘to regulate the cooperation’ between the United Nations and Cambodia, and to provide ‘the legal basis and the principles and modalities for such cooperation’.244 However, the ECCC Agreement is important to the operation of the ECCC, and represents a significant improve­   UN Charter, art 10.   UN Charter, art 12(1) provides: ‘While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests’. The International Court of Justice has interpreted this restriction as permitting both organs to deal with a matter: see Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) 22 July 2010; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. 239   UN Charter, art 10. 240   UN Charter, art 11. There is also a residual function for the General Assembly to deal with mat­ ters of international peace and security where the Security Council is unable to act due to the actual or threatened veto of a resolution by a permanent member of the Security Council: see UNGA Resolution 377(V) (3 November 1950) UN Doc A/RES/377(V) (‘Uniting for Peace’ Resolution or the ‘Acheson Plan’) para 1. 241   UN Charter, art 22. 242   For the contrary view see Cohen, n 230, 27. 243   cft art 1 of the SCSL, which provides that the SCSL is ‘hereby established’. 244   ECCC Agreement, art 1. 237 238

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ment on the arrangements initially proposed for the ECCC.245 The United Nations was concerned with ensuring that the ECCC would satisfy international human rights and fair trials standards, and with safeguarding the institution from external influences to the greatest extent possible.246 These concerns are reflected in the ECCC Agreement and the amended ECCC Law.247 As Boyle notes: ‘[T]he 2003 Agreement thus provides a legal guarantee that the Extraordinary Chambers will function and exercise their powers as envisaged in the Agreement, as well as provid­ ing an indisputable basis for determining breaches by Cambodia’.248 The ECCC Agreement attempts to safeguard the proper functioning of the ECCC in three ways. First, it requires the Cambodian government to consult the United Nations prior to making any amendment to the ECCC Law.249 This would provide an opportunity for the United Nations to have input into any amend­ ments required to address any inconsistency with the ECCC Law, the provisions of the ECCC Agreement and international standards. However, the Cambodian government is not obliged to incorporate any changes to the ECCC Law that may be requested by the United Nations. Second, article 2(2) of the ECCC Agreement confirms that the instrument is an international treaty, which is to be interpreted in accordance with the Vienna Convention on the Law of Treaties.250 As such, the Cambodian government must perform its obligations under the ECCC Agreement in good faith,251 and cannot rely on domestic legal provisions to avoid its obliga­ tions under the ECCC Agreement.252 Linked to this is the requirement that the ECCC Agreement ‘shall apply as law within the Kingdom of Cambodia following its ratification’.253 The Secretary-General noted that ‘[I]t follows from these provi­ sions that Cambodia would be obligated to ensure that its national law conformed with the [ECCC] agreement and, to the extent it did not do so, to amend its law to make it so’.254 However, this may not provide much assurance for the United Nations. Linton has commented that Cambodia has not fulfilled its obligations under other international instruments, in particular the human rights instru­ ments to which it is a party, thus the prospects for compliance with the ECCC Agreement may be low.255 245   See the terms of the Draft Memorandum of Understanding (July 2000) and discussed in Boyle, n 233. 246   S Linton, ‘Safeguarding the Independence and Impartiality of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 327. 247   See, eg, ECCC Law, art 35new; ECCC Agreement, arts 12 and 13. 248   Boyle, n 233, 113. 249   ECCC Agreement, art 2(3). 250   As with the SCSL Agreement, technically the VCLT does not apply. The relevant instrument would be the Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations (adopted 21 March 1986), which has not yet entered into force. However, many of the provisions of the VCLT also apply as customary international law. 251   VCLT, art 26. 252   VCLT, art 27. 253   ECCC Agreement, art 31. See also ECCC Law, art 47bis new. 254   UNGA, ‘Report of the Secretary-General on Khmer Rouge Trials’ (31 March 2003) UN Doc A/57/769, para 25. 255   Linton, n 246, 340.



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Third, article 28 of the ECCC Agreement provides that where the Cambodian government amends the structure or organisation of the ECCC, or causes them to function in a manner that does not accord with the ECCC Agreement, the United Nations may cease to provide assistance. Thus the withdrawal of funding and other assistance is the only sanction for non-performance of the ECCC Agreement by the Cambodian government. Article 28 reflects the weakness of the United Nations bargaining position in the negotiations for the ECCC and that the ECCC is primarily a Cambodian process. Bertodano noted that: ‘The negotiations had been conducted in an atmosphere of suspicion and mistrust . . . Article 28 reflects a queasy lack of confidence with which the Agreement is viewed by the UN.’256 As article 28 does not set out clear criteria that would justify withdrawal of assistance, it is likely that any decision to withdraw assistance would be subject to political factors rather than strictly objective criteria. Moreover, given the significant investment of the United Nations in the ECCC, both in terms of resources and moral and political support, it is highly unlikely that the United Nations would invoke the ‘nuclear option’ of withdrawing assistance from the ECCC under arti­ cle 28.257 For instance, the United Nations did not respond to government state­ ments that Cambodian officials should refuse to appear before the ECCC when summonsed, despite this instruction being a clear violation of the obligation to cooperate with the tribunal.258 Moreover, the United Nations response to allega­ tions that the Cambodian government is interfering with the investigation and judicial process concerning Cases 3 and 4 has been muted at best.259 Neither the ECCC Agreement nor the ECCC Law required any reporting requirement from the ECCC. This should be contrasted with the SCSL Statute and the STL Statute, both of which require the President to report annually to the United Nations and the Government of Sierra Leone and Lebanon respectively. This omission has been remedied by the Internal Rules, which require the ECCC to ‘adopt an Annual Report to the Supreme Council of the Magistracy of the Kingdom of Cambodia and to the Secretary-General of the UN’.260 Resolution 57/228 required the Secretary-General to report to the General Assembly on the implementation of the resolution,261 and subsequent resolutions requested fur­ ther reports.262 Yet this obligation did not extend to the operation of the tribunal 256   S Bertodano, ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 285, 289. 257  Open Society Justice Initiative, Political Interference at the Extraordinary Chambers in the Courts of Cambodia, July 2010. 258  ibid. 259   ibid; OSJI, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, June 2011. The United Nations did deny publicly that it had interfered with the decision to close the investigation in Case 003, see: UN Press Release, ‘UN Rejects allegations that it interfereed in work of genocide court’, 14 June 2011. 260   ECCC Internal Rules, art 6(c). 261   The initial report was requested within 90 days of the resolution: see UNGA Res 57/228 B (22 May 2002) UN Doc A/RES/57/228B, para 7. 262   See UNGA Res 57/228 B (22 May 2002) UN Doc A/RES/57/228B, where the General Assembly requested a report at the 58th session (para 4). The Secretary-General has issued reports to the General Assembly at its 57th, 58th, 59th, 60th and 62nd sessions. See UNGA, ‘Report of the Secretary-General

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once it had been established. Further, there is no requirement for independent monitoring of trials on behalf of the United Nations,263 although several non-­ governmental organisations do monitor and report on the trials.264 The United Nations was at least able to secure agreement that, other in exceptional circum­ stances, the proceedings before the ECCC ‘shall be public and open to representa­ tives of foreign states, of the Secretary-General of the United Nations, of the media and of national and international non-government organisations’.265 Any dispute as to the interpretation or application of the ECCC Agreement is to be resolved by negotiation, or another agreed mode of settlement.266 In practi­ cal terms, though, it is difficult to see what pressure the United Nations could exert if Cambodia does not fulfil its obligations under the ECCC Agreement. As the assistance of the United Nations is provided pursuant to a mandate from the General Assembly, it is possible that any dispute that is not resolved by negotia­ tion would be referred to that body, resulting in a political, rather than legal, determination of the situation.267 The opposition of several influential states may prevent the General Assembly from taking the drastic action of withdrawing sup­ port, even though such action may be justified. The absence of strict legal criteria for the withdrawal of assistance, the lack of a monitoring or reporting mechan­ ism, and the potential exposure of the decision to withdraw to political factors weakens the effectiveness of the enforcement mechanisms within the ECCC Agreement.268 The ECCC has faced challenges based on its legal basis and nature on several occasions. The court’s jurisprudence reveals inconsistency as to its legal basis. The Pre-Trial Chamber and the Trial Chamber have on occasion, it is suggested, incorrectly identified the legal basis of the ECCC as being the ECCC. For example, in a decision concerning an appeal by Ieng Sary against the closing order in Case 002, the Pre-Trial Chamber stated ‘[T]he ECCC was established by a joint agree­ ment between the Royal Government of Cambodia and the United Nations, and Cambodia accepted the ECCC Agreement as the law of the land’.269 As was out­ lined above, this is incorrect; it was the ECCC Law, and not the ECCC Agreement that established the ECCC. While the ECCC Agreement applies as part of the law of Cambodia, this does not mean that the agreement established the ECCC; on Khmer Rouge Trials’ (31 March 2003) UN Doc A/57769; (3 December 2003) UN Doc A/58/617; (12 October 2004) UN Doc A/59/432 and ‘Addendum’ (29 November 2004) UN Doc A/59/432/Ad.1; (25 November 2005) UN Doc A/60/565; and (27 August 2007) UN Doc A/62/304. 263   In contrast, the ICTY has entered into an arrangement with the OSCE to monitor the trials of ICTY cases referred to national jurisdictions pursuant to Rule 11bis. 264   Perhaps the most significant is the Open Society Justice Initiative, which issues regular update issues and special reports on important developments or themes. 265   ECCC Law, art 34new. 266   ECCC Agreement, art 29. 267   Linton, n 246, 340; Williams, n 231, 233. 268   Williams, n 231, 233. 269   Public Decision on Ieng Sary’s Appeal Against the Closing Order, 11 April 2011, para 213. The Trial Chamber used the same wording in the judgment in Case 001: Judgment, 26 July 2010, para 96.



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rather, this means that some of the obligations contained in the agreement oper­ ate directly under Cambodian law. The better view, and the one expressed by the co-investigating judges in the clos­ ing order for Case 002, is that ‘[P]ursuant to the ECCC Agreement, the Extraordinary Chambers were established by Law as a judicial body within the Cambodian Court system’.270 The Pre-Trial Chamber and Trial Chamber have emphasised the fact that ‘the ECCC, although it is part of the Cambodian court system, is a separate and independent court with no institutional connection to any other court in Cambodia’.271 This it has been suggested, renders the court ‘internationalised’, although the court appeared to be using that term in a different sense to that used in this study, and seems to equate this with being international in nature.272 However, the fact that the ECCC is a stand-alone institution does not change its legal basis, which remains Cambodian law.

C Conclusion This section has demonstrated that while internationalised tribunals share a com­ mon feature in that they are established under the domestic law of the affected state, such institutions have been established by a range of legal measures, based on different types of authority. The circumstances leading to the creation of the IJPP, SPSC and IHT are probably unlikely to be repeated. Thus it is suggested that future tribunals are more likely to rely on either the WCC or Cambodian model as a preferred legal basis. The first is to establish the court within an existing court system, but to rely on international participation for a transitional period. The second, the Cambodian model, is to draft and adopt domestic legislation estab­ lishing an internationalised tribunal, in consultation with the United Nations, with the participation of the United Nations and key features of the agreement secured by a treaty between the United Nations and the government of the affected state. This would also serve as a possible model for a tribunal established with the participation of other international organisations, for example the African Union or the European Union. This trend is supported by the emerging practice reviewed in chapter three. Of the proposed tribunals several would be based on one of these models, including the Special Tribunal for Burundi,273 the   Closing Order, Case 002, 15 September 2010, para 1300   Public Decision on the Co-Lawyers’ Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea, 4 February 2008, para 30. See also: Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav alias “Duch”, 3 December 2007, para 19, ‘an independent entity within the Cambodian court struc­ ture’; Decision on Request for Release, 15 June 2009 (Trial Chamber), As a court of special (“extra­ ordinary”) and independent character within the Cambodian legal system, the ECCC was designed to stand apart from existing Cambodian courts’ (para 10). 272  The Pre-Trial Chamber referred to the Taylor Immunities Decision (see above regarding the SCSL), and seemed to imply that because the ECCC operated separately, it was part of the inter­ national criminal justice system: Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav alias ‘Duch’, 3 December 2007, para 20. 273   See ch 3, section III(A). 270 271

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African Union proposed tribunal for Darfur,274 the Specialised Chamber in the DRC,275 the proposed piracy tribunal276 and the Extraordinary Criminal Court for Liberia.277 Several of these possible mechanisms would be supported by the African Union.

V.  Conclusions: Legal Bases of Hybrid and Internationalised Tribunals The first part of this chapter has considered the legal bases of hybrid and interna­ tionalised tribunals. It has outlined the legal bases used in the establishment of the existing hybrid tribunals: a treaty between the affected state and the United Nations for the SCSL and a resolution of the Security Council under Chapter VII of the Charter for the STL. It has also considered the legal bases of the inter­ nationalised tribunals established under national law. Other possible bases have been discussed, although it appears likely that the three legal bases that have already been utilised will be the bases likely to be used in future. The section has also considered the jurisprudence of the courts concerning their legal basis, if any, and detailed how the courts have approached this issue. It has demonstrated that there is often some confusion or inconsistency as to the legal basis of a particular tribunal, which has had implications for how courts have determined particular jurisdictional issues. This will be explored further in chapter six. This chapter now turns to consider the jurisdictional – as opposed to the legal – basis of hybrid and internationalised tribunals.

VI.  The Nature of Jurisdiction Conferred on Hybrid and Internationalised Tribunals A. Introduction In this second section, this chapter will examine a related issue, the basis of the jurisdiction conferred on these tribunals. The legal basis and the type of jurisdic­ tion conferred on a tribunal should determine the approach that the tribunal should adopt in order to determine the application of any legal barriers to the exercise of jurisdiction, such as immunity and amnesties, and will also govern the   See ch 3, section III(B).   See ch 3, section III(C). 276   See ch 3, section III(D). 277   See ch 3, section III(F). 274 275



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regime for the enforcement of the tribunal’s orders.278 As outlined in chapter one, there are several accepted bases for a state’s jurisdiction to prescribe in inter­ national law, although some are more controversial than others.279 This section considers which basis or bases of jurisdiction provide the source of the jurisdic­ tion conferred on the internationalised and hybrid tribunals, and the means by which such jurisdiction is conferred. The study considers four possible sources of such jurisdiction: the principle of territorial jurisdiction exercised by an inter­ nationalised tribunal as a national institution of the territorial state; the delega­ tion of jurisdiction from a state – normally the territorial state – to a hybrid tribunal; jurisdiction conferred on a hybrid tribunal as the crimes within its sub­ ject matter jurisdiction are considered to give rise to universal jurisdiction; and jurisdiction conferred on a hybrid tribunal by the Security Council acting under Chapter VII of the Charter. However, it concludes that the third option, so-called ‘floating’ universal jurisdiction is presently not supported as a principle of inter­ national law. Thus, given the current state of development of international law, jurisdiction for a hybrid or internationalised tribunal must be found either in an accepted basis for the exercise of jurisdiction by a state, or in an exercise of author­ ity by the Security Council.

B.  Territorial Jurisdiction A state may exercise jurisdiction in respect of criminal conduct drawing upon a number of accepted bases of jurisdiction, of which jurisdiction based on the ter­ ritorial and nationality principles are the most widely accepted.280 The state may then exercise such jurisdiction through ordinary domestic courts or establish spe­ cialised courts in relation to particular categories of conduct, such as crimes related to a recent conflict, drug-related offences, terrorist offences, or organised crime. States may also draw on international law in defining the crimes and in designing the procedure to be followed. While principles of sovereignty, in par­ ticular that of non-intervention, would normally render unlawful the imposition of international assistance on a state, whether from one or more states or from an international organisation, nothing in international law precludes a state from requesting and receiving such assistance. The provision of international assistance to an otherwise national institution does not affect the nature of the tribunal or the source of the jurisdiction that has been conferred; it remains based in the jurisdiction of the host state. In most situations this will be the territorial state, although it may also incorporate jurisdiction resting on other bases. The previous section concluded that five of the tribunals studied operate as domestic institu­ tions: the IHT, IJPP, SPSC, WCC and ECCC. These tribunals therefore represent the exercise of jurisdiction based on the territorial principle by the state concerned   These issues are considered in ch 6.   See ch 1, section II(A). 280   See ch 1, section II(A). 278 279

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and, in limited circumstances, extraterritorial jurisdiction.281 Jurisdiction based on the territorial principle is not controversial and will not be considered further. Recent practice raises interesting issues regarding the potential exercise of universal jurisdiction by internationalised tribunals. Although the details of the proposals are not clear and neither proposal may eventuate, both the proposed Habré tribunal and the piracy tribunal contemplate that the tribunal would exer­ cise universal jurisdiction. The proposed tribunal for Habré is an internation­ alised model, which would be based in the domestic legal system of Senegal.282 Previous internationalised tribunals have relied primarily on the exercise of terri­ torial jurisdiction.283 In contrast, the crimes alleged to have been committed by Habré were committed in Chad, not in Senegal. Chad, and not Senegal, is entitled to exercise territorial jurisdiction. This would be the first instance of an inter­ nationalised criminal tribunal being established in a state that was not the territor­ ial state. Moreover, Habré is not a national of Senegal, so Senegal cannot claim to be exercising jurisdiction on the basis of nationality. If Senegal were to try Habré, it would only be on the basis of universal jurisdiction under customary inter­ national law in respect of crimes against humanity and war crimes, or on treatybased jurisdiction in respect of the crime of torture.284 The African Union (or potentially the United Nations) would, for the first time, be participating in an internationalised criminal tribunal that is established not by the territorial state, but by a state exercising universal jurisdiction. This is particularly interesting given the African Union’s stance on the potential abuse of the principle of univer­ sal jurisdiction.285 However, Chad has arguably consented, or at least not objected, to the exercise of jurisdiction by an internationalised criminal tribunal in these circumstances. This may make the precedent less controversial. An alternative view is that Chad has agreed to delegate territorial jurisdiction to Senegal. As there is not an express agreement between Chad and Senegal delegating such authority, this delegation must be linked to their common membership in the African Union. It may be, however, unlikely that membership of the AU would be inter­ preted so as to confer an implied delegation of territorial jurisdiction to any other Member State. Depending on how and in what form the proposed piracy tribunal is estab­ lished, it is possible that it too may exercise jurisdiction only on the basis of uni­ versal jurisdiction.286 This would be the case if the tribunal was to be established in a state in the region other than Somalia. As that state would not normally have any basis for jurisdiction in respect of attacks within the territorial waters of Somalia, it could only exercise universal jurisdiction for piracy on the high seas. Of course, it is possible that the Security Council may authorise the tribunal to   As discussed in ch 4, section III(H).   See ch 3 section III(G).   See ch 4, section III(H). 284   Both Chad and Senegal are party to the Convention Against Torture. 285   See ch 1, section IID. 286   Ch 3, section III(D). 281 282 283



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exercise jurisdiction for attacks committed within the territorial waters of Somalia, but it is submitted that the basis for such jurisdiction would be the powers of the Council under Chapter VII of the UN Charter287 and not the authority of the ter­ ritorial state. What these two recent initiatives demonstrate is that it can no longer be assumed that internationalised tribunals will be restricted to the courts of the ter­ ritorial state and the exercise of primarily territorial jurisdiction. Domestic courts operating on the basis of other types of jurisdiction, including universal juris­ diction, may also be ‘internationalised’. There does not appear to have been any objection to these proposals for internationalised tribunals operating on basis of universal jurisdiction. However, these two situations are relatively uncontrover­ sial, as Chad has consented, or at least not protested, the exercise of jurisdiction by an internationalised Senegalese trial and piracy has long been recognised as giving rise to universal jurisdiction.

C.  Delegation of Jurisdiction from the (Normally) Territorial State As noted above, the SCSL is not a national court. Nor is it an international court established by the Security Council. Instead, it is an international tribunal, estab­ lished by an agreement between the United Nations and Sierra Leone, supported by domestic implementing legislation. It is suggested here that the SCSL Agreement represents a delegation288 of territorial jurisdiction from Sierra Leone to the SCSL. Sierra Leone as the territorial state had jurisdiction to criminalise the crimes that are within the material jurisdiction of the SCSL where they occur on its territory. To the extent that such acts were not already crimes under domestic law, the SCSL Agreement, combined with the Ratification Act, can thus be viewed as an exercise of Sierra Leone’s prescriptive jurisdiction in that it criminalises this conduct in substantive criminal law. Sierra Leone’s courts would ordinarily have had jurisdiction to try breaches of the substantive criminal law. However, Sierra Leone has opted to delegate its jurisdiction to enforce to the SCSL in limited cir­ cumstances; in particular where the offender is a ‘high-level’ instigator of the offences or the crimes are of a serious nature.289 The delegation of jurisdiction is not absolute, as the national courts of Sierra Leone retain concurrent jurisdiction, although subject to the primacy of the SCSL in relation to the courts of Sierra Leone.290   See below, section VI(E).   The term used in this section is ‘delegation’ based on the typology developed by Sarooshi, which notes that a delegation of power is one that generally satisfies three criteria: the state does not have the competence to exert direct control over the way in which the power is exercised by the international organisetion; the delegation of power is revocable by the state (although not necessarily lawfully); and the state retains the right to exercise the powers concurrently with, and independent of, the organisa­ tions exercise of the powers. See D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford, Oxford University Press, 2007), 54. 289   See ch 2, section II(C). 290   SCSL Statute, art 8, and the discussion in ch 6, section VIII. 287 288

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Before examining the issues raised by this transfer of jurisdiction approach, it is also necessary to consider possible alternative bases for the jurisdiction conferred on the SCSL. One such alternative is that Resolution 1315 delegated the powers of the Council to the Secretary-General, and that the jurisdiction of the SCSL lies in the powers of the Security Council and the United Nations Charter. However, as was concluded above,291 the Security Council did not establish the SCSL by Resolution 1315. Moreover, the Appeals Chamber has also found, it is submitted correctly, that the Secretary-General had not exercised powers delegated to him by the Security Council: [A]s an executive organ the Secretary-General has to fulfil the orders of the Security Council and does not therefore need a delegation of power to become active as his man­ date consists in executing the orders given by the power-bearer, in this case the Security Council.292

There are several reasons to support the conclusion reached here that the most appropriate jurisdictional basis for the SCSL is a transfer of jurisdiction from Sierra Leone, and not from the Security Council. First, the wording of Resolution 1315 suggests that the SCSL is to be established on a consensual basis, that is, with the consent of Sierra Leone. The relevant paragraph addressed to the SecretaryGeneral is not an order to establish a tribunal, but a request to enter into negotia­ tions for an agreement to establish the tribunal. It clearly contemplates that it is the agreement and not any action of the Council, or even of the Secretary-General acting on its behalf, that is to establish the SCSL. This is supported by various paragraphs in the preamble, which note the request from Sierra Leone for assist­ ance from the United Nations. Second, there is nothing to indicate any delegation of power to the Secretary-General, which is consistent with the conclusion reached by the Appeals Chamber that there was no need for such a delegation. Third, although Resolution 1315 reiterates that the situation in Sierra Leone continues to constitute a threat to international peace and security, it does not refer to Chapter VII of the Charter in its operative part. While this is not necessarily conclusive as to the legal basis for the resolution, it generally does indicate that the resolution is not relying on the Council’s powers under Chapter VII of the Charter. This dis­ tinguishes Resolution 1315 from those resolutions where the Council has acted to establish an international or internationalised criminal tribunal based on its pow­ ers under Chapter VII of the Charter. These situations are discussed in more detail below. Therefore, the better view is that Resolution 1315 did not delegate the powers of the Security Council to the Secretary-General and that, while the United Nations is a party to the SCSL Agreement, the jurisdictional basis of the SCSL does not depend on the competence of the Council or the Secretary-General under the Charter.

  This chapter, section III.   Prosecutor v Fofana, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the United Nations, Appeals Chamber, 25 May 2004, para 16. 291 292



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The delegation of jurisdiction from Sierra Leone to the SCSL raises several questions, in particular whether international law permits a state to delegate its jurisdiction to another state or to an international tribunal. The following section considers these issues, and examines the ICC as a valuable precedent for the dele­ gation of jurisdiction from a state to an international criminal court. It then con­ siders whether there are any fundamental differences between the ICC and the SCSL that would render the delegation of jurisdiction from Sierra Leone to the SCSL unlawful.

i.  Lawfulness of a Delegation of Jurisdiction The first question is whether a state may lawfully delegate jurisdiction to another state. For example, could State X request State Y to hold trials in respect of alleged criminal conduct occurring within State X? It would appear to be accepted that State X could do so and that State Y would be entitled to act upon this request. Precedents for such a delegation include treaties that permit the delegation of criminal proceedings from one state to another.293 Such instruments provide ‘jurisdiction to prosecute any offence to which the law of another Contracting State is applicable’.294 Another precedent is the Council Framework on Combating Terrorism, pursuant to which a Member State of the European Union may exer­ cise jurisdiction in relation to a terrorist act committed on the territory of any Member State.295 Akande argues that the anti-terrorism treaties are a further example of the delegation of jurisdiction, in this case ‘a delegation of jurisdiction by the states of primary jurisdiction to the state of custody’.296 While the ability to delegate jurisdiction from one state to another does not appear to be controver­ sial, what has stimulated debate is whether such a delegation must be conditional on the consent of the state of nationality of the accused. The better view is that it need not. A state exercising jurisdiction on the basis of territoriality (or any other basis) does not require the consent of the state of nationality. Neither do any of the instruments suggested as examples require such consent. 293   European Convention on the Transfer of Criminal Proceedings in Criminal Matters (adopted 15 May 1972, entered into force 30 March 1978) ETS 073; United Nations Model Treaty on the Transfer of Proceedings in Criminal Matters (adopted by UNGA Resolution 45/118 of 14 December 1990); and the Agreement between the Member States on the Transfer of Proceedings in Criminal Matters (con­ cluded under the European Political Cooperation arrangements on 6 November 1990). 294   Explanatory Report to the European Convention on the Transfer of Criminal Proceedings in Criminal Matters (1972) 14. 295   Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism, art 1(a). 296   D Akande, ‘The Jurisdiction of the ICC over Nationals of Non-Parties: Legal Basis and Limits’ (2003) 1 Journal of International Criminal Justice 618, 623. Akande’s interpretation is the most appro­ priate, however see also the exchange between Professors Scharf and Morris as to whether the antiterrorism treaties represent universal jurisdiction: M Scharf, ‘The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the US Position’ (2001) 64 Law & Contemporary Problems 67; and M Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’ (2001) 64 Law & Contemporary Problems 13.

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If it is accepted that a state may delegate jurisdiction to another state, is it also accepted that a state – or states – may delegate jurisdiction to an international criminal tribunal? The most pertinent precedent, and the instance in which this question has been most clearly debated, is the establishment of the ICC. The ICC may exercise its jurisdiction only where the crime occurred on the territory of a state party, or where the accused is a national of a state party.297 Controversy arose surrounding the territorial basis of the ICC’s jurisdiction which, it was suggested, permitted the ICC to exercise jurisdiction in respect of nationals of non-state par­ ties where the alleged crime had occurred on the territory of a state party.298 This possible jurisdiction in respect of nationals of states not party to the Rome Statute was, and remains, one of the main hurdles to the ratification by the United States of the Rome Statute.299 In seeking to resolve the issue, it has been suggested that the Rome Statute represents a delegation by each state party of territorial jurisdic­ tion to the ICC.300 However, the legality of the delegation of territorial jurisdiction to an international criminal tribunal has been contested by the United States and certain academics. While critics accept that there is some support for the notion that a state may delegate its territorial jurisdiction to another state,301 they argue that a delegation of territorial jurisdiction by a state to an international tribunal would be impermissible under customary international law,302 as such a delega­ tion would ‘fundamentally alter the consequences of that jurisdiction’.303 Critics have raised several concerns regarding the possible delegation of juris­ diction to the ICC. The first relates to the dual nature of the ICC’s jurisdiction: not only does it exercise criminal jurisdiction in relation to individuals, it will also, incidental to its jurisdiction in respect of individuals, be required to adjudi­ cate on issues relating to state responsibility for alleged crimes falling within its subject matter jurisdiction.304 Second, it is argued that to permit the ICC to 297   Rome Statute, art 12(2); see also ch 1, section III(C)(ii). This limitation does not apply where the Security Council refers a situation to the Prosecutor acting under Chapter VII of the Charter: Rome Statute, arts 12(2) and 13. 298   Several commentators have debated this issue: see, eg, Akande, Scharf and Morris, all at n 296. 299   The concerns of the United States have been outlined on several occasions. In particular, see D Scheffer, ‘The International Criminal Court: The Challenge of Jurisdiction’ (1999) ASIL Proceedings 68; J Bolton, ‘The Risks and Weaknesses of the International Criminal Court from America’s Perspective’ (2001) 41 Vanderbilt Journal of Transnational Law 186; M Leigh, ‘The United States and the Statute of Rome’ (2001) 95 American Journal of International Law 124; and B Brown, ‘US Objections to the Statute of the International Criminal Court: A Response’ (1999) 31 New York Journal of International Law and Politics 855. 300   It has also been suggested that state parties have transferred nationality jurisdiction to the ICC. As similar issues arise as with the transfer of territorial jurisdiction, this is not discussed separately here. 301  Both Professor Morris and Ambassador Scheffer accept this proposition, despite rejecting territorial jurisdiction as the basis for the ICC: Morris, n 296, 44; Scheffer, n 299, 71. They argue that consent of the state of nationality is required. 302   Morris, n 296, 51. 303   Morris, n 296, 29. 304   This incidental jurisdiction arises due to the nature of the crimes within its subject matter juris­ diction: many of the crimes, such as genocide and crimes against humanity, have a state or official element and a determination of individual guilt or innocence will necessarily reflect upon the state(s) concerned. Further, when the ICC eventually acquires jurisdiction in respect of the crime of aggres­ sion, it is argued that it will be required to directly pronounce upon the lawfulness of state action.



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exercise its jurisdiction without the consent of the state of nationality is contrary to the Vienna Convention on the Law of Treaties in that it will ‘abrogate the preexisting rights of non-parties’.305 Third, prosecution before an international court is said to restrict the availability of compromise options in interstate disputes, as a finding that implies state responsibility will restrain diplomatic options. Fourth, international prosecution will increase the political impact of the decision for the state(s) concerned, as well as potentially providing impediments to the diplomatic protection of nationals. Fifth, an international court has greater influence in shap­ ing the development of customary international law, as the decisions of inter­ national tribunals generally have wider exposure and significance than those of national courts. Finally, the delegation of jurisdiction to an international criminal tribunal breaks ‘the crucial linkage between territorial jurisdiction and the legiti­ mate prosecutorial interests of the territorial state’306 and exposes the trial to the risk of abuse. Moreover, Professor Morris considered that there was no precedent for such delegation of jurisdiction, which together with the cumulative effect of these concerns, led her to conclude that ‘delegability to an international court is not entailed in the existing customary law of territorial jurisdiction’.307 Nor was the delegation of territorial jurisdiction to an international tribunal permissible as an innovation in customary international law, as it would ‘materially alter the legal relationships constituting the customary law of jurisdiction, and would do so to the detriment of non-party states without their consent’.308 Some of these concerns certainly have merit: the nature and consequences of prosecution before international courts do differ from prosecution before national courts. However, do these concerns warrant the outright rejection of the capacity of states to delegate territorial jurisdiction to international courts in all circumstances? States do not require the consent of the state of nationality in order to exercise territorial jurisdiction, and, as Professor Scharf asserts, ‘there are no special features of territorial jurisdiction that would as a matter of policy pre­ clude the delegation of territorial jurisdiction to an international court’.309 Akande concludes that ‘there are important reasons of principle and sufficient precedents to suggest that delegations of national jurisdiction to international courts, in gen­ eral, and to the ICC, in particular, are lawful’.310 Danilenko points to the provi­ sions in the Genocide Convention and the Apartheid Convention which call for an international penal tribunal to be created as evidence that the state parties to those conventions ‘agreed that they have a sovereign right to combine their juris­ dictions and to cede this combined jurisdiction to a future criminal court’.311   Morris, n 296, 26.   Morris, n 296, 45.   Morris, n 296, 47. 308   Morris, n 296, 51–52. 309   Scharf, n 296, 113. 310   Akande, n 296, 625. 311  G Danilenko, ‘The Statute of the International Criminal Court and Third States’ (2000) 21 Michigan Journal of International Law 445, 465. Danilenko also cites the Nuremberg Tribunal as ‘the most important precedent supporting the legitimacy of the principle of “ceded jurisdiction” ’, 464–65, as does Professor Scharf, n 296, 103–06. The author distinguishes the Nuremberg Tribunal as a prece­ 305 306 307

308

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Professor Orentlicher also notes that certain hybrid tribunals, including the SCSL, ‘rely principally on territorial jurisdiction’, suggesting that a delegation of territo­ rial jurisdiction is the main jurisdictional basis for such tribunals.312 It is therefore submitted that state practice and academic opinion support the lawfulness of the delegation of territorial jurisdiction from state parties to the ICC.

ii.  Do the Differences Between the ICC and the SCSL Preclude a Delegation of Jurisdiction to the SCSL? The next issue is whether the differences between the SCSL and the ICC would preclude a similar delegation of jurisdiction from Sierra Leone to the SCSL, and to other hybrid tribunals in future. The SCSL Prosecutor has asserted that ‘[T]he creation of the Special Court is analogous to the creation of the International Criminal Court’.313 However, although both the SCSL and the ICC are established by treaty, there are many differences between the two tribunals. An obvious point of distinction is the bilateral nature of the SCSL Agreement as compared to the multilateral basis of the Rome Statute. The main consequence of the bilateral basis of the SCSL is that it will have limited influence over third states, as it creates legal obligations in respect of Sierra Leone only.314 The SCSL Statute is also unlikely to generate a ‘norm-creating’ effect as the Rome Statute will do, as a result of the wide ratification of the Rome Statute and its implementation into national law. The influence of the judicial decisions of the SCSL will be more limited than decisions of the ICC, as the SCSL has neither a wide consensual basis nor a general mandate for the creation of customary international law.315 The SCSL Agreement is between the United Nations and a single state, and is not an agreement between several states as with the Rome Statute.316 Arguably, this dis­ tinction has no legal effect other than to preclude any reciprocity arising from the delegation of jurisdiction. There cannot be an identical delegation of jurisdiction as to that contained in the Rome Statute, as the United Nations does not have the same territorial jurisdiction as a state. dent on the same basis as Professor Morris, Ambassador Scheffer and Mr Akande: the four powers establishing the Nuremberg Tribunal exercised sovereign power at the time: see Morris, n 296, 37–40; Scheffer, n 299, 71; and Akande, n 296, 627–28. 312   D Orentlicher, ‘Striking a Balance: Mixed Law Tribunals and Conflicts of Jurisdiction’ in M Lattimer and P Sands (eds) Justice for Crimes Against Humanity: International Law After Pinochet (Oxford, Hart Publishing, 2003) 213–35, at n 1. 313   Prosecutor v Kallon, n 111, para 9(d). 314   States other than Sierra Leone may choose whether or not to cooperate with orders of the Special Court. See the discussion in ch 6, section V(B)(ii). 315   This is not to suggest that the SCSL does not have some role to play in the formation of interna­ tional criminal law, just that the acceptance of decisions of the SCSL as a source of law may not be as wide as the acceptance of the jurisprudence of the ICTY and the ICC. 316  The relationship between the UN and the ICC is governed by a separate agreement, the Negotiated Relationship Agreement between the International Criminal Court and the United Nations (4 October 2004) ICC-ASP/3/Res.1.



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A second distinction between the ICC and the SCSL is the concurrent juris­ diction with, and primacy in respect of, the national courts of Sierra Leone.317 This distinction has been relied upon by at least one defendant to challenge the legality of the SCSL’s establishment.318 In contrast, the jurisdiction of the ICC is subject to the principle of complementarity, requiring the ICC to defer to national prosecu­ tions unless the state concerned fails to act or is unwilling or unable genuinely to carry out the investigation or prosecution.319 However, this is best viewed as a dif­ ference in the terms of the delegation of jurisdiction: it was certainly possible legally, if not politically, that the state parties to the Rome Statute could have agreed to the ICC having primacy in respect of national courts,320 or that an insti­ tution such as the SCSL could be based on the principle of complementarity in relation to national courts. The mixed applicable law of the SCSL is a third distinction between the SCSL and the ICC. The Rome Statute does not confer jurisdiction to prosecute persons under national law, whereas the SCSL has competence to prosecute persons under domestic law.321 However, there appears to be no rule precluding this position, and it should be available to international courts to apply domestic laws of an affected state. In fact, international courts are frequently called upon to apply national legislation in various areas, for example nationality. The main concern is ensuring that equally favourable legal and procedural standards apply to the accused as a consequence of prosecuting the act as an international or domestic crime. Thus the mixed nature of the applicable law and material jurisdiction of the SCSL does not preclude the delegation of jurisdiction. Indeed, it is submitted that the hybrid nature of the applicable law of the SCSL supports the delegation of jurisdiction approach, as there is a more direct link between the SCSL and the state delegating jurisdiction.322 The differences between the SCSL and the ICC actually reduce, although do not eliminate, the concerns raised by Professor Morris. The SCSL retains a link with the territorial state, as it is established partly by the government of the state con­ cerned, and sits within the territory of Sierra Leone. Thus it has proximity to the 317   Art 8(1) provides that ‘The Special Court and the national courts of Sierra Leone shall have con­ current jurisdiction’, while art 8(2) provides that ‘The Special Court shall have primacy over the national courts of Sierra Leone’. 318   This issue was raised by the defendant Norman in Prosecutor v Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, 13 March 2004, paras 63–71. Both the Trial Chamber and the Appeals Chamber of the ICTY in the Tadi´c Jurisdiction Decision rejected a challenge to the jurisdiction of the ICTY based on the primacy in relation to national courts enjoyed by the ICTY by virtue of art 9 of the ICTY Statute. The Appeals Chamber held that the primacy accorded did not violate the sovereignty of the states concerned (which had in fact cooperated with and consented to the exercise of jurisdiction by the ICTY). Nor was there a right under international law to be tried exclusively by national courts: see Tadi´c Jurisdiction Decision, n 9, 25–34. 319   Rome Statute, art 17. 320   See L Sadat and R Carden, ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88 Georgetown Law Journal 381, 408–09. 321   See ch 2, section II(C). 322   This does not mean that an international criminal court’s jurisdiction in respect of crimes under domestic law is dependent upon adopting the transfer of jurisdiction approach, rather that in these circumstances, the mixed law supports the transfer of jurisdiction approach.

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affected population and the evidence. As the result of a treaty between the United Nations and a single state, it has a more restricted basis, and is less likely to gener­ ate or shape customary international law. However, the bilateral basis of the SCSL Agreement may increase the potential for abuse,323 a risk that will be minimal provided that the SCSL continues to remain immune from pressure by Sierra Leone as to how the delegated jurisdiction is to be exercised.324 In any event, the exercise of jurisdiction by the SCSL is less open to abuse and political pressures than a trial of a foreign national by a domestic court based on universal jurisdic­ tion due to the involvement of international personnel.325 However, the delega­ tion of territorial jurisdiction approach risks ignoring the hybrid nature of the SCSL. The Secretary-General considered the SCSL to be a sui generis institution,326 a blend of the national and international and a partnership between Sierra Leone and the United Nations. The delegation of jurisdiction approach reduces the role of the United Nations in ratifying the SCSL Agreement to little more than provid­ ing funding and cooperation, although the SCSL Agreement clearly extends beyond the provision of assistance. Moreover, the SCSL is established by the United Nations and Sierra Leone acting jointly.327 While it is suggested here that the better view is that the SCSL exercises delegated territorial jurisdiction, the SCSL has rejected such a delegation of jurisdiction as its jurisdictional basis. In a challenge to the validity of the SCSL, the defence asserted that an international criminal court has jurisdiction only when the state delegating power to it has the sovereign power to prosecute. By granting an amnesty to com­ batants in the Lomé Accord, Sierra Leone had restricted its personal jurisdiction to prosecute the defendants, and thus could not transfer jurisdiction in respect of affected individuals to the SCSL. The Appeals Chamber held that:328 [t]he establishment of the Special Court did not involve a transfer of jurisdiction or sovereignty by Sierra Leone. The Special Court is a completely new organisation estab­ lished by an international treaty . . . It does not operate on the basis of transferred juris­ diction but is a new jurisdiction operating in the sphere of international law.

323   Morris, n 296, 45. Professor Morris suggests that a transfer of territorial jurisdiction by one state to another could result in abuse, as states may use the prosecution for political reasons. However the potential for abuse may be reduced where ‘the jurisdiction is transferred not to an individual state but, rather, to an international court. Where that international court is controlled by a large number of states, the various states parties may provide checks and balances against abuse being perpetrated in the interests of one state or a small group of states’. 324   The Government of Sierra Leone participates in the Management Committee established by art 7 of the SCSL Agreement, and receives a report from the President of the SCSL on an annual basis: SCSL Statute, art 25. It also has obligations under the Agreement to cooperate with the SCSL: SCSL Agreement, art 17. Other than this involvement, the SCSL is intended to operate independently of the Government: UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915, n 1, para 9. 325   See Annex 1. 326   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (2000) UN Doc S/2000/915, para 9. 327   SCSL Statute, art 1. 328   Prosecutor v Gbao, n 136, para 6.



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Consequently, the jurisdiction of the Court was not dependent upon the personal jurisdiction of Sierra Leone for the crimes within the Statute, and the amnesty provision did not preclude prosecution by the Court.329 This categorical rejection of the transfer of territorial jurisdiction as a basis for jurisdiction is regrettable. The decision was driven by the need to avoid the application of the amnesty in question. The Appeals Chamber did not consider the academic views of the juris­ dictional basis of the ICC outlined above, and its judgment on this issue is some­ what cursory, a response to the immediate assertions raised by the defence rather than a considered analysis of the merits of transfer of jurisdiction as a possible basis of jurisdiction. In focusing on the issue of the amnesty, the Appeals Chamber was examining the terms of the transfer of jurisdiction and whether Sierra Leone’s ability to transfer jurisdiction was limited by the amnesty it had previously granted under national law. It did not give proper consideration as to whether the concept of transfer of jurisdiction was an appropriate way of characterising the jurisdic­ tional basis of the SCSL. As will be discussed in chapter six, it was not necessary to dismiss the delegation of jurisdiction argument to avoid the application of the amnesty provision.

iii.  Delegation of Universal Jurisdiction: Specific Concerns One area of confusion that arose in the context of the debate of the jurisdictional basis of the ICC was whether the ICC would be exercising universal jurisdiction. While this suggestion was clearly misguided, universal jurisdiction having been explicitly rejected as a basis for jurisdiction in the Rome Statute,330 it did lead to discussion as to whether states could delegate universal jurisdiction to another state or to an international criminal tribunal. Professor Scharf has suggested the delegation of universal jurisdiction from states as one possible basis of the juris­ diction of the ICC.331 Whilst recognising that delegates to the Rome Conference 329   This decision was subsequently confirmed in another preliminary motion in which the defence asserted, again based on the amnesty provision, that there had been an unlawful delegation of power from Sierra Leone to the Special Court: See Prosecutor v Fofana, Decision on Preliminary Motion on Lack of Jurisdiction by Sierra Leone, SCSL-2004-14AR72(E), 25 May 2004. 330   The German delegation at the Rome Conference introduced a proposal to grant wide universal jurisdiction to the ICC, that is jurisdiction over any offence committed anywhere, irrespective of whether the suspect was present in the territory of a state party to the Rome Statute. This proposal was rejected, in the face of harsh criticism, in particular from the United States: E Wilmshurst, ‘Jurisdiction of the Court’ in R Lee (ed), The International Criminal Court:The Making of the Rome Statute – Issues, Negotiations, Results (The Hague, Kluwer Law International, 1999) 127; and H Kaul and C Kress, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’ (1999) 2 Yearbook of International Humanitarian Law 143. 331   Scharf, n 296, 76. This also appears to have been the view of Ambassador Scheffer, the head of the United States delegation to the Rome Conference: see D Scheffer ‘US Policy and the International Criminal Court’ (1999) 32 Cornell International Law Journal 529, 532 (asserting ‘the universal jurisdic­ tion created by the Rome Conference would mean something new, at least for US troops stationed abroad’) and D Scheffer, ‘The United States and the International Criminal Court’ (1999) 93 American Journal of International Law 12, 20 (‘the dangerous drift of Article 12 toward universal jurisdiction over nonparty states’).

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rejected a broad notion of universal jurisdiction for the ICC, Professor Scharf notes that:332 where the territorial state gives its consent (as expressed by ratifying or acceding to the Rome Treaty or by special consent on a case-by-case basis), in addition to the principle of territoriality, the ICC has a legitimate interest on the basis of the universal jurisdic­ tion of the crimes to prosecute the nationals of non-party states. In this limited context, the jurisdiction of the ICC can be deemed to be based concurrently on the universal and territorial bases of jurisdiction.

Professors Sadat and Carden also consider the ICC to exercise a new form of universal jurisdiction. They describe the ICC as operating upon the universality principle where the Council has referred the complaint, noting that, where the Prosecutor or a state refers the complaint ‘although the universality principle does not disappear, layered upon it is a state consent regime based on two addi­ tional principles (which are disjunctive) of jurisdiction: the territoriality principle and the nationality principle’.333 This argument relies upon the precedent of the IMT. It is argued that the IMT asserted universal jurisdiction due to on the nature of the crimes. This, it is suggested, allows states to create international tribunals ‘to do together what any one of them could have done separately’.334 Professor Scharf also argues that the ICTY and ICTR ‘represent a collective exercise of uni­ versal jurisdiction of states’ based on the underlying authority of the Charter. As the ICTY purported to bind a Serbian national at a time when the Federal Republic of Yugoslavia was not considered a Member State of the United Nations, Professor Scharf argues that the tribunals must exercise universal jurisdiction in order to bind nationals of non-party states.335 This issue does not arise in relation to the SCSL, as all crimes within its jurisdic­ tion must have been committed within the territory of Sierra Leone, thus it is clear that territorial jurisdiction only has been delegated. However, it may arise in respect of future tribunals, in particular the proposed tribunal to try Habré in Senegal and the piracy tribunal.336 There are, however, a number of difficulties concerning this possible basis of jurisdiction. The value of the IMT as a precedent for an international criminal tribunal exercising universal jurisdiction is doubtful, given that the tribunal was operating in the capacity of the territorial state, not on the basis of universal jurisdiction.337 Further, the ICTY and the ICTR do not oper­   Scharf, n 296, 76.   Sadat and Carden, n 320, 412–13. See also J Paust, ‘The Reach of ICC Jurisdiction over NonSignatory Nationals’ (2000) 33 Vanderbilt Journal of Transnational Law 1, 7 (arguing that ‘the ICC will be able to exercise a form of limited universal jurisdiction’ and ‘it would be improper to assume that Article 12 obviates any universal jurisdictional competence that signatory states have under customary international law and can delegate to a newly created institution’). 334   Trial of the Major War Criminals Before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946, 461, 466. For a discussion of Nuremberg and universal jurisdiction, see H King, ‘Universal Jurisdiction: Myths, Realities, Prospects, War Crimes and Crimes Against Humanity: The Nuremberg Precedent’ (2001) 35 New England Law Review 281. 335   Scharf, n 296. For a critique of this analysis see Akande, n 296. 336   See above. 337   See ch 3, section II(A). 332 333



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ate on the basis of universal jurisdiction: their universality flows from the exten­ sive powers of the Security Council acting under Chapter VII of the Charter to restore international peace and security and from the obligation of members to comply with decisions of the Security Council under Chapter VII, not from uni­ versal jurisdiction.338 To equate the powers of a court established by the Security Council under Chapter VII with universal jurisdiction is to conflate two distinct concepts: the enforcement jurisdiction of the Security Council (as an institution that can compel all Member States to comply with its decisions) with the prescrip­ tive universal jurisdiction of states. Moreover, Professor Morris has commented that:339 the delegation of states’ universal jurisdiction to an international court would funda­ mentally alter the consequences of that jurisdiction. The exercise of delegated universal jurisdiction by an international court would have very different implications, involving a different set of state interests, than would the exercise of universal jurisdiction by a state.

Perhaps the greatest objection to the delegation of universal jurisdiction from states is the absence of any custom supporting such a delegation. States rejected such a proposal when drafting the Rome Statute. The principle of prescriptive universal jurisdiction for states is relatively embryonic, a principle that is still emerging and remains relatively undefined. There is disagreement as to which international crimes give rise to universal jurisdiction, and uncertainty as to the circumstances in which universal jurisdiction may be exercised, including whether there is a requirement to defer to the territorial state or whether cus­ tody is a precursor to the exercise of universal jurisdiction.340 Arguably, while customary international law has accepted universal jurisdiction existing in some form for states, it has not developed to the point that states may delegate universal jurisdiction to international criminal tribunals, at least perhaps with­ out the consent of the territorial state and perhaps the state of nationality.341 Moreover, even if such a principle did exist, it is suggested that states may only delegate jurisdiction in relation to crimes giving rise to universal jurisdiction. 338   Morris, n 296, 35–36. It is also arguable that as a growing number of states ratify or accede to the Rome Statute, the ICC may have close to universal application: H Olasolo, ‘Reflections on the International Criminal Court’s Jurisdictional Reach’ (2005) 16 Criminal Law Forum 279. However, this is different to exercising universal jurisdiction. 339   Morris, n 296, 29. 340   See ch 1, section II(D). 341   For the contrary view, see Akande, arguing that the rationale behind the exercise of universal jurisdiction by states is that the prosecuting state ‘is in effect acting on behalf of the international com­ munity as a whole’. This is because customary international confers universal jurisdiction only in respect of those crimes judged to be detrimental to the values of the international community as a whole. As Akande concludes ‘it would be extraordinary and incoherent if the rule permitting prosecu­ tion of crimes against the collective interest by individual states – acting as agents of the community – simultaneously prevented those states from acting collectively in the prosecution of these crimes’: Akande, n 296, 626. Bekou and Cryer also consider that states would be entitled to transfer universal jurisdiction: O Bekou and R Cryer, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter?’ (2007) 56 International and Comparative Law Quarterly 49, 50–51.

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This was not problematic regarding the ICC, as the majority of crimes within the ICC’s jurisdiction are, for the most part, crimes giving rise to universal jurisdiction.342 However, it may have been an issue for tribunals such as the STL (assuming for present purposes that it relied on a delegation of universal juris­ diction) as it has jurisdiction only in respect of a domestic law offence and it is not clear that terrorist acts give rise to universal jurisdiction under customary international law.

iv. Conclusion This section has analysed the discussion surrounding the lawfulness of a transfer of jurisdiction from a state to a hybrid tribunal. It concludes that practice and academic commentary supports the transfer of jurisdiction, at least territorial and nationality-based jurisdiction, to an international criminal tribunal. The ICC is an example of such a transfer. It also concludes that the differences between the ICC and a hybrid tribunal, in particular the SCSL, do not preclude the transfer of territorial jurisdiction from a state to a hybrid tribunal. However, it is important to identify correctly that the territorial jurisdiction of the state remains the juris­ dictional basis for the hybrid tribunal. This is relevant to issues such as amnesty, as seen in the discussion of the decision of the SCSL. The section also noted that, while transfer of territorial jurisdiction – and probably nationality-based jurisdic­ tion – appears to be supported by practice, there are serious issues concerning the transfer of universal jurisdiction to an international or hybrid tribunal, at least without the consent of the affected state.

D  Universal Jurisdiction Arising from the Nature of the Crimes In the Lomé Amnesty Decision, the Appeals Chamber of the SCSL considered whether the crimes arising under the SCSL Statute gave rise to universal jurisdic­ tion, as the amnesty would not be ‘universally effective’ in relation to ‘grave inter­ national crimes for which there exists universal jurisdiction’.343 It concluded that ‘The crimes mentioned in Articles 2–4 of the Statute are international crimes and crimes against humanity . . . One consequence of the nature of grave international crimes against humanity is that States can, under international law, exercise uni­ versal jurisdiction over such crimes’.344 This statement is not of itself controver­ sial, although it may not be accurate in relation to all of the international crimes within the material jurisdiction of the SCSL. However, the Appeals Chamber then 342   Ambassador Scheffer has argued that ‘not all of the crimes within the subject-matter jurisdiction of the Court are in fact exposed to universal jurisdiction under customary international law’. He uses as an example, the provisions in art 8 of the Rome Statute that are based on the Hague Regulations or from the laws and customs of war: Scheffer, n 299, 70. 343   Prosecutor v Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, 13 March 2004, para 67. 344   ibid, paras 69–70.



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extrapolated from the universal jurisdiction possessed by states a similar power for international criminal tribunals such as the SCSL where the crimes within the substantive jurisdiction of the Court give rise to universal jurisdiction. Based upon this extension, the Appeals Chamber concluded that the amnesty provision is ‘ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of such crimes. It is also ineffective in depriving an international court such as the Court of jurisdiction’.345 In another decision considering the amnesty provision the Appeals Chamber stated that ‘Article IX of the Lomé Agreement cannot constitute a legal bar to the exercise of jurisdiction over international crimes by an international court asserting universal jurisdiction’.346 Thus the Appeals Chamber clearly consid­ ered that it exercised universal jurisdiction. However, it did not fully articulate how this universal jurisdiction arose. Sierra Leone, as both the territorial state and the state of nationality of the majority of the accused and victims, has superior bases of jurisdiction and need not rely on universal jurisdiction. There are two remaining possibilities. First, the SCSL Agreement delegated universal jurisdiction from Member States of the United Nations to the SCSL. Second, universal jurisdiction arises solely from the nature and gravity of the crimes within the jurisdiction of the SCSL. The first possibility is to say that Member States, through their membership of the United Nations and their accept­ance of the Charter, have delegated universal jurisdiction to the United Nations, and that that organisation may then delegate universal jurisdiction to an international tribunal. This argument is too great a stretch, particularly where other, stronger, bases of jurisdiction are available.347 Moreover, as is discussed below, the ‘universality’ of courts created by the Security Council derives from the obligation of Member States to cooperate with decisions of the Security Council,348 and not from any delegation of universal jurisdiction by Member States. The SCSL, in the comments quoted previously, has hinted that it considers universal jurisdiction to exist without the need for a delegation of jurisdiction: universal jurisdiction is automatically conferred on a tribunal purely due to the nature of the crimes and regardless of how the tribunal has been established. If this is what the SCSL was suggesting, it is highly problematic. This conjures the image of a ‘floating’ universal jurisdiction, once a tribunal is created to try crimes giving rise to universal jurisdiction under customary international law, that juris­ diction simply exists and is vested in the tribunal, with no need for a delegation of jurisdiction from states. This simply cannot be the case: universal jurisdiction is exercised by states. States may delegate their own competencies for crimes subject to universal jurisdiction to an international or internationalised tribunal. Alternatively, the Security Council may establish a tribunal to try crimes subject   Prosecutor v Kallon and Kamara, n 343, para 88.   Prosecutor v Gbao, Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, Appeals Chamber, 15 May 2004, para 8. 347   This argument is discussed further in the next section. 348   UN Charter, art 25. 345 346

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to universal jurisdiction. However, these tribunals derive their jurisdiction either from the delegation of jurisdiction of some sort or from the competence of the Security Council for international peace and security: there is no independent basis of universal jurisdiction that allows enforcement at the international level. To take this argument to its extreme, if two non-governmental organisations combined to create an international court to try individuals accused of genocide, could this court be said to possess universal jurisdiction due only to the fact that genocide is a crime giving rise to universal jurisdiction? As was discussed in chap­ ter one, the boundaries of the concept of universal jurisdiction are uncertain, even in relation to the exercise of universal jurisdiction by states. Given that the inter­ national legal system is still largely governed by the notion of state sovereignty, it is highly unlikely that states would accept that an international criminal juris­ diction could exist in the absence of either a delegation of authority from a state with an accepted jurisdictional nexus or the exercise of the Council’s powers for international peace and security. This is not to say that such a principle will not develop in the future; rather that it is not yet found as a matter of contemporary international law. Thus, in conclusion, although several crimes giving rise to uni­ versal jurisdiction under customary international law fall within the remit of the SCSL, this does not of itself mean that the SCSL – or any other international, hybrid or internationalised tribunal – exercises universal jurisdiction.

E  Jurisdiction Based on the Powers of the Security Council Under Chapter VII This study submits that the final basis of jurisdiction is the appropriate juris­ dictional basis for the STL, as the tribunal was established by the Council acting pursuant to its powers under Chapter VII of the Charter. However, Chapter VII of the Charter is also the source of the jurisdiction conferred on the ICTY and the ICTR. What then is the nature and source of this jurisdiction? The debate as to the jurisdictional basis of the ICC also revealed two conflicting views as to the juris­ dictional basis of the ICTY and the ICTR. In considering whether the ICTY and the ICTR were a precedent for the exercise of delegated universal jurisdiction by an international court, Professor Morris concluded that ‘the tribunals’ juris­ diction is more properly viewed as arising from the powers of the Security Council to take such steps as are necessary to restore or maintain international peace and security’. The ICTY and the ICTR could therefore be distinguished from the ICC.349 Professor Scharf and Mr Akande disagreed with this conclusion, arguing that, while the tribunals were established pursuant to a resolution under Chapter VII of the Charter, the ‘underlying authority for the Council’s action was a treaty – the UN Charter’.350 The Security Council, when exercising its authority under   Morris, n 296, 36.   Scharf, n 296, 108; See also Akande, n 296, 628 – ‘the ultimate legal basis for their creation is the UN Charter (Article 25)’. 349 350



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Chapter VII, exercises powers delegated to it by the Member States of the United Nations collectively. Thus, Akande concludes, the tribunals ‘constitute examples of the delegation by states of criminal jurisdiction to international tribunals’.351 While it is not disputed that the Security Council exercises delegated powers under the Charter, it is submitted that this argument does not consider suffi­ ciently the nature of the authority conferred on the Security Council by Member States. Member States, acting collectively, have conferred upon the Security Council via the Charter powers for the maintenance and restoration of inter­ national peace and security, as set out in Chapter VII of the Charter.352 This mean­ ing is confirmed by article 24(1) of the Charter, which provides that the Member States ‘agree that in carrying out its duties under this responsibility, the Security Council acts on their behalf’.353 As Sarooshi notes, Member States delegated to the Security Council ‘not sovereignty per se but an international police power of States’.354 Thus it is inappropriate to refer to Member States delegating jurisdic­ tion (based on sovereignty) to the Security Council, jurisdiction which is then delegated to the tribunals. The better view is that the Security Council was exer­ cising this ‘international police power’ when it established the tribunals. Moreover, the Security Council is not restrained by the jurisdictional bases relied upon by states to justify prescriptive jurisdiction, nor is it restrained by the limits as to the exercise of enforcement jurisdiction. That something more than a delegation of jurisdiction has occurred is evident, if it is accepted that ‘the powers which can be exercised by the collective totality of sovereign States is greater than the sum of the individual powers of these States’.355 The ICTY has recognised that the Security Council can confer powers on a sub­ sidiary organ which it could not exercise itself. The Security Council may not exercise a judicial function determining individual criminal responsibility, yet it has established two institutions that may do so.356 Moreover, the tribunals may take steps that a state acting individually could not, such as lifting the immunity of a head of state of another state or requiring cooperation in the absence of an agreement.357 Thus the Security Council is not exercising jurisdiction delegated by Member States in the traditional sense. Therefore, it can be concluded that the jurisdiction of the STL is based on the powers for the maintenance of inter­national peace and security delegated to the Security Council by Member States.

  Akande, n 296, 628.   See discussion in D Sarooshi, The United Nations and the Development of Collective Security (Oxford, Oxford University Press, 1999) 25–32. 353   UN Charter, art 24(1), emphasis added. See Sarooshi, ibid, sources cited at fn 107. 354   Sarooshi, n 352, 28. 355   Sarooshi, n 352, 29. 356   Tadi´c Jurisdiction Decision, n 9, paras 37–38. 357   See chap 6, section III(D)(ii). 351 352

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VII. Conclusion This chapter has considered the varying options for the legal basis of a hybrid and internationalised tribunal, drawing on the conclusion reached in chapter four, that there are in fact separate sub-categories of hybrid and internationalised tribunals. First, it is accepted that a hybrid tribunal may be established by the Security Council acting pursuant to Chapter VII of the United Nations Charter. This draws on the precedent provided by the ICTY and the ICTR, both of which were established by the Council for the maintenance or restoration of international peace and security. There is no reason why the powers of the Security Council cannot also be used to establish a hybrid tribunal. However, the use of this legal basis to establish an inter­ nationalised tribunal directly is rejected, largely due to this model’s reliance on national law, the fact that Security Council resolutions do not normally have direct effect in national law, and the absence of practice supporting such a legal basis in any of the existing or proposed internationalised tribunals. The ambiguous legal basis of the STL was then examined, before concluding that, while it is difficult to say that the STL was established by Resolution 1757, the tribunal cannot be consid­ ered a true treaty-based institution as its establishment would not have been possi­ ble without the exercise of the Council’s powers under Chapter VII of the Charter. Therefore, the best view is that the STL is a tribunal established pursuant to the powers of the Security Council for international peace and security, and the only example to date in this category. Next, the creation of a hybrid tribunal on the basis of a treaty, generally between the affected state and the United Nations is considered. This method of establish­ ing an international criminal tribunal has long been accepted, and served as the basis for the International Criminal Court. It was, however, novel to create a hybrid tribunal using a treaty, although some of the other institutions considered in chapter three had also been established by an agreement. The novelty of this legal basis led to several challenges to the legal basis of the SCSL, the only example of an existing hybrid tribunal created using this legal basis. The range of such challenges are explored so as to illustrate the types of issues that may arise when a treaty is used, and to highlight some of the inconsistency in the SCSL jurispru­ dence concerning its legal basis. Finally, the legal basis of internationalised tribunals, based in national law, was assessed. This category may also give rise to some uncertainty, as the situations in Kosovo, East Timor, Bosnia and Iraq all involved international administration in some form, and it could be suggested that the legal basis for the tribunals is based on international, rather than national law due to the involvement of the Security Council, states and other international actors such as the OHR in Bosnia. However, by looking at the dual function such administrations perform, it is possible to categorise properly the instruments that established the IJPP, the SPSC and the WCC as domestic rather than international in nature. Similarly, an

Conclusion 319 assessment of the legal rules applicable in occupation and the nature of the acts themselves supported the finding that the CPA, in establishing the IHT, was also acting in a domestic capacity. Finally, the legal basis of the ECCC was examined. The ECCC is clearly established by national law. It is not an institution that has been created by treaty; although the ECCC Agreement regulates some of the arrangements for the ECCC, unlike the SCSL Agreement it does not establish the court. The chapter then turned to the issue of the jurisdictional basis for the tribunals. The internationalised tribunals all exercise primarily territorial jurisdiction, although they may exercise extra-territorial jurisdiction in limited circumstances. Practice supports the notion that internationalised tribunals will be created in the affected state and will be largely restrained to the exercise of territorial jurisdic­ tion. However, recent proposals for the specialised chamber to try Habré and the extra-territorial piracy tribunal suggest that universal jurisdiction may also form the basis for an internationalised tribunal, at least with the consent of the territor­ ial state. This would be a radical departure from current practice. The chapter then considered the SCSL, which it is argued operates on the basis of a delegation of jurisdiction from the territorial state. Having considered the exam­ ple of the ICC as an institution that exercises both territorial and nationality-based jurisdiction delegated to it by states parties, it then assesses whether the differences between that institution and a hybrid tribunal preclude a similar delegation to the SCSL. It concludes that these differences in fact address rather than increase some of the concerns raised by a delegation of jurisdiction approach. However, despite this, the SCSL has, it is argued incorrectly, rejected the delegation of jurisdiction from Sierra Leone as the basis for its jurisdiction. While the SCSL operates on the basis of territorial jurisdiction delegated to it by Sierra Leone, it is possible that future hybrid tribunals may seek to rely on a delegation of universal jurisdiction. For this reason, the literature concerning the possibility of the ICC exercising universal jurisdiction was reviewed and, again, the question of whether these concerns also apply to the SCSL or a future hybrid tribunal. Given the absence of any practice, and the contro­ versy surrounding the exercise of universal jurisdiction even by states, it is suggested that it is not, as yet, accepted that a hybrid tribunal could be established by a treaty and exercise jurisdiction on the basis of delegated universal jurisdiction. The chap­ ter also considers a possible jurisdictional basis that was suggested in the jurispru­ dence of the SCSL: the notion of a floating universal jurisdiction that exists in any institution with jurisdiction in respect of international crimes. However, it is argued that international criminal law does not conceive of this notion of jurisdiction, although it may develop in future. Finally the chapter considered the nature of the jurisdiction exercised by a tri­ bunal established by the Security Council. Contrary to some suggestions, such institutions do not exercise universal jurisdiction or territorial jurisdiction delegated by Member States of the United Nations. Instead, the better view is that such tribunals exercise jurisdiction conferred by the Security Council, acting pur­ suant to its powers for international peace and security.

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Chapter six then builds upon these conclusions to consider a number of poten­ tial legal barriers to the exercise of jurisdiction by hybrid and internationalised tribunals. It assesses each of the potential barriers and suggests how the legal issue should be resolved taking into account the appropriate legal and jurisdictional basis of the particular tribunal.

6 Legal Barriers to the Exercise of Jurisdiction I. Introduction Chapter five identified the legal basis for the establishment of the tribunals stu­ died, and suggested the possible source of the authority they exercise. This chap­ ter analyses barriers to the exercise of that jurisdiction, specifically legal obstacles to the exercise of jurisdiction in respect of certain accused. Several such barriers will be studied: the principle of nullum crimen sine lege; the immunity of the head of state and other senior state officials; the applicability and legality of amnesties; the requirement to obtain custody of the accused for a trial, which depends to a large extent on the co-operation of national authorities and third states; the appli­ cability of statutes of limitation; the ne bis in idem rule; and the relationship between a hybrid or internationalised tribunal and other tribunals. Resolving these issues correctly is important. Even in situations where the affected state, the United Nations and the wider international community have recognised that a particular situation requires an internationalised criminal justice mechanism, and the political will to establish and finance such an institu­ tion exists, the possibility of barriers to the exercise of jurisdiction operates to potentially reduce the scope of the tribunal’s jurisdictional basis and operation. Designers of a criminal justice mechanism should consider the possible applica­ tion of legal barriers and, if considered appropriate, incorporate specific pro­ visions into the constituent instrument of the tribunal. Ultimately, it may be necessary to select a different mechanism where the barrier in question cannot be overcome by applying either domestic or international legal principles. This chap­ ter will assess the selected issues in the practice of the tribunals studied. It will attempt to determine whether the available practice in these newly developing institutions can give rise to any general framework that may assist states when designing such tribunals, and the tribunals themselves when they are called upon to determine the applicability of the barrier in question.

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II.  The Principle of Legality The principle of legality, or nullum crimen sine lege, ‘postulates that a person may only be held criminally liable and punished if, at the moment when he performed a certain act, the act was regarded as a criminal offence by the relevant legal order’.1 The principle of legality ‘is founded upon four essential attributes: (a) the concept of written law; (b) the value of legal certainty; (c) the prohibition on analogy; and (d) non-retroactivity’.2 While the principle of legality originally ini­ tiated in domestic legal systems, it is now firmly established as a general principle of international criminal law.3 It is reflected in a number of international human rights instruments,4 including article 15 of the International Covenant on Civil and Political Rights (ICCPR), which provides: 1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed . . . 2.  Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

The principle has been applied by the International Military Tribunal (IMT),5 the Tokyo Tribunal6 and the international ad hoc tribunals.7 It is also reflected in the Rome Statute of the International Criminal Court (ICC).8 International criminal law accepts that the fact that conduct was not criminalised as a matter of domestic law 1   A Cassese, ‘Nullum Crimen Sine Lege’ in A Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford, Oxford University Press, 2009) 438. 2   S Lamb, ‘Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law’ in A Cassese, P Gaeta and J Jones (eds), The Rome Statute of the International Criminal Court: Volume I (Oxford, Oxford University Press 2002) 734. 3   For a discussion of the emergence of the principle as one of international law, see Lamb, ibid. 4   See also the Universal Declaration of Human Rights (10 December 1948) UNGA Res 217 A (III) UN Doc A/RES/217A (III), art II(2); Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (GCIII), art 99; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API), art 6(c); European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) UNTS 213 UNTS 222 (European Convention on Human Rights), art 7; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123, art 9; and African Charter of Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217, art 7(2). 5   See, eg, Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 American Journal of International Law 172, 217. 6   See, eg, United States v Araki et al, Separate Opinion of Judge Röling, 109 The Tokyo Major War Crimes Trial 44–45 in R Pritchard (ed), The Tokyo Major War Crimes Trial (Lewiston, Edwin Mellen Press, 1998). 7  See, eg, Prosecutor v Tadi´c (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72, A Ch II (2 October 1995) (Tadi´c Jurisdiction Decision) para 92. 8   Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (Rome Statute) art 22.



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does not preclude trial and punishment where that conduct was recognised as giving rise to individual criminal responsibility under international law. The conduct may be recognised as criminal under either customary inter­national law or treaty law.9 It is not necessary that the customary or treaty-based crime has been given effect in domestic law, provided that the conduct to be considered as criminal was both rea­ sonably foreseeable and accessible to the accused. For treaty-based crimes, this is satisfied where the state of the accused has ratified the treaty in question. A common feature of the hybrid and internationalised tribunals studied is that their constituent instruments have included international crimes that were not previously criminalised under the domestic law of the affected state. In fact, the absence of appropriate provision for such crimes under domestic law is one rea­ son that states have turned to hybrid and internationalised tribunals. In the case of hybrid tribunals, criminalisation of international crimes has been achieved through the international instrument(s) establishing the tribunal: the Special Court for Sierra Leone (SCSL) Agreement for the SCSL and Resolution 1757 and the Special Tribunal for Lebanon (STL) Agreement for the STL. For the interna­ tionalised tribunals, this was achieved by introducing international crimes into domestic law either by the provisions of the constituent instrument of the tribu­ nal: the Extraordinary Chambers in the Courts of Cambodia (ECCC) Law for Cambodia, the Iraqi High Tribunal (IHT) Statute for Iraq and Regulation 2000/15 for East Timor, or by amendments to the applicable criminal code (Bosnia and Kosovo).10 As a result, the tribunals studied have faced challenges to the exercise of their jurisdiction based on the nullum crimen principle, in particular the retro­ active introduction of criminal provisions. For example, the SCSL considered a challenge that it had no jurisdiction to try an accused under article 4(c) of the SCSL Statute, which concerned the recruitment of child soldiers, as it was argued that this conduct did not constitute a crime under domestic or customary inter­ national law at the relevant time.11 The ECCC has faced numerous challenges on the basis of the principle of legality, including arguments that the omission from the ECCC definition of crimes against humanity or a requirement for a nexus to armed conflict and the inclusion of rape as a distinct crime against humanity violated the nullum crimen principle.12 The IHT, which relies on definitions of 9   In the Tadi´c Jurisdiction Decision, the Appeals Chamber of the ICTY accepted that both customary international law and treaties applicable to all the parties could be considered for the purpose of the nullum crimen principle. However, decisions of the ICTY since 2002 suggest a more restrictive interpre­ tation, such that the nullum crimen principle is only satisfied if the crime was part of customary inter­ national law at the relevant time. For further discussion, see: H Olasolo, ‘A Note on the Evolution of the Principle of Legality in International Criminal Law’ (2007) 18 Criminal Law Forum 301. 10   For Bosnia, the Criminal Code of Bosnia and Herzegovina, adopted in 2003 and, for Kosovo, the Provisional Criminal Code of Kosovo, adopted 2003. For discussion of the latter, see: R Murati, ‘Protection of Human Rights under Kosovo’s Criminal Code and Criminal Procedure Code’ (2005) 80 Chicago-Kent Law Review 99. 11   Prosecutor v Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction) (Child Recruitment), SCSL-2004-14-AR72(E), A Ch (31 May 2004). 12   Prosecutor v Ieng Sary (Public Decision on Ieng Sary’s Appeal Against the Closing Order) D4271I130, P T Ch (11 April 2011). See also: Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order, D427/2/15, PT Ch (15 February 2011).

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international crimes largely as defined in the Rome Statute,13 has addressed the issue of whether the inclusion of crimes against humanity, without a nexus to armed conflict, violated the principle of legality. In the first trial before the IHT, the Dujail trial, the tribunal addressed the issue of the possible retroactive applica­ tion of the IHT Statute, finding that the inclusion of crimes against humanity did not violate the nullum crimen principle.14 Both the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC) and the International Judges and Prosecutors Programme in Kosovo (IJPP) have considered claims that applying national provisions introducing crimes against humanity violated the nullum crimen principle.15 Both the WCC and the IJPP have held that the principle was not violated, as crimes against humanity were criminalised by customary inter­national law at the relevant time.16 The tribunals have tended to characterise such claims as jurisdictional challenges.17 The tribunals have also applied the principle of legality to the modes of responsibility included in their constituent instruments. For example, the ECCC has considered challenges to the reliance by the prosecution on joint criminal enterprise and command responsibility in relation to crimes committed in the period from 1975 to 1979,18 while the SCSL has decided a chal­ lenge concerning command responsibility.19 Defence counsel have on occasion attempted to link the legal basis of the tribunal to the approach that should be adopted to applying the nullum crimen principle. For 13   See the criticism of the Law of the Iraqi Higher Criminal Court (IHT Statute) on this ground in Y Shany, ‘Does One Size Fit All? Reading the Jurisdictional Provisions of the New Iraqi Special Tribunal Statute in the Light of the Statutes of the International Criminal Tribunals’ (2004) 2 Journal of International Criminal Justice 338, 344. 14  ‘Dujail Case’ (Saddam Hussein et al) (Judgment) IHT 1/9 First/2005, T Ch (5 November 2006), unofficial English translation found at http://law.case.edu/saddamtrial/dujail, 35–44. The Trial Chamber concluded that crimes against humanity committed during peacetime were a crime under customary international law sometime before 1982: 43–44. This finding was confirmed by the Appeals Chamber and followed in the ‘Anfal Campaign Case’ (Appeal) IHT 1/TC2/2006, A Ch (4 September 2007). 15   The Criminal Codes of the SFRY and the FRY did not include crimes against humanity. The crime was introduced in Bosnian law by art 172 of the Criminal Code of Bosnia and Herzegovina 2003 and as part of the applicable law of Kosovo by art 117 of the Kosovo Provisional Criminal Code. 16   See, eg, Prosecutor v Samardži´c  (Verdict) X-KR-05/49, Court of BiH, Section I for War Crimes (7 April 2006) 28–30. This aspect of the decision was confirmed by the Appeals Chamber, which noted that, in addition to forming part of customary international law, the conduct itself had been criminal­ ised under the Criminal Code of the Socialist Federal Republic of Yugoslavia, albeit not as a crime against humanity. In Prosecutor v Trajkovic, a panel of the District Court at Gjilan, which included an international judge, found that the SFRY Criminal Code had in fact incorporated that customary international law crime of crimes against humanity: Prosecutor v Momcilo Trajkovi´c (Judgment) No P 68/2000, (6 March 2001); see also (2001) 4 Yearbook of International Humanitarian Law 12. This was reversed by the Supreme Court, but not on this ground. 17  eg, Prosecutor v Ieng Sary (Public Decision on Ieng Sary’s Appeal Against the Closing Order) D4271I130, P T Ch (11 April 2011). 18   eg, the Pre-Trial Chamber held that the basic and systematic forms of JCE liability (JCE I and JCE II) were part of customary international law at the relevant time, but that the extended form of JCE (JCE III) did not: Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 002/19-09-2007-ECCC/OCIJ (PTC38), P T Ch (20 May 2010). For discussion, see: K Gusrafson, ‘ECCC Tackles JCE: An Appraisal of Recent Decisions’ (2010) 8 Journal of International Criminal Justice 1323. 19   Prosecutor v Norman (Decision on the Defence Preliminary Motion on Lack of Jurisdiction) (Command Responsibility) SCSL-2003-08-PT, P T Ch (15 October 2003).



The Principle of Legality

325

example, counsel for Ieng Sary argued that the ECCC’s status as an internation­ alised, and not an international, tribunal meant that the principle of legality would not be infringed only in circumstances where the conduct in question was criminal­ ised by Cambodian law or by a rule of custom or treaty which had been directly implemented into Cambodian law.20 The ECCC rejected this argument. It is sub­ mitted that the ECCC was correct to have done so, as the legal basis of the tribunal should not affect the application of the principle of legality. The standard that should be applied is that set by article 15(1) of the ICCPR, regardless of whether the tribunal is hybrid, internationalised or ‘purely’ domestic. Although there was no jurisdiction under national law for the international crimes introduced by the ECCC Law, where the conduct in question was criminalised at the international level, ‘the incorporating legislation is only a tool which enables national courts to apply the relevant rule of international law criminalizing the conduct’.21 Contrary to the view that appeared to be suggested in the decision of the Economic Community of West African States (ECOWAS) Court concerning the trial of Hissène Habré, the international or internationalised nature of a tribunal does not avoid the applica­ tion of the principle of legality or permit the application of a different standard to that applied at the national level.22 Hybrid tribunals must apply the rule on retroactivity as stated in their constitu­ ent instrument or, where there is no specific provision, should adopt the inter­ national rule as reflected in article 15 of the ICCPR. For this purpose, it makes no difference whether the tribunal was established by treaty or by a resolution of the Security Council.23 Internationalised tribunals, even though such courts are con­ sidered courts under domestic law, should still adopt a human rights approach as is reflected in article 15. In Cambodia, the ECCC Law expressly required the ECCC to apply article 15 of the ICCPR, not the relevant Cambodian provisions. Despite this conclusion the potential application of the principle of legality should remain an important consideration for designers of hybrid and internationalised tribunals, particularly where the temporal jurisdiction of the tribunal extends for a considerable period into the past (for example, the ECCC and the IHT) and where international crimes have not been previously incorporated into domestic law of the affected state.24 20  See Prosecutor v Ieng Sary (Public Decision on Ieng Sary’s Appeal Against the Closing Order). For similar arguments on Kosovo, see M Bohlander, ‘The Direct Application of International Criminal Law in Kosovo’ (2001) 1 Kosovo Legal Studies 7. 21   V Spiga, ‘Non-retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga’ (2011) 9 Journal of International Criminal Justice 5, 14. 22   In the ECOWAS Court ruling, the Court suggested that due to the application of the nullum crimen principle at the domestic level, Senegal could not try Habré under Senegalese law. Instead, only an ad hoc tribunal could do so, applying an interpretation of the nullum crimen principle based on art 15(2) of the ICCPR, rather than art 15(1). For criticism of this aspect of the decision, see Spiga, ibid, 21–22. 23   Where the tribunal is established by a treaty, the state delegating jurisdiction to the tribunal is required to comply with this principle. For tribunals established by the Security Council, it is clear that such tribunals must apply the principle of legality: see UNSC, ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’ (3 May 1993) UN Doc S/25704, para 34. 24   See discussion in ch 4, section III(I).

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Legal Barriers to the Exercise of Jurisdiction

III. Immunity A. Introduction The personal jurisdiction of the tribunals studied is often restricted to those most responsible for the commission of serious crimes, which may include current or former state officials.25 This raises the possibility that these tribunals will encounter arguments based on the official status of the accused and the immunity to be accorded to state officials under international law. It is a well-established principle of international law that states and state agents are immune from the jurisdiction of other states in certain circumstances. In particular, states and their officials can­ not be the subject of criminal proceedings in foreign states.26 For present purposes, there are three situations in which issues of immunity are most likely to arise. First, state officials may be tried before the courts of their own state. Immunity under international law does not arise. However, individuals may be accorded immunity under the Constitution or domestic legal instruments of their own state. The appli­ cation of national immunities will be a matter of interpreting the relevant domestic legal instruments. Second, state officials may be tried before the domestic courts of another state based on principles of extraterritorial jurisdiction, including univer­ sal jurisdiction. Immunities accorded by international law will be relevant and, in such ‘horizontal’ cases, the nature of the immunity accorded will be important.27 Immunity extended under the laws of the state of nationality of the accused may not be relevant, as immunity accorded under domestic law cannot preclude the exercise of jurisdiction by another state. The third – so-called ‘vertical’ – situation is a trial before an international criminal court, which has been established either by a treaty or a Security Council resolution. Again, immunities accorded under international law will be relevant, and immunity accorded to the individual under the domestic law of their own state irrelevant. This section will outline the nature of immunity in international law, examine the relevant principles and apply those principles to the tribunals studied.

B.  Nature of Immunity in International Law As with the international rules applicable to the exercise of jurisdiction by a state,28 the immunity accorded to states and state officials by international law ‘revolves   See ch 4, section III(K)(C).   This chapter addresses immunity in criminal proceedings only. States and state officials may, in limited circumstances, be the subject of civil proceedings in foreign courts. 27   eg, attempts before UK courts to initiate proceedings in respect of certain Israeli officials have failed as English courts have recognised the immunity of such officials: Application for Arrest Warrant Against General Shaul Mofaz, reprinted in (2004) 53 International and Comparative Law Quarterly 769. 28   See ch 1, section II. 25 26

Immunity 327 around the principles of state sovereignty, equality and non-interference’.29 International law rules that extend immunity to states and state officials recognise that the acts of a state and its government within its territory are supreme and should not be subject to review or legal proceedings in the courts of other states. To allow legal proceedings in third states would undermine the sovereignty of the state itself, and be contrary to the principle of territorial integrity and non-­ interference in the domestic affairs of another state. However, while international law clearly recognises immunity from jurisdiction, the exact scope of protection accorded by the laws of immunity, in particular in relation to conduct that may also constitute international crimes, remains somewhat uncertain. Unlike the immunity extended to the diplomatic representatives of a state, which is largely regulated by the Vienna Convention on Diplomatic Relations 1961,30 there is no comprehensive treaty regulating head of state immunity. Accordingly, the area is largely left to the provisions of customary international law.31 There are two types of immunity extended to state officials under international law: functional immunity (ratione materiae) and personal immunity (ratione personae). Functional immunity attaches to the acts of officials while they are in office and ‘protects conduct carried out on behalf of a State’.32 This type of immun­ ity is limited, in that it only applies to those official acts carried out during the period of office. Officials may still be the subject of legal proceedings in respect of acts committed in a personal capacity, even where such acts were committed before or after their appointment. However, immunity ratione materiae will sur­ vive the cessation of office, and thus may be claimed even by former state officials. Where an international crime is also, or arises from, an official act, this immunity will shield the official from prosecution before the domestic courts of other states and also before international courts. As instances of prosecutions for inter­national crimes before the courts of third states and international tribunals have increased,33 the potential for functional immunity to undermine accountability efforts for international crimes has become apparent. Extending functional immunity to crimes that states have recognised as international in nature, and for which universal jurisdiction is available, is contrary to the principles underlying the

  M Shaw, International Law, 6th edn (Cambridge, Cambridge University Press, 2008) 697.   Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 (Vienna Convention on Diplomatic Relations 1961). Officials on visits to another state may also be extended immunity pursuant to the Convention on Special Missions (adopted 8 December 1969, entered into force 21 June 1985) 1400 UNTS 231 (United Nations Convention on Special Missions 1969). Officials of international organisations are also covered by immunity in some circumstances: Convention on the Privileges and Immunities of the United Nations (13 February 1946) 1 UNTS 15. 31   European Convention on State Immunity (adopted 16 May 1972) ETS No 74; United Nations Convention on the Jurisdictional Immunities of States and their Property, adopted by the General Assembly on 2 December 2004. 32   R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge, Cambridge University Press, 2010) 533. 33   See discussion ch 2, section I. 29 30

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rule permitting prosecution of those responsible for such crimes.34 Practice may support an emerging rule of customary international law that functional immun­ ity does not extend to officials charged with committing international crimes.35 However, practice is not uniform36 and, perhaps most significantly, the International Court of Justice (ICJ) appeared to support the application of immun­ity to international crimes in the Arrest Warrant case.37 The second type of immunity enjoyed by state officials is known as immunity ratione personae. This immunity ‘is conferred on officials with primary responsi­ bility for the conduct of the international relations of the state’.38 It protects the office holder in the exercise of their representative functions and is intended to facilitate the conduct of international relations. The rationale for immunity ratione personae is that the state requires certain state officials to be free to operate in the sphere of international relations, so as to allow the state to conduct effectively its international affairs and to maintain peaceful relations among states.39 This freedom would be restricted if such officials were susceptible to legal proceedings before foreign courts, including arrest and detention. Therefore, the immunity enjoyed when in office is absolute, even in relation to international crimes,40 and extends to all forms of conduct, whether committed in a private or personal capacity41 or before or during the period of official service.42 However, as the immunity is that of the state and not the individual, the immunity does not survive the termination of office.43 Although the category of officials entitled to 34   See D Akande and S Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21 European Journal of International Law 815. 35   Several courts, including international courts, states and commentators have supported the exist­ ence of such a rule. For an excellent discussion as to the practice supporting and possible basis for such a rule, see Akande and Shah, ibid. See also Cryer et al, n 32, ch 21. 36   For examples of cases that are inconsistent with this rule, see Cryer et al, n 32, 544–45. 37   Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3 (Arrest Warrant case) para 61. The Court stated that a former minister or official could be tried for acts committed during the period in office in a private capacity. This statement, which was strictly obiter dictum, implies that immunity would still extend to official acts. This impli­ cation been criticised. eg, Akande and Shah argue that the better view is that the lost provided by the ICJ was non-exhaustive and ‘does not preclude the possibility that there is a rule removing immunity ratione materiae in relation to prosecutions for acts amounting to international crimes’, n 34, 839. 38  D Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 American Journal of International Law 407, 409. 39   Arrest Warrant case, n 37, (Joint Separate Opinion Higgins, Koojimans and Buergenthal) para 75. See Akande, ibid, 409–10; H Fox, ‘The Resolution of the Institute of International Law on the Immunities of Heads of State and Government’ (2002) 51 International and Comparative Law Quarterly 119. 40   Arrest Warrant case, n 37, para 58: the International Court of Justice held that it could not find ‘under customary international law any form of exception to the rule according immunity from crim­ inal responsibility and inviolability to incumbent Ministers for Foreign Affairs, where they are sus­ pected of having committed war crimes or crimes against humanity’. Akande notes that this principle has been applied by several national courts, and that ‘[J]udicial opinion and state practice on this point are unanimous’: Akande, n 38, 411, and the material cited in fns 26 and 27. See also M Tunks, ‘Diplomats or Defendants? Defining the Future of Head of State Immunity’ (2003) 52 Duke Law Journal 651, 663. 41   Arrest Warrant case, n 37, para 54. 42   Arrest Warrant case, n 37, para 54–55. 43   Akande, n 38, 410; Fox, n 39.

Immunity 329 personal immunity has not been defined, practice and academic opinion suggest that it would include heads of state and government, foreign ministers and possibly others.44 Personal immunity is thus one of the key ‘procedural bars to the exercise of jurisdiction’ in respect of international crimes.45 As such, personal immunity conflicts directly with the aim of ensuring accountability for the com­ mission of international crimes. The ICJ confirmed that the personal immunity of serving heads of state is abso­ lute and that individuals cannot be prosecuted in foreign national courts or arrested while travelling abroad as long as they remain in office.46 However, the Court noted that ‘immunity from jurisdiction . . . does not mean that they enjoy impunity in respect of any crimes they might have committed’.47 The Court accepted an exception to this general rule in four circumstances.48 First, immuni­ ties accorded under international law do not bar criminal prosecution of such persons in their own state. Second, the state may always waive the immunity of an incumbent senior official. Third, a senior state official may be subject to criminal prosecution once they have left office, subject to any subsisting immunity ratione materiae. Finally, the Court suggested that serving heads of state may be prose­ cuted before ‘certain international courts, where they have jurisdiction’. Providing only limited material in support of this statement, the Court was satisfied merely to refer to the relevant provisions in the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and article 27(2) of the Rome Statute. Although this statement is obiter dictum, as the ICJ was not required to deter­ mine the immunity applicable before an international criminal tribunal,49 it has been the subject of extensive debate.50 The implication from the paragraph is that 44   It is accepted that heads of state and government possess functional immunity, as do diplomats, consular officials and officials on special missions: see A Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’ (1994) 247 Recueil des Cours 13; Vienna Convention on Diplomatic Relations 1961; United Nations Convention on Special Missions 1969; Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261. The ICJ has held that foreign ministers also enjoy immunity, as may other senior state officials: Arrest Warrant case, n 37, paras 51 and 53. A British court has recognised the immunity of a defence minister: Application for Arrest Warrant Against General Shaul Mofaz, reprinted in (2004) 53 International and Comparative Law Quarterly 769. However, Akande and Shah argue that personal immunity should be restricted to heads of state and heads of government, and that the immunity of other officials should be regulated by the Special Missions Convention (which arguably reflects cus­ tomary international law) or by ad hoc agreements: n 34, 819–25. 45   M Frulli, ‘The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities’ (2002) 2 Journal of International Criminal Justice 1118, 1126 46   Arrest Warrant case, n 37, para 58. 47   Arrest Warrant case, n 37, para 60. 48   Arrest Warrant case, n 37, para 61. 49  The Arrest Warrant case concerned the immunity of the foreign minister of the Democratic Republic of the Congo before a national court. 50   See, eg, Akande, n 38; A Orakhelashvili, ‘Case Report: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)’ (2002) 96 American Journal of International Law 677; A Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v Belgium Case’ (2002) 13 European Journal of International Law 853; S Wirth, ‘Immunity for Core

330

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the absolute nature of immunity ratione personae exists only in relation to crimi­ nal prosecution before foreign domestic courts and may not be pleaded before international criminal courts. This view has received general support and is con­ sistent with the practice of the international criminal tribunals.51 However, the Court’s reference to ‘certain international criminal tribunals’ suggests that not all international criminal tribunals may exercise jurisdiction in respect of current heads of state. This statement is correct; it is not sufficient to remove the immu­ nity of an incumbent head of state merely to assert that a tribunal is international in character.52 Yet the Court provided no guidance as to the criteria to be applied in determining whether a tribunal should be considered ‘a certain international criminal tribunal’, beyond referring to the three existing international criminal tribunals (the ICTY, the ICTR and the ICC). The approach adopted also fails to take into account the different legal bases of the tribunals considered.53 For instance, where a tribunal is established by a treaty, the international nature of a court does not, in itself, allow for the exercise of jurisdiction over nationals of a non-party state.54 It is submitted that the better approach to determining the applicability of immunities is to consider the nature of the court, its method of establishment and its constituent instruments. It must also be determined whether the provisions of the instrument creating jurisdiction on the tribunal expressly or implicitly remove immunity and whether the state concerned is bound by that instrument. The following section examines this question for each of the tribunals studied, adopting the three legal bases of such tribunals suggested in chapter five.

C.  The Internationalised Tribunals As outlined in chapters four and five, the tribunals studied can be divided into hybrid and internationalised tribunals. Internationalised tribunals, which operate under domestic law, raise distinct issues concerning the immunity of officials of third states to hybrid tribunals. Each of the internationalised tribunals studied will be examined to determine whether, and why, immunities should be applied.

Crimes? The ICJ’s Judgment in the Congo v Belgium Case’ (2002) 13 European Journal of International Law 877; and J Wouters, ‘The Judgment of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks’ (2003) 16 Leiden Journal of International Law 253. 51   Examples of the prosecution by international tribunals include the trial of Karl Dönitz, acting head of state following Hitler’s suicide, by the IMT; the trial of Jean Kambanda, the Interim Prime Minister of Rwanda during the 1994 genocide, by the ICTR; the indictment of Slobodan Miloševi ´c , the then-President of the FRY, together with the then President of Serbia, Milan Milutinovi ´c , by the ICTY; and the indictment of Charles Taylor before the SCSL, discussed below. 52   W Schabas, ‘Is an International Tribunal Equivalent to an International Criminal Court?’ (2008) 21 Leiden Journal of International Law 513, 523–34. 53   This may be dealt with by the requirement that such courts must have jurisdiction: see W Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge, Cambridge University Press, 2006) 329. 54   Akande, n 38, 418.

Immunity 331

i.  The International Judges and Prosecutors Programme in Kosovo Although information concerning proceedings before the IJPP in Kosovo is scarce, it appears that immunity of state officials (either functional or personal) has not been raised before an IJPP panel, most probably due to the following rea­ sons. First, the ICTY may exercise primary jurisdiction in respect of the conflict in Kosovo,55 and has exercised that jurisdiction in respect of the senior officials of the Federal Republic of Yugoslavia (FRY) and Serbia most likely to have been entitled to immunity. Second, until the formal declaration of independence in 2008, Kosovo was still, de jure at least, considered part of the territory of Serbia. Thus no question of immunity under international law would have arisen, only immunities under domestic law. Moreover, it would have been inconsistent with its claim to continuing sovereignty in respect of Kosovo for Serbia to have raised immunity before the IJPP, or to have supported a claim to immunity by a senior official. The United Nations Interim Administration Mission in Kosovo (UNMIK) too would have been keen to avoid a situation where the question of sovereignty arose directly. If the immun­ity of FRY officials had arisen before the IJPP, the issue should have been considered as one arising under domestic law before a domestic tribunal. The internationalised nature of the IJPP does not alter the position regarding immunities. The Security Council conferred power on UNMIK to make regulations concerning the territory of Kosovo only.56 There is nothing in Resolution 1244 that suggested that the immunity of the FRY was to be affected. Moreover, UNMIK did not have competence to issue regulations that would affect the immunity of officials of the FRY.57 Nor do the Security Council resolu­ tions or Dayton Peace Agreement (DPA) provisions regarding obligations to cooperate with the ICTY, or noting the need to ensure accountability for viola­ tions committed in Kosovo, alter this conclusion.

ii.  The Special Panels for Serious Crimes in East Timor The potential for personal immunity to be raised before the Special Panels for Serious Crimes in East Timor (SPSC) was considerable, as the SPSC indicted sev­ eral senior Indonesian military and political figures.58 Similarly, as many of the acts that had been allegedly carried out by Indonesian personnel were in accord­ ance with orders, or government policy, there was potential for functional immun­ity to apply. Regulation 15/2000 duplicates article 27 of the Rome Statute, with section 15(2) providing that ‘Immunities or special procedural rules which 55   Statute of the International Criminal Tribunal of the Former Yugoslavia (as established by UN Security Council Resolution 808/1993 and 827/1993) UN Doc S/RES/827 (ICTY Statute) art 9. 56   UNSC Res 1244 (1999) UN Doc S/RES/1244. See ch 2, section IV(A). 57   None of the regulations issued by UNMIK contain a provision on immunity. Neither do the Provisional Criminal Code of Kosovo, the SFRY Criminal Code or the FRY criminal code. 58   eg, the SPSC indicted General Wiranto, who at the time of the indictment was contemplating standing for election as President of Indonesia.

332

Legal Barriers to the Exercise of Jurisdiction

may attach to the official capacity of a person, whether under national or inter­ national law, shall not bar the panels from exercising its jurisdiction over such a person’. The SPSC was a national institution. However, it was not clear what its legal status was before independence in May 2002. As Indonesian authority in respect of East Timor has never been generally recognised, it cannot be said that the SPSC was an Indonesian institution, thus rendering immunity of Indonesian officials a question of national law. The best view is that the SPSC were courts of an administered territory, and thus the immunity of Indonesian officials should have been considered in accordance with international law. Prosecution of Indonesian officials would be equivalent to prosecution of an official of a foreign state before a national court, subject to any waiver of immunity by Indonesia, which was not forthcoming.59 Senior officials could therefore potentially claim personal immunity while in office. As with the conclusion with regards to Kosovo, it is submitted that the authority of the United Nations Transitional Administration in East Timor (UNTAET) and its regulations do not affect this conclusion. Regulation 2000/15 is a domestic legal instrument only, and cannot affect the immunity to which a third state, such as Indonesia, is entitled under customary international law; any attempt to do so would be ineffective and potentially a violation of international law. Neither do the Security Council resolutions in relation to East Timor remove immunity. In fact, Security Council resolutions support the conclusion that the immunity to which Indonesia was entitled under international law was not to be affected, as the Security Council considered that Indonesian officials were to be investigated by Indonesian mechanisms for accountability. This may have occurred if the trials before the Ad Hoc Court had been conducted in a more impartial and independent manner.60

iii.  The War Crimes Chamber in Bosnia and Herzegovina Immunity could be raised as an issue before the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC), with potential defendants including senior officials from the FRY, Serbia and Croatia. However, as has been the case in Kosovo, the concurrent jurisdiction of the ICTY in relation to the conflict in Bosnia has largely side-stepped the issue of personal immunity, with the ICTY exercising its jurisdiction in relation to senior leaders from the FRY, Serbia and Croatia. The increase in trials for crimes arising in the conflict before the courts in Serbia and Croatia and the improvements in cooperation in the region61 also render it unlikely that the WCC will face an argument based on immunity, as 59   This is confirmed by the approach to issues of cooperation between Indonesia and UNTAET, in particular the memorandum of understanding providing for judicial assistance in criminal matters, discussed in section V(A) of this chapter. 60   See the discussion and criticism of these mechanisms in ch 2, section V(B). 61   See various reports produced by the Humanitarian Law Centre Concerning Transitional Justice in the former Yugoslav countries; International Center for Transitional Justice, Against the Current: War Crimes Prosecution in Serbia (2007); and reports of the Organization for Security and Co-operation in Europe Mission to Croatia.

Immunity 333 either Bosnia could elect to extradite the individual concerned to the state con­ cerned or that state may elect to waive immunity. Moreover, in none of the cases referred to the WCC from the ICTY was the defendant likely to raise immunity, so the interesting question of whether the referral from the ICTY would in some way impact upon immunity under national law has been avoided. As a national institution, the immunity of senior officials from these states should be consid­ ered as the immunity of officials of third states before a national institution. In accordance with the principles of immunity under international law outlined ear­ lier, those officials would be immune while in office, and after leaving office, immune in respect of official acts. The Security Council resolutions concerning the situation in Bosnia and Herzegovina do not alter this position. The Law of the State Court does not contain a provision concerning the immu­ nities of state officials, nor does the Law on Transfer.62 However, article 180(1) of the Criminal Code of Bosnia and Herzegovina provides that ‘The official position of any accused person, whether as Head of State or Government or as a responsi­ ble Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.’ It is submitted that this provision is directed toward official position as a substantive defence, and not immunity. Even assuming that this provision is directed towards immunity, it must be applicable only to the extent that the provision is consistent with international law. Otherwise any attempt to rely on this provision to try a senior official of a third state who would normally be entitled to immunity would represent a possible excessive exercise of jurisdiction by Bosnia and Herzegovina. It would also be open to a third state to waive the immunity of the official con­ cerned. It could be argued that the parties to the DPA have waived immunity as the DPA requires parties to ‘cooperate fully with all entities involved in imple­ mentation of this peace settlement . . . pursuant to the obligations of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law’.63 It also requires relevant national authorities to cooperate with the ICTY.64 However, it is submitted that this obligation to cooperate does not constitute a waiver of immunity in respect of trials before the courts of other parties to the DPA, including the WCC.

iv.  The Iraqi High Tribunal Many of the crimes committed in Iraq were committed as part of government policy or in an official capacity. However, as an accused before the IHT must be either a national of Iraq or a resident,65 this renders the possibility of an official of   The Law on Transfer regulates the law applying to cases transferred to the WCC from the ICTY.   General Framework Agreement for Peace in Bosnia and Herzegovina (Bosnia and HerzegovinaCroatia-Yugoslavia) (14 December 1995) 35 ILM 75 (1996) (Dayton Peace Agreement) (DPA), art IX. 64   DPA, art XIII(4), Annex 6. 65   See ch 2 section VII(C) and Annex 2. 62 63

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Legal Barriers to the Exercise of Jurisdiction

a third state being the subject of proceedings before the IHT virtually non-exist­ ent. However, immunity has been raised by accused based on their position in the previous Iraqi regime. Several of the accused were senior state officials of the for­ mer Iraqi regime, including the former President, Vice-President, foreign and defence ministers. Saddam Hussein, as head of the Revolutionary Command Council, together with his deputy and members of that Council, enjoyed immu­ nity in respect of any procedure under national law.66 Moreover, several of the crimes were clearly ‘official’ acts. Accordingly, in this context the IHT was required to investigate the immunity of officials under Iraqi law, not under international law. Article 15(3) of the IHT Statute provides that The official position of any accused person, whether as president, chairman or a mem­ ber of the Revolution Command Council, prime minister, member of the council of ministers, a member of the Ba’ath Party Command, shall not relieve such person of criminal penalty, nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in articles 11, 12, 13, and 14 of this law.

This provision is an unambiguous statement as to the non-applicability of domes­ tic immunities, both functional and personal, before the IHT.67 In the Dujail case,68 the IHT refused to recognise any immunity for the accused. It based this decision on two grounds. First, that the defendant was accused of having committed crimes against humanity and customary international law precluded the grant of immunity for such crimes. The reasoning of the IHT on this ground displayed some confusion. The IHT supported its conclusion by reference to the IMT, the ICTY and the ICTR, which are all international tribunals. In contrast, the IHT is a national court considering immunity for Iraqi officials under domestic Iraqi law. It is perhaps doubtful that a rule of customary international law rule presently exists such that states are prohibited from granting immunity under domestic law regarding criminal proceedings before domestic courts.69 The second ground for denying the immunity was that the successor Iraqi government, by establishing the IHT to investigate the crimes alleged to have been committed by the former regime, has repudiated the immunity that would otherwise have existed. This, it is submitted, was the preferable approach as it is more appropriate to the legal status and nature of the IHT.

v.  The Extraordinary Chambers in the Courts of Cambodia The jurisdiction of the ECCC is restricted to senior leaders of the Khmer Rouge.70 Jurisdiction therefore will not extend to officials of neighbouring states, including   Iraqi Constitution of 1970, art 240.   ‘Dujail Case’ (Saddam Hussein et al) n 14, 32.  ibid. 69   Such an obligation may be inferred where the state has an obligation to prosecute under relevant legal instruments. See ch 1, section II(B). 70   See ch 2,VIII(c) and Annex 2. 66 67 68

Immunity 335 Vietnam, Laos or Thailand, and the immunity of state officials of third states should not be raised before the ECCC. The ECCC is a national institution and, as the accused will be Cambodian nationals, the situation is one of trials of state officials before a national institution. Immunity of former state officials should not apply, as any immunity that had previously applied under national law has been removed by the ECCC Law. Moreover, the ECCC Law removes the official position of an accused as a substantive defence.71 This would extend to both func­ tional and personal immunity under Cambodian law.

vi. Conclusion For the internationalised tribunals, which are effectively domestic tribunals, the issue of immunity of the officials of third states may be a serious barrier to prose­ cution. In respect of functional immunity, the emerging exception for those offi­ cials accused of international crimes would most likely enable prosecution to proceed, at least for the international crimes within the material jurisdiction of the tribunal. It would not, however, enable prosecution for those crimes not con­ sidered international crimes for which such an exception arises, or in respect of the crimes under domestic law within the tribunal’s material jurisdiction. Personal immunity of serving senior officials of third states may be a more significant bar­ rier. Given that their basis lies in domestic law, it is unlikely that internationalised tribunals would be considered ‘certain international tribunals’ for the purpose of removing the personal immunity that would otherwise apply. In such circum­ stances, the act of issuing an arrest warrant may violate the sovereignty of the third state, unless the state concerned waived immunity, as Chad has done in rela­ tion to potential proceedings in Senegal concerning Hissène Habré.72 Thus, the potential applicability of immunity of senior officials of third states must be con­ sidered when establishing an internationalised tribunal as such officials may well fall outside the jurisdiction of the tribunal. In such circumstances, it may be nec­ essary to consider other legal bases for the establishment of the tribunal (such as establishment by a Security Council resolution), to seek a waiver of immunity, or to rely on other complementary mechanisms to secure accountability for such officials (such as referral to the ICC or proceedings in the third state).

D.  The Hybrid Tribunals Functional and personal immunities may also be raised before hybrid tribunals. In respect of functional immunities, the emerging exception for international crimes would apply, depending on the nature of the international crimes con­ tained within the tribunal’s material jurisdiction. However, in respect of personal   ECCC Law, art 29new.   See ch 3, section III(G).

71 72

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immunity, it is suggested that the legal basis of the tribunal is particularly signifi­ cant in deter­mining whether or not such immunity will apply to proceedings before a hybrid tribunal.

i.  Treaty-based Hybrid Tribunals: The Special Court for Sierra Leone The SCSL is so far the only hybrid (or internationalised) tribunal to have con­ sidered the application of personal immunities. Article 6(2) of the SCSL Statute provides that ‘The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment’. This provision is identical to that contained in the Statutes of the ICTY and the ICTR. The SCSL has considered the issue of the immunity of an incumbent head of state in relation to an arrest warrant issued in respect of the then Liberian President, Charles Taylor, on 7 March 2003.73 The sealed indictment was transferred, together with the arrest warrant, to Ghanaian authorities on 4 June 2003, as Taylor was present in Ghana for peace talks concerning the conflict in Liberia. Ghana declined to execute the arrest warrant. Taylor, relying on his immunity as an incumbent head of state, challenged both the issue of the indictment and the exercise of jurisdic­ tion by the SCSL. An application to quash the indictment was filed jointly by counsel for Taylor and the Government of Liberia, which asserted that the issue of the indictment and the circulation of the arrest warrant were violations of the sovereignty of Liberia.74 However, the Trial Chamber approved a request by the Prosecutor to strike out Liberia’s application.75 In the interim, Taylor had stepped down as President of Liberia in return for asylum in Nigeria, although the cancel­ ling of the indictment and the arrest warrant was not part of the arrangement. Nigeria indicated that it would not surrender Taylor to the SCSL.76 The Appeals Chamber of the SCSL rejected the application to quash the indict­ ment, finding that it was competent to exercise jurisdiction in respect of the accused, and that the immunity normally accorded to an incumbent head of state did not apply.77 In doing so, the Appeals Chamber relied upon the dictum of the 73   Prosecutor v Taylor (Indictment) SCSL-03-01-PT, P T Ch (7 March 2003). Taylor was initially charged with 17 counts of crimes against humanity, violations of common article 3 and Additional Protocol II, and other serious violations of international humanitarian law. The indictment was subse­ quently reduced to 11 counts: Prosecutor v Taylor (Prosecutor’s Second Amended Indictment) SCSLO3-01-PT, P T Ch (29 May 2007). 74   Prosecutor v Taylor (Applicant’s Motion Made Under Protest and Without Waiving of Immunity) SCSL-O3-01-I-015, T Ch (23 July 2003). 75   Prosecutor v Taylor (Order Pursuant to Rule 72(E): Defence Motion to Quash The Indictment and to Declare the Warrant of Arrest and All Other Consequential Orders Null and Void) SCSL-O3-01-I, T Ch (19 September 2003). 76   Nigeria’s initial decision to offer asylum and not to transfer Taylor to the SCSL was challenged in the Nigerian Federal High Court: David Anyaele and Emmanuel Egbuna v Charles Ghankay Taylor and Others. The proceedings were declared moot on 13 April 2006, following Taylor’s arrest by Nigerian authorities. 77   Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May

Immunity 337 ICJ in the Arrest Warrant case, arguing that, provided the SCSL was a ‘certain international criminal court’, head of state immunity would not operate as a bar to prosecution. The Appeals Chamber recognised that ‘the issues in this motion turn to a large extent on the legal status of the Special Court’.78 After concluding that the SCSL was an international criminal tribunal, the SCSL then stated that ‘the sovereign equality of states does not prevent a head of state from being pros­ ecuted before an international criminal tribunal or court’,79 thus omitting the qualifying word ‘certain’ from the dicta of the ICJ in the Arrest Warrant case. While it is not disputed that the SCSL is international in nature, it is suggested that the Appeals Chamber failed to recognise the significance of the method of establishment and the legal basis of the SCSL when determining the applicability of immunities under international law. It held that the SCSL was ‘established in the framework of Chapter VII of the UN Charter’80 and thus was similar to the ICTY and the ICTR. The SCSL could therefore rely on article 6(2) of the SCSL Statute as having removed the head of state immunity. There are several difficul­ ties with this statement. As a preliminary point, article 6(2) and the comparable provisions in the Statutes of the ICTY and ICTR are directed to the issue of crim­ inal responsibility, and arguably do not relate to immunities at all.81 More impor­ tantly, by focusing on the involvement of the Security Council, the Appeals Chamber mischaracterised the legal basis of the SCSL. As Nouwen notes:82 The Council did not ‘forget’ to give the Special Court the Chapter VII powers enjoyed by the ICTY and the ICTR. Both the Secretary-General in the establishment phase and the previous President of the Special Court in the operational phase of the Court have requested the Council to grant the Court Chapter VII powers, but that never occurred.

As a result, the SCSL failed to address the crucial question, which is whether an international court established by a treaty may exercise jurisdiction with respect to a sitting head of state of a third state if the claim to immunity is otherwise sup­ ported by international law. The SCSL was created by treaty and is therefore in fact closer to the ICC than to the ICTY and the ICTR. The Appeals Chamber did not dispute that a court in Sierra Leone would have been required to uphold Taylor’s immunity or else risk a finding that Sierra Leone had violated the sover­ 2004) (Taylor Immunity Decision). The application was adjudged to be a preliminary motion and was referred to the Appeals Chamber pursuant to Rule 72(E) of the RPE. The Appeals Chamber considered the issue to be one of jurisdiction, which could be raised as a preliminary challenge, and not a substan­ tive defence based on superior orders: Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, n 53, 328. 78   Taylor Immunity Decision, para 34. 79   Taylor Immunity Decision, para 52. 80   Frulli, n 45, 1119. 81   It has been suggested that this provision, which duplicates a provision found also in the statutes of the ICTY and the ICTR, is not intended to address the issue of international law immunities at all. Rather, the provision is intended to remove the substantive defence that an official acted in an official capacity when committing a crime: Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, n 53. 82   S Nouwen, ‘The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued’ (2005) 18 Leiden Journal of International Law 645, 649.

338

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eignty of Liberia. By establishing a tribunal by agreement with the United Nations, the SCSL is purporting to do what Sierra Leone could not do alone, that is, to allow a court to exercise jurisdiction with respect to an incumbent head of a for­ eign state. If, as was argued in chapter five, the SCSL Agreement does represent a delegation of jurisdiction to SCSL from Sierra Leone, then Sierra Leone cannot transfer greater powers than it enjoys. Sierra Leone could not have exercised per­ sonal jurisdiction in relation to Taylor so long as Liberia claimed immunity, therefore it could not transfer such a power to the SCSL by entering into the SCSL Agreement. Even if it were directed to immunity, reliance on article 6(2) of the SCSL Statute in relation to Taylor also neglects the principle that a treaty cannot create obligations or remove rights for a non-party state without the consent of that state. The SCSL Agreement may only create obligations for the parties to it, namely Sierra Leone and the United Nations.83 An agreement between Sierra Leone and another state(s) to establish a tribunal would not affect the immunity to be accorded to an official of a non-party state such as Liberia, even though the tribunal established would be international in nature.84 Although the United Nations is a party to the SCSL Agreement, and not another state, it is submitted that this does not modify the position regarding immunity. The United Nations has separate legal personality from its members.85 As Frulli notes, [T]herefore, the Agreement establishing the Special Court (with the annexed SCSL Statute), like any other agreement concluded by the United Nations, is binding on the Organisation as such and not on individual Member States, which remain third parties in this respect.86

The suggestion that, by accepting the Charter, Member States have also accepted that the United Nations may waive the immunity of any state by entering into an agreement to which that state is not a party is simply not credible.87 Moreover, the United Nations is required to respect rules of international law in all its activities,88 83   Vienna Convention on the Law of Treaties (adopted 22 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (Vienna Convention on the Law of Treaties 1969) art 34. 84   See Nouwen, n 82, 656. Similar issues have been raised in relation to the effect of art 27(2) of the Rome Statute on the officials of non-state parties. The better view is that, the art cannot affect the rights and obligations of states that are not party to the Rome Statute without their consent: D Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’ (2003) 1 Journal of International Criminal Justice 618, 621; M Scharf, ‘The ICC’s Jurisdiction over Nationals of Non-Party States’ (2001) 64 Law and Contemporary Problems 67; and G Danilenko, ‘The Statute of the International Criminal Court and Third States’ (2000) 21 Michigan Journal of International Law 445. 85   Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion of 11 April 1949) [1949] ICJ Rep 174. 86   Frulli, n 45, 1124. See also Z Deen-Racsmány, ‘Prosecutor v Taylor: The Status of the Special Court for Sierra Leone and Its Implications for Immunity’ (2005) 18 Leiden Journal of International Law 299 and Nouwen, n 82, 657. 87   The Appeals Chamber commented that the SCSL Agreement ‘is an agreement between all mem­ bers of the United Nations and Sierra Leone’: Taylor Immunity Decision, para 38. 88   United Nations Charter, art 1(1).

Immunity 339 including the personal immunity of a serving head of state. Only decisions taken by the Security Council acting under Chapter VII of the Charter are binding on Member States. The Security Council resolutions dealing with the SCSL have not imposed upon third states – on Liberia in particular – any obligation to cooperate with the SCSL that could possibly be interpreted as removing immunity.89 The SCSL also failed to consider what significance, if any, should be given to the fact that it was not included in the relevant paragraph of the judgment in the Arrest Warrant case as an example of a ‘certain international criminal court’.90 It must be concluded that Liberia asserted correctly that the indictment and arrest warrant were violations of its sovereignty. Moreover, Ghana and other states were not obliged to give effect to the indictment and arrest warrant issued by the SCSL, although the issue of the arrest warrant per se was not a violation of the sovereignty of Ghana.91 Similarly, Sierra Leone was not entitled to take steps to enforce the arrest warrant, had it chosen to do so. It is an interesting point as to which entity had violated the immunity of Liberia in issuing the arrest warrant, as the SCSL Agreement provides that the SCSL has separate legal personality.92 The question is whether this is opposable to other states, or whether other states may look to the parties establishing the SCSL, namely Sierra Leone and the United Nations. This appears to have been the approach adopted by Liberia, which also filed an application against Sierra Leone before the ICJ requesting the court to declare that the issue of the indictment and the arrest warrant and its circulation violated the immunity to be accorded to Liberia under international law.93 The ICJ was precluded from taking any further steps as Sierra Leone had not accepted its jurisdiction in relation to the dispute. Taylor’s counsel also filed proceedings against the SCSL and the Liberian Ministry of Justice in the Liberian Supreme Court challenging the legality of searches conducted against his home, and those of his associates.94 Of course, once Taylor stepped down as President of Liberia in August 2003, he became a former head of state and was entitled to immunity only 89   This can be contrasted with the obligation to cooperate placed on Sudan in the context of the referral of the situation in Darfur to the ICC: UNSC Res 1593 (2005) UN Doc S/RES/1593, para 2. In the light of the decision by the ICC to issue an arrest warrant in respect of President Bashir of Sudan, it has been suggested that this obligation removes the immunity of the President or, alternatively, obliges the Government of Sudan to waive the immunity of its head of state. For further discussion see: S Williams and L Sherif, ‘The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’ (2009) 14 Journal of Conflict and Security Law 71; D Akande, ‘The Bashir Indictment: Are Serving Heads of State Immune from ICC Prosecution?’ (30 July 2008) Oxford Transitional Justice Research Working Paper Series; and G Sluiter, ‘Obtaining Cooperation from Sudan: Where is the Law?’ (2008) 6 Journal of International Criminal Justice 871. 90   The SCSL was established shortly before the judgment in the Arrest Warrant case: Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, n 53, 329. 91   The Appeals Chamber rejected the assertion by the accused that the issue of the arrest warrant and its transmission to Ghana violated that state’s sovereignty: Taylor Immunity Decision, para 57. 92   SCSL Agreement, art 11. 93   ICJ, Press Release, ‘Liberia Applies to the International Court of Justice in a Dispute with Sierra Leone Concerning an International Arrest Warrant Issued by the Special Court for Sierra Leone against the Liberian President’ (5 August 2003). 94   C Sriram, ‘Wrong-sizing International Justice? The Hybrid Tribunal in Sierra Leone’ (2006) 29 Fordham Journal of International Law 472, 487–88.

340

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in respect of official acts committed while in office. The SCSL would have been entitled to issue a further indictment and arrest warrant.95 It is also likely that that the actions surrounding Taylor’s transfer to the SCSL in 2006 may have consti­ tuted either a waiver by Liberia of any residual immunity enjoyed by Taylor,96 or a removal of such immunity by the Security Council.97 The SCSL has also indicted former officials of Sierra Leone, including the Minister of the Interior, Sam Hinga Norman. The issue of immunity under domestic law has not been raised by the accused, and it is arguable that, by enter­ ing into the SCSL Agreement, Sierra Leone has waived the immunity of its own state officials under both domestic law and international law. This has been done either expressly, if it is accepted that article 6(2) of the SCSL Statute is addressed to immunity, or implicitly, because it has delegated jurisdiction to the SCSL and has given a mandate to the SCSL to pursue those most responsible, which would include senior leaders. However, the SCSL Agreement is not directly incorporated into domestic law by the Ratification Act. Thus article 6(2) may not have direct application in national law, and may require further legislation to remove any immunity that may exist under national law, which Sierra Leone would be required to do due to its international obligations under the SCSL Agreement.

ii. Hybrid Tribunals Established by the Security Council: the Special Tribunal for Lebanon Immunity may prove to be a key issue for the STL. Evidence obtained by the United Nations International Independent Investigation Commission (UNIIIC) suggests that the assassination of former Prime Minister Hariri enjoyed support from both the Syrian and Lebanese intelligence services. There is also some suggestion that Syrian involvement was authorised at the highest levels of govern­ ment.98 The STL was established by the Security Council pursuant to its powers under Chapter VII of the Charter and, in this sense, is not a treaty-based tribunal but a ‘Security Council’ tribunal, and is international in nature.99 Yet the ICJ dictum in the Arrest Warrant case, which refers to immunity not being a bar to   This was recognised by the Appeals Chamber, Taylor Immunity Decision, para 59.   Taylor was arrested in Nigeria in March 2006, and then transferred to Liberia, where he was detained by UNMIL and transferred to the SCSL. See M Frulli, ‘A Turning Point in International Efforts to Apprehend War Criminals: The UN Mandates Taylor’s Arrest in Liberia’ (2006) 4 Journal of International Criminal Justice 351. 97   UNSC Res 1638 (2005) UN Doc S/RES/1638 had authorised UNMIL to apprehend and detain Taylor in the event of his return to Liberia and to transfer him, or to facilitate his transfer, to the SCSL for prosecution: para 1. The Security Council also issued requests and binding directions to specified states and the Secretary-General so as to facilitate the transfer of Taylor to the Netherlands for trial and the conduct of the proceedings: UNSC Res 1688 (2006) UN Doc S/RES/1688. 98   See the UNSC, ‘Report of the International Independent Investigation Commission established pursuant to Security Council Resolution 1595 (2005)’ (2005) UN Doc S/2005/662, para 124: ‘the deci­ sion to assassinate former Prime Minister Rafik Hariri could not have been taken without the approval of top-ranked Syrian security officials’. 99   See ch 5, section II(C). 95 96

Immunity 341 ‘certain international criminal courts’ suggests that being ‘international’ is not of itself sufficient to guarantee that immunity ratione personae will not apply. Thus it is necessary to examine the legal basis, nature and constituent instruments of the STL to determine whether immunities must be accorded by the STL to the officials of third states, in particular Syria. An important distinction between the STL and other tribunals is that there is no provision addressing immunity in the STL Statute. This omission was most likely deliberate, with a provision on immunity in early drafts of the STL Statute (based on the provision in the SCSL Statute) removed, reportedly at the request of the Russian Federation.100 As noted by Aptel:101 An unusual limitation of the Statute of the STL, when compared with all other interna­ tional and hybrid criminal jurisdictions established so far, is that it does not contain provisions stipulating that the official position of accused persons – for instance as Head of State or government or as a responsible government official – shall not relieve them of criminal responsibility nor mitigate punishment . . . This omission of a funda­ mental principle of international criminal justice could be construed as deliberate, for derogations to the general rules on the immunity of state officials are usually limited to international crimes strict sensu . . . and could therefore not apply before the STL.

Moreover, given that the limited material jurisdiction of the STL, it is necessary to consider the potential application of both immunity ratione materiae and immunity ratione personae before the STL. With respect to immunity ratione materiae, the material jurisdiction of the STL is restricted to the crime of terror­ ism, as defined in Lebanese law, although perhaps interpreted having regard to international rules.102 The STL may therefore be required to give effect to the immunity ratione materiae of officials of states other than Lebanon, as it is doubt­ ful that customary international law recognises an exception to the application of immunity ratione materiae for acts of terrorism. The French Cour de Cassation has held that terrorism does not fall within the class of international crimes permitting an exception to state immunity.103 Akande and Shah argue that the exception exists in circumstances where the older customary international law rule of immunity conflicts with the newer rule of accountability and the recogni­ tion of extraterritorial jurisdiction in respect of official acts of third states.104 100  ‘UN to Finalize Hariri International Tribunal Monday’, Nahar Net, http://old.naharnet.com/ domino/tn/NewsDesk.nsf/0/DFEA087727F80221C2257210002486CC?OpenDocument; see also N Jurdi, ‘The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1125, fn 12. 101   C Aptel, ‘Some Innovations in the Statute of the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1107, 1110–11. 102   See ch 4, section IX(D). The Appeals Chamber has indicated that the domestic provision should be interpreted having regard to the offence of terrorism under customary international law: see Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homocide, Perpetration, Cumulative Charging (Appeals Chamber Judgment) STL-11-0l/I (16 February 2011) (Decision on Applicable Law). 103   S Zappala, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation’ (2001) 12 European Journal of International Law 595. 104   Akande and Shah, n 34, 839–41.

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However, they do not include the crime of terrorism as an example of an inter­ national crime in respect of which the exception applies. While both Syria and Lebanon are party to a number of international conventions concerning terrorism,105 such conventions impose on state parties only the obligation to extradite or prosecute suspected terrorists within their territory. While such con­ ventions provide for quasi-universal jurisdiction on the basis of custody of the offender, it is not generally recognised that terrorism gives rise to universal juris­ diction absent a specific treaty obligation.106 Moreover, unlike torture and other international crimes, terrorism is not a crime that is required to be an official act. In contrast, terrorist acts are most likely to be committed by non-state actors. In fact, as indicated by the extensive consideration of this issue by the STL Appeals Chamber, it is not generally accepted that terrorism is an international crime at all.107 Accordingly, it cannot be concluded that the rule recognising immunity ratione materiae has been displaced by treaties enabling prosecution of acts of ter­ rorism by third states. In addition, the fact that the provision defining the crime in the STL Statute is based only on domestic law supports the view that immunity ratione materiae would continue to apply before the STL. In respect of immunity ratione personae, at present international law does not allow an exception to this rule for prosecution before foreign domestic courts even in respect of international crimes. Thus, it is suggested that the STL’s mater­ ial jurisdiction is in this sense largely irrelevant. Instead, the appropriate question is whether the STL constitutes a ‘certain international criminal court’ before which immunity ratione personae will not apply. It has been concluded previously that the STL is a hybrid tribunal.108 However, unlike the SCSL it was established pursuant to an exercise by the Security Council of its powers under Chapter VII of the UN Charter.109 While its legal basis certainly gives it an international character,110 it is not clear that this legal basis of itself resolves the issue of immun­ ity. The ICTY and the ICTR are not bound to give effect to the personal immunity of state officials.111 The Security Council established both tribunals acting pursu­ 105   eg, Syria is a state party to the Convention on the Suppression of the Financing of Terrorism and the Convention on the Suppression of Terrorist Bombings. 106   Akande and Shah suggest torture, enforced disappearance, war crimes committed in an interna­ tional armed conflict and possibly war crimes in non-international armed conflict, crimes against humanity and genocide. 107   See Decision on the Applicable Law, n 102, as discussed in ch 4, section III((L))(ii). 108   See ch 4, section III(N). 109   See ch 2, section III(B). 110  eg, Slobodan Miloševi c´  asserted that the ICTY lacked competence ‘by reason of his status as former President’. The Trial Chamber interpreted this as a challenge to art 7(2) of the ICTY Statute. The Trial Chamber concluded that ‘[T]here is absolutely no basis for challenging the validity of Art 7, paragraph 2, which at this time reflects a rule of customary international law’: Prosecutor v Slobodan Miloševi´c (Decision on Preliminary Motions) ICTY-99-37-PT, PT Ch (8 November 2001) para 28–34. 111   ICTY Statute, art 7(2); Statute of the International Criminal Tribunal for Rwanda (as established by Security Council Resolution 955 (1994) of 8 November 1994) (ICTR Statute) UN Doc S/RES/955, art 6(2). For the contrary view, that this is directed only at superior orders as a substantive defence, see Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone n 53.

Immunity 343 ant to its powers under Chapter VII of the UN Charter and required all Member States to cooperate with the tribunals. Due to this obligation, which is binding on all Member States by virtue of article 25 of the Charter, states must cooperate with the orders and requests of the tribunals and may not rely on state immunity to defeat the jurisdiction of the ad hoc tribunals. As Cryer et al note ‘immunities are relinquished by virtue of the paramount obligation to comply with Chapter VII decisions of the Security Council’.112 The ICJ confirmed this in the Arrest Warrant case, when it referred to these tribunals as examples of courts before which per­ sonal immunity would not apply.113 The ICC is not required to give effect to per­ sonal immunity, as at least states parties to the Rome Statute have agreed that no immunity will apply before the Court.114 The position in respect of Security Council referrals to the ICC is discussed below. There are, however, a number of significant differences between these tribunals and the STL. First, as discussed above, unlike the Statutes of the ICTY and the ICTR and the Rome Statute, there is no provision in either the STL Agreement or STL Statute that applies to immunity. Its constituent instruments do not consider the issue of immunity at all. Second, the ICTY and the ICTR have tried senior officials of the territorial state(s), the former states of the former Yugoslavia and Rwanda respectively. Neither has prosecuted senior officials of states other than those states. In contrast, for the STL to prosecute an official of Syria would be to proceed further than the examples of the ICTY or the ICTR, and would represent a far greater interference with the principle of state sovereignty.115 Third, although the ICTY and the ICTR were established by the Security Council, and the STL was also established based on the powers of the Council, it cannot be said that the Security Council ‘established’ the STL in the same way as it established the ad hoc tribunals. Moreover, Resolution 1757 does not contain the general obligation on Member States to cooperate as is found in the resolutions establishing the ICTY and ICTR.116 Nor is the general obligation for Member States to cooperate that is found in the Statutes of the ad hoc tribunals replicated in the STL Statute.117 Instead, in Resolution 1757, this obligation is limited to Lebanon, with obliga­ tions under the STL Statute addressed to Lebanon only and not to Member States. Thus while it is clear that Lebanon would not be able to rely on immunity that may have been applicable as a matter of domestic law, it cannot be said that third   Cryer, et al, n 32, 550.   Arrest Warrant Case, n 37, para 61.   Rome Statute, art 27(2). 115   Though this is not to say that the ad hoc tribunals could not try senior leaders of other states; in fact, this appeared to be contemplated when the Prosecutor considered whether to investigate alleged violations of international humanitarian law by NATO forces in Kosovo: Final Report to the Prosecutor of the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (13 June 2000). 116   UNSC Res 827 (1993) UN Doc S/RES/827, para 4; UNSC Res 955 (1994) UN Doc S/RES/955, para 2. Both resolutions require Member States to cooperate with the Tribunal and to take all steps required under domestic law to implement the provisions of the resolution and the statute, including to comply with requests from the Trial Chambers. For discussion on cooperation, see this ch 6, section V below. 117   ICTY Statute, art 29; ICTR Statute, art 28. 112 113 114

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states have relinquished their right to assert personal immunity of their senior states officials by virtue of Resolution 1757. The position of immunities before the STL may also be comparable to the posi­ tion of senior officials before the ICC where a situation concerning a state that is not a party to the Rome Statute has been referred to the ICC by the Security Council. The ICC has issued arrest warrants in relation to President Bashir of Sudan.118 A Pre-Trial Chamber of the ICC has held that the immunity that President Bashir would otherwise enjoy as head of state does not apply to pro­ ceedings before the ICC, even though Sudan is not party to the Rome Statute.119 It based this decision on the view that the Security Council has adopted the legal framework provided by the Rome Statute, including article 27, and had accepted that, by referring the case, the Court would be potentially exercising jurisdiction in respect of senior state officials that would otherwise be entitled to immunity. This is not to say that article 27 applies as a matter of treaty law; to the contrary, the immunity is removed by the implied extension of article 27 of the Rome Statute by the Security Council acting under Chapter VII of the Charter, and thus binding on UN Member States, including Sudan.120 However, this argument relies on the inclusion of article 27 within the Rome Statute; without a similar provision in the STL Statute, it cannot be extended to the STL. It is also argued that the nonapplicability of immunities before the ICC in respect of Security Council referrals is based on the obligation to cooperate with the Court imposed on Sudan by Resolution 1593, which is binding on Sudan by virtue of article 25 of the United Nations Charter. In this sense, when the ICC is operating in relation to a situation referred by the Council, the ICC more closely approximates the ICTY and the ICTR than a treaty-based institution.121 However, this does not assist in the case of the immunities before the STL. As already discussed, Resolution 1757 only imposes an obligation to cooperate with the STL in respect of Lebanon, not third states. Fourth, both the ICTY and the ICTR exercised jurisdiction in respect of core international crimes only. In contrast, the STL exercises jurisdiction in relation to 118   Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest) ICC-02/05-01/09-3, P T Ch (4 March 2009) paras 40–45. In 2011, a Pre-Trial Chamber issued an arrest warrant in respect of Colonel Gaddafi, the de facto head of state of Libya following the referral of the situation in Libya to the ICC in UNSC Res 1970 (2011) UN Doc S/RES/ 2011. However, the Chamber did not address the issue of immunity, presumably either because it con­ sidered international law not to accord immunity to de facto heads of state, or because states had ceased recognising Gaddafi as even the de facto head of state: Prosecutor v Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Situation in the Libyan Arab Jamahiriya, Decision on the Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi) ICC-01/11-01/111, P T Ch I (27 June 2011). 119   Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest) para 45. 120   For further discussion, see D Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333, 336. 121   G Fletcher and J Ohlin, ‘The ICC: Two Courts in One?’ (2006) 4 Journal of International Criminal Justice 428.

Immunity 345 terrorism as a crime under Lebanese law only. Schabas suggests that jurisdiction only under domestic law renders the STL less likely to be considered a ‘certain international criminal tribunal’ and more likely that the Security Council intended that immunities in international law would be applied.122 It is arguable that the exception to personal immunity for trials before international criminal courts may be limited to courts that exercise jurisdiction in respect of core crimes (geno­ cide, war crimes and crimes against humanity) and not other crimes, including terrorism. Finally, Syria may be required to waive immunity by virtue of the various Security Council resolutions regarding terrorism several of which impose obliga­ tions on states parties to cooperate in criminal investigations and to conduct trials for terrorist acts.123 Yet these resolutions contemplate cooperation with other states, and not cooperation with an international criminal tribunal. They certainly do not mention immunity. Similarly, the terrorism conventions to which Syria is a state party impose obligations to cooperate, render assistance and to extradite or prosecute.124 Unlike the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), they do not require or contemplate proceedings before an international criminal tribunal. Nor do they consider the issue of immunity. Accordingly, Syria cannot be considered to have waived the immunity of its state officials before a hybrid tribunal when ratifying these trea­ ties.125 Moreover, Syria has indicated its willingness to prosecute its own nation­ als, which is an available option under these conventions and the relevant Security Council resolutions.126 In conclusion it appears that should the STL attempt to try senior state officials of Syria it would most likely have to respect both forms of immunity (immunity ratione materiae and immunity ratione personae) in respect of states other than Lebanon. Immunity ratione materiae will apply before the STL, as terrorism is not considered an international crime that provides an exception to functional   Schabas, ‘Is an International Tribunal Equivalent to an International Criminal Court?’, n 52.   eg, UNSC Res 1373 (2001) UN Doc S/RES/1373 provides that states shall ‘Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts’: para 2(f). 124   See, eg, the Arab Convention for the Suppression of Terrorism (League of Arab States) (22 April 1998). 125   A similar argument had been raised in the Pinochet proceedings, where there was some sugges­ tion that by becoming a party to the Torture Convention, which defined torture as an official act, and extending extraterritorial jurisdiction in respect of torture, Chile has waived or agreed that immunity would not apply: R v Bartle and the Commissioner of Police for the Metropolis and Others, ex p Pinochet; R v Evans and Another and the Commissioner of Police for the Metropolis and Others, ex p Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division) (No 3) [1999] UKHL 147, 204–06 per Lord Browne-Wilkinson, 261–62 per Lord Hutton and 266–67 per Lord Saville. 126   Note that this argument did not preclude the Security Council from acting to secure a trial before a court outside of Libya of the individuals accused of committing the 1998 bombing of Pan Am Flight 103 over Lockerbie. See: UNSC Res 748 (1992) UN Doc S/RES/748 and UNSC Res 883 (1993) UN Doc S/RES/883; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States) (Preliminary Objections) [1998] ICJ Rep 115. 122 123

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immun­ity. Similarly, for the reasons outlined above, the argument that personal immunity is not applicable before the STL is not as clear as it is before the ICTY and the ICTR, or in relation to Security Council referrals to the ICC. Consequently, third states, in particular Syria, remain able to plead immunity from the jurisdic­ tion of the STL. Moreover, the application of such immunity would not be pre­ vented by adopting a treaty-based approach to the jurisdiction of the STL.127 As was seen in relation to the SCSL, this would not affect the issue of immunity of officials of third states. Assuming senior officials are targeted by the STL, it would, of course, be open to the Security Council to adopt further resolutions dealing more clearly with the issue of immunity. This could take the form of a resolution that either: (1) featured specific wording on immunity; (2) imposed on Syria a general obligation to cooperate with the STL (as did in relation to the UNIIIC); (3) requiring Syria to arrest and surrender to the STL named senior officials, which would imply removal of the waiver; or (4) amending the STL Statute to include a provision on immunity.128 Unless this occurs, the STL will not be able to exercise jurisdiction in relation to serving senior officials, unless Syria surrenders such individuals voluntarily or waives immunity, which is unlikely. Moreover, other states, which have no obligation to cooperate with the STL, may decline to execute any arrest warrant, especially when to do so may violate an obligation under international law to recognise the immunity accorded to Syria under inter­ national law.

E. Conclusion This examination of the practice of the tribunals studied as regards immunity reveals that immunity under international law will not be a major concern for many internationalised tribunals. This is particularly so where the situation lead­ ing to the establishment of the internationalised tribunal is mainly a domestic one, such as an internal armed conflict or the actions of a prior repressive regime. Even where the situation does have international dimensions, such as the inter­ national armed conflicts that may be considered by the IHT, the ECCC or the WCC, questions of immunity under international law will be effectively precluded where the personal jurisdiction of the tribunal is restricted to nationals of one state (Iraq) or a particular political affiliation (Cambodia) or there is an inter­ national criminal tribunal able to try senior leaders of any state, regardless of any immunity extended by international law (Bosnia). The main issue for those designing the tribunal is to ensure that issues of immunity under domestic law have been resolved, perhaps through the use of a clause such as article 15(3) of the   See ch 5, section II(D).   eg, in UNSC Res 1267 (1999) UN Doc S/RES/1267, the Security Council demanded that ‘the Taliban turn over Usama bin Laden without further delay to appropriate authorities in a country where he has been indicted . . . or to appropriate authorities in a country where he will be arrested and effectively brought to justice’. 127 128

Immunity 347 IHT Statute or by a separate law repealing any immunity under the Constitution or other relevant instrument. However, immunity may be a significant issue for an internationalised tribunal where there are international aspects to a situation, for example the role of Indonesia in the violence committed in East Timor. It is suggested here that, as internationalised tribunals should be considered to be domestic courts for the purpose of immunity, an internationalised tribunal will be required to respect the immunity of serving senior officials of third states in accordance with customary international law, unless the state concerned has waived that immunity. This is regardless of any provision in national law or the tribunal’s constituent instrument that purports to remove immunity: any attempt to rely on such a provision to issue an arrest warrant would potentially constitute a violation of the sovereignty of the third state. The use of an internationalised institution thus has serious disadvantages if the immunity of a third state is likely to be an issue, especially where the third state is unlikely to cooperate or to waive immun­ity. However, the internationalised tribunal may be able to exercise juris­ diction in respect of official acts of former senior officials and lower-level officials, as at least some of the crimes included within the material jurisdiction of such tribunals are core crimes for which an exception to immunity ratione materiae appears to have developed. The position regarding hybrid tribunals is more complicated. In this context, the legal basis of the hybrid tribunal in question is vital to resolving accurately questions of immunity under international law. Regarding functional immunity, provided the crimes within the material jurisdiction of the hybrid tribunal are core crimes, the exception to immunity ratione materiae would also extend to hybrid tribunals. Where the material jurisdiction does not include such crimes, it is likely that immunity ratione materiae will continue to apply for official acts. In respect of personal immunity, where the hybrid tribunal is established by a treaty, a provision in the treaty purporting to remove the immunity of serving senior state officials of third states will not be effective unless the state in question is a party to the treaty establishing the tribunal or agrees to waive immunity. The approach adopted by the SCSL in the Taylor Immunity Decision was in this respect flawed and did not take into account the treaty-based nature of that institution. Instead, the SCSL should have confirmed that Taylor retained immunity while in office, unless Liberia had waived that immunity.129 A hybrid tribunal established by the Security Council may not fare any better. A resolution adopted by the Security Council in relation to the establishment of a hybrid tribunal does not automatically remove the immunity of a third state: whether it does so will depend on the terms of the resolution, the context to the resolution and the provisions of the constituent instruments of the tribunal. If the immunity of serving senior officials of third states is likely to be an issue, the Security Council should consider including specific wording removing immunity either in the Security Council resolution or in the constituent instruments of the   Deen-Racsmány reaches the same conclusion: n 86, 319.

129

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tribunal. Alternatively, the Security Council resolution could impose an obliga­ tion to cooperate with the tribunal on third states generally, an obligation addressed to named states, or wording as to a named individual, which would, by implication, remove the immunity ordinarily accorded to that individual. The difficulties with the reasoning of the Appeals Chamber in the Taylor Immunity Decision have led some commentators to suggest that the criterion advanced by the ICJ in the Arrest Warrant case – the distinction between a national and international court – is problematic. Critics suggest that the nature of the conduct in question should be used instead.130 The approach adopted by the ICJ is problematic, as it is not always clear on which side of this line a tribunal will fall. As has been seen in this study, it is not always easy to classify courts with an inter­ national element as either national or international. This does not provide much certainty for states and the United Nations in establishing such tribunals, the judges that must determine whether immunity applies, and the defendants that are, or may be, the subject of proceedings before such institutions. However, the ICJ was firm in its rejection of the nature of the conduct as the determining factor for immunity. It is submitted here that some of the uncertainty may be overcome by considering potential issues of immunity when deciding the nature and legal basis of a tribunal and when drafting the constituent instruments of the tribunal.

IV. Amnesties A. Introduction Mallinder notes that ‘[A]mnesty has traditionally been understood in a legal sense to denote efforts by governments to eliminate any record of crimes occurring, by barring criminal prosecutions and/or civil suits’.131 Amnesties are ‘[f]requently, evenly routinely, endorsed during transition from one regime to another, or as part of a peace settlement’,132 and are often perceived as a vital tool to ensure the end of a conflict or a peaceful transition. As with immunity,133 an amnesty may restrict the personal jurisdiction of a court and also the substantive jurisdiction where the amnesty is granted in respect of specified crimes. The jurisdiction of several of the tribunals studied is potentially affected by amnesties. However, before considering the legality and scope of particular amnesties, it is necessary to   eg, Nouwen, n 82, 658.   L Mallinder, Amnesty, Human Rights and Political Transitions (Oxford, Hart Publishing, 2008) 5. 132   B Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the Rule of Law (Oxford, Oxford University Press, 2003) 93. 133   Amnesty must be distinguished from official immunities under national and international law, which attach to an official by virtue of his or her position, or to an act due to its official nature: see discussion in this ch 6, section III. 130 131

Amnesties 349 consider briefly the lawfulness of amnesties under customary international law.134 The permissibility of an amnesty is often linked to the existence of an obligation to prosecute certain crimes either under treaty law or in customary international law. Treaties that incorporate an obligation to prosecute include the Geneva Conventions (in respect of grave breaches), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Genocide Convention. Certain commentators have also suggested that international human rights law requires prosecution of offenders and thus precludes amnesty135 and it has also been argued that customary international law may require prosecution in respect of crimes against humanity.136 However, there is disagreement amongst scholars as to whether there exists an obligation to prosecute beyond specific treaty obligations.137 An examination of state practice does not support the exist­ ence of a general duty to prosecute. In fact, as Scharf concludes, ‘to the extent any state practice in this area is widespread, it is the practice of granting amnesties or de facto impunity to those who commit crimes against humanity’.138 United Nations practice has, in the past at least, been somewhat inconclusive. Despite issuing guidelines for negotiators that oppose the inclusion of amnesties in negotiated settlements,139 the United Nations has been involved in brokering sev­ eral peace agreements containing amnesties, including in Sierra Leone.140 However, more recently the United Nations has adopted a position that ‘United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights’.141 134   Amnesties are not expressly prohibited or permitted in any treaty, with the exception of art 6(5) of Additional Protocol II. This provision, however, has been interpreted as applying to the principle of not prosecuting combatants for their role in an armed conflict and not amnesties in the broader sense. 135   See D Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537 and N Roht-Arriaza, ‘The Developing Jurisprudence on Amnesty’ (1998) 20 Human Rights Quarterly 953. It is submitted that the obligation extends only to the investigation of the violation, and does not require criminal measures such as prosecution. 136   M Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems 63. 137   For a good discussion of the arguments, see M Scharf, ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’ (1996) 59 Law and Contemporary Problems 41; Orentlicher, n 135; Roht-Arriaza, n 135; S Ratner, ‘New Democracies: New Atrocities: An Enquiry in International Law’ (1999) 87 Georgetown Law Journal 707; and M Scharf, ‘Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?’ (1996) 31 Texas International Law Journal 1. 138   Scharf, ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’, ibid, 57. 139   In 1998 the United Nations issued a series of guidelines to staff engaged in negotiating peace set­ tlements. While the text of the guidelines are not publicly available, it is understood that they provide that no person representing the Secretary-General may support an amnesty for crimes against human­ ity, genocide or war crimes, or which would encourage a state to breach treaty obligations. This policy was reiterated in the ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ (3 August 2004) UN Doc S/2004/616. 140   C Stahn, ‘United Nations Peace-Building: Amnesties and Alternative Forms of Justice: A change in Practice?’ (2002) 84 International Review of the Red Cross 191. 141   UNSC, ‘Report of the UN Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict societies’ (3 August 2004) UN Doc S/2004/616, para 10. For a recent discussion of UN policy on amnesties, see UNHCHR, Rule of Law Tools for Post-Conflict States: Amnesties (2009).

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It is certainly arguable that a rule prohibiting blanket, unconditional amnesties, which in effect provide total impunity to offenders, is emerging in customary inter­ national law.142 Various criteria for ‘acceptable’ amnesties have been advanced, including: the availability of complementary mechanisms, such as a truth commis­ sion, lustration or the payment of compensation to victims; the purpose of the amnesty (to facilitate peace); the proponents of the amnesty (ie is the amnesty a ‘self-excusing’ amnesty, or is it introduced by a democratically elected government as part of a transition or as part of a United Nations negotiated settlement); and the target of the amnesty (are all sides to a conflict accorded the same treatment; does the amnesty exclude senior leaders and those most responsible for the commission of crimes).143 Limited and more focused amnesties are more likely to be accepted as valid by the affected communities, other states and the international community, including the United Nations.144 The question of the validity and lawfulness of an amnesty may be raised in several different fora: the courts of the territorial state; the courts of states exercis­ ing extraterritorial criminal jurisdiction; international human rights monitoring bodies; international criminal tribunals; and hybrid and internationalised crim­inal tribunals. While the decisions of human rights monitoring bodies may be influential in determining whether the grant of an amnesty is considered to be a violation of a state’s international obligations, such decisions are not directly rele­vant to the issue of whether the tribunals studied are required to give effect to an amnesty. Accordingly, the decisions of such bodies will not be considered further. In terms of the international criminal tribunals, the ICTY and the ICTR are not required to give effect to amnesty laws passed by the relevant territorial states, despite the absence of an express provision in their statutes to this effect. This is because their jurisdiction flows from the authority of the Security Council acting under Chapter VII of the Charter. The Security Council has given the tri­ bunals primacy in respect of national laws and courts, and any amnesty would be inconsistent with the intention of the Security Council to render offenders accountable.145 The ICTY has confirmed that amnesty would not preclude prose­ cution before the tribunal, at least in relation to the crime of torture.146 It is also import­ant to recall that, since the imposition of the completion strategy, both tribunals are focused on those most responsible, thus amnesty may remain an

142  M Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell International Law Journal 507, 512; S Williams, ‘Amnesties in International Law: The Experience of the Special Court for Sierra Leone’ (2005) 5 Human Rights Law Review 271, 293. 143  Mallinder, Amnesty, Human Rights and Political Transitions, n 131. 144   See ‘Rule of Law Tools’, n 141. 145   Y Naqvi, ‘Amnesty for War Crimes: Defining the Limits of International Recognition’ (2003) 85 International Review of the Red Cross 583, 615–16. 146   Prosecutor v Furundžija (Judgment) ICTY-95-17/1-T, T Ch (10 December 1998) Note here that the ICTY reached this conclusion based on the erga-omnes nature of torture, para 153. It did not address the issue based on the legal basis of the ICTY.

Amnesties 351 option for lower-level offenders who would not be targeted by the ICTY or the ICTR.147 The position regarding amnesties before the ICC is deliberately ambiguous. During the negotiation of the Rome Statute, two positions emerged. Certain del­ egates advocated that permitting amnesties for crimes within the jurisdiction of the ICC would enable perpetrators to absolve themselves of responsibility.148 Other states suggested that as amnesties were not prohibited by international law and can be a valuable tool for achieving peace in situations of conflict, the ICC should take account of domestic amnesties when deciding whether to exercise jurisdiction.149 This difference of opinion was never resolved and, as a result, the Rome Statute is silent on the issue. It has been suggested that the ICC could accommodate a domestic amnesty provision in a number of ways.150 The ICC’s approach to amnesty has been discussed following the issue of indictments and arrest warrants in respect of leaders of the Lord’s Resistance Army (LRA) in northern Uganda in 2005. The leaders are eligible for amnesty under a 2000 act which provided a blanket amnesty in order to encourage the LRA to surrender.151

B.  Amnesties and the Internationalised and Hybrid Tribunals Chapter five identified three different legal bases for the tribunals studied. The previous section showed that this categorisation affects the applicability of immun­ity provisions before the different tribunals. It is also relevant to whether a particular tribunal is required to give effect to an amnesty provision. 147   Both Rwanda and the states of the former Yugoslavia have passed amnesty laws, excluding from the scope of the amnesty crimes within the jurisdiction of the ICTR and the ICTY. eg, in Rwanda, offenders in the lowest two categories would be prosecuted before national gacaca courts, with the lower-level offenders not liable to imprisonment, but punishment comprising community service or some sort of arrangement with the victim. See: W Schabas, ‘Genocide Trials and Gacaca Courts’ (2005) 3 Journal of International Criminal Justice 879; J Fierens, ‘Gacaca Courts: Between Fantasy and Reality’ (2005) 3 Journal of International Criminal Justice 896; and C Kirby, ‘Rwanda’s Gacaca Courts: A Preliminary Critique’ (2006) 50 Journal of African Law 94. 148   For a discussion of the negotiations see N Roht-Arriaza, ‘Amnesty and the International Criminal Court’ in D Shelton (ed), International Crimes, Peace and Human Rights: The Role of the International Criminal Court (Ardsley, Transnational Publishers, 2000); J Gavron, ‘Amnesties in the Light of Development in International Law and the Establishment of the International Criminal Court’ (2002) 51 International and Comparative Law Quarterly 91; and R Wedgwood, ‘The International Criminal Court: An American View’ (1999) 10 European Journal of International Law 93. 149   See, in particular, the non-paper circulated by the United States Delegation to the Preparatory Commission, ‘State practice Regarding Amnesties and Pardons’ (August 1997). 150   Several provisions of the Rome Statute are said to allow the ICC to defer to domestic amnesties: art 15 (prosecutorial discretion); art 16 (deferral at the request of the Council); art 17 (complementa­ rity); art 20 (non bis in idem); and art 53 (prosecutorial discretion). For further discussion, see: M Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ n 142; D Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14 European Journal of International Law 481; and D Mazjub, ‘Peace or Justice? Amnesties and the International Criminal Court’ (2002) 3 Melbourne Journal of International Law 248; Mallinder, n 131, ch 6. 151   See discussion in Mallinder, n 131, 280–82 and Case Study 2.

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i.  Internationalised Tribunals In general, courts of a state exercising extraterritorial jurisdiction, including universal jurisdiction, are not required to give effect to an amnesty granted elsewhere.152 In deciding whether or not to give effect to an amnesty granted by the territorial state, the courts of third states often examine whether the amnesty is precluded by international law, or whether it would be inconsistent with the obligation of that state under treaty or customary law to extradite or to prose­ cute.153 However, such decisions are not directly relevant to the present discus­ sion, as none of the existing internationalised tribunals studied are exercising extraterritorial jurisdiction, except in very limited circumstances.154 The internationalised tribunals studied – the IJPP, the SPSC, the WCC, the ECCC and the IHT – all function effectively as courts of the territorial state and can be equated to national courts for the purpose of the application of an amnesty provision. As outlined by Mallinder,155 national courts tend to approach the treat­ ment of amnesties from several perspectives. First, a national court may assess the legality of the amnesty provision against pre-existing national laws, including constitutional rules. It will then be a question as to whether the amnesty provision complies with those rules or, if not, which system of laws enjoys primacy within the domestic legal system. Second, a national court may approach the legality of an amnesty from the perspective of international law, and the state’s obligations under both relevant treaties and customary international law. This in turn is influenced by the court’s opinion as to where international law lies within the domestic legal system. Moreover, it requires an examination as to whether amnes­ ties, and the particular amnesty in question, are compatible with obligations under international human rights law and international humanitarian law. However, the issue has been largely avoided in the internationalised tribunals, as the amnesty arrangements in question are designed or have been interpreted so as to exclude from their scope the international crimes that may be tried before the tribunals in question. Alternatively, amnesty has not been recommended or granted in relation to senior figures that would most likely be the target of such tribunals. For example, in East Timor, the SPSC operated concurrently with the Truth and Reconciliation Commission which investigated those who had committed minor offences during the relevant period, effectively providing an amnesty from 152   Courts in France have held that a Mauritanian law granting amnesty to members of the armed forces and the security forces did not preclude the prosecution in French courts of Ely Ould Dah, a Mauritanian general, as it had no legal effect in France: Trial Watch, Ely Ould Dah (2010). Similarly, Mexican courts have held that the amnesty granted under Argentine law had no legal effect interna­ tionally and cannot bind the courts of another state: Decision on the Extradition of Ricardo Miguel Cavallo, 140/2002, Supreme Court of Justicia (10 June 2003) 42 ILM 888 (Mexico). See the discussion in Mallinder, n 131, 294–304. 153   The exception would be where the amnesty is endorsed or imposed by the Council, see Naqvi, n 145, 591. 154   See ch 4, section III(J). 155  Mallinder, Amnesty, Human Rights and Political Transitions, n 131, ch 5.

Amnesties 353 prosecution. Investigations into other offences were retained by the Office of the General Prosecutor for investigation and trial.156 There have been two attempts to introduce formal amnesty laws in East Timor, although neither attempt has been successful.157 In addition, the Commission of Truth and Friendship had the power to request amnesty for persons responsible for violations of international humani­ tarian law, but only where such individuals have acknowledged their actions and apologised to the victims.158 However, in its final report, the Commission of Truth and Friendship elected not to recommend amnesty for any individual, finding that none of the individuals concerned had fully cooperated with its investigation.159 In Bosnia, the DPA included an amnesty from prosecution for returning refu­ gees or displaced persons charged with a crime, other than those accused of com­ mitting a serious violation of international humanitarian law.160 The DPA also included an obligation to cooperate with the ICTY.161 Both the Federation of Bosnia and Herzegovina and the Republic Sprska introduced broad amnesty laws, excluding from their scope crimes within the jurisdiction of the ICTY.162 These provisions would also exclude from the scope of the amnesty crimes within the jurisdiction of the WCC. Amnesty is also unlikely to be an issue for the IHT. Although, on 13 February 2008, the Iraqi Parliament adopted a law on amnesty,163 the amnesty does not extend to crimes against humanity, genocide, terrorism and other serious crimes that form the material jurisdiction of the IHT.164 The ECCC has been the only tribunal in this category to have considered the application of an amnesty before the tribunal in any detail.165 The ECCC Agreement 156   See UNTAET reg 2001/10 On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, in particular s 27. 157   A proposed amnesty law was passed by the parliament in 2004, but was never promulgated. The amnesty law would not have applied to offences with a possible sentence exceeding five years, but would allow a sentence reduction for such crimes. A second amnesty law – the Law on Truth and Measures of Clemency for Diverse Offences – was passed by Parliament on 4 June 2007, but subse­ quently found unconstitutional by the Court of Appeals. This law was directed at offences committed during the 2006 elections, and their aftermath, not at the 1999 referendum or at the period of the Indonesian occupation. 158   D Orentlicher, ‘Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Immunity’, submitted to the UN Commission on Human Rights (27 February 2004) UN Doc E/CN.4/2004/88. 159   Remembering Comes Hope (presented 15 July 2008). 160  See L Mallinder, ‘Retribution, Restitution and Reconciliation: Limited Amnesty in BosniaHerzegovina’ (November 2009) Working Paper No 3, Beyond Legalism: Amnesties, Transition and Conflict Transformation. 161   ibid, 77. 162   Law on Amnesty of the Federation of Bosnia and Herzegovina (30 June 1996), replaced by Law on Amnesty of the Federation of Bosnia and Herzegovina (3 December 1999). See also Amnesty Law of the Republika Srpska (4 July 1996), as amended by Law on changes and Amendments to the Law on Amnesty (1999) and the Law on Amnesty of the Republic of Bosnia and Herzegovina (23 February 1996). 163   A Rubin, ‘Ending Impasse, Iraq Parliament Backs Measures’ New York Times (Baghdad, 14 February 2008). 164   The IHT confirmed that ‘the amnesty decisions issued before the validity of this law do not com­ promise any of the accused in committing one of the crimes stipulated therein’: ‘Dujail Case’ (Saddam Hussein et al), n 14 and ‘Anfal Campaign Case’ (Appeal) 33. 165   The issue of an amnesty has arisen in discussions concerning the Special Tribunal for Burundi, and has been one of the more controversial issues in negotiations: see discussion in ch 3, section III(A).

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includes a provision precluding the Government of Cambodia from requesting ‘an amnesty or pardon for any persons who may be investigated or convicted of crimes referred to in the present Agreement’.166 In relation to the one case in which the government indicated that a pardon had been granted before entering into the ECCC Agreement, it was agreed by the Government of Cambodia and the United Nations that the ECCC would decide the scope of this pardon.167 This is reflected in the ECCC Law, which provides: 168 The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in Articles 3, 4, 5, 6, 7 and 8 of this law. The scope of any amnesty or pardon that may have been granted prior to the enactment of this Law is a matter to be determined by the Extraordinary Chambers.

The amnesty in question was granted on 14 September 1996169 to Ieng Sary in relation to a conviction in absentia in 1979 on the charge of genocide170 and in relation to a 1994 law to prohibit the Khmer Rouge as an organisation.171 In an appeal against the order for provisional detention, Ieng Sary raised the issue of the amnesty.172 The relevant provision of the amnesty states:173 An amnesty to Mr Ieng Sary, former Deputy Prime Minister in charge of Foreign Affairs in the Government of Democratic Kampuchea, for the sentence of death and confisca­ tion of all his property imposed by order of the People’s Revolutionary Tribunal of Phnom Penh, dated 19 August 1979; and an amnesty for prosecution under the Law to Outlaw the Democratic Kampuchea Group, promulgated by Reach Kram No. 1, NS 94, dated 14 July 1994.

When hearing the appeal from the decision as to pre-trial detention, the PreTrial Chamber interpreted this provision such that there were two amnesties granted by the Royal Decree. The first was in relation to sentence only (technically a pardon). The Pre-Trial Chamber held that its validity was uncertain and it most

166   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 (approved by the General Assembly 13 May 2003, adopted by Cambodia 14 October 2004) (ECCC Agreement) art 11(1). 167   ECCC Agreement, art 11(2). 168  Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the period of Democratic Kampuchea, adopted 2001 (ECCC Law) art 40. 169   Royal Decree No NS/RKT/0996/72. 170   Judgment of the People’s Revolutionary Tribunal (August 1979). 171   Law to Outlaw the Democratic Kampuchea Group, promulgated by Reach Kram No 1, NS 94, 14 July 1994. 172  See Ieng Sary (Decision on Appeal Against Provisional Detention Order of Ieng Sary) 0021l9-092007-ECCC/OCIJ(PTC03) , P T Ch (17 October 2008). 173   There is currently some dispute as to the correct wording of this provision, as a number of differ­ ent versions and English translations have been used in proceedings: Case 002, Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) 002/19-09-2007-ECCC/OCIJ (PTC75), P T Ch (11 April 2011) para 188.

Amnesties 355 likely would not preclude a conviction for genocide before the ECCC.174 The sec­ ond amnesty was an amnesty from prosecution under the Law to Outlaw the Khmer Rouge.175 The Pre-Trial Chamber noted that the offences listed in this law were not the same as the crimes within the jurisdiction of the ECCC and thus did not preclude prosecution.176 Thus the Chamber did not consider the effect of the amnesty further, or the validity of the amnesty under international law. However, it did leave scope for this question to be revisited at a later stage of proceedings.177 The ECCC has otherwise not been expressly granted jurisdiction to consider the legality of the 1994 amnesty law, and should not be called upon to do so, as the amnesty excludes leaders of the Khmer Rouge.178 When the co-investigating judges issued the closing order in Case 002, they reaffirmed their initial assessment that, even if applicable before the ECCC, the amnesty did not cover the crimes within the jurisdiction of the ECCC. Similarly, the pardon would have no effect, as it was limited to the sentence imposed by the 1979 trial.179 In determining the appeal by Ieng Sary on the closing order, the PreTrial Chamber confirmed its previous finding that the pardon related to the 1979 trial only and ‘it bears no effect on the jurisdiction of the ECCC to try Ieng Sary for the crimes charged in the Closing Order’.180 In relation to the amnesty concerning the 1994 law, the Pre-Trial Chamber again indicated that the amnesty did not apply to the crimes within the jurisdiction of the ECCC, which were not criminalised under the 1994 law. The application of the amnesty was restricted to prosecution for offences against state security and for membership of the Khmer Rouge.181 The Pre-Trial Chamber rejected an interpretation of the amnesty that would extend its applications to all crimes, including international crimes, on the basis that this would be inconsistent with the obligations of Cambodia under international treaties to which it was a party, which required Cambodia to prose­ cute and punish serious violations, and that there is no evidence that the Cambodian government intended to act inconsistently with such obligations by granting an amnesty.182 The Pre-Trial Chamber has thus avoided having to 174   Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) paras 57–58. The Pre-Trial Chamber also rejected an argument based on the ne bis in idem principle, see discussion this ch 6, sec­ tion VII below. 175   Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) para 59. 176   ibid, para 61. 177   The Pre-Trial Chamber noted that not making submissions at this stage cannot be considered a waiver of the right to do so at a later stage: Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) para 23. 178   R Slye,‘The Cambodian Amnesties: Beneficiaries and the Temporal Reach of Amnesties for Gross Violations of Human Rights’ (2004) 22 Wisconsin International Law Journal 100. Slye suggests that the ECCC should issue an opinion on the validity of the 1994 amnesty law, arguing that ‘the tribunal judges might piece together a limited amnesty that contributes to both truth and justice’, 123. However, it is submitted that this would exceed the jurisdiction of the ECCC. 179   Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) 002/19-09-2007-ECCCOCIJ, OCIJ (15 September 2010) para 1331. 180   Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) para 194. 181   ibid, paras 199–200. 182   ibid, para 201. In particular, the Pre-Trial Chamber mentioned the Genocide Convention, the Convention Against Torture, and the Geneva Conventions. It also indicated that the grant of an

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determine the consistency of the amnesty with international law by examining its terms and scope.183 The issue of the applicability of the amnesty and pardon is, however, not finally resolved, as the Trial Chamber will have to consider the issue following the defence for Ieng Sary raising this as a preliminary objection at the trial stage.184

ii.  Hybrid Tribunals The final forum to be considered is a hybrid criminal court, namely the SCSL and the STL. The Statutes of both the SCSL and the STL contain a provision concerning the applicability of amnesties. Article 10 of the SCSL Statute provides ‘An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution’. The provision is directed at article 9 of the Lomé Accord, which extended a blanket amnesty to ‘all combatants and collaborators’ and in particular that ‘no official or judicial action’ be taken in respect of any member of the Revolutionary United Front (RUF), Armed Forces Revolutionary Council (AFRC), the Sierra Leone Army (SLA) or Civil Defence Force (CDF) for their actions from March 1991 up to the date of signature of the Lomé Accord. In the Lomé Amnesty Decision,185 the accused argued that the Government of Sierra Leone was bound by the Lomé Accord, as an international agreement, which could not be amended without the consent of all the parties to the agreement, including the RUF. The Appeals Chamber rejected this argument, finding that although international actors, including the United Nations, had signed the agreement as mediators, this did not render the agreement international in nature.186 Moreover, the Appeals Chamber considered it to be unlikely that the parties to the conflict, in particular amnesty for crimes against humanity would have been incompatible with Cambodia’s obligations under the ICCPR. 183   cf the approach adopted by the SCSL, see this ch 6, section IV(B)(ii) below. 184   Trial Chamber Memorandum re: Additional Preliminary Objections Submissions (Amnesty and Pardon) (12 May 20 II) E5118. 185   Prosecutor v Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-04-15-PT-060, A Ch (13 March 2004) (Amnesty Decision). Counsel for two other accused, Fofana and Gbao, submitted briefs as interveners. The amnesty provision was also raised in three other decisions: Prosecutor v Kondewa (Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord) (Appeals Chamber) SCSL-04-14-T-128 (25 May 2004); Prosecutor v Gbao (Decision on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court) SCSL-2004-15-AR72(E), A Ch (25 May 2004); and Prosecutor v Fofana (Decision on Preliminary Motion on Lack of Jurisdiction: Illegal Delegation of Jurisdiction by Sierra Leone) SCSL-2004-14-AR72(E), A Ch (25 May 2004). In all three cases, the SCSL adopted the reasoning in the Amnesty Decision. 186   Amnesty Decision, paras 41–42. For the view that negotiated settlements in respect of internal armed conflicts can constitute treaties, see P Kooijmans, ‘The Security Council and Non-State Entities as Parties to the Conflict’ in K Wellens (ed), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague, Kluwer Law International, 1998) 333–46, discussed by the Appeals Chamber, paras 38–39, and A Cassese, ‘The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty’ (2004) 2 Journal of International Criminal Justice 1130, 1134–35.

Amnesties 357 the RUF, had the capacity to enter into international agreements.187 The Appeals Chamber then considered whether it had the competence to review the legality of the SCSL Statute, in particular article 10, and the SCSL Agreement. It concluded that it did not, unless it considered the provisions in question to be void for being inconsistent with a peremptory norm of inter­national law.188 The Appeals Chamber then considered whether amnesties may lawfully be granted in respect of international crimes. Having reached the conclusion it did with respect to the jurisdictional issue, the SCSL did not have to consider the validity of the amnesty further, so this discussion was technically dicta. The Appeals Chamber held that, where international crimes are subject to universal jurisdiction, ‘a State cannot deprive another State of its jurisdiction to prosecute the offender by the grant of an amnesty’.189 It also indicated that this principle would apply to prosecution before an international tribunal.190 While the Appeals Chamber recognised that ‘not every activity that is seen as an international crime is susceptible to universal jurisdiction’,191 it concluded that the crimes in articles 2 to 4 of the SCSL Statute ‘are international crimes and crimes against humanity’192 and that states can exercise universal jurisdiction in respect of such crimes.193 The Appeals Chamber also endorsed the submission of the amicus curiae that:194 ‘given the existence of a treaty obligation to prosecute or extradite an offender, the grant of amnesty in respect of such crimes as are specified in articles 2 to 4 of the Statute of the Court is not only incompatible with, but is in breach of an obligation of a State towards the international community as a whole’.

The Appeals Chamber noted that a prohibition against amnesties in relation to serious violations of international law was a ‘crystallising international norm’195 and that ‘this court is entitled in the exercise of its discretionary power, to attri­ bute little or no weight to the grant of such an amnesty’.196 It therefore concluded that, regardless of any affect the amnesty may have had in domestic law, ‘it is inef­ fective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction’.197   Amnesty Decision, para 48.   Amnesty Decision, para 62, relying upon arts 53 and 64 of the Vienna Convention on the Law of Treaties 1969. The Appeals Chamber distinguished the decision of the ICTY in the Tadi c´  Jurisdiction Decision based on the status that the SCSL is a treaty-based institution. For criticism of this aspect of the decision, see S Meisenberg, ‘Legality of Amnesties in International Humanitarian Law: The Lomé Amnesty Decision of the Special Court for Sierra Leone’ (2004) 86 International Review of the Red Cross 837, 841–42 and Williams, n 142. 189   Amnesty Decision, para 67. 190   ibid, para 72. 191   ibid, para 68. 192   ibid, para 69. 193   ibid, para 70. 194   ibid, para 73. Submissions were filed on behalf of Redress and by Professor Diane Orentlicher. 195   ibid, para 82, quoting the submission by the Prosecutor. 196   ibid, para 84. 197   Amnesty Decision, para 88. 187 188

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The Lomé Amnesty Decision has been heavily criticised, and rightly so. Most importantly for the present study, the decision failed to consider the legal basis of the SCSL as a court established by a treaty. The SCSL operates on the basis of del­ egated territorial jurisdiction from Sierra Leone and does not operate on the basis of universal jurisdiction. If Sierra Leone, by granting an amnesty, has relinquished the jurisdiction its courts could otherwise have exercised, it could not have dele­ gated that jurisdiction to the SCSL. Similarly, the analogy made between the SCSL and the position of a foreign state is not appropriate in these circumstances. Accordingly, there is some merit in the arguments of the accused on this point. Second, the Appeals Chamber reached a sweeping conclusion that all the inter­ national crimes within its material jurisdiction were subject to universal juris­ diction. This is not necessarily so, particularly regarding the commission of war crimes in internal armed conflicts. As Cassese notes, ‘the Court did not corrobor­ ate [this proposition] with any authority’.198 Third, the Appeals Chamber referred to treaties imposing an obligation to prosecute or extradite, but did not examine whether such an obligation existed in the circumstances in question, particularly having regard to Sierra Leone’s treaty obligations. There is no treaty obligation on Sierra Leone to prosecute the crimes within the SCSL Statute.199 Fourth, the rea­ soning of the Appeals Chamber ‘appears obscure and unnecessarily torturous’.200 Finally, the position adopted by the SCSL was not supported by customary international law.201 The SCSL itself accepted that there was at present no norm precluding the grant of an amnesty, accepting that ‘such a norm is developing under international law’. The better view is that no such rule presently exists.202 Moreover, the rule applied is an absolute one, which would remove amnesty as a possible tool in all circumstances. As Schabas notes, ‘Peace and reconciliation are both legitimate values that should have their place in human rights law. They need to be balanced against the importance of prosecution rather than simply discarded’.203 The Sierra Leone Truth and Reconciliation Commission adopted a different approach to the amnesty provision. While not required to pronounce as to the legality of the provision, the Truth and Reconciliation Commission indi­ 198  Cassese, ‘The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty’, n 186, 1133. 199   As discussed in ch 4, the material jurisdiction of the SCSL is restricted to violations of common art 3 of the Geneva Conventions, Additional Protocol II, other serious violation as set out in the Statute of the Special Court for Sierra Leone, 2002 (Annexed to the SCSL Agreement, 16 January 2002) (SCSL Statute) and crimes against humanity. Obligations under the grave breaches provisions of the Geneva Conventions, the Convention Against Torture and the Genocide Convention are not relevant. See W Schabas, ‘Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’ (2004-05) 11 UC Davis Journal of International Law and Policy 145, 161–62; Williams, n 142, 291–93. 200  Cassese, ‘The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty’, n 186, 1133. 201   Amnesty Decision, para 82. 202   Schabas, ‘Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’, n 199, 168, suggesting that the Appeal Chamber’s conclusions ‘most certainly go beyond existing law, as is evident from even a cursory reading of the judgment’. 203   ibid, 168.

Amnesties 359 cated its sympathy for the reasons justifying the grant of an amnesty, commenting that the amnesty ‘provided the framework for a process that pacified the combat­ ants and, five years later, has returned Sierra Leoneans to a context in which they need not fear daily violence and atrocity’.204 As a practical matter, the approach adopted by the SCSL is problematic as Sierra Leone remains bound by the amnesty,205 yet the SCSL depends on the authorities to arrest and surrender the accused.206 As Meisenberg concluded, such acts are ‘undoubtedly of a judicial and official character’ and would be within the scope of the amnesty provision.207 Apart from the approach adopted by the Appeals Chambers, there are several ways in which the application of the amnesty provision could have been avoided. It has been suggested that the grant of the amnesty was conditional upon the sup­ port of the peace process by the accused, and that the Lomé Accord became void due to the continued material breaches of its terms.208 The agreement, and its implementing legislation, would then be considered void and would not apply, including before the domestic courts of Sierra Leone.209 Thus the Lomé Accord would not have restricted the capacity of the Government of Sierra Leone to establish the SCSL. Alternatively, it could be argued that by entering into the SCSL Agreement, which delegated jurisdiction to the SCSL, and by passing the Ratification Act, the government repudiated the amnesty, at least in relation to a limited category of offenders, senior leaders and those most responsible. Successor governments are entitled to vary or extinguish an amnesty, although presumably such action must comply with domestic legal requirements. However, the Appeals Chamber unfortunately rejected this approach, finding that: 210 No reasonable tribunal will hold that the Government of Sierra Leone has reneged on its undertaking by agreeing to Article 10 of the Statute which is consistent with the 204   Commission Report, quoted from Schabas, ‘Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’, n 199, 164. 205   The Appeals Chamber did not declare the amnesty to be unlawful for the purpose of the domes­ tic legal system: Amnesty Decision, para 50. 206  Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (16 January 2002) (SCSL Agreement) art 17(2). 207   Meseinberg, n 188, 847. 208  Cassese, ‘The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty’, n 186, 1135–39, noting that although some aspects of implementation of the Lomé Accord did continue, this was merely paying lip service to its provisions. Judge Robertson adopted a similar approach in his separate opinion: Prosecutor v Kondewa (Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord) (Appeals Chamber) SCSL-0414-T-128, Separate Opinion of Justice Robertson, (25 May 2004). See also Williams, n 142, 296–300. For the view that amnesty provisions cannot be conditional, see Schabas, n 130. 209   Cassese reaches this conclusion, but also recognises that it is possible that the implementing legislation may continue to have effect within the domestic legal system of Sierra Leone: n 186, 1139– 40. However, he concludes that this would not bar the exercise of jurisdiction by the SCSL. Given the legal nature of the SCSL, it is submitted that this would bar the exercise of jurisdiction by the SCSL, for the reasons noted above. 210   Amnesty Decision, para 62. Schabas notes that this statement was surprising and odd, particu­ larly given the statements of the President of Sierra Leone on the amnesty provision: Schabas, ‘Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’, n 199, 159–60.

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developing norm of international law and with the declaration of the representative of the Secretary-General on the execution of the Lomé Agreement.

A final option would have been for the SCSL to have precluded the application of the amnesty to the accused by interpreting the terms of the amnesty strictly.211 Article 16 of the STL Agreement provides that the Government of Lebanon shall not grant an amnesty to any person for a crime falling within the jurisdiction of the STL, and that any such amnesty granted will not be a bar to prosecution. Thus the Government of Lebanon is under a clear obligation not to grant an amnesty. The second part of article 16 is reflected in article 6 of the STL Statute, which provides that ‘An amnesty granted to any person for any crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution’. To date, no amnesty has been granted in relation to the assassination of former Prime Minister Hariri or the connected acts of terrorism. The Secretary-General did not indicate why the amnesty provision was included in the STL Statute. Perhaps there had been concerns that, given the supposed high-level involvement of Lebanese officials and the possibility of changes in government, an amnesty might have been granted in the future. Lebanon does have a history of adopting amnesties, having granted a general amnesty law in relation to crimes committed during the conflict in Lebanon from 1975 to 1990.212 However, that amnesty excluded prosecutions against individuals accused of the assassination or the attempted assassination of religious and political leaders and foreign diplomats.213 Wierda et al note that ‘this exception opened the door to selective prosecutions for those opposed to the Syrian hegemony’. Thus a study of previous Lebanese practice reveals that amnesties have been granted in the past, and have become politicised.214 It would be a violation of Resolution 1757 if Lebanon were to grant an amnesty, as the terms of the STL Agreement, including the prohibition against granting an amnesty, were incorporated into the resolution. Yet it is not clear what action the Security Council would – or could – take in response to the violation. Assuming sufficient political support, it could possibly condemn the grant of the amnesty, withdraw support for the STL or to impose a sanction of some description under article 41 of the Charter. More likely is that the Security Council would leave it for the STL to determine the applicability of any amnesty granted in accordance with article 6 of the STL Statute. Interesting questions would also be raised if Syria was to grant an amnesty to any of its nationals in respect of the terrorist attacks within the jurisdiction of the STL. An amnesty issued in relation to terrorist offences may raise different con­ 211   This would have been similar to the approach adopted by the ECCC in relation to the amnesty granted to Ieng Sary, see ch 6, section IV(B)(i). 212   Amnesty Law, passed by the Lebanese Parliament on 26 August 1991. 213   Amnesty Law, art 3(3). 214   M Wierda, H Nassar and L Maalouf, ‘Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1065, 1070–71.

Amnesties 361 siderations to those raised in relation to international crimes, such as crimes against humanity, genocide and war crimes. First, terrorism is not accepted as an international crime that would be included in any emerging rule of customary international law prohibiting amnesty for international crimes.215 This difficulty is compounded in the STL Statute, as the crime is defined solely by reference to domestic law.216 Second, as Saul notes, terrorist crimes tend to target a smaller part of the population and are not widespread. Therefore, ‘amnesties for terror­ ism may not be justifiable as necessary to achieve national reconciliation or to restore harmony between rival ethnic or religious groups’.217 However, ‘amnesties for terrorism may be appropriate where it is sectarian and affects significant parts of the population or in specific cases where life is at imminent risk’.218 Third, the effect of the various terrorism conventions and the resolutions of the Security Council on terrorism must also be considered. To the extent that such instru­ ments establish for a particular state a duty to prosecute or to extradite, they may preclude the grant of an amnesty, particularly where terrorism affects victims or perpetrators from more than one state.219 As the Security Council has indicated that the terrorist acts that form the substantive jurisdiction of the STL constituted threats to international peace and security, and the Security Council has acted to establish the STL with jurisdiction in respect of those acts, arguably any grant of amnesty would be inconsistent with Resolution 1757. Accordingly, the STL would most likely be entitled not to apply any amnesty provision adopted by Syria in such circumstances.

C. Conclusion The experience of the SPSC, the WCC, the IHT and the ECCC in some respects supports the assertion that a principle is developing in customary international law such that amnesty should not be granted in respect of serious crimes. The national parliaments have passed general amnesty laws, yet all exclude from the scope of the amnesty either high-level offenders or those accused of committing serious crimes. Where an internationalised tribunal is established as part of the national judicial system, the United Nations or the state(s) providing the assist­ ance should, to the extent possible, commit the affected state to an obligation not to grant an amnesty in respect of crimes within the subject matter jurisdiction of the tribunal or at least should ensure that senior leaders are excluded from the scope of any such amnesty. 215   Although note the conclusion of the Appeals Chamber of the STL that terrorism is an interna­ tional crime, at least in time of peace: Decision on the Applicable Law, n 102. See discussion in ch 4, section III(L)(ii). 216   Note, however, the willingness of the STL to interpret the domestic provision by reference to international treaties and customary international law: Decision on Applicable Law, n 102. 217   B Saul, Defining Terrorism in International Law (Oxford, Oxford University Press, 2006) 125. 218   ibid, 125. 219   ibid, 126–27.

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Where an amnesty has already been granted to either senior leaders or a named individual that is the target of investigation, as is the case in Cambodia, it is submitted that there are three options. First, the tribunal could be allowed to determine the validity and/or applicability of the amnesty provision. This is the approach adopted in the ECCC Agreement and the ECCC Law. Second, the government of the affected state could repeal the amnesty in question, if this is possible under domestic law. Third, a decision could be taken to recognise the amnesty for a particular individual or individuals. However, this option may affect United Nations involvement in the tribunal and may violate any rule of customary international law that may be emerging precluding the grant or recog­ nition of amnesties Similarly, where a tribunal is established by a treaty, the agreement should oblige the government of the affected state not to grant a future amnesty in respect of crimes or individuals within the tribunal’s jurisdiction. In terms of amnesties already granted, such as the amnesty in the Lomé Accord, the affected state should be encouraged to revoke the amnesty in relation to those crimes and individuals within the tribunal’s jurisdiction. Where this is not possible, the parties may elect to leave the applicability of the amnesty to the tribunal to resolve, either by find­ ing the amnesty to be invalid by reference to international or domestic law, by limiting the scope of the amnesty through a restrictive interpretation or by upholding the amnesty. Alternatively, the parties could attempt to predetermine the issue by including a provision, similar to article 10 of the SCSL Statute, in the constituent instrument of the tribunal. However, as has been seen in proceedings before the SCSL, this will not preclude the court facing arguments based on the amnesty law. Where the tribunal is to be established by the Security Council, granting an amnesty that would apply to senior leaders in respect of international crimes would be inconsistent with an obligation placed on the affected state(s) to coop­ erate with the tribunal. The affected state should ensure that any amnesty laws passed exclude these individuals and crimes that fall within the jurisdiction of the tribunal. If an amnesty has already been granted, the Security Council could con­ sider including a provision excluding the application of the amnesty in respect of proceedings before the tribunal. Alternatively, the Security Council could leave the issue to the tribunal to resolve. As has been shown in relation to Lebanon, an amnesty provision in respect of terrorist attacks may raise particular issues.



Securing Custody of the Accused

363

V.  Securing Custody of the Accused A.  Introduction: Cooperation and International Criminal Tribunals All of the tribunals studied recognise the right of the accused to be present during the trial.220 They also restrict this right in varying circumstances.221 This means that, in most situations, it will be necessary to secure the custody of the accused before a trial can commence. As none of the tribunals studied have their own enforcement mechanism, they depend on the cooperation of the relevant national authorities and those of other states to enforce their orders.222 In some situations, peacekeeping forces may also play a role in detaining and transferring the accused to the custody of the tribunal.223 International law recognises two models of cooperation: the vertical, or suprastate model, and the traditional, state-based, horizontal model.224 The vertical model is characterised by an international judicial authority, usually established by a decision of an international institution, vested with sweeping powers as regards both subjects within the state and the state itself. The court has the power to issue binding orders and to enforce its orders, and states may not rely on 220  SCSL Statute, art 17(d); Special Law, art 35(d); Criminal Procedure Code Bosnia and Herzegovina, art 7; IHT Statute, art 20(1)(4); Statute of the Special Tribunal for Lebanon, Attachment to UNSC Res 1737 (30 May 2007) UN Doc S/RES/1737 (STL Statute), art 16(4)(d); UNTAET reg 2000/30, ss 6.2 and 5.1. 221   RPE SCSL, r 60; Criminal Procedure Code Bosnia and Herzegovina, arts 247 and 242; RPE ECCC, r 81; UNMIK reg 2000/1, On the Prohibition of Trials in Absentia for Serious Violations of International Humanitarian Law; UNTAET reg 2000/30, s 5; IHT Statute, art 19(4)(D), STL Statute, art 22. Art 22 of the STL Statute is the most expansive provision, as, unlike the other tribunals, the accused is not required to have been present at any stage of the proceedings. For further discussion, see P Gaeta, ‘To be (Present) or Not to Be (Present): Trials in Absentia before the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1165; Aptel, n 101; R Riachy, ‘Trials in Absentia in the Lebanese Judicial System and at the Special Tribunal for Lebanon’ (2010) 8 Journal of International Criminal Justice 1295; and N Pons, ‘Some Remarks on in Absentia Proceedings before the Special Tribunal for Lebanon in Case of a State’s Failure or Refusal to Hand over the Accused’ (2010) 8 Journal of International Criminal Justice 1307. For the argument that this provision is inconsistent with international human rights law, see W Jordash and T Parker, ‘Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law’ (2010) 8 Journal of International Criminal Justice 487. 222   The tribunals also require cooperation in gaining access to evidence, including physical and documentary evidence and witness testimony, and in enforcing sentences following conviction. While such cooperation is essential if the tribunal is to perform its mandate, these forms of cooperation will not be considered separately here. 223   eg in the former Yugoslavia, the NATO-led SFOR assisted in the arrest and surrender to the ICTY of several accused. For discussion, see H Zhou, ‘The Enforcement of Arrest Warrants by International Forces’ (2006) 4 Journal of International Criminal Justice 202 and P Gaeta, ‘Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’ (1998) 9 European Journal of International Law 174. 224   Prosecutor v Blaški´c (Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997) ICTY-95-14, A Ch (29 October 1997) para 47 (Blaški´c).

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normal exemptions to extradition, such as national security and the prohibition against the extradition of nationals, to withhold cooperation.225 The vertical model may be implemented in two ways. First, states may authorise (or may be required to authorise) the organs of an international tribunal to conduct inde­ pendently all investigative, prosecutorial and judicial activities on its territory, other than those activities, such as the execution of arrest warrants, that require the assistance of the national authorities. Second, although states may be legally obliged to cooperate with a request for assistance, all investigative, prosecutorial and judicial activities on its territory are to be carried out by the relevant national authorities, albeit with the assistance or in the presence of representatives of the international tribunal.226 The ICTY and the ICTR adopt the vertical model of cooperation, which reflects the interest of the international community in the tribunals performing their mandate.227 States of the former Yugoslavia are also under additional obligations to cooperate contained the DPA. Despite the confusion concerning the status of the former Yugoslavia’s membership of the United Nations, no state has con­ tested the obligation to cooperate with the ICTY on the basis of non-member­ ship.228 The ICTY has issued binding orders directed to states,229 international organisations,230 individuals231 and non-state actors.232 In terms of enforcement of its orders, the ICTY and the ICTR are ‘not vested with any enforcement or sanctionary power vis-à-vis States’.233 However, the President of each tribunal may inform the Security Council, its parent body, of a judicial finding of noncompliance by a state. It is then for the Council to take the action (if any) it con­ siders appropriate.234 Interestingly, the ICTR has recently indicated a more limited view of the scope of the obligation to cooperate with the ad hoc tribunals, finding 225   Blaški´c, paras 61–65. For the non-application of legal impediments to the surrender of the accused, see ICTY RPE, r 58. Note that national security is a ground for refusing production of docu­ ments in limited circumstances: ICTY RPE, r 54bis. 226  STL, Annual Report (2009–2010) (2010) paras 46–48. 227   Blaški´c, para 26. 228   cf the positions adopted in other fora: Case Concerning Legality of the Use of Force (Serbia and Montenegro v United Kingdom) [2004] ICJ Rep 1307, paras 53–77; Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) (Preliminary objec­ tions) (18 November 2008), paras 43–51. 229   See, eg, Blaški´c  , para 26; and C Warbrick and D McGoldrick, ‘Co-operation with the International Criminal Tribunals’ (1996) 45 International and Comparative Law Quarterly 947. 230   Prosecutor v Kordi´c & Cˇerkez (Order for the Production of Documents by the European Community Monitoring Mission and its Member States) ICTY-95-14/2, T Ch (4 August 2000). 231   The tribunals may only address binding orders to state officials in very limited circumstances; in most situations, requests are to be addressed to the state and not the official: Blaški´c, paras 43, 49–51. This does not preclude the tribunal requesting information concerning events witnessed in a personal capacity. See A Chaumette, ‘The ICTY’s Power to Subpoena Individuals, to Issue Binding Orders to International Organisations and to Subpoena Their Agents’ (2004) 4 International Criminal Law Review 357. 232   Prosecutor v Krsti´c (Binding Order to the Republika Sprska for the Production of Documents) ICTY-98-33-PT, T Ch (12 March 1999). 233   Blaški´c, para 33. 234   Rule 7bis, RPE of both tribunals. The Appeals Chamber confirmed that the power to make a judicial finding of non-cooperation is an inherent power of the tribunals: Blaški´c, para 33.



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that the duty to cooperate is restricted to the ‘investigation and prosecution’ stages, and does not extend to matters such as the relocation of persons acquitted by the tribunals.235 Despite the ICTY and the ICTR falling within the supra-state model of coop­ eration, securing the cooperation of states has proved to be one of the greatest challenges of the ad hoc tribunals, particularly for the ICTY in relation to the states of the former Yugoslavia. Non-cooperation has included the failure to arrest and surrender those indicted by the ICTY, non-production of documents and evidence, and interference with witnesses and defence council. The President of the ICTY has in the past reported non-cooperation to the Security Council in relation to Croatia and Serbia.236 The Bosnian authorities, particularly those of the Republika Sprska, also largely failed to cooperate with the ICTY, 237 although cooperation has improved in recent years. The Security Council responded to the findings of non-cooperation by issuing statements or further resolutions calling for cooperation and by confirming that states are under a general obligation to cooperate with the ICTY.238 Despite such calls, securing cooperation has remained difficult. While in its early stages the ICTR encountered fewer difficulties with securing cooperation than the ICTY, there have been a number of issues regard­ ing cooperation. Visa restrictions imposed by Rwanda effectively prevented wit­ nesses travelling to the ICTR (based in Arusha). This led to a formal report to the Council of non-cooperation in 2002239 and a statement by the President of the Security Council reiterating Rwanda’s obligation to cooperate with the ICTR.240 Rwanda also briefly suspended cooperation with the tribunal in 1999, following an order for release of a suspect.241 There remain some witness protection issues.242 Other current issues include the arrest and surrender of the remaining 235   In Re Andre Ntagerura (Decision On Motion To Appeal The President’s Decision Of 31 March 2008 And The Decision Of Trial Chamber III Of 15 May 2008) ICTR-99-46-A28, A Ch (18 November 2008) para 15. 236   See generally G McDonald, ‘Problems, Obstacles and Achievements of the ICTY’ (2004) 2 Journal of International Criminal Justice 558. 237   The President reported to the Council the failure of the authorities of the Republika Sprska to arrest and surrender Dragan Nikoli ´c : ‘Letter from President Gabrielle McDonald to the President of Security Council’ (2 November 1999) ICTY Doc JL/P.I.S./444-E. The Republika Sprska authorities did not surrender a suspect to the ICTY until January 2005. 238   eg: UNSC Res 1160 (1998) UN Doc S/RES/1160 (noting the FRY is required to cooperate with ICTY investigations); UNSC Res 1207 (1998) UN Doc S/RES/1207 (calling upon the FRY to imple­ ment its obligation to cooperate with the ICTY into domestic law and condemning the FRY for its failure to execute outstanding arrest warrants); and UNSC Presidential Statement 39 (18 December 2002) UN Doc S/PRST/2002/39 (reiterating the Council’s support for the ICTY and recalling the man­ datory obligation of Member States to cooperate with the ICTY). 239   See UNSC, ‘Letters from the President of the ICTR to the Council dated 26 July 2002’ (2002) UN Doc S/2002/847; and 8 August 2002 (2002) UN Doc S/2002/923. 240   UNSC Presidential Statement 39 (18 December 2002) S/PRST/2002/39. 241   Barayagwiza v Prosecutor (Decision) ICTR-97-19-AR72, A Ch (3 November 1999). The decision was reversed: 31 March 2000, with some of the judges referring to the difficulties in obtaining coop­ eration from Rwanda. 242  See, eg, M Othman, ‘The “Protection” of Refugee Witnesses by the International Criminal Tribunal for Rwanda’ (2003) 14 International Journal of Refugee Law 495.

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11 fugitives. Several suspects remain in the Great Lakes region, in particular the Democratic Republic of Congo and Uganda. Those states have largely been unable to cooperate with the ICTR due to the ongoing armed conflict in the region and the resulting difficulty in carrying out arrests, as well as a general lack of capacity on the part of national authorities.243 A high-profile suspect, Kabuga, is believed to have been at large in Kenya since 1994, with the knowledge of Kenyan officials.244 In contrast, the horizontal model is based on consensus, and the sovereign equal­ ity of states. This model forms the basis of the ‘normal’ bilateral and multilateral arrangements for judicial assistance and cooperation between states.245 Cooperation is generally provided for in a treaty and is based on reciprocity. Specified exceptions to extradition apply and cooperation may be refused on the basis of national secu­ rity and other agreed grounds. Disputes as to the interpretation of the obligation to cooperate are to be resolved by dispute settlement measures, including diplomatic channels.246 The state requested to provide assistance performs the required func­ tions (for example, arrest of suspects, interviewing witnesses) using its own authori­ ties and processes, and the results are forwarded to the requesting state. The ICC adopts a model of cooperation that is ‘a mixture of the “horizontal” and the “vertical” ’.247 The ICC relies on state consent, and lacks the support pro­ vided by a mandate from the Security Council acting under Chapter VII of the Charter. As Broomhall comments, the ‘cooperation provisions reflect a balance between the needs of an effective Court and the prerogatives of the sovereign States whose support for the Statute will underlie its success’.248 Article 86 of the Rome Statute imposes a general obligation on states to cooperate with the ICC, while article 87 enables the ICC to issue requests for assistance – not orders – to states parties. States parties must also provide the necessary procedures under domestic law that are required for cooperation with the ICC.249 The framework 243   There has been recent progress in securing arrests in this region, with increased cooperation between the ICTR and prosecutors and national authorities in these states. Arrests of two suspects were made in Uganda and the DRC in late 2009, undertaken with the support of UN peacekeepers: See UNSC ‘Report on the Completion Strategy of the International Criminal Tribunal for Rwanda’ (2010) UN Doc S/2010/259, para 23–24. 244   Despite repeated requests from the ICTR, Kenya has failed to arrest Kabuga or to provide evi­ dence that he has departed Kenya. This repeated failure led the President to report Kenya’s non-coop­ eration to the Council in May 2010: See ‘Report on the Completion Strategy of the International Criminal Tribunal for Rwanda’ UN Doc S/2010/259, para 69. The Council responded by reiterating its call upon ‘relevant States’ to increase their efforts to bring Kabuga, as well as other fugitives, to justice: UNSC Res 1932 (2010) UN Doc S/RES/1932, para 1. 245   As set out in STL, Annual Report (2009–2010) (2010). 246  G Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 382. 247   B Swart, ‘International Co-operation and Judicial Assistance: General Problems’ in A Cassese, A Eser, G Gaja, P Kirsch, A Pellet and B Swart (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 1590. See also V Oosterveld, M Perry, and J McManus, ‘The Co-operation of States with the International Criminal Court’ (2001) 25 Fordham Journal of International Law 767. 248   Broomhall, n 132, 155. 249   Rome Statute, art 88.



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adopted also ‘entails that the Contracting Parties may not assume reciprocal obli­ gations that would infringe upon rights of third States under treaties or general international law’.250 Where a state party has failed to cooperate, and that failure affects the ability of the ICC to exercise its powers and functions, the ICC may make a judicial finding to that effect and refer the matter to the Assembly of State Parties.251 Where a non-state party refers a situation to the ICC, it is expected to cooperate with the ICC in accordance with the cooperation provisions applicable to states parties.252 It is also necessary to consider the legal framework that will apply when the Security Council, acting under Chapter VII of the Charter, has referred a situation to the ICC in accordance with article 13(b) of the Rome Statute. To date, two situ­ ations have been referred to the ICC by the Council, the situation in Darfur253 and the situation in Libya.254 Neither state is a party to the Rome Statute and, absent any obligation to cooperate contained in the relevant Security Council resolution, would have been under no obligation to cooperate with the ICC.255 However, Resolution 1593 imposes an obligation on the Government of Sudan, and all par­ ties to the conflict in Darfur, to ‘cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’.256 Similarly, Resolution 1970 imposes an identical obligation on the Libyan authorities.257 Thus both Sudan and Libya are clearly required to cooperate with the ICC. States parties to the Rome Statute are obliged to cooperate with the ICC in accordance with their commitments under that treaty. However, states that are not party to the Rome Statute and international organisations are not required to cooperate with the ICC, although they may choose to do so on a voluntary basis. This is recognised in both Security Council resolutions, which urge all states and international organisations to cooperate.258 The ICC has issued a number of arrest warrants in respect of the situation in Darfur. Most controversially, in March 2009, a Pre-Trial Chamber of the ICC issued an arrest warrant in respect of President Al-Bashir.259 This decision was later revised and a further arrest warrant issued that included genocide charges.260   Swart, n 247, 1594, citing the Rome Statute, arts 73, 90, 93 and 98.   Rome Statute, art 87(5). The Assembly of State Parties is required to ‘consider . . . any question relating to non-cooperation’: art 112(2)(f). In the case of referral of a situation to the ICC by the Security Council, the ICC will inform the Security Council: art 87(7). 252   Rome Statute, art 12(3). 253  UNSC Res 1593 (2005) UN Doc S/RES/1593. See R Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195. 254   UNSC Res 1970 (2011) UN Doc S/RES/1970. 255   See Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ n 89. 256   UNSC Res 1593 (2005) UN Doc S/RES/1593, para 2. 257   UNSC Res 1970 (2011) UN Doc S/RES/1970, para 5. 258   UNSC Res 1593 (2005) UN Doc S/RES/1593, para 5; UNSC Res 1970 (2011) UN Doc S/RES/ 1970, para 5. 259   Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest). 260   Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09-95, P T Ch I (12 July 2010). 250 251

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While the issue of the arrest warrants raised important issues of state immunity,261 it also brought into question whether Sudan was required to comply with the arrest warrants, and the obligations of other states – both parties and non-parties to the Rome Statute – to arrest and surrender President Bashir should he travel outside Sudan. The decision on the issue of the arrest warrant noted Sudan’s obli­ gation to execute the arrest warrant as the obligation of states parties to the Rome Statute to arrest and surrender President Bashir if found in their territory. It also recognised that states not party to the Rome Statute and international organisa­ tions were not required to assist, but requested them to do so. However, President Bashir has subsequently travelled to several countries, including countries that are state parties to the Rome Statute, and he has not been detained.262 Article 87 of the Rome Statute provides that, in relation to a situation referred to the ICC by the Council, where there has been non-cooperation, the ICC may render a finding of non-cooperation. The Chamber must notify this decision to the ICC President, who must then transmit the finding to the Council and, if so decided, to the Assembly of State Parties. This mechanism parallels the arrangements in place for the ICTY and ICTR, and equates to the supra-state model. In April 2010, the Prosecutor filed a request for a finding on the non-cooperation of Sudan pursu­ ant to article 87 in respect of two of the outstanding arrest warrants (but not the warrants for President Bashir).263 Pre-Trial Chamber I issued a formal finding of non-cooperation in May 2010, noting that ‘the Security Council is vested with the power to address and take any action in respect of Sudan’s failure to cooperate with the Court’.264 The decision was forwarded to the United Nations and to the Security Council in June 2010,265 but the Council has not considered the issue. A further argument for cooperation in respect of Sudan may be that the inclu­ sion of charges of genocide imposes an additional obligation on Sudan – and other states – to cooperate with the ICC. States that are also party to the Genocide Convention may have additional obligations to cooperate with the arrest warrant request resulting from article VI of the Genocide Convention.266 In the Bosnia Genocide case, the ICJ interpreted article VI as imposing an obligation on Serbia 261  See Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ n 120; Williams and Sherif, n 89. 262   eg, in July 2010, authorities in Chad announced that they would not move to arrest President Bashir during a trip to Chad: ‘No Question of Chad arresting Sudan President Bashir’ BBC News (22 July 2010) www.bbc.co.uk/news/world-africa-10721704. This was significant, as it is the first time that President Bashir has travelled to a state that is a party to the Rome Statute. 263   Prosecutor v Harun and Abd-Al-Rahman (Ali Kushayb) (Prosecution Request for a Finding on the Non-Cooperation of the Government of the Sudan) ICC-02/05-01/07, P T Ch I (19 April 2010). 264   Prosecutor v Harun and Abd-Al-Rahman (Ali Kushayb) (Decision Informing the United Nations Security Council about the Lack of Cooperation by the Republic of Sudan) ICC-02/05-01/07-57, P T Ch I (25 May 2010). 265   See UNSC, ‘Letter Dated 28 May 2010 from the Secretary-General to the President of the Security Council (Registrar of the International Criminal Court)’ (1 June 2010) UN Doc S/2010/265. 266   Art VI provides: ‘Persons charged with genocide or any of the other acts enumerated in art III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.



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to cooperate with the ICTY.267 Similar arguments may be made in relation to the ICC.

B.  Cooperation and the Hybrid Tribunals The following sections will assess the cooperation model(s) that apply to the hybrid and internationalised tribunals studied. There are three situations to consider: first, securing cooperation from the territorial state; second, securing the cooperation of states ‘directly affected’; and third, securing cooperation from other states. The discussion will examine the existing tribunals based on their legal basis.

i.  Hybrid Tribunals Established by the Security Council: the Special Tribunal for Lebanon In relation to securing cooperation from Lebanon, the Government of Lebanon is required to cooperate with the STL by article 15 of the STL Agreement.268 This obligation was incorporated into Resolution 1757 and binds Lebanon as a deci­ sion of the Security Council due to article 25 of the UN Charter. The Rules of Procedure and Evidence (RPE) of the STL provide that the Prosecutor may issue a request for information and cooperation to the Lebanese authorities.269 Where cooperation is not forthcoming, the Prosecutor may seek an order from the Chamber or a Pre-Trial Judge to compel the assistance sought. If the Lebanese authorities fail to comply with the order, the President is to make a judicial find­ ing to that effect and report the matter to the Security Council.270 A finding of non-cooperation may also be reported to the Council where the Lebanese author­ ities have failed to comply with a request for deferral of proceedings.271 The STL thus adopts a mainly vertical model of cooperation in relation to requests for assistance from Lebanon. The experience of the UNIIIC and the early experience of the STL suggest that cooperation from Lebanon will be forthcoming. However, reports suggesting that the indictment includes charges against several members of Hezbollah have led to increased tension between Hezbollah-backed factions and factions sympathetic to the STL.272 Representatives of Hezbollah have also called for Lebanese authorities not to cooperate with the STL.273 267   Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, paras 439–47. 268   Art 15 requires the government to cooperate with all organs of the STL and to allow access to sites, persons and relevant documents. The government is also required to comply, without undue delay, with requests for assistance from the STL. 269   STL RPE, r 16. The Defence Office may also make such requests. 270   STL RPE, r 20. 271   STL RPE, rr 17 and 20. 272   P Kenyon, ‘Hezbollah Indictments, Syria Protests Shake Lebanon’ NPR (Beirut, 16 July 2011) www.npr.org/2011/07/16/137825397/hezbollah-indictments-syrian-unrest-shake-lebanon. 273  ‘It is an All-out War Between March 14 and Mikati’ YaLibnan (5 July 2011) www.yalibnan. com/2011/07/05/it-is-an-all-out-war-between-march-14-and-mikati/.

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Also of potential concern is the relationship between the STL and Syria, whose officials and intelligence services are suspected of involvement in the assassination of President Hariri. Neither the STL Agreement nor Resolution 1757 imposed an obligation to cooperate with the STL in respect of states other than Lebanon, including Syria. This is in contrast to the resolutions establishing the ICTY and the ICTR, which direct states to cooperate fully with the ad hoc tribunals.274 It is also in contrast to resolutions adopted by the Council with respect to cooperation with the UNIIIC, which required Member States, and specifically Syria, to coop­ erate fully.275 The Secretary-General had suggested that a similar obligation to cooperate be considered for the benefit of the STL; however, the Security Council did not act on this suggestion.276 As the STL is not a subsidiary organ of the Security Council and does not formally report to the Council, there is not a simi­ lar arrangement for judicial findings of non-cooperation to be referred to the Council as is seen in the Statutes of the ICTY and ICTR. It is possible that noncooperation by the Lebanese authorities could be referred to the Council for action. It is certainly also possible that the Security Council could adopt further resolutions – as it did regarding the UNIIIC – requiring Syria in particular, or Member States in general, to cooperate with the STL. The Security Council has issued such requests for the arrest and extradition of suspects accused of commit­ ting terrorist offences in the past.277 It has also been suggested that the existing terrorism conventions to which Lebanon or the requested state are a party may give rise to a duty to cooperate with the STL.278 However, these treaties contain only an obligation to extradite or to prosecute. As Syria has indicated that it will try any of its nationals implicated in the attacks, it would be entitled to refuse to extradite those individuals. Moreover, these conventions are restricted to cooperation between state parties, and do not extend to cooperation with an international court.279 The STL could rely on the Security Council’s resolutions regarding terrorism as establishing a duty to cooperate in terrorism matters. This approach is suggested by Resolution 1636, which states that, in the context of cooperation with the UNIIIC, ‘Syria’s continued lack of cooperation to the inquiry would constitute a serious violation 274   See B Swart, ‘Cooperation Challenges for the Special Tribunal for Lebanon’ (2007) 5 Journal of International Criminal Justice 1153. 275   UNSC Res 1595 (2005) UN Doc S/RES/1595; UNSC Res 1636 (2005) UN Doc S/RES/1636; and UNSC Res 1644 (2005) UN Doc S/RES/1644. In relation to Syria, see UNSC Res 1636 (2005) UN Doc S/RES/1636, para 11. 276   UNSC, ‘Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon’ (2006) UN Doc S/2006/893, para 53. 277   UNSC Res 748 (1992) UN Doc S/RES/748 and UNSC Res 1192 (1998) UN Doc S/RES/1192 (Libya); UNSC Res 1267 (1999) UN Doc S/RES/1267; UNSC Res 1333 (2000) UN Doc S/RES/1333 (Afghanistan) and UNSC Res 1070 (1996) UN Doc S/RES1070 (Sudan). 278   For discussion see Swart, ‘Cooperation Challenges for the Special Tribunal for Lebanon’, n 274. 279   The terrorism conventions contain obligations to extradite or prosecute and to afford assistance in investigations and extradition. Lebanon is not a party to the International Convention for the Suppression of Terrorist Bombings or the International Convention for the Suppression of Terrorist Bombings. However, both Lebanon and Syria are party to the Arab Convention for the Suppression of Terrorism.



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of its obligations under relevant resolutions, including 1373 (2001), 1566 (2004) and 1595 (2005)’.280 However, again, it may be argued that such instruments are directed at cooperation between states and not with an international tribunal.281 As with the terrorism conventions, these resolutions also contemplate prosecu­ tion by the state of nationality as an alternative to extradition, rather than surren­ der to an international court. However, future resolutions of the Council may extend these obligations to cooperation with and surrender to the STL. As a tribunal that operates outside the domestic legal system, the STL is not able to rely on existing agreements between Lebanon and other states or organisa­ tions in such areas as extradition or mutual legal assistance. However, as it pos­ sesses separate legal personality,282 the STL is able to negotiate bilateral agreements with states and international organisations as necessary. This possibility is reflected in the RPE, which recognises that the STL may invite a third state or other entity to provide assistance on the basis of an arrangement or to enter into an agreement with the STL.283 Where there is such an agreement in place, all requests and issues concerning non-cooperation are to be dealt with according to the terms of the agreement.284 Where an agreement is not in place, and hence there is no obligation to cooperate with the STL, the tribunal is limited to engag­ ing in ‘consultations’ with the authorities of the State concerned.285 The STL has entered into agreements with several international organisations.286 It has also cir­ culated a draft agreement on legal cooperation with third states, inviting states either to enter into a formal agreement to cooperate with the STL, or to adopt the terms of the draft agreement as a framework for cooperation.287 Yet, despite the STL efforts to encourage states to consider the draft agreement, it appears that, as at June 2011, no states have adopted its terms, either formally or informally. Various states have, however, indicated their willingness to cooperate with the STL on an informal and case-by-case basis.288 Thus the STL adopts a horizontal model of cooperation in respect of third states and the cooperation of third states with the STL ‘depends on three factors: the ability, the duty and the willingness of those states to provide it’.289   UNSC Res 1636 (2005) UN Doc S/RES/1636, para 5.   Swart dismisses this option, arguing that the terrorism resolutions create obligations only between states. However, this is a limited interpretation of the obligations imposed, and does not appear to be shared by the Security Council. See: Swart, ‘Cooperation Challenges for the Special Tribunal for Lebanon’, n 274, 1159. 282   Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Annex to UNSC Res 1737 (30 May 2007) UN Doc S/RES/1737 (STL Agreement) art 7. 283   STL RPE, r 13. 284   STL RPE, r 21(A). 285   STL RPE, r 21(B). 286   See the Agreement between the Special Tribunal for Lebanon and the International Committee of the Red Cross On Visits to Persons Deprived of Liberty Pursuant to the Jurisdiction of the Special Tribunal For Lebanon (12 June 2009); Cooperation Agreement Between the Special Tribunal for Lebanon and the International Police Organization (October 2009). 287  STL, Annual Report (2009–2010) (2010). 288  STL, Second Annual Report (2010–2011) (2011). 289   Swart, ‘Cooperation Challenges for the Special Tribunal for Lebanon’, n 274,1157. 280 281

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In conclusion, it appears unlikely that the STL will be able to secure custody of all accused, in particular those who may be located in Syria or protected by Hezbollah. However, this likelihood was recognised when the STL Statute was drafted. The Secretary-General noted that:290 where the conduct of joint trials for some or all of the cases falling within the jurisdic­ tion of the tribunal is likely, it [trials in absentia] would be crucial to ensure that the legal process is not unduly or indefinitely delayed because of the absence of some accused.

The STL Statute enables the trial of the absence of the accused in a wider range of circumstances than those permitted before any of the international tribunals or the other tribunals studied. An accused can be tried in absentia by the STL where he: has waived the right to be present; he is detained in a state that is not willing to cooperate with the STL; or has absconded or cannot be found and all reasonable steps have been taken to locate the accused and to inform him of the charges.291 Despite the concerns as to the legality of in absentia trials292 and the risks that such trials will undermine the right of the accused to be present,293 trials in absentia will be used to redress the lack of an obligation to cooperate with the STL on states other than Lebanon. Moreover, the availability of this mechanism means it is less likely that the Security Council will act so as to compel cooperation with the STL.

ii.  Treaty-Based Hybrid Courts: the Special Court for Sierra Leone The second method of establishment of an international or internationalised tribunal is by treaty. The terms of the relevant treaty are significant, as is the prin­ ciple that a treaty cannot create obligations for states that are not party to the treaty without their consent.294 The SCSL is an entity separate to the domestic legal sys­ tem, and cannot rely directly upon the national authorities of Sierra Leone. Instead, the SCSL Agreement imposes an obligation on the Government of Sierra Leone to cooperate with the court.295 This includes requests for the arrest, detention and transfer to the SCSL of persons within the territory of Sierra Leone.296 This obliga­ tion was incorporated into national law by the Special Court Agreement (2002) Ratification Act, which also provides the mechanisms for such cooperation. The SCSL RPE also regulates cooperation with the national authorities.297 There are 290   UNSC ‘Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon’ (2006) UN Doc S/2006/893, para 32. 291   STL Statute, art 22(1). This provision is supplemented by the RPE: see in particular rr 106, 108 and 109. For discussion of the circumstances in which a trial in absentia can proceed, see Pons, n 221. 292   See Gaeta, ‘To Be (Present) or Not To Be (Present): Trials in Absentia before the Special Tribunal for Lebanon’, n 221. 293   See Jordash and Parker, n 221. 294   Vienna Convention on the Law of Treaties 1969, arts 34 and 35. 295   SCSL Agreement, art 17. 296   SCSL Agreement, art 17(2). 297   SCSL RPE, r 8(A).



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two mechanisms for obtaining cooperation.298 First, the SCSL may issue a request to the Attorney-General of Sierra Leone, who is then obliged to ensure the request is satisfied. Second, the SCSL may issue an order that has a direct binding effect in domestic law. It is the ability to issue such orders binding as a matter of national law that distinguishes the SCSL from the ICTY and the ICTR. In the event of noncooperation, there is no enforcement mechanism, although the President, after a judicial finding of non-cooperation, may ‘take appropriate action’.299 This may include drawing the matter to the attention of the relevant authority in Sierra Leone, such as the Attorney-General, or notifying the Secretary-General. Any dispute between the Government of Sierra Leone and the United Nations as to cooperation is to be resolved by negotiation between the parties.300 In relation to third states, the SCSL Agreement cannot create obligations for non-parties. As a general matter, states are not under an obligation to cooperate with the SCSL.301 However, the SCSL has separate international legal personality and has been able to negotiate bilateral arrangements with states and inter­national obligations as and when required.302 It need not rely on the Government of Sierra Leone to issue requests to third states on its behalf. Yet, as a court operating out­ side the domestic legal system, it cannot rely on the existing treaty arrangements of Sierra Leone. While the Security Council did not establish the SCSL, it main­ tains an interest in its activities and has, in resolutions subsequent to Resolution 1315, called upon and urged states to cooperate with the SCSL.303 Such requests are not binding, but may encourage states to cooperate. The Council has not acted upon suggestions that the Council should ‘endow’ the SCSL with ‘Chapter VII powers’ and the ability to bind third states. The Security Council has issued binding resolutions regarding the SCSL on only one occasion, in relation to the transfer of the former President of Liberia, Charles Taylor, to The Hague for trial.304 The Court had been unable to secure custody of Taylor for several years, with Taylor remaining in exile in Nigeria, which was not under any obligation to surrender Taylor to the SCSL. The surrender of Taylor to the SCSL was only obtained with the support of the Council, and only when it became apparent that his continued presence in Africa was destabilising the region. Even then, the 298  See discussion of the provisions of the Ratification Act in Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246. 299   SCSL RPE, r 8(B). 300   SCSL Agreement, art 20. 301   This was confirmed in the Taylor Immunity Decision, where the Court held that Ghana did not have an obligation to cooperate with the SCSL in relation to the arrest warrant in respect of Charles Taylor. 302   SCSL Agreement, art 11. rr 8(C) and (D) of the SCSL RPE enable the SCSL to request assistance from third states on the basis of an ad hoc arrangement, a bilateral agreement with the state or any other basis. 303   UNSC Res 1508 (2003) UN Doc S/RES/1508, para 6; and UNSC Res 1537 (2004) UN Doc S/RES/ 1537, para 9. 304   UNSC Res 1688 (2006), UN Doc S/RES/1688 paras 7 and 8, deciding that the Netherlands shall not exercise its jurisdiction in relation to Taylor while he is in the custody of the SCSL and that the Netherlands ‘shall facilitate the implementation of the decision of the Special Court to conduct the trial of former President Taylor in the Netherlands’.

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Council only considered adopting a resolution under Chapter VII of the Charter as the proposed host State, the Netherlands, required such a resolution for domes­ tic legal reasons, and as the Council had to lift travel restrictions it had imposed in relation to Taylor to allow his transfer to The Hague. The legal basis of the SCSL has posed a legal obstacle to some states otherwise willing to assist the tribunal, where domestic legislation requires either a treaty basis for extradition or assistance, or a binding decision of the Security Council. For example, the United Kingdom agreed to accept Taylor in the event that he was convicted. Yet the relevant legal basis for such cooperation was not in place305 and took some time to enact.306 While the delay was not significant in relation to enforcement of a possible sentence of an accused whose trial had not concluded, it may have been if the request had been for the arrest and surrender of an accused. Similar issues may also arise where cooperation is sought from a state that is not a party to the Rome Statute or has not yet introduced appropriate implementing legislation. The uncertain legal basis of the STL may also hinder states seeking to offer cooperation to the tribunal.

C.  Cooperation and Internationalised Tribunals Internationalised courts operating effectively as national institutions, have adopted a mainly horizontal cooperation model, using existing bilateral and mul­ tilateral arrangements. Have they fared any better in securing cooperation? As discussed in chapter five, both UNTAET and UNMIK acted as the national authority when establishing and operating the SPSC and the IJPP. As the missions were the relevant government authorities within the territory for much of the mission, cooperation issues arose mainly in respect of third states. In relation to individuals located outside Kosovo or East Timor, a horizontal model was applied. This is consistent with the view that the obligation upon Member States to assist UNTAET and UNMIK in the performance of their mandate307 did not extend to a general obligation to cooperate with the SPSC and the IJPP, including extradition and the provision of legal assistance.308 In East Timor, UNTAET entered into a 305   The legal basis for cooperation with the ICTY and the ICTR is the United Nations Act 1946, sup­ plemented by the United Nations (International Tribunals) (Former Yugoslavia) Order 1996 and the United Nations (International Tribunals) (Rwanda) Order 1996. The United Nations Act allows the United Kingdom to implement resolutions of the Council under art 41 of the UN Charter only. The International Criminal Court Act 2001 was limited to cooperation with that institution. 306   The International Tribunals (Sierra Leone) Act 2007 entered into force on 18 June 2007. See also the International Tribunals (Sierra Leone) (Application of Provisions) Order 2007, which permits the implementation of the sentence enforcement agreement entered into between the United Kingdom and the SCSL. 307   In UNSC Res 1244 (1999) UN Doc S/RES/1244, the Security Council demanded that ‘all states in the region cooperate fully in the implementation of all aspects of this resolution’: see para 18. UNSC Res 1272 (1999) UN Doc S/RES/1272 states that the Security Council ‘Stresses the importance of cooperation between Indonesia, Portugal and UNTAET in the implementation of this resolution’: see para 7. 308   See Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246, 385–86, noting that it was possible that the Security Council had intended a general obligation to cooperate with the SPSC and the IJPP.



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Memorandum of Understanding with Indonesia to govern cooperation on crim­ inal matters.309 As Sluiter notes, the memorandum was ‘not based on the assump­ tion of a full and unconditional obligation incumbent upon Indonesia to provide UNTAET with all necessary assistance’.310 Ultimately, cooperation with UNTAET was extremely limited, with Indonesia refusing to extradite any suspect for trial.311 Following independence, East Timor entered into negotiations with Indonesia in a number of areas, including cooperation in legal and judicial measures, but the two states are yet to enter into a general bilateral agreement on this topic. UNTAET also exercised its capacity to enter into international agreements and to negotiate agreements with third states if required for judicial cooperation. This process continued after independence. The position of UNMIK concerning the cooperation of Serbian authorities was more problematic as until independence Kosovo remained legally part of Serbia and requests for extradition and judicial assistance technically came from the same jurisdiction.312 However, both Serbia and UNMIK appear to have treated the court systems as distinct, and adopted a horizontal model of cooperation, entering into arrangements for extradition and legal assistance in criminal mat­ ters on an ad hoc basis.313 The ambiguous legal status of Kosovo during the tran­ sitional administration also impacted upon the ability of the IJPP to secure cooperation from other states. UNMIK could request assistance on behalf of the IJPP, but there would be no legal obligation for the requested state to comply. Similarly, without the support of the Serb authorities, the IJPP was unable to rely upon the treaties to which Serbia was a party. Requests to extradite suspects to and from Kosovo were made on an ad hoc basis between UNMIK and the state concerned.314 UNMIK did negotiate a number of memoranda with states such as 309   Memorandum of Understanding between the Republic of Indonesia and the United Nations Transitional Administration in East Timor Regarding Co-operation in Legal, Judicial and Human Rights Related Matters (5 April 2000). 310   Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246, 391. For detailed discussion of the relevant provisions of the Memorandum of Understanding, see 391–93. 311   Indonesia relied upon the provisions of the Memorandum of Understanding itself, which allow for refusal of extradition and cooperation in a number of situations, and on the provision in its domestic law prohibiting the extradition of nationals. By the conclusion of the SPSC’s activities, a total of 339 indicted people remained beyond the jurisdiction of the SPSC, many believed to be at large in Indonesia: Judicial System Monitoring Programme, Overview of the Justice Sector (2005) 30–31. 312   Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246, 390. 313   eg, in 2004, the War Crimes Prosecutor of Serbia entered into an agreement with UNMIK’s Prosecutors’ Office which enabled the investigation of witnesses located in Kosovo by Serb authorities, with reciprocal access for witnesses located in Serbia. UNMIK has issued requests for extradition to authorities in Serbia. However, both UNMIK and the Serbian authorities maintained that Serbia was not a foreign jurisdiction. See ‘UNMIK Requests Serbia to Extradite Serb Leader from Northern Kosovo’ Yugoslav Daily Survey (22 August 2002). 314  UNMIK has received requests for extradition from the national authorities of the former Yugoslav Republic of Macedonia and Rwanda. UNMIK has issued requests on behalf of the IJPP for extradition to the national authorities of Austria, which refused extradition. In light of concerns that the law in Kosovo did not provide an acceptable basis for the extradition of suspects, UNMIK intro­ duced UNMIK reg 2003/34, Amending the Applicable Law on Procedures for the Transfer of Residents of Kosovo to Foreign Jurisdictions. The Regulation depended on a bilateral agreement between UNMIK and the requesting country being in place prior to transfer.

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Albania, the Federal Yugoslav Republic of Macedonia and Montenegro providing for cooperation in criminal justice matters and bilateral agreements with states to enable extradition. The ECCC is established by a national law, the ECCC Law.315 It is supported by an agreement between the Government of Cambodia and the United Nations, which assists in the establishment and operation of the ECCC.316 In terms of cooperation with Cambodia, the ECCC Agreement requires the Government to cooperate with the ECCC.317 This obligation, which was based on the cooperation provisions in the Statutes of the ICTY and ICTR, ‘appears to result in the imposition of far-reaching duties on the Cambodian authorities vis-à-vis the Extraordinary Chambers’.318 It also has direct effect in Cambodian law.319 Failure to cooperate could result in the United Nations claiming that the ECCC Agreement has been violated, although as there is no third party dispute resolution mechanism the only sanction appears to be the withdrawal of United Nations funding and assistance.320 The inclusion of a specific provision on cooperation also results in the ECCC having a separate proce­ dure for relying on the national authorities than national courts. This is not neces­ sarily a negative result, as the ECCC may still rely directly on the national authorities, but have a separate means of ensuring that requests for assistance are met.321 The ECCC thus adopts a fairly robust means of obtaining cooperation from Cambodia. The position is less clear in relation to cooperation from other states. The ECCC Agreement has not created obligations for states other than Cambodia, consistent with the principle that a treaty cannot create obligations for third states. The ECCC lacks separate legal personality and cannot negotiate agree­ ments with third states to secure their cooperation. Instead, it is dependent on the existing bilateral agreements to which Cambodia is a party and on national authorities to issue the necessary requests for assistance.322 However, this may not prove to be a major issue, as to date all of the accused have been located within the territory of Cambodia and have been arrested and transferred to the ECCC by the Cambodian authorities. As a national court, the WCC adopts a horizontal model of cooperation in rela­ tion to third states, including the states of the former Yugoslavia. The WCC relies on requests for extradition and legal assistance made by the relevant national authorities either on an ad hoc basis or in accordance with treaties for extradition and mutual legal assistance. Cooperation with other states in the region has   See Chap 2, section VIII.   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 (6 June 2003). 317   ECCC Agreement, art 25. 318   Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246, 398. 319   ECCC Agreement, art 31. 320   ECCC Agreement, art 28. 321   Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246, 398. 322  Note Sluiter’s view that while the ECCC Agreement would extend to the Government of Cambodia issuing requests to other states, it would not require the Government to negotiate new bilat­ eral agreements: Sluiter, ‘Legal Assistance to the Internationalized Criminal Tribunals’, n 246, 403–04. 315 316



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improved following ratification by Bosnia of the European Convention on Extradition.323 Cooperation from the authorities of the Republika Sprska also appears to have improved, and any difficulties in obtaining cooperation with the constituent entities have been considered a matter of domestic law. The WCC also enjoys a relationship with the ICTY and has received several cases referred to it by the ICTY, with the accused transferred from the ICTY to the Bosnian author­ ities, and then to the WCC. Rule 11bis of the ICTY RPE also contemplates the transfer of an indictment to the WCC; that is where the accused is not yet in custody, the ICTY can determine that once the accused is arrested, the arresting state must surrender the accused to the WCC. As Bohlander notes, this potentially allows the WCC to bypass bilateral or multilateral agreements, and to call on the custodial state to transfer the accused even in the absence of a treaty arrangement.324 The IHT may draw upon the resources of the Iraqi police, court and penal sys­ tem. Article 39 of the IHT Statute provides that the Council of Ministers, in con­ junction with the President of the IHT, shall issue instructions to facilitate the implementation of the IHT Statute. This presumably would include instructions to other national institutions to assist and to cooperate with the IHT. The IHT relies on a horizontal cooperation model in relation to other states, with requests for arrest and surrender to be issued by Iraqi authorities in accordance with Iraqi law and agreements to which Iraq is a party. The IHT has been heavily dependent on the assistance of the forces of the United States, the United Kingdom and other coalition partners in securing custody of and detaining suspects.325 For example, the former President, Saddam Hussein, was detained by US forces. He remained in US custody during his trial and was released to Iraqi authorities for his execution. The availability of the death penalty as a potential sentence before the IHT has produced difficulties for some states, such as the United Kingdom, in transferring suspects to the custody of the IHT for trial.326 It also raises the issue, 323   European Convention on Extradition (adopted 13 December 1957, entered into force 18 April 1960) ETS No 024. Bosnia ratified on 25 April 2005, with the treaty entering into force for Bosnia on 24 July 2005. Croatia, Serbia, the FRY Macedonia and Montenegro are also parties to this treaty. All are also parties to the European Convention on Mutual Assistance in Criminal Matters (adopted 20 April 1959, entered into force 12 June 1962) ETS No 030. 324   M Bohlander, ‘Referring an Indictment from the ICTY and ICTR to another Court – Rule 11bis and the Consequences for the Law of Extradition’ (2006) 55 International and Comparative Law Quarterly 219. 325   See CPA Memorandum 3 (18 June 2003), as amended and supplemented by the TAL (art 26). This provides for national contingents of the multinational force in Iraq to arrest and to detain criminal and security detainees and for the transfer of detainees to Iraqi authorities. See also the Memorandum of Understanding regarding criminal suspects between the United Kingdom and Ministries of Justice and the Interior of Iraq, 8 November 2004. 326   In 2003 the United Kingdom contingent arrested two Iraqi nationals, suspected of involvement in the murder of British troops. The Central Criminal Court of Iraq commenced an investigation, but in December 2007, the IHT requested the British forces to transfer the accused to the IHT, as the con­ duct constituted a war crime. The possible transfer to the IHT was the subject of legal proceedings in the United Kingdom on the basis of arts 3 and 6 of the European Convention on Human Rights. See R (Al-Saadoon) v Secretary of State for Defence [2008] EWHC 3098 (Admin) (High Court) and [2009] EWCA Civ 7 (Court of Appeal). Following the dismissal of the appeal by the Court of Appeal, the

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relevant to all the tribunals studied, of whether the tribunals satisfy minimum fair trial standards and ensure basis human rights. If this standard is not satisfied, states may be obliged by international agreements to which they are party not to extradite or transfer individuals to the custody of the tribunal concerned.327

D. Conclusion The ability to obtain the custody of the accused has been a major issue for the ad hoc tribunals, despite the statutes for the tribunals adopting a vertical cooperation model. State cooperation will also be vital to the success of the ICC, and already several arrest warrants have not been executed. Perhaps the most important issue is for a tribunal to secure the cooperation of the affected state, in which the major­ ity of the accused would normally be located. This may be done in an informal, non-binding manner, by engaging the national authorities in the design and establishment of the tribunal, and allowing normal domestic provisions to govern the assistance provided to the tribunal. This appears to have been the model adopted in Bosnia. This may not be an issue when the United Nations retains control of the territory and the national authorities as in East Timor and Kosovo. Alternatively, the obligation may be formalised as a treaty obligation by inclusion in the agreement establishing the tribunal (SCSL) or governing the terms under which assistance is to be provided (ECCC). The final option is to issue a binding order to cooperate addressed to the affected state in a Security Council resolution or to incorporate that obligation in a binding resolution (STL). Even where such obligations to cooperate are created, they may not be enforced, either because the only option is to withhold funding or withdraw from the sup­ porting agreement, or because there is insufficient political will to take action against the affected state. Even for the ad hoc tribunals that have a formal mechan­ ism for reporting non-compliance to the Security Council, there is a marked reluctance to characterise a state as ‘non-cooperative’. When this step has been taken, the Council has to date not taken any steps to enforce an obligation to cooperate with an international tribunal. Instead, it has simply reiterated calls for cooperation or restated that the state in question is obliged to cooperate. Such resolutions have had limited effect and as soon as any improvement in coopera­ tion is reported, the need for a response by the Council is reduced. There is noth­ ing to suggest that, even if an issue of non-cooperation was referred to the Council, the hybrid and international tribunals would fare any better. It is also unclear as United Kingdom authorities transferred the suspects to the IHT, despite an order for interim measures issued by the European Court of Human Rights precluding the transfer. The European Court of Human Rights held that the UK had violated art 3 (prohibition against torture) by transferring the accused to the Iraqi authorities without adequate assurances as to the availability of the death penalty: Al-Saadoon and Mufdhi v The United Kingdom (Judgment) European Court of Human Rights, Application No 61498/08 (2 March 2010). 327   Art 6 of the European Convention on Human Rights has been interpreted as requiring contract­ ing parties to not extradite an individual to a state in which the accused is unlikely to obtain a fair trial.



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to what the Council is expected to do in the face of continued non-cooperation, particularly in relation to a hybrid or internationalised tribunal that is dependent to a far greater extent on cooperation from the affected state, including relying on personnel selected and often paid by the government. The tribunal may also be operating within the territory of that state. Realistically, the Council would be restricted to diplomatic pressure and possibly the imposition of embargoes and sanctions against a state or individuals under article 41 of the Charter. It is highly unlikely that the Council would authorise the use of force to apprehend suspects, although this would perhaps be more acceptable when the United Nations or another international or regional organisation has a peacekeeping mission in the affected territory, and its mandate could be expanded to include arresting sus­ pects, with the consent of the government. All of the tribunals studied – even those established by the Security Council – have adopted a horizontal cooperation model in relation to third states, and are to an extent therefore dependent on the cooperation of such states to fulfil their mandate. This will not be a significant issue where the majority of accused are located within the territory of the affected state, as in Cambodia. However, it may undermine the effectiveness of the tribunal where the majority of the accused, particularly the senior level accused, are located outside the territory of the affected state, as occurred in East Timor. In such circumstances, impunity will only be avoided if the state in which the accused are present is prepared to cooper­ ate by extraditing the accused to the tribunal or is willing and able to try the accused before its own courts, or where there is an international tribunal able to exercise jurisdiction in respect of the accused. Of course, the Security Council may be prepared to support the tribunal to obtain custody of the accused using its binding powers under Chapter VII of the Charter, either by imposing a general obligation to cooperate with the tribunal addressed to all Member States, or a specific instruction to a named Member State. However, it is noted that the Security Council has not opted to do so in support of any of the tribunals studied, despite requests that it do so. It is thus vital to consider the potential location of the accused when designing a hybrid or internationalised criminal tribunal. Where there are significant international elements to a situation, and several sus­ pects may be outside the territorial state, this model may be inappropriate unless third states are likely to cooperate by surrendering or extraditing persons within their territory. Where obtaining custody of the accused looks unlikely, one possible option is to allow trials in absentia in a wider range of circumstances, as has been done in relation to the STL,328 or adopting a procedure similar to rule 61 of the ICTY RPE. Another approach is that adopted by the SPSC in its later stages, issuing indict­ ments containing a large number of defendants, so that while there is no prospect of obtaining custody of the defendants, the evidence is available as a matter of historical record.   See Pons, n 221.

328

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VI.  Statutes of Limitation Many domestic legal systems contain statutes of limitation, or time limits as to when criminal prosecution can occur. The United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity provides that such limitation periods should be inapplicable to the crimes of genocide, crimes against humanity and war crimes.329 However, this convention has only a relatively small number of states parties.330 While many states retain limitations under domestic law that would extend to international crimes, some national courts have held that such instruments are not applicable to international crimes.331 However, it is certainly not yet established that the application of statutory limitation periods under domestic law to international crimes is prohibited as a matter of customary international law. At the interna­ tional level, limitation periods do not apply to criminal responsibility imposed directly under international law by international criminal tribunals. The Rome Statute expressly provides that statutory limitations do not apply,332 while the ICTY has indicated that limitation periods do not apply to international crimes within the jurisdiction of that tribunal.333 It has generally not been necessary for the tribunals studied to consider whether domestic limitation periods apply to the international crimes within the jurisdic­ tion of the tribunal. This is either because the temporal jurisdiction is relatively recent, so limitation periods have not yet expired, or because the limitation period did not apply to international crimes, as those crimes had not formed part of the relevant domestic law before the creation of the tribunal. For such tribunals, the issue has generally been whether the crimes under domestic law included in the jurisdiction of a hybrid or internationalised tribunal are within the scope of a domestic limitation period. For tribunals that are established soon after the com­ mission of the alleged crimes this will not present an issue, as prosecution will be commenced well within the limitation period. Alternatively, as the limitation period has not yet expired, it is generally accepted that the domestic legislature 329   United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73. 330   As at 2 August 2011, this Convention had 54 states parties. See also the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes (adopted 25 January 1974, entered into force 27 June 2003) ETS No 082, which has even fewer states parties (seven as at 2 August 2011). 331   See, eg, the decision of the French Cour de Cassation in the Barbie case, which held that the domestic limitation period did not apply to crimes against humanity under customary international law: Prosecutor v Klaus Barbie (Arrêt) 83-94425, Chambre Criminelle (26 January 1984) 78 ILR 135. Other national courts have reached similar conclusions: see S Ratner, J Abrams and J Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 3rd edn (Oxford, Oxford University Press, 2009) and sources cited at fn 124. 332   Rome Statute, art 29. 333  See Prosecutor v Furundžija (Judgment) paras 156–57.



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could extend the limitation period, as until it has expired, the limitation period is an issue of procedure and not of substance. Where the issue may be significant is for those tribunals that have a temporal jurisdiction that extends beyond the period to which the domestic limitations period would apply. Of the tribunals studied here, the two examples are the ECCC and the IHT, for both of which the temporal jurisdiction extends back to the 1970s and therefore would include crimes in respect of which the limitation period under domestic law has already expired.334 While the IHT Statute included a provision precluding the application of the limitation period to crimes (both national and international) within the tribunal’s jurisdiction,335 it has not considered the application of this provision in any detail.336 In contrast, the issue of the application of the domestic limitation period has been considered on several occasions before the ECCC. The relevant limitation period for felonies under Cambodian law is 10 years from the time of commission of the offence.337 For the crimes under domestic law within the jurisdiction of the ECCC (murder, torture and religious persecution) that were committed during the Khmer Rouge regime, the limitation period would have expired by 6 January 1989 at the latest. The ECCC Law extended the domestic limitation period in respect of domestic crimes within the jurisdiction of the ECCC initially for a further period of 20 years (as the ECCC Law was adopted in 2001) and ultimately 30 years (in the amended ECCC Law, adopted in 2004).338 The limitation period, as extended by the ECCC Law, is therefore 40 years from the time of commission of the crimes. This extension was confirmed by a decision of the Cambodian Constitutional Council,339 which concluded that article 3new of the ECCC Law conformed to the Cambodian Constitution. Both closing orders issued by the co-investigating judges of the ECCC have included charges based on crimes under domestic law.340 However, the defence in Case 001 challenged the inclusion of crimes under domestic law, submitting that, as the limitation period had already expired by the time the ECCC Law was adopted, the right to prosecute could not be ‘reactivated’ without infringing the principle against retroactive application of criminal law.341 Accordingly, the defence argued 334   The temporal jurisdiction of the SPSC may also have raised similar issues, and UNTAET reg 2000/15 includes a provision excluding the application of the statute of limitations to genocide, crimes against humanity, war crimes and torture: s 17.1. Crimes under national law were not excluded: s 17.2. This issue did not occur, however, as cases were limited to the period surrounding the referendum, which was within the limitation period. 335   IHT Statute, art 17(4). 336   This is probably due to the fact that most charges have related to international crimes, which may not have been covered by the Iraqi limitation periods anyway. 337   Cambodian Penal Code 1956, art 109. 338   ECCC Law, art 3. 339   Decision of the Constitutional Council on EC Law, Decision No 040/002/2001 (12 February 2001) unofficial English translation. 340   The Closing Order in Case 001 included charges of murder and torture and the Closing Order in case 002 included charges of murder, torture and religious persecution. 341   Kaing Guek Eav alias Duch (Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes) (Duch-Statutes of Limitations) 001/18-07-2007/ECCC/ TC, T Ch (26 July 2010).

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that article 3 of the ECCC Law contravened the relevant inter­national standards and was invalid.342 The main issue for the ECCC has been whether the limitation period was sus­ pended during the Khmer Rouge regime and the period following it. The Trial Chamber, in the judgment in Case 001, held that ‘between 1975 and 1979, there was no legal or judicial system in Cambodia, and accordingly that no criminal investigations or prosecutions were possible during that period’, and therefore the limitation period did not commence.343 However, the judges were unable to agree as to whether the limitation period was also suspended between 1979 and 1993 and therefore whether this period had expired by the time the limitation period was extended in 2001 and again in 2004. The Chamber divided along national lines, with the Cambodian judges finding that the limitation period had not expired as, during the period 1979 until 1982 the judicial system ‘did not function at all, and operated only to a very limited extent during the years that followed’.344 When combined with the internal armed conflict and the fact the accused remained protected politically by the Khmer Rouge, which formed part of the Supreme National Council until the holding of democratic elections in 1993,345 the Cambodian judges found that the limitation period started to run on 24 September 1993 at the earliest. The period was thus not exhausted by the time of the arrest of the accused in 1999.346 There was therefore no need for the Cambodian judges to consider the question of whether the extension of the limitation period was consistent with international standards.347 In contrast, the international judges held that the evidence did not suggest that ‘the Cambodian legal system was objectively incapable of launching investigations or prosecutions prior to 1993 and that the applicable limitation period should thus be considered to have been suspended or interrupted until that date’.348 Accordingly, in the view of the international judges, the limitation period had already expired by the time the limitation period was extended in 2001 and 2004. It was thus not possible for the Cambodian legislature to ‘extend’ a period that had already ended by the language used in article 3; instead, what was required was unambiguous language ‘to impose either a retroactive suspension of the applicable limitation period, or the reinstatement of the right to prosecute after its expiry’.349 Even if this had been what was intended, the international judges, after considering the provisions of articles 14 and 15 of the ICCPR,350 held that:351   Ibid, para 4.   Ibid, para 14. 344   Duch (Statute of Limitations) Opinion of Judges Nil Nonn, Ya Sokhan and Thou Mony, para 19. 345   Duch (Statute of Limitations) paras 20–24. 346   ibid, para 25. 347   ibid, para 36. 348   Duch (Statute of Limitations) Opinion of Judges Cartwright and Lavergne, para 35. 349   Duch (Statute of Limitations), para 47. 350   The judges recognised that neither of these provisions referred to statutes of limitation. However, drawing on decisions of national courts and of the European Court of Human Rights, the judges noted that the principle applied to attempts to extend limitation periods that had already expired. 351   Duch (Statute of Limitations) para 53. 342 343



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In general terms, the prohibition against the retroactive application of criminal law protects the values of legal certainty and safeguards the implementation of the principle of impartiality and objectivity by a State in accordance with the rule of law. An interpre­ tation of Article 3 (new) of the ECCC Law as allowing a reinstatement of the right to prosecute domestic crimes in relation to a limited number of individuals and after the expiry of statutory limitations may accordingly be perceived as an infringement of that duty of impartiality and objectivity.

The international judges did not consider that the relevant issue was whether the nature of the crimes as being universally penalised justified the prosecution; rather, the international judges viewed the relevant issue as being whether juris­ diction existed to try those crimes under the relevant Cambodian framework. The nature and context of the crimes alleged to have been committed did not over­ come the insufficient jurisdictional basis for prosecution. As the Trial Chamber was not able to reach a super-majority (as an international judge did not concur with the national judges), the Chamber was not able to reach a decision either to convict or to acquit on the basis of the charges for crimes under Cambodian law.352 The co-investigating judges in Case 002 noted the division on this issue and decided to include charges under Cambodian law in the closing order and deferred the issue of the applicability of the statute of limitations period to the Trial Chamber.353 In the appeal from this closing order,354 the accused again raised the application of the statute of limitations. The Pre-Trial Chamber agreed with the findings of the national judges in the Trial Chamber, and held that the limita­ tion period had not commenced until 24 September 1993 and therefore had not expired by the time the ECCC Law was adopted. Consequently, the Pre-Trial Chamber did not need to consider whether the extension of this period violated the principle of legality.355 This decision has not, however, finally resolved the issue. The Trial Chamber will now look at this issue as a preliminary objection at the trial stage of proceedings in Case 002.356 The experience of the ECCC demonstrates that where the temporal jurisdiction of a tribunal relates to a period of time that is a decade or so in the past, limitation periods under domestic law may apply, at least in relation to the crimes under domestic law that are within the jurisdiction of the tribunal. It is suggested that this is a potential issue for a hybrid or internationalised tribunal, regardless of its method of establishment. Even for a hybrid tribunal established by the Security Council or by a treaty between the affected state and the United Nations, to try an 352   Duch (Statute of Limitations) para 56. A separate judgment was issued with respect to the inter­ national crimes, see: (Judgment) 001/18-07-2007ECCC/TC, T Ch (26 July 2010). 353   Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) para 1574. 354   Prosecutor v Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) n 12. 355   Prosecutor v Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order) paras 286–87. 356   See: Trial Chamber Memorandum, ‘Directions to Parties Concerning Preliminary Objections and Related Issues’ (5 April 2011); Co-Prosecutors’ Submission on Statute of Limitations for National Crimes (27 May 2011); and Response to Co-Prosecutors’ Submission on Statute of Limitations for National Crimes (17 June 2011).

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individual for crimes under national law that are already statute barred under national law may well constitute a violation of the principle of legality. However, in many of the situations in which hybrid or internationalised tribunals are estab­ lished, as in Cambodia, there have been significant barriers to the institution of criminal proceedings, including the collapse or unavailability of the domestic criminal justice system. It is therefore likely that arguments that the limitation period has been interrupted will be successful.357 However, it is important for designers of such tribunals to be aware of the possible application of domestic statutes of limitation and to expressly preclude their application to international crimes within the jurisdiction of the tribunal and, where possible, to extend the limitation period in relation to crimes under national law.

VII.  Ne Bis in Idem As is apparent from this study, within the existing system of international crimi­ nal justice there is significant potential for several states or institutions to seek to exercise concurrent jurisdiction. There is therefore a risk that more than one forum will prosecute, or attempt to prosecute, an individual for the same con­ duct. As well as raising issues concerning the relationship between such fora, the potential for the exercise of concurrent jurisdiction also requires consideration of the possible application of the ne bis in idem principle, the principle that a person should not be tried more than once for the same conduct, also known as the rule against double jeopardy. In the international criminal justice system, this princi­ ple has several aspects. First, will a judgment by a national court preclude the exercise of jurisdiction by a hybrid or internationalised tribunal? Second, will a judgment by a hybrid or internationalised tribunal preclude the exercise of juris­ diction by a national tribunal of the affected state?

A.  Judgment by a National Court The constituent instruments of the SCSL, STL, IHT and the SPSC recognise that the tribunal operates independently from the domestic legal system, although in the case of the IHT and the SPSC they form part of that system. The provision in each instrument precludes a subsequent trial by the tribunal where there has been a prior trial in a national court. Each provision does, however, exclude from its scope a limited number of exceptions. In the SCSL, the STL, the SPSC and the IHT, proceedings could be commenced where ‘the proceedings where ‘were not impartial or independent, were designed to shield the accused from international 357   This may well be the case for the prosecution of Hissène Habré. Attempts to secure prosecution, even where ultimately unsuccessful, also suspend the limitation period.



Ne Bis in Idem

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criminal responsibility’. For the STL and the SCSL there is an additional excep­ tion where the case was not diligently prosecuted, and also for the SCSL, where the national proceedings characterised the act as an ordinary crime. In Bosnia, the relevant provision does not include exceptions, so a trial before another Bosnian court would preclude a subsequent trial before the WCC. In Kosovo, the compli­ cating factor was ‘whether the relationship between Serbia and Montenegro, on the one hand, and Kosovo, on the other, should be considered as an international relationship for purposes of the application of the ne bis in idem principle’.358 The application of the ne bis in idem principle has been raised before the ECCC in relation to the trial of Ieng Sary. As noted in relation to amnesties, Ieng Sary was tried in absentia and convicted of genocide and other offences by the People’s Revolutionary Tribunal in 1979. The defence counsel for Ieng Sary argued before the Pre-Trial Chamber that the application of the ne bis in idem principle bars the exercise of jurisdiction by the ECCC. Having concluded that there was no provi­ sion in the ECCC Law, the ECCC Agreement or the Cambodian Criminal Procedure Code that dealt with this issue,359 the Pre-Trial Chamber relied on international standards as set out in articles 14 and 15 of the ICCPR.360 After examining the text of article 14(7) of the ICCPR,361 the ECCC held that its effect was limited to ‘proceedings within domestic legal orders’362 and did not apply to proceedings at the international level. The Pre-Trial Chamber continued:363 Taking into account its finding below that the ECCC is an internationalised court functioning separately from the Cambodian court structure, the Pre-Trial Chamber finds that the ‘internal ne bis in idem principle as enshrined in Article 14(7) of the ICCPR does not apply to the proceedings before the ECCC. In these circumstances, the Pre-Trial Chamber will seek guidance in the procedural rules established at the interna­ tional level to determine if Ieng Sary’s previous conviction by a national Cambodian court shall prevent the ECCC from exercising jurisdiction against him for the offences charged in the Closing Order.

The Pre-Trial Chamber then had regard to the relevant provisions in the Statutes of the ICTY, the ICTR, the SCSL and the STL, as well as the Rome Statute. It con­ cluded that these provisions all include an exception to the principle where the 358   J Kleffner and A Nollkaemper, ‘The Relationship Between Internationalized Courts and National Courts’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 374. 359   The defence had suggested that two provisions of the Cambodian Criminal Procedure Code may apply, art 7 and 12, which apply to the circumstances in which criminal actions are extinguished (art 7) and the principle of res judicata (art 12). The Pre-Trial Chamber held that both provisions applied to acquittals, and not convictions: Prosecutor v Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order), n 12, paras 119–24. 360   Art 12 of the ECCC Agreement and art 33new of the ECCC Law provide that the ECCC may seek guidance in procedural rules at the international level, and must exercise jurisdiction in accordance with international standards as set out in arts 15 and 16 of the ICCPR. 361   Art 14(7) provides: No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. 362   Prosecutor v Ieng Sary (Decision on Ieng Sary’s Appeal Against the Closing Order), n 12 para 128. 363   ibid, para 131.

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Legal Barriers to the Exercise of Jurisdiction

national proceedings had not been ‘conducted independently or impartially in accordance with the norms of due process recognised by international law’ and, in the case of the Rome Statute ‘were conducted in a manner which, in the cir­ cumstances, was inconsistent with an intent to bring the person concerned to justice’.364 The defence argued that such an exception did not apply where the individual in question had been convicted, rather than acquitted. The Pre-Trial Chamber rejected this submission on the basis that the human rights of the accused had to be balanced against the interests of the victims and the inter­ national community in prosecution.365 It continued:366 The Pre-Trial Chamber finds that the procedural rules established at the international level provide constituent guidance that an international or internationalised tribunal shall not exercise jurisdiction in respect of individuals that have already been tried for the same acts by national authorities unless it is established that the national proceed­ ings were not conducted independently and impartially with regard to due process of law. The ECCC being in a similar position as these tribunals and considering that the reasons underlying the principle set out above are also relevant in the context of its proceedings, it will apply the same standard to determine the issue at hand. The Pre-Trial Chamber further finds that only fundamental defects in the national proceedings would justify the ECCC to exercise jurisdiction.

It then concluded that the 1979 trial ‘was not conducted by an impartial and independent tribunal with regard to due process requirements. Consequently, the prosecution, conviction, and sentencing of Ieng Sary in 1979 by the PRT [People’s Revolutionary Tribunal] bar neither the jurisdiction of the ECCC over Ieng Sary, nor any of the charges in the Closing Order’.367 The challenge to the closing order was therefore dismissed. The issue has, however, been raised again by the accused as a preliminary objection at the trial phase and will be considered by the Trial Chamber.368 It is suggested here that the Pre-Trial Chamber should not have based its decision on the conclusion that the ECCC is an international tribunal. As was discussed in chapter five, the legal basis and the source of authority of the ECCC is domestic in nature. It is not an international tribunal, but internationalised, and effectively operates as a domestic institution. However, this is not to say that the ECCC is necessarily precluded from exercising its jurisdiction due to the 1979   ibid, para 138.   ibid, paras 142–44. 366   ibid, paras 157–58. 367   The Pre-Trial Chamber held that the PRT had been established by executive order, rather than by legislation adopted by the legislative branch of government, and it is questionable whether the tribunal was ‘established by law’. The language of the decree itself pre-judged the guilt of the accused. The members of the PRT were selected by the executive branch of government and some were members of government or government employees, and there was no guarantee that the process would be free from political interference or impartial. The trial was also conducted in absentia, and was completed in a short period of time for a complex trial, with no evidence or argument being offered in favour of the defence: ibid, para 175. 368   Trial Chamber Memorandum, ‘Additional Preliminary Objections Submissions (Ne Bis in Idem)’ (12 May 2011). 364 365



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conviction. It is curious that the drafters of the ECCC Law and ECCC Agreement did not include a provision comparable to that of the SCSL or other internation­ alised tribunals, particularly as the existence and circumstances of the 1979 con­ viction were known. It is certainly an option that was available and had been used in relation to the SPSC. The pardon granted in respect of the conviction is referred to in the ECCC Agreement.369 Yet this ‘international’ test was not made directly applicable to the ECCC. However, the ECCC is clearly required to take into account relevant international standards, in particular article 14 of the ICCPR.370 It is suggested that the more appropriate course would have been to apply the provisions of article 14(7) before the ICCPR and to interpret that provision as applying only to trials ‘in accordance with the law’ and that complies with the bal­ ance of article 14. Alternatively, the ECCC could have considered whether there is an emerging customary international law principle of ne bis in idem that allows an exception for trials that were not independent or impartial and that applies to international crimes wherever they are tried, and is not limited to proceedings before international courts. Either of these approaches would not have required the finding that the ECCC is an international court.

B.  Judgment by a Hybrid or Internationalised Tribunal and National Courts This issue is dealt with expressly in the constituent instruments of most of the existing hybrid and internationalised tribunals studied here. In respect of the hybrid tribunals, the SCSL incorporates the ne bis in idem principle, and provides that ‘No person shall be tried before a national court of Sierra Leone for acts which he or she has already been tried by the Special Court’.371 The STL Statute contains a comparable provision.372 Of the internationalised tribunals, the princi­ ple is incorporated into the constituent instruments of the IHT and the SPSC.373 For the WCC and the IJPP, the ne bis in idem principle is found in the relevant domestic law, or in international instruments that have effect in national law.374 The ECCC Law does not contain a provision concerning this issue, but given its exclusive jurisdiction for the international crimes within its jurisdiction, and the fact that the domestic limitation period would preclude other courts in Cambodia trying an accused in respect of the crimes under domestic law, it appears that there will not be any question of a Cambodian court seeking to try an accused before the ECCC.375   ECCC Agreement, art 11(2).   ECCC Law, art 33new. 371   SCSL Statute, art 9. 372   STL Statute, art 5. 373   IHT Statute, art 30; UNTAET reg 2000/15, s 11.2. 374   In Kosovo, the principle is included in the ICCPR, which applied in Kosovo by virtue of UNMIK reg 1999/24. In Bosnia, the principle is found in art 4 of the Criminal Procedure Code 2003 (BiH). 375   See Kleffner and Nollkaemper, n 358, 359, 375. 369 370

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Legal Barriers to the Exercise of Jurisdiction

The more interesting question is whether a conviction or acquittal of an accused by a hybrid or internationalised tribunal should bar proceedings against that per­ son for the same conduct in the courts of other states. The arrangements in respect of the hybrid and internationalised tribunals do not extend to trials in the courts of third states. In relation to the hybrid tribunals, the instruments of the STL and the SCSL, even though such institutions approximate international tribunals, are not directly binding on third states. Those instruments cannot (and do not) pre­ clude the courts of a third state from initiating proceedings.376 However, the third state is likely to be party to article 14 of the ICCPR and it is submitted that this (or comparable provisions either in domestic law or other instruments) would apply to preclude multiple trials. Arguably, the application of the provision should not be read narrowly only to decisions of national courts and should extend to hybrid tribunals. With respect to internationalised tribunals, as such institutions operate under domestic law they are even more clearly included within article 14(7).

C.  Judgment by a Hybrid or Internationalised Tribunal and the International Criminal Court A further issue, which has not yet arisen, is the extent to which a decision of a hybrid or internationalised tribunal would bar the exercise of jurisdiction before the ICC. Article 20(3) of the Rome Statute provides that: no person who has been tried before another court for conduct also prohibited under article 6, 7 and 8 [genocide, crimes against humanity and war crimes] shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibil­ ity for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

The principle is also reflected in article 17(1)(c) of the Rome Statute, which considers issues of admissibility. In fact, the two exceptions to the application of the ne bis in idem principle in article 20(3) ‘closely resemble the two forms of unwillingness defined in Article 17(2)(a) and (c)’.377 These exceptions are dis­ cussed below.378 The wording of article 20(3) refers only to the individual in ques­ tion having been tried ‘before another court’. Unlike article 17, this does not refer to ‘a State’. Therefore, it should be concluded that a trial before either a hybrid or 376   cf art 22(2) of the Rome Statute, which provides that ‘No person shall be tried by another court for a crime referred to in art 5 for which that person has already been convicted or acquitted by the Court’. 377   J Kleffner, Complementarity in the Rome Statute and International Criminal Jurisdictions (Oxford, Oxford University Press, 2008) 119. 378   This chapter, section VIII.



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an internationalised tribunal will preclude the exercise of jurisdiction by the ICC, unless the proceedings fall within the two exceptions. This is the case whether such trial resulted in a conviction or an acquittal. Moreover, as article 20(3) refers to the ‘same conduct’, the principle would apply even where the hybrid or inter­ nationalised tribunal had classified the conduct as an ordinary crime under domestic law, or prosecuted the conduct based on a different definition of the international crimes from those found in the Rome Statute.379 Thus, the ICC will be able to exercise its jurisdiction where there has already been a trial before a hybrid or internationalised tribunal only where such tribunal was intended to shield an accused, or the proceedings failed to comply with minimum inter­ national standards and that failure was inconsistent with an intent to bring the person to justice. Given that part of the justification for hybrid and internation­ alised tribunals is to ensure such standards are met, and to ensure that those responsible are brought to justice, it is perhaps unlikely that these exceptions will apply, particularly in respect of hybrid tribunals, which are isolated to a greater extent from interference. However, the exceptions may be relevant where there is political interference with an internationalised tribunal, especially where inter­ national judges do not form a majority on judicial panels and there is no other mechanism to preclude political interference influencing the outcome of a trial.380 Accordingly, a trial by the ICC following a conviction or acquittal before an inter­ nationalised tribunal is not merely a theoretical possibility.

D. Conclusion Given the possibility of more than one fora wishing to try a person accused of committing international crimes, including an internationalised or hybrid tri­ bunal, it is necessary to consider the potential application of the ne bis in idem principle. While the practice suggests that the decisions of hybrid and inter­ nationalised tribunals will bar the exercise of jurisdiction by domestic courts of at least the affected state, and most likely the courts of third states as well, the posi­ tion is less clear regarding the effect of previous decisions of domestic courts in the affected state. While the constituent instruments of most of the tribunals studied resolve this issue directly, and also include exceptions for circumstances in which the original proceedings were not independent or impartial, the ECCC Law does not consider the issue at all. The resulting uncertainly has led the ECCC Pre-Trial Chamber to adopt a decision that is based on a misunderstanding of the ECCC’s legal basis. While this issue may be revisited by the Trial Chamber, this 379   Kleffner, n 377, 119. Kleffner was here addressing trials before national courts, but it is submitted that the same result is achieved in respect of hybrid and internationalised tribunals. 380   Both the ECCC and the IHT have been accused of having been subjected to political interfer­ ence. In the ECCC, the super-majority requirement at least minimises to some against interference securing a conviction or acquittal, although it is not always successful at earlier stages of the proceed­ ings: see ch 2, section VIII(C). In respect of the IHT, see Human Rights Watch, Judging Dujail: The First Trial before the Iraqi High Tribunal (20 November 2006) 41.

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Legal Barriers to the Exercise of Jurisdiction

confusion was regrettable and avoidable. Designers of future hybrid and inter­ nationalised tribunals should provide for this situation expressly, particularly where there is a previous decision affecting an individual likely to fall within the tribunal’s personal jurisdiction and in circumstances that suggest the process by which that decision was reached did not meet international standards. Regarding the application of the principle in respect of the ICC, while it may be difficult to envision the circumstances in which a judgment of a hybrid tribunal would fall within the exceptions to the ne bis in idem principle in the Rome Statute, the pos­ sibility that a decision by an internationalised tribunal may do so is greater, given the closer link between an internationalised tribunal and the affected state.

VIII.  Relationship with Other Courts and Tribunals There has been considerable discussion of the relationship between the inter­ national criminal tribunals, such as the ICC, the ICTY and the ICTR, and domes­ tic courts, and between domestic courts in different states.381 This section extends that analysis to hybrid and internationalised courts. Hybrid courts operate inde­ pendently from and separate to the domestic system of the affected state, and are more akin to international criminal tribunals. Yet, they have greater links to and rely to a greater extent than the international tribunals on the cooperation of the affected state. Internationalised tribunals, while they may operate separately to the ordinary criminal justice system, remain courts established by and operating in accordance with domestic law. Yet, having significant international assistance, they are not readily characterised as ‘ordinary’ domestic courts and often have a different relationship to such courts. This section will consider the relationship of hybrid and internationalised tribunals to both domestic courts and international courts, in particular the ICC.

A.  Hybrid and Internationalised Tribunals and Their Relationship to Domestic Courts There are two dimensions of this relationship: the relationship between hybrid and internationalised courts and domestic courts within the territorial state; and the relationship between hybrid and internationalised courts and domestic courts of third states, including those exercising jurisdiction on the basis of universal jurisdiction.

  See ch 1, section III(B)(iv)(a).

381



Relationship with Other Courts and Tribunals

391

i.  Courts Within the Territorial State a.  Overlapping Jurisdiction The practice demonstrates that there are two possible relationships between national courts and hybrid and internationalised tribunals.382 First, the hybrid or internationalised tribunal may be conferred exclusive jurisdiction in relation to specified crimes, individuals or time periods. This tends to be the approach adopted for internationalised tribunals. For example, the SPSC was granted exclu­ sive jurisdiction with respect to international crimes and certain domestic crimes for a specified period.383 Second, the hybrid or internationalised tribunal may exercise concurrent juris­ diction with domestic courts. This is generally the approach adopted in respect of hybrid tribunals. For example, article 8 of the SCSL Statute provides that there is concurrent jurisdiction for the SCSL and the courts of Sierra Leone. Where there is concurrent jurisdiction, the instrument in question normally provides for how to resolve any dispute as to the exercise of jurisdiction. Accordingly, the SCSL Statute accords the SCSL primacy in relation to national courts, such that the SCSL may require a national court to defer proceedings so as to allow the SCSL to exercise its jurisdiction. The STL also has concurrent jurisdiction with courts in Lebanon, but has primacy with respect to the crimes within its jurisdiction. It can, and has,384 required national judicial authorities to defer competence to the STL and to transfer any records and other relevant material to the STL.385 This approach may also be adopted in relation to internationalised tribunals. For example, the WCC may exercise concurrent jurisdiction with courts in Bosnia, both at the federal and entity level.386 However, it has primacy in respect of con­   For an earlier assessment of this issue, see Kleffner and Nollkaemper, n 358.   UNTAET reg 2000/15, s 1.1. It was, however, possible that courts other than the SPSC could commence trials for conduct that could constitute crimes within the exclusive jurisdiction of the SPSC. Accordingly, UNTAET reg 2000/15 provides that the SPSC could require a case to be deferred to it where the charges were those within its exclusive jurisdiction: s 1.4. 384   On 25 March 2009, the Prosecutor requested the deferral of proceedings before the national courts in Lebanon: Application by the Prosecutor to the Pre-Trial Judge under Art 4(2) of the Statute and Rule 17 of the Rules of Procedure and Evidence (26 March 2009). The Pre-Trial Judge granted that request, and issued an order directing the Lebanese judicial authority seized with the Hariri case to defer to the STL and to forward to the STL the results of the investigation together with the court’s file for the case, as well as a list of persons detained: Ordonnance Portant Des Saisissement En Faveur Du Tribunal Spécial Pour Le Liban De La Juridiction Libanaise Saisie De L’affaire De L’attentat Contre Le Premier Ministre Rafic Hariri Et D’autres Personnes CH/PTJ/2009/0, P T Ch (30 March 2009) (French only). 385   STL Statute, art 4. For those crimes that are committed between 1 October 2004 and 12 December 2005, that may be included in the STL’s material jurisdiction, the STL can request deferral of proceedings and/or that national courts keep it informed of progress of any relevant investigations etc. 386   Law on the State Court, art 7 provides that the WCC may exercise jurisdiction in respect of crimes within the criminal code of Bosnia and Herzegovina, as well as crimes at the entity level where such crimes ‘endanger the sovereignty, territorial integrity, political independence, national security or international personality of Bosnia and Herzegovina’ or ‘may have serious repercussions or detrimen­ tal consequences to the economy of Bosnia and Herzegovina or may have other detrimental conse­ 382 383

392

Legal Barriers to the Exercise of Jurisdiction

duct constituting crimes within its material jurisdiction and can remove and transfer to itself any proceedings in other courts.387 It also has the responsibility to decide any conflict of jurisdiction.388 The IJPP and the ECCC are the only internationalised jurisdictions that do not provide for rules regulating conflict between the internationalised mechanism and other courts. For the IJPP, this reflects the ad hoc nature of the IJPP process, whereby judges and prosecutors are appointed to particular cases by reason of their sensitivity, rather than exercise exclusive or primary jurisdiction with respect to a particular category of cases. For the ECCC, the tribunal has – as a practical matter – exclusive jurisdiction for crimes committed during the Khmer Rouge regime. This exclusive jurisdiction is not granted by the ECCC Law, but is due to the application of the statute of limitations period, which has now passed so that national courts can no longer exercise jurisdiction for crimes of the regime. Further, as the international crimes that form the basis of the ECCC’s substantive jurisdiction are only incorporated into Cambodian law for the purposes of the exercise of jurisdiction by the ECCC, national courts are not able to exercise jurisdiction in respect of international crimes.389 Thus, neither the ECCC law nor the ECCC Agreement include any provision allocating jurisdiction between the ECCC and the national courts of Cambodia, as it was recognised that there was no prospect of overlapping jurisdiction. b.  Domestic Courts Exercising Supervisory Jurisdiction in Respect of a Hybrid or Internationalised Tribunal In addition to the issue of concurrent jurisdiction, there is also the possibility that the accused or other interested parties could turn to the domestic courts either to seek review of decisions of the hybrid or internationalised tribunal or to challenge the legality of establishment of such institutions. It is suggested that as both hybrid and internationalised tribunals are established as stand-alone mechanisms, which include an appellate mechanism, it is not appro­ priate for domestic courts to perform a ‘review’ function for decisions of the hybrid or internationalised tribunal. For hybrid tribunals, this is because such institutions exist outside of the domestic legal system and should not be subject to review by domestic courts. For internationalised tribunals, the position may be more com­ plex, as such institutions remain part of the domestic legal system, even if they oper­ ate largely independently of that system. However, where internationalised tribunals quences to Bosnia and Herzegovina or may cause serious economic damage or other detrimental consequences beyond the territory of an Entity or the Brcˇko District of Bosnia and Herzegovina’. 387   Law on the State Court, art 22. 388   Law on the State Court, art 7(3)(d). The IHT also has concurrent jurisdiction with Iraqi courts in respect of the domestic crimes within the tribunal’s subject matter jurisdiction. It has primacy in respect of the international crimes (genocide, crime against humanity, war crimes) and can demand that any domestic proceedings be transferred to the IHT: IHT Statute, art 29. 389   See Kleffner and Nollkaemper, n 358.



Relationship with Other Courts and Tribunals

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are established as ‘special’ institutions within the domestic system, it is suggested that it is also inappropriate for domestic courts to perform review functions of deci­ sions of the internationalised tribunals. This may depend on the structure of the tribunal created and the terms of the domestic legislation establishing it. Of course, the creation of a ‘special’ jurisdiction outside the competence of the ‘regular’ judi­ cial system may raise constitutional issues under the constitutional framework of the affected state and may require an amendment to the Constitution.390 However, challenges based on constitutional arguments are best considered as challenges to the lawfulness of the tribunal’s establishment and not as supporting a power of general review of decisions of the internationalised tribunal. Domestic courts may, however, exercise some residual supervisory functions, depending on the applicable legal framework, in particular the Constitution of the state. Two areas in particular may arise. First, the state’s constitution may protect the ability to seek a writ of habeas corpus. Habeas corpus is a procedural right that enables a person detained to be brought before a court for the purpose of confirming the authority by which he or she has been detained.391 If this right is protected by the Constitution, the creation of a separate internationalised jurisdiction by ordi­ nary legislation may not oust the general right to seek habeas corpus without an express legislative intention to do so.392 Thus when reviewing arrangements for the creation of an internationalised tribunal, designers should consider the possi­ ble availability of this mechanism and, if it is viewed necessary to exclude habeas corpus, the steps required under domestic law to do so. This may require a consti­ tutional amendment or the inclusion of wording in the legislation establishing the tribunal excluding habeas corpus. Of course, assuming that the internationalised tribunal has been lawfully established, even if the writ of habeas corpus remains available, it is unlikely that a writ would be successful and result in an order for release. This is because the right may be considered as having been satisfied where the internationalised tribunal itself offers a mechanism for challenging the legality of detention. A second potential issue may arise for those states that have a constitutionally protected bill of rights, or rights that are entrenched in the Constitution or by ‘higher’ legislation.393 Such rights generally include the right to a fair trial, including 390   eg, one of the reasons the Special Tribunal for Kenya was not established was the inability to achieve the required amendment to the Constitution of Kenya that would have allowed the creation of a tribunal operating outside the ordinary judicial structure of Kenya: see ch 3, section III(E). 391   Habeas corpus was a concept developed in the English legal system, but it has been exported to many common law states. It is also found in many civil law systems, although it may not be known by the same term. 392  Parallels may be drawn to the creation of the United States of military tribunals based at Guantanamo Bay to try individuals accused of terrorist and other offences during the ‘war against ter­ ror’. The US Supreme Court held that such tribunals, although located outside the US, remained sub­ ject to US judicial authority: Rasul v Bush (03-334) 542 U.S. 466 (2004) 321 F.3d 1134. The US Supreme Court later stated that Congress could not suspend the writ of habeas corpus without complying with the US Constitution: Boumediene v Bush 553 U.S. 723 (2008). 393   eg, the Human Rights Act 1998 (UK), which gives effect to the UK’s obligations under the European Convention on Human Rights, has a higher status in relation to ordinary legislation and requires the responsible Minister to specify where proposed legislation is incompatible with its terms: s 19. A court

394

Legal Barriers to the Exercise of Jurisdiction

the right to be tried by an independent and impartial tribunal. It is suggested that by establishing an internationalised tribunal, the state cannot avoid its obligations under the relevant constitutional or human rights framework. Of course, one of the main reasons for relying on an internationalised tribunal is to ensure that trials are conducted in accordance with international standards. These standards are often incorporated into the constituent instruments and rules of procedure and evidence of such tribunals. However, given the weakened state of the judiciary in such states, the risk of political interference and the limited resources made available to such institutions, it is by no means certain that viola­ tions of the right to fair trial will never occur. Although the possibility to raise alleged violations before the tribunal itself will most likely exist this may be inef­ fective, particularly where it is the impartiality of the tribunal itself that is chal­ lenged. An accused may therefore seek to bring such claims before domestic courts, relying on constitutional provisions. Again, it would depend on the appli­ cable domestic legal order as to whether such rights would or could be precluded by the creation of a separate jurisdiction absent a constitutional amendment or express intention to do so. A second form of review available to domestic courts is challenges to the lawful establishment of the hybrid or internationalised tribunal. For hybrid tribunals, the availability and extent of review will depend on the method of establishment. In respect of tribunals established pursuant to the powers of the Security Council under Chapter VII of the United Nations Charter, the potential for any review is very limited. Resolutions of the Security Council can generally not be directly challenged before domestic courts, which tend to be very deferential to the role of the Security Council in relation to international peace and security. Domestic and international courts may interpret the scope of such resolutions, for example, finding that the Council would not intend to act contrary to the principles and purposes of the United Nations, including the protection of human rights.394 Where a particular resolution requires domestic legislation to give effect to it, the legislation may be the subject of a challenge. However, again, domestic courts tend to adopt a deferential approach. Thus, it is unlikely that the establishment of the STL would be subject to challenge before domestic courts, as it is based on a resolution of the Council. Similar arguments may extend to the SPSC and IJPP, as any challenge to their establishment would have been in effect a challenge to a legal act of the relevant United Nations mission, even though the mission had been acting in a ‘domestic’ capacity when establishing the tribunal.395 In any event, may make a declaration of incompatibility where it considers legislation to be incompatible with the terms of the Act, although this does not affect the validity of the legislation in question: s 4. 394   See, eg, Case of Al-Jedda v The United Kingdom (Judgment) Application No 27021/08, European Court of Human Rights, Grand Chamber (7 July 2011); Case of Al-Skeini and Others v The United Kingdom (Judgment) Application No 55721/07, European Court of Human Rights, Grand Chamber (7 July 2011); Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Judgment) C-402/05 P and C-415/05 P, European Court of Justice (3 September 2008). 395   See ch 5, section IV(A).



Relationship with Other Courts and Tribunals

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domestic courts in East Timor and Kosovo would not have had jurisdiction to consider such acts owing to the wide immunity from jurisdiction that was extended to acts of the mission.396 For a hybrid tribunal established by treaty, domestic courts may be able to con­ sider whether the treaty was entered into and ratified in accordance with domestic law (for example whether any required process was complied with) and possibly the legality of any implementing legislation. However, even if a claim that the tri­ bunal was not established in accordance with domestic law was successful, that finding would have limited effect on the tribunal itself, as a violation of domestic law does not preclude the treaty having effect under international law,397 unless it is of such a character as to render the treaty void under international law.398 Of course, when entering into such agreements, governments should take care to ensure that domestic legal provisions are satisfied as to do otherwise risks under­ mining the legitimacy of the tribunal at the national level. The United Nations should also avoid entering into a treaty where it is aware or suspects that domestic legal requirements have not been satisfied, although it is not required to undertake separate enquiries. Many United Nations agreements stipulate that the agreement will not enter into force until it has been confirmed by the government that all domestic requirements have been met. In respect of internationalised tribunals, there is greater scope for challenges to the legality of the establishment of the tribunal, as the tribunal is established under domestic law. However, the scope for review is still quite limited and does not extend to a general power of supervision. The legality of that legislation could be the subject of challenge on several bases: for example, was it adopted in accord­ ance with the required parliamentary and executive procedures, does it contra­ vene provisions of the Constitution, and did the Parliament in question have the power to adopt the legislation (significant for federal states)? Again the availability and scope of any review will be determined by the domestic legal framework and the legislation that establishes the tribunal. Where the legislation authorises the creation of a specialised jurisdiction and extends exclusive jurisdiction for certain crimes on the internationalised tribunal, all that may be challenged is the adoption of the legislation itself. 396   See UNMIK reg 2000/47, On The Status, Privileges And Immunities Of KFOR And UNMIK And Their Personnel In Kosovo (18 August 2000). UNTAET did not adopt a similar resolution, but as the primary legislative and executive authority, it had effective immunity before domestic institutions. The CPA in Iraq was granted similar immunity: see CPA Order 17, Status of the Coalition Provisional Authority, MNF – Iraq, Certain Missions And Personnel In Iraq (27 June 2004). 397   Vienna Convention on the Law of Treaties 1969, art 27, provides: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46’. 398   Vienna Convention on the Law of Treaties 1969, art 46, states: ‘(1) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was mani­ fest and concerned a rule of its internal law of fundamental importance. (2) A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.’

396

Legal Barriers to the Exercise of Jurisdiction

iii.  Hybrid and Internationalised Tribunals Exercising Supervisory Jurisdiction in Respect of Domestic Courts It is also possible that the hybrid or internationalised tribunal will be called upon to review the legality of decisions taken by national authorities. This may be because the tribunal is conferred with a broad supervisory role for national courts such as the WCC, or, more likely, that the decision of the national court is rele­ vant, either directly or indirectly, to the exercise of jurisdiction by the hybrid or internationalised tribunal. The WCC may exercise a supervisory role in relation to other domestic courts, in particular those at the entity level. In addition to its jurisdiction in respect of criminal offences, the WCC may also undertake a num­ ber of additional functions. These include: to take a final and legally binding posi­ tion on the implementation of laws of Bosnia and Herzegovina and international treaties on request; to issue practice directions on the application of the substan­ tive criminal law of Bosnia and Herzegovina falling within the competence of the Court on genocide, crimes against humanity, war crimes and violations of the laws and practices of warfare and individual criminal responsibility related to those crimes; decide any issue relating to international and inter-entity criminal law enforcement, including relations with the International Criminal Police Organization (INTERPOL) and other international police institutions, such as decisions on the transfer of convicted persons, and on the extradition and surren­ der of persons, requested from any authority in the territory of Bosnia and Herzegovina, by foreign states or international courts or tribunals; decide on the reopening of criminal proceedings for criminal offences prescribed in the laws of Bosnia and Herzegovina.399 As an example of the second circumstance, the ECCC was required to deter­ mine the legality of the detention of the accused Kaing Guek Eav alias ‘Duch’ by Cambodian authorities before his eventual transfer to the ECCC. Duch was arrested and detained in May 1999 by a Cambodian military court on charges under Cambodian law. From 20 February 2002 and thereafter, the military court issued orders for his continued detention on the basis of the ECCC Law, which had entered into force in August 2001. He was transferred to the custody of the ECCC pursuant to an arrest warrant issued by the co-investigating judges on 31 July 2007. The accused challenged the lawfulness of his continued detention before the ECCC, claiming that his detention was unlawful under national and international law. The co-investigating judges issued an order for his detention,400 finding that they did not have jurisdiction to determine whether or not the deten­ tion of the accused pursuant to an order by the military court was lawful.401 They   Law on the State Court, art 7(3).   Kaing Guek Eav alias Duch (Order for Provisional Detention) 002/14-08-2006, OCIJ (31 July 2007). For discussion of this order, see C Ryngaert, ‘The Doctrine of Abuse of Process: A Comment on the Cambodia Tribunal’s Decisions in the Case against Duch (2007)’ (2008) 18 Leiden Journal of International Law 719. 401   Kaing Guek Eav alias Duch (Order for Provisional Detention) para 20. 399 400



Relationship with Other Courts and Tribunals

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concluded that ‘[T]he fact that the Extraordinary Chambers is part of the judicial system of the Kingdom of Cambodia does not lead to the conclusion that this special internationalized tribunal acted in concert with the military court’.402 In an appeal from this decision, the Pre-Trial Chamber confirmed that as ‘the ECCC is, and operates as, an independent entity within the Cambodian court structure’ it ‘therefore has no jurisdiction to judge the activities of other bodies’,403 including the military court where there was no evidence that the ECCC and the military court had acted in concert.404 The Pre-Trial Chamber confirmed this finding in an appeal of the closing order.405 However, the Trial Chamber has adopted a different approach to this issue, holding that: 406 Even if a violation of the Accused’s right cannot be attributed to the ECCC, inter­ national jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention . . . This case law has also examined circumstances in which previous violations of an Accused’s rights are so egregious that they may preclude or restrain the exercise of an inter­national criminal tribunal’s jurisdiction on grounds of abuse of process and violation of the fundamental rights of the accused.

The Trial Chamber held that the detention by the Cambodian authorities vio­ lated several provisions of Cambodian law and the international right to a trial within a reasonable time and detention in accordance with law.407 Following his conviction, the Chamber reduced the sentence to be served by the accused by five years, which it considered to be an appropriate remedy for this violation.408 The different approaches of the Pre-Trial Chamber and the Trial Chamber on the issue of the review of pre-trial detention are due to varying perceptions of the court as a national or international body, and its relationship to other national institutions. Hybrid tribunals are separate and distinct from national systems. Many internationalised tribunals also effectively operate separately to the main legal system. Neither type of tribunal is given a mandate to review or supervise the legality of decisions of other actors within the domestic legal system. However, where that decision impacts upon the exercise of jurisdiction by the tribunal and the fundamental rights of the accused, such institutions should not rely on either their separate status to avoid considering such issues. However, it is submitted that the Trial Chamber did not have to rely on the ECCC being an ‘international’ tribu­   ibid, para 20.   Kaing Guek Eav alias Duch (Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav Alias ‘Duch’) 001/18-07-2007-ECCC-OCIJ (PTC01), P T Ch (3 December 2007) para 19. For criticism, see Ryngaert, n 400. 404   ibid, para 21. 405   Kaing Guek Eav alias Duch (Decision on the Appeal of the Co-Prosecutors against the Closing Order) 001/18-07-2007-ECCC/OCIJ (PTC 02), P T Ch (5 December 2008) para 147; and (Detention Order) 001/18-07-2007-ECCC, Document D/99/3/43 (5 December 2008). 406   Kaing Guek Eav alias Duch (Decision on Request for Release) 001/18-07-2007-ECCC/TC, T Ch (15 June 2009) para 16. This was based on the obligation of the ECCC to apply domestic criminal procedure rules interpreted in accordance with international standards. 407   ibid, para 21. 408   Kaing Guk Eak, alias Duch (Judgment) (26 July 2010) paras 623–27. 402 403

398

Legal Barriers to the Exercise of Jurisdiction

nal to consider the legality of the detention. This was an unnecessary – and incor­ rect – categorisation of the ECCC’s legal basis. Article 33new of the ECCC Law clearly authorises the ECCC to have regard to international standards of justice, including article 14 of the ICCPR. As these standards form part of the applicable law of the ECCC, the ability to have regard to the decisions of international courts does not require a finding that the ECCC is also an international tribunal. To the contrary, several domestic courts of other states have considered the effect on their jurisdiction of unlawful apprehension or detention of a suspect.409

B.  Courts in Third States As mentioned in chapter one, domestic courts may be able to exercise jurisdiction on bases of jurisdiction other than territorial jurisdiction, for example, nationality (passive and active); protective and universal jurisdiction. It is therefore possible that the courts of third states may seek to exercise jurisdiction in respect of the same crimes to be considered by the hybrid or internationalised tribunal. This possibility is demonstrated by the experience of the SPSC, which operated along­ side the Ad Hoc Human Rights Court in Indonesia,410 and by the WCC, which exercises its jurisdiction concurrently with courts in the states of the former Yugoslavia, including the Serbian War Crimes Chamber.411 As was outlined in relation to cooperation, practice demonstrates that hybrid and internationalised tribunals, regardless of their method of establishment, are not situated in a verti­ cal arrangement with courts of states other than those of the affected state. Unlike the ICTY and the ICTR, there is no power for a hybrid or internationalised tribu­ nal to compel courts of other states to defer proceedings.412 The possible excep­ tion is that, where a hybrid tribunal is established by the Security Council acting under Chapter VII of the UN Charter, it would be open to the Council to include a provision conferring primacy on that tribunal in respect of national courts of states other than the territorial state. The Security Council has not considered tak­ ing such a step, and to do so would be controversial and have a larger impact on the sovereignty of Member States. Hybrid and internationalised tribunals have not – at least so far – been envisaged as stripping other states of concurrent juris­ diction. It is suggested that for the Council to do so would be to move away from the ‘sovereignty-light’ option offered by such mechanisms. Similarly, this hori­ zontal relationship means that domestic courts of other states will not generally exercise any supervisory function in respect of hybrid and internationalised tribu­ nals. There is, however, some scope for a very limited and incidental form of 409   eg, the UK House of Lords has stated that ‘our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures [the applicable extradition treaty] by a process to which our own police, prosecuting or other executive authorities have been a knowing party’: R v Horseferry Road Magistrates’ Court, ex p Bennett [1993] 3 WLR 90, 105, per Lord Griffiths. 410   See ch 2, section V(B). 411   See ch 2, section VI(C), and ch 3, section II(B). 412   ICTY Statute, art 9 and ICTR Statute, art 8. See ch 1, section III(B)(iv)(a).



Relationship with the ICC

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review, where a court in a third state may consider an application for extradition to national authorities in the territorial state, for eventual trial before an inter­ nationalised tribunal, or a request for surrender of an accused from a hybrid or internationalised tribunal.413

IX.  Hybrid and Internationalised Tribunals and the International Criminal Court A. Introduction One of the initial justifications for the creation of hybrid and internationalised tribunals was the absence of a permanent international criminal court.414 Even though the ICC has been established, its scope is limited by several factors: its substantive and temporal jurisdiction; the requirement (in the absence of a refer­ ral by the Security Council) that that the crimes be committed on the territory or by a national of a state party to the Rome Statute; the gravity requirement; the application of the complementarity principle; and, as a practical matter, its lim­ ited resources.415 The ICC is a court of last resort and is not intended to consider every violation of international criminal law committed in the future. While the overlap between the existing hybrid and internationalised criminal tribunals and the ICC is somewhat limited,416 this may not be the case for future tribunals, which may be created to work alongside, rather than instead of, the ICC.417 It is no longer the case that the relationship between the ICC and a hybrid or internation­ alised tribunal should necessarily be viewed as being one of competition. To the

413   See, eg, the Divisional Court was required to determine whether the proposed transfer of two individuals by the UK from the custody of UK forces to Iraqi national authorities for trial before the IHT would create a real risk that a trial of the claimants would involve a flagrant breach of the princi­ ples guaranteed by art 6 of the European Convention on Human Rights. It concluded that ‘[T]he overall picture which emerges is that, although initially there were deeply unsatisfactory aspects of the IHT and trial environment, which cast doubt on the ability to provide defendants with a fair trial at that time, there have been many significant improvements since then. . . . To date the claimants have appeared before the Iraqi courts and have denied the allegations made against them; and there can be no complaint about the way in which the courts have dealt with them. As to the future, looking at the various points individually and cumulatively, the evidence before us falls a long way short of establish­ ing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a flagrant breach of the principles guaranteed by art 6. See R (Al Saadoon) v Secretary of State for the Department of Defence [2008] EWHC 3098 (Admin) paras 140–41. This finding was not disturbed by the Court of Appeal [2009] EWCA Civ 7 or by the European Court of Human Rights: Al-Saadoon and Mufdhi v The United Kingdom (Judgment) European Court of Human Rights, Application No 61498/08 (2 March 2010) para 150. 414   See ch 1, section III(A) and (C), and ch 4, section II. 415   See ch 1, section III. 416   See ch 4, section II. 417   See ch 4, section II.

400

Legal Barriers to the Exercise of Jurisdiction

contrary, the relationship can be perceived as one of collaboration and support.418 Thus, in the light of the potential jurisdictional overlap between the ICC and hybrid and internationalised tribunals, it is necessary to consider the relationship between the ICC and hybrid and internationalised tribunals, in particular, whether the principle of complementarity should apply. As outlined in previous chapters, there are several situations in which a hybrid or internationalised tribunal may be established. The first is where a hybrid or internationalised tribunal is established in circumstances where the ICC does not have jurisdiction, including where the Security Council does not, or cannot, refer the situation to the ICC.419 In such circumstances, beyond the common goal of the institutions in ending impunity for international crimes, no formal relation­ ship between the ICC and the hybrid or internationalised tribunal arises. There is no question of how the complementarity principle will apply or whether the exer­ cise of jurisdiction by the hybrid or internationalised tribunal has ‘ousted’ the jurisdiction of the ICC. This is consistent with the early view of the hybrid and internationalised tribunals as ‘filling the gap’ left by the absence of a permanent international criminal court and the limited jurisdictional reach of the ICC.420 A second situation is where a hybrid or internationalised tribunal is established in respect of a situation in which the ICC may potentially exercise jurisdiction, thus there is concurrent jurisdiction. As outlined in chapter one, unlike the ICTY and the ICTR, the ICC does not enjoy primacy in respect of domestic courts. Instead, it relies on the principle of complementarity, whereby a case is only admissible before the ICC where the state concerned has not exercised jurisdic­ tion, or is unable or unwilling genuinely to investigate and prosecute the alleged crimes. This reflects the shift in international criminal justice to recognise the benefits of trials in domestic forums, and the role of the ICC as a court of last resort. Thus, in situations where concurrent jurisdiction arises, even following a referral to the Court from the Security Council, the ICC will not have primacy. Instead, the starting point is that domestic courts should be the primary forum for such trials. Consequently, to determine whether it may exercise jurisdiction in a given case, the ICC must apply the principle of complementarity, as found in the Rome Statute. Article 17 of the Rome Statute provides: 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall deter­ mine that a case is inadmissible where:

418   See M Colitti, ‘Geographical and Jurisdictional Reach of the ICC: Gaps in the International Criminal Justice System and a Role for Internationalized Bodies’ in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 426. 419   Colitti, ibid. 420   See, eg, L Condorelli and T Boutruche, ‘Internationalized Criminal Courts and Tribunals: Are They Necessary’, in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 427, ‘[H]ence, if there is an ICC that works and has jurisdiction over the area and perpetrators of future crimes, we will not need to create other ad hoc or internationalized tribunals’.



Relationship with the ICC

401

(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 inves­ tigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal respon­ sibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circum­ stances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impar­ tially, and they were or are being conducted in a manner which, in the circum­ stances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judi­ cial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 17 is silent on its application to hybrid and internationalised tribunals. On its face, it contemplates trials before domestic courts only, referring to investigation and prosecution ‘by a State’, a ‘national decision’ and ‘national justice system’.421 Is the complementarity principle thus limited to those courts that are fully domestic and inapplicable in respect of courts with any international element? In answering this question, the differing legal bases of the hybrid and internationalised tribunals must be considered. It is, however, important to keep in mind that the estab­lishment of a hybrid or internationalised criminal tribunal does not necessarily preclude the exercise of jurisdiction by the ICC. The state concerned and the ICC could cooper­ ate to establish a complementary process, for example leaving senior offenders to be tried before the ICC and lower-level offenders by the hybrid or inter­nationalised tribunal. This would represent a similar relationship as that existing between the ICTY and the WCC in Bosnia and the IJPP in Kosovo.422 Dickinson suggests that, due to the advantages potentially offered by internationalised tribunals, the creation of a mixed mechanism alongside the ICC may help the ICC to perform its role. She 421  Rome Statute, art 17(1)(a) and (b); art 17(2)(a); and art 17(3), respectively. See J Kleffner, Complementarity in the Rome Statute and International Criminal Jurisdictions, n 377, 107–08. 422   L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295, 308; E Higonnet, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’ (2006) 23 Arizona Journal of International and Comparative Law 347, 431.

402

Legal Barriers to the Exercise of Jurisdiction

comments ‘[H]ybrid courts may help the international court gain legitimacy among local populations because, operating in tandem with the ICC, hybrid courts can ground the pursuit of individual accountability for atrocities more squarely within local legal and popular culture’.423 Moreover, even if it is found that a hybrid or internationalised tribunal does render a case inadmissible before the ICC, this should not necessarily be con­ sidered a negative outcome. Rather, this reflects the role of the ICC as one possi­ ble mechanism in the emerging system of international criminal justice. The ‘blocking’ of ICC jurisdiction may provide a considerable incentive to states to request or support the establishment of an internationalised tribunal. The state can establish a special chamber or tribunal with the state receiving the benefit and legit­imising force of international assistance. For the state concerned, it also avoids an ICC investigation and the possibility of an international tribunal engag­ ing in a review of the national judicial system and legislative framework, particu­ larly where the national legal system may not meet international standards. The developments surrounding the Special Tribunal for Kenya424 and the suggestions of the African Union Panel for Darfur certainly demonstrate the attraction of internationalised models for states.425 Assisting states to create internationalised models is also consistent with the principle of complementarity, which empha­ sises the importance of prosecution at the domestic level. That this may require some degree of internationalisation of domestic institutions and procedures should not undermine the objective of the complementarity principle. The Office of the Prosecutor of the ICC has recognised that: 426 While Article 17 requires ICC deference to investigations and prosecutions carried out genuinely by a ‘State’, the OTP should as a policy matter be prepared to adopt a similar approach in respect of the ICTY, the ICTR, hybrid tribunals such as the Sierra Leone Special Court, courts and tribunals of UN administered territories, and such other courts.

This reflects the role of the ICC as part of a consensual division of labour among the elements of the system of international criminal justice.427 It is also suggested that, even were the ICC to retain a supervisory role, as hybrid and internation­ alised tribunals are created for same purpose as ICC, the ICC should exercise a wide margin of discretion to a hybrid or internationalised tribunal, as unneces­

423   Dickinson, ibid, 308. Benzing and Bergsmo also note the potential for a complementary role: M Benzing and M Bergsmo, ‘Some Tentative Remarks on the Relationship Between Internationalized Criminal Jurisdictions and the International Criminal Court’, in C Romano, A Nollkaemper and J Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford, Oxford University Press, 2004) 409, 416. 424   See ch 3, section III(E). 425   See ch 3, section III(B). 426   Office of the ICC Prosecutor, ‘Informal Expert Paper: The Principle of Complementarity in Practice’ (2003) ICC Doc ICC-01/04-01/07-1008-AnxA, 5. 427   W Burke-White, ‘A Community of Courts: Towards a System of International Criminal Law Enforcement’ (2003) 24 Michigan Journal of International Law 1.



Relationship with the ICC

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sary intervention will undermine the incentive provided to the state to try to pros­ ecute the crimes itself.428 As Benzing and Bergsmo conclude:429 It thus seems that if states avail themselves of the possibility to discharge their duties with the help of the international community, specifically the United Nations with regard to the management of their criminal justice system, and more specifically by cooperating with the United Nations within the framework of internationalized courts, then this is entirely in accordance with the object and purpose of the Rome Statute.

B.  Internationalised Tribunals Where the tribunal in question is an internationalised tribunal, it is suggested that the principle of complementarity should and does apply. Internationalised tribu­ nals should be considered to be national courts for the purpose of article 17.430 Many of the situations in which internationalised tribunals are established are those situations where there are significant concerns as to the capacity and ability of the domestic legal system to conduct trials either at all, or in accordance with international standards, including independence and impartiality.431 Where the internationalisation of the domestic proceedings is not successful in addressing such concerns, the possibility that the ICC could ‘step in’ to exercise jurisdiction must remain. In terms of unwillingness, it is difficult to imagine proceedings that are conducted by an internationalised tribunal, with the support of the inter­ national community, being designed to shield the person in question. Similarly, while the internationalised tribunals have certainly suffered their share of lengthy delays in proceedings, these are not generally inconsistent with the intent to bring the person to justice. What may be more likely is that the ICC may become concerned that the internationalised proceedings were not conducted indepen­ dently or impartially. While the internationalised institution is there at least partly to address this risk, it can be envisaged that this may not be successful. One example is the recent allegations concerning political interference with the investi­ gation stage in Cases 003 and 004 in Cambodia.432 In a similar situation in future (assuming the ICC would have jurisdiction), should cases not proceed allegedly due to political interference, the ICC should not be precluded from exercising jurisdiction. Alternatively, the internationalised system may be considered unavailable, for example, due to the internationalised tribunal upholding a domestic amnesty law. The ICC, which is not restrained by the same legal barri­ ers, would be able to exercise its jurisdiction in such a situation. The ICC would 428   J Stigen, The Relationship Between the International Criminal Court and National Jurisdictions (Leiden, Martinus Nijhoff Publishers, 2008) 233. 429   M Benzing and M Bergsmo, n 423. See also R Lipscomb, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’ (2006) 106 Columbia Law Review 182. 430   For the contrary view, see Higonnet, n 422, 432. 431   See the study of practice set out in chs 2 and 3. 432   See ch 3, section VIII(C).

404

Legal Barriers to the Exercise of Jurisdiction

therefore perform a supervisory role for an internationalised tribunal in the same way as it would for a purely domestic institution. The ICC should monitor and request information concerning the cases before the tribunal, particularly where the internationalised tribunal has been established, at least in part, to preclude the exercise of jurisdiction by the ICC.433 Thus, even if it is accepted that the comple­ mentarity principle does extend to internationalised tribunals, the jurisdiction of the ICC will not be completely removed. The emerging practice is consistent with states’ acceptance that the complementarity principle applies to internationalised tribunals, as demonstrated by the discussion concerning the proposed Special Tribunal for Kenya and the specialised chamber for Darfur.434

C.  Hybrid Tribunals As discussed, there are (at present) two recognised legal bases for the creation of hybrid tribunals: creation by treaty and by the Security Council acting under Chapter VII of the United Nations Charter.435 The implications of the different legal basis for the application of the complementarity principle will now be con­ sidered.

i.  Hybrid Tribunals Established on the Basis of a Treaty Where a hybrid tribunal has been established by agreement between the territorial state and the United Nations, it operates on the basis of delegated territorial juris­ diction.436 Assuming that the territorial state was also a party to the Rome Statute before the agreement for the hybrid tribunal was signed, the state has entered into two instruments delegating jurisdiction: the first to the ICC and the second to the hybrid tribunal. As the second transfer has been made knowing that there is already a delegation in place for the ICC, the state should not be able to avoid its obligations to the ICC by establishing a hybrid tribunal. Thus the delegation to the hybrid tribunal should be interpreted as subject to the principle of comple­ mentarity. The complementarity principle should apply to the hybrid tribunal, which, as it is based on the exercise of authority from the territorial state, should be considered a national court for the purposes of article 17. As in the case of an internationalised tribunal, it would be open for the state to specify the relation­ ship with the ICC in the agreement, for example, to preserve some high-profile or senior level cases for ICC, or to state that it considers it to be a court satisfying the obligation to prosecute under article 17. Given the increased international involvement in a hybrid tribunal, and its greater separation from the national 433   This was the proposal for the Special Tribunal for Kenya and for the specialised chamber pro­ posed by the African Union for Darfur, see ch 3, section III(B) and (E). 434   See ch 3, sections III(B) and III(E). 435   See ch 5, section III. 436   See discussion in ch 5, section VI.



Relationship with the ICC

405

system, there is a lesser risk that a hybrid tribunal will not satisfy the complemen­ tarity principle so as to render a case admissible before the ICC. However, in the unlikely event that a hybrid was to fail genuinely to prosecute, the ICC should retain the ability to step in and exercise its jurisdiction. This then reduces the risk of lacunae in the international criminal justice system. However, as with an inter­ nationalised tribunal, in assessing the hybrid tribunal, the ICC should accord a wide margin of appreciation, as the tribunal has been established with the backing of the United Nations as an attempt to facilitate a member state to participate in an accountability mechanism. Unnecessary interference would undermine the incentive. Moreover, there would presumably have been some discussion between the ICC, the state and the United Nations before the hybrid tribunal was estab­ lished, and it is likely that the institution reflects a ‘burden sharing’ exercise agreed between those bodies. Does it make any difference where the ICC is acting on the basis of a referral of a situation by the Security Council? A referral to the Court must be made on the basis of a resolution adopted by the Security Council acting under Chapter VII of the United Nations Charter. This resolution is likely to create an obligation for the affected state to cooperate with the ICC.437 It may also impose an obligation to cooperate with the Court on other Member States, either states specifically named or a general obligation on all Member States.438 In such circumstances, it is cer­ tainly arguable that article 103 of the United Nations Charter would apply such that any obligation to cooperate with the Court that the Council has created for Member States and the affected state in particular, would override obligations under the agreement establishing the hybrid tribunal. For example, faced with a request from both the ICC and the hybrid tribunal to surrender an individual, the affected state would have to comply with the request from the ICC.439 This reflects the primary role accorded to the Security Council under the United Nations Charter for the maintenance of international peace and security. However, it is highly unlikely that this situation would ever eventuate as the Secretary-General of the United Nations would not commit the organisation to establishing a hybrid tribunal in respect of a situation where the Security Council is considering refer­ ring or has referred a situation to the ICC. Given its primary role for international peace and security, it is for the Council to determine whether a situation that represents a threat to international peace and security is best referred to the ICC or to a hybrid tribunal. Also in situations where ICC referral is going to take place,

437   See UNSC Res 1593 (2005) UN Doc S/RES/1593, para 2 and UNSC Res 1970 (2011) UN Doc S/ RES/1970, para 5. 438   Resolutions referring situations to the ICC have not, as yet, imposed an obligation on states that are not already party to the Rome Statute to cooperate; rather states and international organisations are urged to cooperate: see UNSC Res 1593 (2005) UN Doc S/RES/1593, para 2 and UNSC Res 1970 (2011) UN Doc S/RES/1970, para 5. 439   Art 98 of the Rome Statute would most likely not apply in this situation, as it concerns ‘inter­ national agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court’: see Rome Statute, art 98(2).

406

Legal Barriers to the Exercise of Jurisdiction

it is very unlikely that the affected state would be negotiating for a hybrid, or else the Security Council would refrain from acting. However, as the cases in respect of the situation in Darfur demonstrate,440 the principle of complementarity is applicable even when a situation has been referred to the ICC by the Security Council.441 In the unlikely event that both a hybrid tri­ bunal is established and a situation is referred by the Council to the ICC, the principle of complementarity will apply. If, as is suggested above, the hybrid tri­ bunal is considered a domestic court for the purposes of complementarity, the ICC would be precluded from exercising jurisdiction unless the hybrid failed to investigate or prosecute, or to do so genuinely. Particularly where the agreement for the hybrid tribunal followed the referral to the ICC, this result is consistent with the complementarity principle as it creates a mechanism for allowing the affected state greater input into the accountability process than an ICC referral. Yet, while the Security Council referral to the ICC would be largely redundant in such circumstances, it enables the ICC to retain a residual jurisdiction to inter­ vene in the event the hybrid tribunal fails to satisfy the complementarity princi­ ple. Thus the prospect of the exercise of jurisdiction by the ICC may encourage the state affected to enter into negotiation for other arrangements for account­ ability, in particular a hybrid tribunal, in which it plays a greater role and avoids international intervention against its consent. Once the tribunal is established, the possibility of ICC jurisdiction may serve to ensure the state adheres to its obliga­ tions under the agreement and does not undermine the operation of the hybrid tribunal.

ii.  Hybrid Tribunals Established by the Security Council In the situation where a hybrid tribunal has been established by the Security Council acting pursuant to Chapter VII of the Charter, the hybrid tribunal is not exercising the national jurisdiction of the state, but is exercising the powers of the Security Council pursuant to Chapter VII of the United Nations Charter. Yet, as the Security Council resolution is not binding on the ICC as an independent organisation, the resolution of itself will not preclude the exercise of jurisdiction by the ICC (assuming the ICC otherwise has jurisdiction), unless the resolution also contains a request for deferral under article 16 of the Rome Statute. Where the resolution does include such a request, or does not otherwise address the rela­ tionship between the two institutions,442 it is suggested that the hybrid tribunal should not be considered a domestic court for the purpose of complementarity. Instead, both the ICC and the hybrid tribunal would retain concurrent jurisdic­ tion. However, the fact that the hybrid tribunal is established by the Security 440   See, eg, Prosecutor v Omar Al Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest). 441   Fletcher and Ohlin, n 121. 442   eg, the resolution could establish the hybrid to try certain categories of accused or crimes, while leaving other categories (most likely senior leaders) to the ICC.



Relationship with the ICC

407

Council acting under Chapter VII of the United Nations Charter may, in effect, give the hybrid tribunal primacy even in respect of the ICC. Assuming that the Security Council resolution imposed an obligation to cooperate with the hybrid court on at least the affected state, that obligation would override the obligations of the affected state under the Rome Statute by virtue of article 103 of the United Nations Charter. Thus, even were the ICC to open an investigation, the territorial state would be required to surrender the accused to and to cooperate with the hybrid tribunal, rather than the ICC. Thus, the Security Council would have effectively created a hybrid tribunal with primacy in respect of the ICC, due to the overriding nature of the obligations the Security Council is able to impose on UN Member States. It is submitted, however, that in such situations, the more appro­ priate course of action would be either for the Security Council to refer the situa­ tion to the ICC instead of establishing a hybrid tribunal or for the Council to request the ICC to defer the investigation under article 16 of the Rome Statute. Alternatively, the prosecutor of the ICC may form the view that as the Council has established an alternative mechanism to the ICC the Court should refrain from exercising jurisdiction in respect of the same situation. It is, in theory at least, possible that the Security Council could create a hybrid tribunal acting under its Chapter VII powers, as well as refer the same situation to the ICC under article 13(b) of the Rome Statute. This is, however, very unlikely, as the Security Council could simply refer the situation to the ICC, rather than establish two potentially competing jurisdictions and a potential conflict of obli­ gations for Member States. If this situation were to eventuate, the Council should consider the relationship between the ICC and the hybrid in the terms of the reso­ lution, for example, requesting the ICC to examine cases at a senior level, while the hybrid could consider intermediate or lower-level cases. Thus it would be establishing two complementary, rather than competing, jurisdictions.

D. Conclusion The relationship between hybrid and internationalised tribunals has already been raised before several of the tribunals studied, in particular the ECCC and the SCSL. The generally self-contained nature of such institutions means that gener­ ally there will, and should be, no recourse to the ‘ordinary’ domestic courts to review the decisions of a hybrid or internationalised tribunals. This is particularly the case regarding hybrid tribunals, which operate separately to and indepen­ dently of the national judicial system. However, there is a limited potential for national courts to consider the legality of the tribunal’s establishment as a matter of national law, although this potential is very restricted in the case of a hybrid tribunal established by treaty and even more so in relation to a hybrid established by the Security Council acting under Chapter VII of the United Nations Charter. In these two situations, any decision of a national court will most likely have no impact on the legality of the tribunal at the international level. A further question,

408

Legal Barriers to the Exercise of Jurisdiction

but one which is beyond the scope of this study, is the extent to which the deci­ sions of hybrid and internationalised tribunals have influenced the jurisprudence of courts at the national level. The relationship between hybrid and internationalised criminal tribunals and the ICC has not yet been brought directly into question, as the existing hybrid and internationalised tribunals have largely been established in circumstances where the ICC is unable to exercise jurisdiction.443 However, as the study of emerging practice shows, the creation of the ICC has not reduced the demand for such tri­ bunals and hybrid and internationalised tribunals are now being contemplated where the ICC may exercise jurisdiction. In fact, the possibility of establishing in particular an internationalised tribunal has become an important part of the dynamics of discussion between the affected state and the ICC as to whether the ICC should exercise its jurisdiction. It is concluded that the nature and legal basis of the tribunal is relevant to the question of whether the principle of complemen­ tarity should apply to hybrid and internationalised tribunals, so as to preclude the exercise of jurisdiction by the ICC in situations where concurrent jurisdiction exists. For an internationalised tribunal, the principle should apply and an inter­ nationalised tribunal should be considered a domestic court for the purpose of complementarity. Thus, only where the internationalised tribunal does not ‘per­ form’ would the ICC be able to exercise jurisdiction. A similar conclusion is reached in respect of hybrid tribunals established by treaty, even where the situa­ tion was referred to the ICC by the Security Council. In contrast, for hybrid tribu­ nals established by the Security Council, it is suggested that the principle of complementarity would not apply, and the hybrid tribunal should not be consid­ ered a domestic court. Thus, both the hybrid tribunal and the ICC would retain jurisdiction. However, this is an unlikely outcome, as it would be preferable either for the Security Council to refer the situation to the ICC instead of creating a tri­ bunal, or to request the ICC to defer proceedings.

X. Conclusion This chapter has considered several potential legal barriers to the exercise of juris­ diction by hybrid and internationalised tribunals studied: the principle of legality; immunities under customary international law; amnesties; obtaining the custody of the accused; statutes of limitation; the ne bis in idem rule and the relationship between hybrid or internationalised tribunals and other tribunals. Each of these barriers has the potential to undermine the effectiveness of the tribunal in ques­ tion and to render the tribunal an imperfect solution to impunity for a particular situation. Immunities and amnesties may exclude key individuals from the scope of the tribunal’s operations. Similarly, difficulties in obtaining custody of an   See ch 2, section I; ch 4, section II(B).

443

Conclusion 409 accused may protect senior leaders and force the tribunal to concentrate on lowerand mid-level offenders, while application of the ne bis in idem principle may preclude a subsequent trial by a hybrid or internationalised tribunal. The nullum crimen sine lege principle will potentially restrict the substantive jurisdiction of the tribunal to those crimes that were criminalised either by domestic or international law at the relevant time. Similarly, any applicable statutes of limitation will exclude certain crimes from the scope of the tribunal’s material jurisdiction. Finally, it may be necessary to consider the relationship between the hybrid or internationalised tribunal and domestic courts, particularly in the affected state, as well as the relationship with the ICC, to consider whether any potential juris­ dictional conflicts arise, and how such conflicts are to be resolved. What this chapter has demonstrated is that it is not sufficient merely to refer to the international aspects of a hybrid or internationalised tribunal to avoid the application of barriers to the exercise of jurisdiction by that particular tribunal. Instead, it is necessary to consider first, whether the tribunal in question is either hybrid or internationalised, and second, to examine its legal basis as well its con­ stituent instruments. It is submitted that adopting the approach suggested by this study will encourage more consistent and ‘correct’ assessments of the application of such barriers and strengthen the credibility of hybrid and internationalised tribunals and their jurisprudence. Moreover, when an accountability mechanism is being considered for a particular situation, the potential application of such barriers should be considered as part of the process of determining which mechan­ ism to adopt. Identifying where one or all of these barriers may be an issue in a particular situation may enable the issue to be pre-empted. This may be by selecting and designing a mechanism, in particular its nature and legal basis, that best resolves the issue, or by addressing the issue in the terms of a tribunal’s constituent instrument and supporting agreements. However, it is also essential that the tribunals themselves, in the event they are called upon to determine the applicability of such barriers, must respect the legal basis adopted for the tribunal and the terms of the relevant instruments, even when to do so may result in a trial being halted. As this study of practice has shown, this has not always occurred, with the importance of the trial continuing apparently outweighing the need to reach a more legally-justified conclusion on jurisdictional issues. As well as poten­ tially violating rules of international law and the human rights of the accused, such an approach risks undermining the authority of the tribunal in question, the consistency of its jurisprudence and respect for the model of the hybrid or inter­ nationalise tribunal as part of the system of international criminal justice.

Conclusions Certain crimes – in particular genocide, crimes against humanity and certain war crimes – are of concern not just to the immediate victims and their society, but to all states and the wider international community. Ensuring accountability for such crimes and for other serious human rights violations is thus a key aim of international criminal justice. However, the reality of the system within which we currently operate is that international criminal justice and all its mechanisms rely ultimately on states for enforcement, whether in the form of trials before national courts of the territorial state, the state of nationality or third states on the basis of universal jurisdiction, or by supporting international institutions, in particular the International Criminal Court (ICC). Thus preserving state sovereignty or at least better balancing state sovereignty against the need for accountability for international crimes is also a key aim of the international criminal justice system. This tension is evident in the discussion in chapter one of the emergence of the international criminal justice system, and in the recent trend away from interna­ tional mechanisms towards national systems that discussion highlighted. Moreover, the existing system of international criminal justice is not perfect. In fact, it is highly selective, and there are several instances where individual perpe­ trators, or sometimes entire situations, remain outside the reach of international criminal justice. National courts may not act to secure accountability for various reasons, including an inadequate legal framework, insufficient capacity, impar­ tiality or independence, or the lack of political will. Accountability may be traded for other aims, such as securing a peace agreement or improving relations with a neighbouring state that was formerly a party to the conflict. Similarly, inter­ national mechanisms may not be established due to a lack of will and resources. Even where such institutions are created, they have limited jurisdiction and resources. Even the ICC, the permanent international criminal institution, cannot act in every situation in which international crimes have been committed. To the contrary, the principle of complementarity requires that it should be national courts, rather than the ICC, that bear the primary responsibility for securing accountability. The ICC will only intervene where the state concerned has failed to act, or is unwilling or unable to prosecute genuinely. Moreover, international mechanisms tend to be expensive, encounter long delays and are remote from the community affected. They also do little to build capacity within the criminal justice system in the affected state.

Conclusions 411 Recognising the limitations of both national and international mechanisms, and the need for international intervention to have a more long-term impact on the affected community, the international community has turned to a further mechanism, the so-called hybrid and internationalised criminal tribunals. These tribunals have a mix of the national and the international and, by drawing on ele­ ments of both national and international mechanisms, it was hoped they avoid the drawbacks of both. Chapter two of this study outlined background to estab­ lishment, key features and jurisdiction of the seven existing tribunals that may be considered to be hybrid and internationalised tribunals: the Special Court for Sierra Leone; the Special Tribunal for Lebanon; the International Judges and Prosecutors Programme in Kosovo; the Special Panels for Serious Crimes in East Timor; the Iraqi High Tribunal; the War Crimes Chamber in the State Court of Bosnia and Herzegovina; and the Extraordinary Chambers in the Courts of Cambodia. Chapter three then extended that study to consider institutions that, while they have an international element, are not considered to be hybrid and international in nature, such as the Lockerbie Court and the Serbian War Crimes Chamber. The chapter then considered emerging practice in relation to the establishment of hybrid and internationalised tribunals, examining proposals for further such tribunals. From the study of practice, several key conclusions were identified. First, reliance on the hybrid and internationalised model is, like international criminal justice itself, highly selective. Not all situations that may warrant the creation of a hybrid or internationalised tribunal have received the attention and participation of the international community. Second, the development and use of such tribu­ nals as a criminal justice mechanism has been haphazard, and there has not been a planned or systematic approach to their creation. This is perhaps responsible for the claims that such tribunals are too distinct from one another to constitute a ‘category’ of tribunals, or to allow a common framework within which such tribu­ nals may operate. It has also enabled some of the inconsistency that has appeared in the judgments of such tribunals, with such courts being able to distinguish themselves readily from other institutions when required. Third, all of the situa­ tions considered, including the existing as well as proposed tribunals, are con­ nected to a situation arising from an armed conflict (generally internal in nature), serious human rights violation or significant political unrest. These situations also involve circumstances in which the justice system of the affected state is consid­ ered unable to secure accountability without international assistance, due to a weak or non-existent judicial system, lack of resources, fears as to political inter­ ference or partiality, or inadequate legal frameworks. Finally, such tribunals were originally contemplated as ‘substitutes’ for the ICC, in that they would only be established where the ICC had not yet been established, or where it lacked jurisdiction. However, recent practice suggests that the possibility of a hybrid or internationalised tribunal may now be a consider­ ation in the dialogue between the ICC and the affected state, and whether or not the ICC will decide to exercise jurisdiction. Further, proposals for internation­

412 Conclusions alised tribunals are influencing decisions concerning the application of the com­ plementarity principle and potentially reliance on article 16 of the Rome Statute to defer proceedings (for example, in relation to Kenya and Darfur). Proposals also contemplate internationalised tribunals operating alongside the ICC, by looking at a different category of perpetrators or perhaps a different time period (for example, the Democratic Republic of Congo). Practice certainly has moved on from considering the establishment of the ICC as the ‘death knell’ for hybrid and internationalised tribunals. This reflects the increasing preference for facil­ itating prosecution at the national level wherever possible. Chapter four then turned to consider the issue of whether, despite all the disparities between the existing and proposed tribunals, there is a definition of a hybrid and internationalised tribunal, or at least some distinguishing features of such institutions. While it is concluded that there is no definition of a hybrid and internationalised criminal tribunal, what the practice does demonstrate is that there are some common features, such as a criminal judicial function and an ad hoc or temporary basis. However, it is suggested that the factors that render such tribunals distinct from both national courts and international mechanisms are, first, the presence (or at least the possibility of) international judges and judges from the affected state sitting on the judicial panels of a tribunal. Second, the applicable law of the tribunal is mixed. This means that it consists of an inter­ national crime, or at least a crime that is linked to international peace and security and is of significant international concern (such as terrorism), and either other crimes under domestic law or that the international crimes within the material jurisdiction of the tribunal are criminalised as a matter of domestic law and not by international law directly. The practice also shows that the category of ‘hybrid and internationalised’ criminal tribunals in fact comprises two distinct sub-categories: hybrid and inter­ nationalised tribunals. Hybrid tribunals are established either by treaty or by a resolution adopted by the Security Council acting under Chapter VII of the United Nations Charter. They operate outside the national system of the affected state and apply international law directly. Hybrid tribunals should be considered international in nature, although they are distinct from the ICC, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. In contrast, internationalised tribunals are established under the law of the affected state. While they may operate separately to the ‘ordin­ary’ criminal justice system, they are based in national law and apply inter­ national law as it has been incorporated into national law, rather than directly. Such institutions may be supported by a treaty between the affected state and the participating state or organisation (generally the United Nations). However, such treaties provide for cooperation and other issues; they do not form the legal basis for the tribunal. Internationalised tribunals are thus national institutions, with international participation. It can be very difficult to classify tribunals accurately: for example, the Iraqi High Tribunal is considered by some to be a purely national institution, and by others to be a national institution receiving international

Conclusions 413 assistance. Regardless, it is important to attempt to do so by reference to the criteria that it has been possible to identify in this study. In any event, the act of classifying a tribunal as hybrid or internationalised in nature is not of itself conclusive of key legal issues. Instead it is necessary to consider the legal basis, jurisdictional basis and constituent instruments of the tribunal. Accordingly, chapter five then explored the legal and jurisdictional bases of the hybrid tribunals and internationalised tribunals in greater detail. It can be diffi­ cult to identify the correct legal basis for a particular tribunal, often because the circumstances leading to its establishment do not clearly suggest that the tribunal has a particular legal basis. For example, it is doubtful whether the members of the Security Council would reach the same conclusion as the author or as one another when considering the legal basis of the Special Tribunal for Lebanon. However, this study confirmed that, while other legal bases are possible, hybrid tribunals have been established by treaty between the affected state and the United Nations (the Special Court for Sierra Leone) or by the powers of the Security Council under Chapter VII of the UN Charter (the Special Tribunal for Lebanon). This study confirmed that these are the preferred descriptions of the legal bases of these two tribunals. It also assessed the extent to which the use of these legal bases to establish a hybrid tribunal was consistent with international law. While the use of a treaty to create the SCSL was novel at the time, this has now become an accepted legal basis for a hybrid tribunal established by an affected state and the United Nations, and most likely, between an affected state and another international organisation, for example the African Union. However, what is less certain is the circumstances in which a tribunal established between two (or more) states may be considered a hybrid tribunal. Similarly, the reliance on the Council’s Chapter VII powers to bring about the establishment of the STL was also novel, although again, probably a lawful use of such powers. In contrast, internationalised tribunals are always established under national law. The context leading to the examples of internationalised tribunals studied was extremely varied, from United Nations territorial administration to occupa­ tion, to resolving international crimes committed several decades ago. Similarly, the nature of the legal instruments that established the internationalised tribunals differed substantially, from regulations adopted by UN territorial administration missions, to orders adopted by an occupying power, to domestic statutes. However, when the capacity in which the institutions adopting such instruments acted is taken into account, it is clear that all existing examples of internation­ alised tribunals were created as national institutions under national law. This is so even though such institutions may have a dual function, and act on both the national and international plane. This distinction between hybrid and internationalised tribunals was also reflected when the jurisdictional basis for each tribunal was considered. The inter­ nationalised tribunals tended to exercise primarily territorial jurisdiction, although extra-territorial jurisdiction was available in limited circumstances. This is consistent with the situation found in many national legal systems. In contrast,

414 Conclusions hybrid tribunals had two distinct jurisdictional bases: a transfer of territorial juris­ diction where the tribunal is established by a treaty; and the powers of the Security Council for international peace and security when established pursuant to a Security Council resolution. Two recent proposals, the proposal for the tribunal to try Hissène Habré and the proposal for a piracy tribunal, raise interesting questions as to whether hybrid or internationalised tribunals may operate on the basis of universal jurisdiction. This study concludes that an internationalised tribunal may operate on the basis of universal jurisdiction (assuming the crimes within its jurisdiction give rise to universal jurisdiction), subject to the requirement for the consent of the territo­ rial state. In contrast, a hybrid tribunal should not be established on the basis of a treaty that relies on a transfer of universal jurisdiction only, as there is no prece­ dent for such a transfer of universal jurisdiction to an international tribunal and there may be serious issues in the exercise of universal jurisdiction by a hybrid tribunal without the consent or participation of the territorial state. A hybrid tri­ bunal established by the Security Council, even if it confers jurisdiction that equates to universal jurisdiction, is not exercising universal jurisdiction per se. Instead, it is exercising jurisdiction based on the powers of the Security Council for international peace and security. Drawing on these conclusions regarding legal basis and jurisdictional basis, the study then considered several potential barriers to the exercise of jurisdiction by hybrid and internationalised tribunals: the principle of legality; immunity of heads of state and state officials; amnesties; the need to obtain custody of the accused; domestic statutes of limitation; the ne bis in idem principle; and the rela­ tionship between such tribunals and national court and the International Criminal Court. Several of these legal issues have already arisen before one or more of the existing hybrid and internationalised tribunals, while others remain as yet theo­ retical. These potential barriers have also been raised as part of the negotiation or design process for several of the proposed tribunals. It is concluded that it is not sufficient for hybrid and internationalised tribunals merely to rely on the fact that they operate separately from the national legal system, or to rely only on their international elements to avoid such potential barriers. No longer should tribunals rely on the ability to point to similar or different features to align or distinguish that tribunal from other institutions. Instead both hybrid and inter­ nationalised tribunals must undertake a thorough analysis of their legal basis, the nature of the jurisdiction they exercise and the terms of their constituent instru­ ments. For example, in relation to whether immunities under international law may be pleaded before a tribunal, whether a court is international or national in nature is, following the decision in the Arrest Warrant case,1 said to be the key factor. The International Court of Justice recognised that in relation to incum­ bent heads of state and other senior officials, there is no exception to immunity in 1   Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3 (Arrest Warrant case).

Conclusions 415 respect of international crimes before national courts.2 However, the Court suggested that immunities of any type would not be applicable before certain international criminal courts.3 Thus, as the Special Court for Sierra Leone did in the Taylor Immunity Decision,4 it is necessary to consider whether a tribunal is national or international to resolve a plea of head of state immunity. However, tribunals must go further, and consider whether they are hybrid or internation­ alised in nature, and how their legal basis impacts upon the applicable legal frame­ work. In failing to consider its creation as a treaty-based institution, it is determined that the SCSL erred in its conclusion that personal immunity did not extend to President Taylor, at least at the time the warrant was issued. While this study finds that evaluating the legal basis of a tribunal is important, it has also demonstrated that ascertaining the legal status is not by itself sufficient to resolve issues such as immunity. It is also necessary to examine the terms of the constituent instrument and to assess whether the state in question is bound by the provision. For example, a provision in a treaty cannot remove the immunity of a state that is not a party to that agreement. Similarly, just because a tribunal has been established by the Security Council it does not automatically follow that states may no longer claim immunity before the tribunal established, or that all states must cooperate with that tribunal. The Special Tribunal for Lebanon dem­ onstrates this point well. The legal basis is important but will not always be deter­ minative: states and the Security Council are to an extent able to modify the general position in international law through the provisions of the relevant legal instruments. Moreover, states may adopt a position inconsistent with the general propositions at the international level and even with particular rules. For exam­ ple, a state may agree to provide cooperation when required in the absence of an obligation to do so or may adopt a more expansive interpretation of material jurisdiction where its own nationals are concerned. Thus states should study the emerging practice to enable them to create tribunals with the legal powers they consider appropriate to a given situation and which they are prepared to support. In conclusion then, the mechanism(s) of the hybrid and internationalised tri­ bunals will not disappear from the range of criminal justice mechanisms available to states and the international community, at least not in the foreseeable future. The increase in the activity of the ICC, and the potential role of such tribunals to operate in line with the complementarity principle has meant that states have realised the potential of such institutions as a way to preserve their sovereignty to a greater extent than would be possible in the face of the intervention of the ICC or an ad hoc tribunal. It is also consistent with the desire within the United Nations, states and other interested actors to develop and entrench the rule of law at the national level, by enhancing capacity and respect for criminal process, human rights and international law through the provision of assistance to mixed   Arrest Warrant case, para 58.   Arrest Warrant case, para 61. 4   Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004). 2 3

416 Conclusions institutions. The trend shown by the emerging practice is a shift away from the more ‘international’ model of the hybrid tribunal, which impacts upon sovereignty to a greater extent, and has fewer benefits for the national system, to internationalised tribunals, which are more respectful of state sovereignty. The issue for the international community will increasingly become how to ensure that the interest of the community in securing accountability in accordance with international standards is secured through the use of such institutions. The risk that the United Nations is to participate in an institution that fails to comply with international standards is particularly high where the United Nations has a weak bargaining position and the state concerned is resistant to compromise or to sac­ rificing sovereignty in favour of greater international involvement and control. The concerns regarding political interference with judicial processes at the Extraordinary Chambers in the Courts of Cambodia illustrates this risk only too well. This study has looked at existing and proposed tribunals at a particular point in time. Further tribunals and mechanisms will be developed, some to address simi­ lar crimes to those covered by the existing tribunals, while others will address new situations or conduct. This can be evidenced by the expansion of such institutions to look at terrorism and potentially piracy. Similarly, new institutional arrange­ ments will emerge, drawing on the existing practice, but adapted to a particular situation. Again, the varying proposals for a piracy tribunal demonstrate the potential range of international criminal justice mechanisms that may be devel­ oped. As such institutions emerge, it is necessary not only to label such tribunals as hybrid or internationalised just because they happen to share some features with existing tribunals. Instead, each tribunal should be assessed against both its similarities and differences from existing tribunals, and with the recognition that not all institutions or arrangements with an international element are properly to be considered to be a hybrid or internationalised tribunal. To identify correctly the nature and legal basis of a tribunal and, based on this, to apply an appropriate legal framework to decisions concerning potential barriers to the exercise of jurisdiction by a tribunal will serve to improve the consistency and accuracy of their jurisprudence and to enhance the legitimacy of their judgments and of the institution itself.

Investigative judges?

Appellate Chamber?

Trial Chambers

Structure

Panels may conduct ‘any’ stage of criminal proceedings (investigative, trial, appeal), unless already in session. Jurisdiction is ad hoc: there is no separate structure with original jurisdiction.

IJPP

SCSL

From 2001, all District Courts must include at least one ‘investigating judge’, charged with ensuring respect for the rights of all suspects and all victims. They shall issue warrants for search or seizure but may not interfere with the Public Prosecution Service (PPS).

Yes – special panels forming part of the Court of Appeal in Dili.

No – but judges may sit alone for pre-trial matters.

Yes.

Special panels forTwo trial ming part of the chambers. District Court of Dili with exclusive jurisdiction over ‘serious crimes’.

SPSC

Annex 1: Key Features (Other Than Jurisdiction)

Yes – two co-investigating judges, one international and one national, with responsibil­ity for ‘all investigations’.

Yes – the Supreme Court Chamber.

One trial chamber.

ECCC One felony court.

IHT

No – but judges may sit alone for pre-trial matters.

Yes. Investigative judges are independent, may collect evidence from any source they deem appropriate, and initiate proceedings.

Yes – Section Yes – the I of the Cassation Appellate panel. Division of the State Court.

Section I of the Criminal Division of the State Court.

WCC

Provision is made for one international pre-trial judge, appointed by the UN SecretaryGeneral. They shall confirm indictments, issue warrants for search or seizure, and make other such orders as necessary for a fair trial.

Yes – the Appeals Chamber.

One trial chamber.

STL

An inter­ national prosecutor may be appointed at ‘any’ stage of proceed­ ings.

No separate registry to support international judges and prosecutors.

Prosecution

Registry

IJPP

Yes, as part of the District Court/Court of Appeal in Dili.

The Deputy General Prosecutor for Serious Crimes of the PPS has ‘exclusive prosecutorial authority’ for serious crimes under the jurisdiction of the special panels.

SPSC

Yes – headed by an inter­ national appointee and UN staff member.

OTP headed by an international prosecutor, with a national deputy prosecutor.

SCSL

Office of Administration, serving both judges and prosecution, headed by a national appointee, with an international deputy.

Two Co-Prosecutors, one international and one national prosecutor.

ECCC

A separate Registry exists for Section I of the Court, shared with Section II (organised crime). For the transi­ tional period, this shall be headed by an international appointment.

Special Department for War Crimes, within the Prosecutor’s Office of BiH. During the transitional period, the section is headed by an international prosecutor.

WCC

Administration Department, shared by the Court, Public Prosecution, and Defence Office.

The Public Prosecution, led by a Chief Prosecutor and deputy elected internally.

IHT

Yes – headed by an international appointee and UN staff member.

OTP headed by an international prosecutor, with a national deputy prosecutor.

STL

Trial bench

Composition

Defence

Structure

Each panel of three comprises two international judges (one presiding) and one national judge.

No special provision. Legal aid made generally available from mid-2006.

Each panel of three comprises two international judges and one national judge. The judge to whom the case was originally assigned presides.

No special provision. Legal aid/public defence made generally available from mid-2001.

Each chamber comprises two international judges and one national judge. President is elected by judges.

No refer­ ence in the Statute, but Defence Office estab­lished within the Registry.

Each trial chamber has three national judges (one presiding) and two international judges.

No legislative reference, but Defence Support Section operative in practice.

Each panel comprises three judges. For the initial transitional period two inter­ national judges and one national judge (always the President)

No special provision.

The felony court comprises five national judges. President is elected by judges.

The RPE require the establishment of a Defence Office within the Administration Department.

The trial chamber comprises two inter­national judges and one national judge. President is elected by judges.

Yes – Defence Office created by statute, with independent head.

Funding

Assessed contributions via UNMIK budget, and through DoJA.

Yes.

Concurrence of international judge required to form a majority

Organisation

Each panel of three comprises two international judges (one presiding) and one national judge.

Appellate bench

IJPP

Assessed contribu­ tions, via UNTAET (and successor mission) budget, and through Ministry of Justice.

Yes.

Each panel of three comprises two international judges and one national judge (as for trials). In cases of ‘special importance or gravity’, panels of five may sit, with three international judges and two national judges.

SPSC

Voluntary contri­bu­ tions, subvention from assessed funds in 2004.

Yes.

The chamber comprises three inter­national judges and two national judges. The President of the SCSL presides.

SCSL

Mixed approach – UN 75% from voluntary contributions, Cambodia 25%. In practice, international community has been required to provide the majority of the Cambodian share.

Yes – judges must attempt unanimity but otherwise a supermajority is required.

The chamber comprises four national judges (one presiding) and three international judges.

ECCC

Drawn from the state budget of BiH and from contributions from international donors.

No.

Each panel comprises three judges, both national and inter­national.

WCC

Drawn from the state budget of Iraq. The IHT has received assistance from international donors, mainly the US.

No.

The Cassation panel comprises nine national judges. President is elected by judges.

IHT

Mixed mechanism. 51% to be provided by the UN from voluntary contributions. 49% to be provided by the Government of Lebanon.

Yes.

The chamber comprises three international judges and two national judges. President is elected by judges, and also presides over the Tribunal as a whole.

STL

Reports to UNMIK on administrative matters. No direct report­ ing line to Council. SRSG controls exercise of jurisdiction.

International judges and prosecutors may be appointed to courts operating in all districts of Kosovo.

Management/ Oversight

Seat of Tribunal

Structure

Dili, East Timor.

Reports to Transitional Administration on administrative matters. No direct reporting line to Council.

No. Recent calls for an oversight mechanism due to concerns regarding financial mis­ management.

Freetown, Phnom Penh, Sierra Leone. Cambodia.

Management Committee, comprising contributing states.

Sarajevo, BiH.

Oversight Committee established in 2004 to oversee the operation of the Registry. It consists of international experts, not contributing states.

Baghdad, Iraq. May hold sessions throughout Iraq.

Judges and Public Prosecutors’ Affairs Committee with respect to ethical and disciplinary matters. The President of the Court must report to the Council of Ministers annually. The Presidency Council has considerable informal powers of oversight.

Outside Lebanon (The Hague, The Netherlands).

A Management Committee may be established by the UN and Lebanon in consultation.

Law applicable in Kosovo, provided that it is non-­ discriminatory, does not conflict with international human rights standards, the fulfilment of Council Res. 1244 (1999), or any other UNMIK

Rights should be consistent with major international human rights instruments.

No.

Applicable law

Rights of the accused

Death penalty available as a sentencing option

Procedure

IJPP

SCSL

No.

Enumerated fair trial rights.

No.

Enumerated fair trial rights.

Existing law of East RPE of the Timor, provided SCSL. that it is non-­ discriminatory, does not conflict with international human rights standards, the fulfilment of Council Res. 1272 (1999), or any other UNTAET regulation (e.g. Transitional Rules of Criminal Procedure).

SPSC

No.

Enumerated fair trial rights, and general reference to articles 14 and 15 of the ICCPR.

Cambodian law, with lacunae resolved by reference to international procedural rules.

ECCC

No.

Enumerated fair trial rights.

National law – Criminal Procedure Code of BiH.

WCC

Yes. Death penalty imposed and carried out on several occasions.

Enumerated fair trial rights.

Criminal Procedure Law No 23 of 1971 and RPE; otherwise, resort to general prin­ ciples of Iraqi criminal law.

IHT

No.

Enumerated fair trial rights.

RPE of the LST.

STL

Trials in absentia

Structure

No – but accused may be removed if disrupting proceedings.

No – but trials may proceed where the accused, having made an initial appearance, flees, is voluntarily absent, or is removed as a consequence of their conduct.

No – but trials may proceed where, the accused having made an initial appearance, the judge is satisfied that they expressly or impliedly waive their right to be present.

No – but trials may proceed where, the accused having made an initial appearance, absconds or is removed for disruptive conduct.

No – but accused may be removed if disrupting proceedings and counsel is present.

No – but accused may be removed if disrupting proceedings.

Yes, if the accused has waived in writing their right to be present, if they have not been surrendered by the authorities concerned, or if they have absconded and their apprehension cannot be secured by all reasonable steps.

Provisions on the rights of victims

Yes. Injured parties or their representatives may make submissions in court, including a closing statement. Criminal proceedings may incorporate victims’ property claims, including for damages.

Yes. Victims may seek leave from the court to make submissions in criminal proceedings. As of right, they may intervene in reviews conducted by the investigating judge, and applications for parole. Victims of serious crimes may benefit from a trust fund.

No. (Victims may be able to claim compensation under relevant national legislation.)

Not provided for in the Special Law, but RPE provide for a civil party action. The ECCC can order collective and moral reparations to civil parties.

No.

Yes. Iraqi victims and families may file a civil suit before the Court.

Yes. Victims or their representatives may make submissions on matters affecting their personal interests, at any stages of the proceedings which the Chambers deem appropriate and which do not prejudice the interests of the parties. Victims may also be able to claim compensation under relevant national legislation.

Restrictions applicable to the courts of Kosovo in general.

Territorial

Yes.

No restriction.

Natural persons

Nationality

Personal

Unlimited.

Temporal

IJPP

No restriction.

Yes.

No restriction – universal jurisdiction for genocide, crimes against humanity, war crimes, and torture. In all other respects, panels have jurisdiction through all East Timor.

Unlimited with respect to genocide, crimes against humanity, and war crimes. Limited to the period 1 January 1999 to 25 October 1999 for murders, sexual offences, and torture.

SPSC

Annex 2: Key Features – Jurisdiction

No restriction.

Yes.

Crimes must have been committed in the territory of Sierra Leone.

Crimes must have been committed since 30 November 1996.

SCSL

WCC

No restriction.

Yes.

No restriction.

Crimes must have been committed in the period 17 July 1968 to 1 May 2003.

IHT

No restriction.

Yes.

No restriction.

Yes.

Crimes must have No been committed restriction. in the territory of Bosnia and Herzegovina, unless universal jurisdiction conferred by relevant treaty.

Crimes must Unlimited. have been committed in the period 17 April 1975 to 6 January 1979.

ECCC

No restriction.

Yes.

No restriction.

Crimes must have contributed to the assassination of Rafiq Hariri on 14 February 2005, or to other attacks in the period 1 October 2004 to 12 December 2005 which the Tribunal is satisfied are ‘connected’.

LST

No restriction.

No restriction.

Political affiliation

Seniority

IJPP

No restriction.

No restriction.

SPSC

Only ‘persons who bear the greatest responsibility for serious violations’ of the law.

No restriction.

SCSL No restriction.

WCC

Condition No restriction. varies according to offence: certain offences appear to require the accused to be the ‘most responsible’ for crimes; others require them to be the ‘most responsible’ or a ‘senior leader’ of the country.

If not fulfilling the general seniority criterion, accused must be leaders of ‘Democratic Kampuchea’.

ECCC

No restriction.

No restriction.

IHT

No restriction.

No restriction.

LST

Genocide

No restriction.

Yes – but only juveniles of 12 years or more at the time of the crime.

Yes. Panels Yes. can exercise jurisdiction in any ‘criminal’ proceedings.

No restriction.

Peacekeepers

Material

Yes – but only juveniles of 14 years or more at the time of the crime.

Juveniles

No.

Yes – if the sending state is unwilling or unable genuinely to carry out an investigation or prosecution, and the Security Council so authorises.

Yes – but only juveniles of 15 years or more at the time of the crime.

Yes.

N/A

No express restriction – Cambodian law applies.

Yes.

No restriction.

Yes – but only juveniles of 14 years or more at the time of the crime.

Yes.

N/A

No.

N/A

No express No restriction. restriction – regime under Criminal Procedure Law No 23 of 1971 applies.

Yes.

Yes.

War crimes Yes. – Common Article 3 and Additional Protocol Two

Yes.

Yes.

Yes.

War Crimes – other serious violations

Crimes against humanity

Other treaty-based provisions

Yes (with regard to torture).

Yes.

Yes.

SPSC

Yes.

War crimes – grave breaches

IJPP

No.

Yes.

Yes.

Yes.

No.

SCSL

Yes (with regard to cultural property and diplomatic protections).

Yes.

No.

No.

Yes.

ECCC

Yes.

Yes.

Yes.

Certain offences.

Certain offences.

WCC

No.

Yes.

Yes.

Yes.

Yes.

IHT

No.

No.

No.

No.

No.

LST

Domestic law Yes – all crimes crimes.

Yes – but offences relating only to murder and sexual violence.

Yes – but offences relating only to arson and female child abuse.

Yes – but offences relating only to homicide, torture and religious persecution.

No.

Yes – but offences relating only to interference with the judiciary, the squander of national resources, aggression against an Arab nation, and analogies to inter­ national crimes over which the Court exercises jurisdiction.

Yes. Provisions of the Lebanese Criminal Code relating to terrorism, offences against life and the person, illicit associations, failure to report crimes, and ancillary matters; and Articles 6 and 7 of the 1958 law on sedition and civil war.

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INDEX Introductory Note References such as 385–6 indicate (not necessarily continuous) discussion of a topic across a range of pages. absentia, trials in, 17, 25, 148, 182, 354, 363, 372, 379, 385–6 accountability, 19, 20, 28, 35, 51, 55–65, 82, 93, 95, 98–99, 104, 111, 114, 121–4, 128, 147, 149, 152–5, 159, 173, 179, 181, 185, 190–2, 194, 196–200, 208–9, 215, 227, 251–2, 273, 287 292–3, 327, 329, 331–2, 335, 341, 402, 405–6, 409–11, 416    sovereignty, tension between, 3, 10, 58–9, 65, 134, 410 active nationality, 12, 19, 160,163,166–7,171, 219–27, 242–3, 315, 326, 398 Ad hoc Human Rights Court (Indonesia), 94–5, 398 ad hoc tribunals, 31–44 see also International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) Afghanistan, 25, 49, 190 Aggression, crime of, 30, 240, 242, 244    Inclusion in jurisdiction of hybrid and internationalised tribunals, 242–3    International Criminal Court and, 47, 50, 241–2    Iraqi High Tribunal, and, 240–1, 244    Universal jurisdiction and, 242 Amnesty and pardons, 9, 18, 25, 178–80, 226, 348–62    Burundi, and, 149, 258    Extraordinary Chambers in the Courts of Cambodia, and, 353–5, 362    Iraqi High Tribunal, and, 353    Nature and rationale, 348–9    Sierra Leone, 356–60      Lome Agreement, 66, 201, 247, 349      SCSL Statute, 280, 310 –11, 314    Special Panels for Serious Crimes, and, 352–3    Special Tribunal for Lebanon, and, 356, 360–1    United Nations, and, 349–50    Validity of, 348–62    War Crimes Chamber, and, 353 Applicable law, 4, 58, 79, 227–8, 232, 237    International crimes, 85, 86, 97, 136, 138, 153, 234–6, 269, 309    National crimes, 86, 119, 177, 235, 309, 398

  Nullum crimen sine lege, and, 29, 183–4, 227–9, 322–6, 409 Armed conflicts, 191–5   Bosnia, 10   Burundi, 149   Cambodia, 120–1   Chad, 182   Darfur, 152    Democratic Republic of Congo, 157–8    Former Yugoslavia, 31   Iraq, 109–10    Kosovo, 79 – 82   Liberia, 178   Rwanda, 33    Sierra Leone, 65–8 Assistance (see cooperation) Aut dedere aut judicare, 13–18, 182, 357–8 Bashir, President    African Union, and, 194    ICC arrest warrant, and, 153, 155–7, 199–200, 233, 344, 367–8    Immunity, and, 326–9, 339, 344 Bosnian War Crimes Chamber   See War Crimes Chamber for Bosnia and Herzegovina Burundi Truth and Reconciliation Commission, 150–1 Cambodia    Khmer Rouge policies, 121    Khmer Rouge regime, 120–22, 128, 192, 216, 221–3, 355, 381–2, 392 Cambodian Extraordinary Chambers (See Extraordinary Chambers in the Courts of Cambodia) Capacity-building, 13, 39, 44, 53, 61–3, 115, 135, 159, 165, 167–9, 171, 187, 196, 199, 201, 251, 410, 415 Chapter VII powers, 6–7, 32, 34, 44, 47–48, 75– 6, 92–3, 98, 110–1, 124, 141, 145, 153–4, 163, 166, 169, 172, 192, 212–4, 242, 250, 254–63, 265–71, 274–7, 279–81, 283–4, 287–8, 294, 300–1, 303–4, 313, 316–18, 337, 339, 340, 342–4, 350, 366–7, 373–4, 379, 394, 398, 404–7, 412–3

460 Index Children/ young persons, 33, 67, 71, 101, 219, 323 Coalition Provisional Authority (CPA)    Accountability, and, 111, 114   Establishment, 110–11    Mandate, 111, 113, 292    Powers, 111–12, 116, 289–90, 292    Iraqi High Tribunal, and, 289–90, 319    United Nations Assistance Mission for Iraq (UNAMI), and, 111, 113–14 Command responsibility, 78, 119, 234, 324 Commission for Reception, Truth and Reconciliation (East Timor), 96, 352 Commission of Experts to review the Prosecution of Serious Violations of Human Rights in Timor Leste, 99, 245 Commission of Inquiry for Darfur, 153    ICC, and, 153, 198    Proposal for hybrid mechanism, 153–4   Report, 153    United States and, 154–5 Commission of Inquiry on East Timor, 93    Report, 94, 258, 286    Indonesia, and, 94 Commission of Truth and Friendship (CTF) (East Timor and Indonesia), 100, 353 Complementarity, principle of, 4, 10, 16, 27, 37–8, 42–3, 47, 49–57, 156, 176–7, 187, 197–201, 209, 230, 250, 263, 309, 399–406, 408, 410, 412, 415 Completion Strategy, 170, 226    ICTR, 34–6, 38–9, 41, 43–5, 56, 154    ICTY, 34–6, 38–9, 42–5, 56, 105, 140, 154, 193, 207, 220, 288, 350    Mechanism, 36, 43–4, 56, 72    Special Court for Sierra Leone, 72, 203, 277    War Crimes Chamber and, 105–6 Concurrent jurisdiction, 84, 171, 332, 352, 384, 398    Hybrid tribunals and international criminal courts, 185, 197, 309, 312, 400, 406, 408    Internationalised tribunals and international criminal courts, 185, 309, 312, 400, 408    National and hybrid courts, 71, 78, 303, 309, 391–2    National and internationalised tribunals, 36, 43, 56, 178, 246, 391–2, 398 Cooperation    Ad hoc tribunals, and, 364–6    Between states, 24, 56, 195, 366, 371    Horizontal model, 232, 363, 366, 371, 374–6    Hybrid tribunals, and, 369–74    International Criminal Court, and, 53–4, 366–9    Internationalised tribunals, and, 374–8    Mixed model, 366    Vertical model, 363–4, 366, 369 Core crimes, 53, 234, 238, 345, 347

   Justification for, 1–3, 15–16, 200 Costs (see funding) Crimes (see also aggression, crimes against humanity, genocide, international crimes, war crimes, terrorism, torture)    Categorization of, 12, 301, 406    Customary international law, under, 20–1, 160, 162–3, 179, 229, 235–40, 244, 246, 302, 323–4, 334 Crimes against humanity, 1–2, 28–9,136, 138, 195, 229, 232–4, 237–8, 349, 361, 380, 410    As a core crime, 2, 233, 345    Bosnia, 108, 324, 396   Burundi, 149–50    Cambodia, 122, 129    Chad, 182, 184    Democratic Republic of Congo, 158, 160    East Timor, 96, 100, 323    ICC, and, 47–49, 156, 176–7, 232, 324, 388    ICTR, and, 34, 36    ICTY, and, 32, 36    Iraq, 118, 244–5, 291, 324, 334, 353   Kenya, 173–5    Kosovo, 87, 89, 324    Lebanon, 231, 345   Liberia, 178   Obligation to prosecute, 14    Senegal, 183, 302   Serbia, 139    Sierra Leone, 71–2, 314, 357    Universal jurisdiction, and, 20, 22 Darfur, 48, 61, 135, 152–7, 194, 197–9, 204, 208, 217, 226, 300, 367, 402, 404, 406, 412 Dayton Peace Agreement, 80, 102, 104, 333, 353    ICTY, and, 331, 353, 364    Office of the High Representative, and, 207, 288 Death penalty, 34, 39, 40–1, 115, 117, 151, 161, 164, 181, 193, 207, 377–8 Definition of hybrid and internationalised tribunals, 187–253 Delegation of jurisdiction, 115, 290, 317    Delegation of universal jurisdiction, 311–6    From the territorial state, 7, 254, 301–5    International Criminal Court, and, 308–12, 404    Lawfulness of, 278–9, 305–8    Special Court for Sierra Leone, and, 308–11, 319, 338 Democratic Republic of Congo, 157–61, 193–4, 217, 233, 247, 412    ICC, and, 157–60, 198–9    Specialised Chamber for the DRC, and, 159, 198,205, 226, 233, 247–8, 300 Domestic courts    See national courts

Index 461 Domestic crimes, 19, 179, 216    Factors for inclusion in jurisdiction of hybrid and internationalised tribunals, 227–32, 243–6    International crimes characterisation as, 37, 230, 385, 390   Nullum crimen sine lege, and, 228, 244    Requirement for inclusion in jurisdiction of hybrid and internationalised tribunals, 246–8 Double jeopardy (see ne bis in idem) East Timor    Amnesty, 100, 352,    Armed conflict, 90–2    Indonesian occupation, 90–1    Judicial system, 92–8, 100 Erga omnes, 2, 15, 350 European Union Rule of Law Mission (EULEX), 87–90, 203, 204, 284, Extraterritorial Piracy Tribunal, 135, 161, 251    Assistance to courts within Somalia, and, 167–8    ICC, and, 165, 197    International judges and prosecutors programme and, 203–5, 284    Jurisdiction, 162–3, 217–9, 226, 237–8, 247, 302–3, 319, 414    Legal basis, 88–90, 284   Mandate, 89    National courts, 163–5     Somalia, 162–3    Options for prosecution, 165–72    Proposed Key features, 170–1    Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, 165–72, 195    Security Council, and, 163, 208, 238 Extraordinary Criminal Court for Liberia    International participation, 181, 205    Legal basis, 180–1    National courts, and, 180    Proposed jurisdiction, 179–80, 217, 226, 233    Proposed key features, 179–80    Truth and Reconciliation Commission, and, 178–9    United Nations, and, 181 Extraordinary Chambers in the Courts of Cambodia    Amnesty, 352–6, 361–2   Applicable law     Nullum crimen sine lege, and, 228–9, 323–5   Cooperation with     Cambodia, 376     Other states, 376     United Nations, 293, 295–7

   Cost estimates, 133    Decision making, 129–32    Dispute resolution, 131, 298   Establishment, 376      Negotiations, 121–8, 130, 191, 293, 297–8      Request for, 122–3, 125, 191    Fair trial guarantees, 296, 387    Funding, 132–33, 297, 376    General Assembly, and, 207, 294, 297–8   Genocide, 122    Group of Experts, 123    Immunity, and, 335, 346    International judges, 129–31, 204–5    International prosecutors, 130    Investigating judges, 131    Independence, 299, 386, 397–8    Judges and prosecutors, 129–32   Jurisdiction, 392     (see also material jurisdiction below)     Personal, 221–2, 334–5      Temporal, 203, 216, 381, 383    Jurisdictional basis, 128–33, 200    Key features, 128–33, 224    Legal basis, 299, 389–90    Legal basis, challenges to, 24, 98–9, 386   Material jurisdiction      Crimes against humanity, 122, 129, 323      Domestic law, crimes under, 246–7, 381      Genocide, 122, 129, 354–5, 385      Other international crimes, 231, 238, 323     War crimes, 129    National courts, and, 392, 396–8   Ne bis in idem, and, 385–7    Pardon, 354–6, 387    Participation of international personnel, 129–30,    Political interference, and 125, 126, 128, 131, 132, 205    Procedural law, 396    Statutes of limitation, 129, 381–4    Super-majority requirement, 130–1, 205, 247, 383, 389    Victims and witnesses, 121, 130    Withdrawal of assistance, 297, 298 Fair trial, 18, 25, 39, 40–2, 105, 109, 130, 168, 183, 196, 296, 378, 393–4, 399 Federal Republic of Yugoslavia (FRY), 80–1, 86, 197, 255, 283, 287, 312, 331–2 Financing (see funding) FRY (see Federal Republic of Yugoslavia) Funding, 84, 87, 151, 161, 169, 174, 189, 202, 212, 378    Assessed contributions, 35, 87, 151, 211, 270    ECCC, and, 132–3, 297, 376    International Judges and Prosecutors Programme, and, 87, 211    Iraqi High Tribunal, and, 119

462 Index Funding (cont.):    Mixed funding mechanisms, 132, 212    Serbian War Crimes Chamber, and, 139    Shortfalls, 211, 261–2, 277    Special Court for Sierra Leone, and, 68–9, 154, 310    Special Panels for Serious Crimes, and, 97, 203    Special Tribunal for Lebanon, and, 262, 261    Voluntary contributions, 154, 211–2, 261–2    War Crimes Chamber, and, 108 General Assembly, 16, 29–30, 32, 34, 45, 72, 204, 208, 235, 276, 295    ECCC, and, 123, 125–7, 192, 207, 294, 297–8    Funding, and, 87, 270    Power to establish tribunals, 7, 213, 255, 257, 294 Geneva Conventions, breaches of, 13–15, 20, 31, 129, 291, 349 Genocide, 10, 17, 33, 153, 195, 229, 234, 349, 361, 367–8, 380, 410    As a core crime, 2, 233, 345    Bosnia, and, 101, 108, 396    Burundi, and, 149–50, 247    Democratic Republic of Congo, and, 158    Extraordinary Chambers in the Courts of Cambodia, and, 122, 129, 354–5, 385    Federal Republic of Yugoslavia, and, 86    International Criminal Court, and, 47, 388    International Judges and Prosecutors Programme, and, 87, 231    Iraqi High Tribunal, and, 118, 244, 291, 353, 392    Jurisdiction for, 32, 34, 36, 160, 232–3, 237–8, 306    Kenya, and, 174–5    Kosovo, and, 89, 231    Obligation to prosecute, 14–5, 40    Senegal, and, 183    Serbiam War Crimes Chamber, and, 139    Special Court for Sierra Leone, and, 229, 231    Special Panels for Serious Crimes, and, 96    Universal jurisdiction, and, 20, 96, 183, 316 Habre, Hissein    African Union, and, 183–5    Alleged crimes, 23, 182    Court of Justice of the Economic Community of West African States (ECOWAS), 183–5, 325   Extradition, 182    Immunity, 182, 335   National courts     Belgium, 182     Chad, 183     Senegal, 182–3

   Special Tribunal for, 60, 135, 194, 204, 208, 218, 414 Human rights, violations, 4, 16, 62, 194–5, 201, 208–9, 394, 410–11   Afghanistan, 190   Bosnia, 104–6   Burundi, 149    Cambodia, 120–2, 125, 192, 293–4, 397    Democratic Republic of Congo, 158    East Timor, 93–5, 98–101, 191   Ethiopia, 147   Guatemala, 148    Iraq, 113–4, 193, 292   Kenya, 174–5    Kosovo, 80, 82–4, 191   Liberia, 178–81    Sierra Leone, 66, 349   Somalia, 195    Sudan, 152–3, 194 Hybrid tribunals    As distinct from internationalised tribunals, 6, 59, 187, 270–3, 308–11, 411–4 ICC (see international criminal court) ICTR (see International Criminal Tribunal for Rwanda) ICTY (see International Criminal Tribunal for the former Yugoslavia) Ieng Sary, 298, 325, 354–6, 385–6 Immunity, 4, 8–9, 195–6, 228, 252, 321, 351, 368, 408      Bashir, President, and, 368    Charles Taylor, and, 336–40, 347–8    Hybrid tribunals, and, 78, 335–46    ICJ, and, 328–9, 340–1, 343, 348    International criminal courts, and, 155, 263, 300, 343–4, 414–5    International law, under, 182, 200, 253–4, 270, 326–30    Internationalised tribunals, and, 142, 232, 317, 331, 300, 276, 330–5    National courts, and, 182, 395    Rationale for, 182, 326   Ratione materiae, 327–8, 341–2, 345, 347   Ratione personae, 327–9, 341–2, 345, 347 Impartiality, 5, 18, 25, 28, 33, 44, 52, 59, 62–3, 83, 85, 104–5, 123, 126, 156, 159, 201, 205, 285, 288, 294, 332, 383–4, 386–9, 394, 401, 403, 410    See also, independence of judiciary Impunity, struggle against, 1–3, 5, 10, 19, 26, 28, 44, 52, 54–5, 57–8, 62, 93, 122, 144–5, 155, 157–9, 176, 214, 275, 329, 349–50, 379, 400, 408 In absentia trials (see absentia, trials in) Independence of judiciary, 5, 17, 29, 62–3, 85, 124–6 156, 159,161, 192, 201, 285, 294, 332, 384, 394, 401, 403, 410

Index 463 Individual criminal responsibility, 1–2, 29, 97, 136, 165, 229, 234, 241, 317, 323, 396 Indonesia    Accountability, and, 93–5, 98–9, 287, 331    Ad Hoc Human Rights Court, 94–5, 97, 216, 332, 398    Commission of Inquiry on East Timor, 93–4    Commission of Experts to review the Prosecution of Serious Violations of Human Rights in Timor Leste, 99, 245    Commission for Reception, Truth and Reconciliation (East Timor), 96, 352    Commission of Truth and Friendship, 100–1    Independence of East Timor, 71–3    Occupation of East Timor, 90–1, 216, 284, 332    Special Panels for Serious Crimes, cooperation with, 98, 226, 287, 374–5, 379    UNTAET, and, 283 International Commission against Impunity in Guatemala (CICIG), 144, 202, 272, 278   Establishment, 145    Key features, 146   Mandate, 145–6 International Court of Justice, 22, 88, 141–2, 204, 269, 286–7, 328–9, 337, 339–40, 343, 348, 368, 414 International crimes    Criminalised under customary international law, 15–16, 20–1, 160, 162, 179, 227–9, 235–40, 244–6, 302, 314–6, 323–4, 349    Criminalised under national law, 11–9, 21, 105, 164, 173, 177, 184, 200, 215, 227, 232–48, 251–2, 291, 303,308–9, 323, 325, 361, 380    Deterrent effect, 3, 162, 170, 220–1    Enforcement, 2–4, 11–55, 163, 166, 200, 227, 396, 410    Inclusion in jurisdiction of hybrid and internationalised tribunals, 200, 202 227–43, 324, 368, 392–3    Sovereignty, and, 2, 52–5, 59, 65, 134, 198–201, 252, 410    Threshold elements of, 165, 227, 229, International Criminal Court (ICC)    Admissibility, 51, 53, 55, 156, 177, 198–201, 220, 223, 225–6, 388–9, 400, 402, 405   Amnesties, 351    Complementarity, principle of, 4, 10, 16, 27, 47, 49, 50–7, 177, 200–1, 250, 263, 309, 399, 401, 410      Internationalised tribunals, and, 56, 70, 198–9, 230, 400, 402–4, 408      Hybrid tribunals, and, 156, 230, 400, 404–8      Positive complementarity, 51, 53, 56, 187, 412, 415    Cooperation with, 54, 155, 176, 198, 200, 214, 253, 366–9, 378, 405

   Democratic Republic of Congo, and, 48, 157–9, 198–9    Deferrals, 56, 155–6, 199, 240, 258, 263, 309, 313, 402, 406–8, 412    Elements of crimes, 46    Establishment, 10, 45–6, 55, 61, 411    Establishment of hybrid and internationalised tribunals, and, 3, 6, 60, 161    Funding, 6, 50, 57, 153    Gravity, 57, 220–7    Hybrid courts and, 198–9, 201, 399, 404, 412      Advantages of hybrid tribunals, 197      Complementarity principle and, 199, 401–8      Limited scope of ICC, 197, 404–8 (see also jurisdiction)   Immunity, 343–4    Internationalised tribunals and, 198–9, 201, 399–404, 412     Advantages of internationalised tribunals, 197,      Complementarity principle and, 199, 401–4      Limited scope of ICC, 197, (see also jurisdiction)   Investigation and prosecution, 4, 46–9, 51–4,153–61,175–8, 198–9, 201, 242, 309, 400–8    Jurisdiction, 5, 16, 26, 46–7, 50, 53–5, 61, 185, 196, 198–9, 230, 263, 316, 388, 408, 410      Core crimes, 47, 156, 239     Delegation of, 305–11, 404     Limits to, 6, 46–8      Material, 47, 165, 240–2, 247     Personal, 47, 158, 319      Temporal, 46, 158–9, 180, 196, 203     Territorial, 47, 319    Kenya, and, 49, 61, 175–8, 199    Legal assistance (see cooperation with)    Legal basis, 46, 137, 209, 261–2, 270–4, 322–3, 367, 390    National courts and, 50, 51, 52, 55    National implementation, 53, 157    Obligation to prosecute, and, 54, 404    Participation of international personnel, 204    Purpose of, 52, 54, 61, 202, 410    Security Council, and, 47, 48, 50, 57, 98, 153, 155, 156, 194, 197, 199, 210, 242, 250, 263, 344, 367–8, 405–7, 408    Sovereignty, and, 54, 250, 271, 344, 410    Sudan, and, 48, 61, 152–7, 367    Supervisory role, 51, 53, 56    Triggering mechanisms, 48, 54, 153–5, 158, 175, 258, 335    Universal jurisdiction, and, 3, 8, 27–8, 53, 57, 202, 250, 311–4, 319   Universality, 4 International criminal justice    Selectivity, and, 3, 189–0, 410–1    System of, 10–58, 61, 384, 402, 409–10

464 Index International criminal law    Enforcement (see also international crimes, enforcement), 3–5, 51, 53    Nature of, 2, 12, 28–9, 55, 319, 322    Sanctions, 1, 3, 13, 35, 141–2, 179, 239, 277, 297, 360, 364, 376, 379 International Criminal Tribunal for Rwanda (ICTR), 33    Completion strategy and, 34–6    Cooperation with, 68, 364–6      Establishment, 33–4, 256    Immunity, 329–30, 336–7   Jurisdiction, 316–17     Material, 34, 247     Personal, 34, 223, 343     Temporal, 34,     Territorial, 34, 350     Key features, 34    Legal basis, 34, 228, 256    Legal basis, challenges to, 256–9    Limitations of, 210–1    National courts, and     Deferrals, 36–8, 398     Referrals, 39–44     Primacy, 37–9, 50    Participation of international personnel, 204    Security Council and, 33, 210, 256, 316–7    Significance of, 44–5 International Criminal Tribunal for the former Yugoslavia (ICTY)    Completion strategy and, 34–6, 220    Cooperation with, 68, 364–6    Dayton Peace Agreement, and, 104      Rules of the road, 104    Establishment, 31–2, 254–5    Establishment of War Crimes Chamber, and, 105–6    Immunity, 329–30, 336–7   Jurisdiction, 316–7     Material, 32, 247      Personal, 32, 220, 223, 343     Temporal, 32, 380     Territorial, 32, 350     Key features, 32    Legal basis, 32, 228, 254–5    Legal basis, challenges to, 32, 256–9    Limitations of, 104, 210–1    National courts and     Deferrals, 36–8, 398     Referrals, 39–44      Primacy, principle of, 37–9, 42, 50, 84, 104    Participation of international personnel, 204, 253    Referral Bench, 41–2, 106, 220    Security Council and, 31–2, 207, 210, 254–5, 316–17    Significance of, 44–5

   War Crimes Chamber (Bosnia), and, 104–9, 288–9, 332–3 Internationalised tribunals    As distinct from hybrid tribunals, 6–8, 63, 194, 198–200, 208–9, 250–1, 253–4, 260, 282–300, 301–3, 318–9, 325, 330–5, 347, 352–6, 361, 374–8, 399–410 International judges (see also participation of international personnel)    Requirement for majority of, 129, 205, International Judges and Prosecutors Programme (IJPP), 8, 64, 135   Amnesty, 352,    Applicable law, 85–7, 246     Nullum crimen sine lege, and 324   Background, 79–84    Cooperation with, 374–6   Duration, 203    Establishment, 84–5, 191, 299    EULEX, and 89–90, 208    Funding, 87, 211    ICC, and 196    ICTY, and 82–3, 197, 225, 401    Immunity, and 331, 395    Internationalised tribunal, as 249, 250, 411   Jurisdiction      Material, 85, 87, 231–2, 232, 246     Personal, 87, 225     Temporal, 87, 216     Territorial, 301–2   Jurisdictional basis, 301–2      Key features, 84–5    Legal basis, 212–13, 282–7, 293, 318    National courts, and, 87, 249, 392, 394, 395   Ne bis in idem, 385, 387    Participation of international personnel, 85, 90, 203, 205, 206    Security Council, and, 207, 284–6, 287, 331, 394    Serbia, and, 331, 374–6    UNMIK, and, 83–87, 211, 282–7, 331, 374–6 International Law Commission (ILC)    Offences against the peace and security of mankind, 30, 45, 240    Draft statute of an international criminal court, 30, 45, 239 International Military Tribunal (IMT)   Background, 135–7    Establishment, 28–29, 135–6    Key features, 135–37, 204, 240, 247, 249    Legal basis, 28, 322   Nullum crimen sine lege and, 29    Victors’ justice, and, 29    Significance of, 29, 30, 312 International Military Tribunal for the Far East (Tokyo Tribunal)    Background, 29, 137–8    Establishment, 29, 137–8

Index 465    Key features, 138, 204, 240, 247, 249    Legal basis, 29, 137–39, 322   Nullem crimen sine lege and, 29    Victors’ justice, and, 29    Significance of, 137 International peace and security, 2, 8, 32, 34, 38, 48, 50, 57, 75–6, 92, 111, 153, 163, 192, 208, 234–8, 241, 255–9, 262, 265–7, 275–6, 283, 294–5, 304, 313, 316–9, 361, 394, 405, 412, 414 Internationally protected persons, attacks against, 238 International territorial administration    Bosnia, and, 102–9, 193, 207, 288, 318    Functional duality, and, 285, 288, 292, 318, 413    Iraq, and, 110–17, 207, 289–90, 292, 319    UNMIK, and, 81–90, 207, 282–5, 287, 331, 374–5    UNTAET, and, 90–8, 103, 207, 282–5, 287,332, 374–5 Iraq    Armed conflict and, 109–10    Coalition Provisional Authority, and (see International territorial administration, Iraq),    Occupation, 110–3, 289–3    Saddam Hussein, and, 109–10, 116, 120, 225, 244–5, 292, 334, 377    Security Council, and, 197, 207, 289, 292    United Nations Assistance Mission for Iraq (UNAMI), 111–14 Iraqi High Tribunal, 8, 64, 190,    Amnesty, and 352, 353, 361    Applicable law, 119, 232,     Amendments October 2005, 118     Nullum crimen sine lege, and 232, 244, 323, 324, 325    Cooperation with, 377–8   Background, 109–15    Coalition Provisional Authority, and 113–6, 207, 289–90, 291–2    Death penalty, and, 115, 117, 193, 207   Duration, 203    Establishment, 113–6, 193, 209    Funding, 117–8, 119    ICC, and 114, 197    Iraqi Governing Council, and, 115, 290, 292    Immunity, and, 333–4, 346, 347    Internationalised tribunal, as 64, 202, 249, 250, 251, 411, 412    Jurisdiction (see also material jurisdiction)      Personal, 119, 219 n149, 225,      Temporal, 119, 193, 215–6, 291, 325, 381     Territorial, 119, 218    Jurisdictional basis, 301–2    Key features, 117–20    Law of occupation, and 207, 291, 292,

   Legal Basis, 212–13, 262, 282, 289–93, 301, 319, 334,    Material jurisdiction 200, 230 n207, 232, 291, 323     aggression, 240–1      crimes against humanity, 118, 325, 353      domestic crimes, 118, 244–5, 246     genocide, 118, 353     torture, 239–40, 244     war crimes, 118, 353    National courts, and 117, 225, 249, 292, 392 n388,   Ne bis in idem, and, 384, 387    Participation of international personnel, 117–8, 119, 203, 204–6,    Political interference, and 389 n380    Prosecution strategy, 216, 225    Revision in 2005, 118, 251    Saddam Hussein, and, 116, 225, 292, 334, 377    Security Council, and, 113–4, 207, 292    Statutes of Limitation, and, 381    United Nations Assistance Mission in Iraq (UNAMI), and, 113–4    United States, and 113–5, 118, 119, 193, 377 Joint Group for the Investigation of Politically Motivated Illegal Armed Groups in El Salvador, 144, 146–7 Jurisdiction (see also entry for jurisdiction under each court)    Material , 227–48   Nature, 214–53   Personal, 219–27      Seniority requirement, 40, 43, 72, 87, 97, 115, 122–3, 128, 140, 153, 158, 197, 206, 220–6, 294, 321, 329   Temporal, 215–8   Territorial, 218–9 Jurisdictional bases for tribunals    Chapter VII Powers of the Security Council, 7, 163, 287, 316–8, 350, 394, 406–8      Link to international peace and security, 32, 34, 48, 255–6, 258, 266, 275, 304, 313      Nature of power, 257–8, 266, 294, 301    Delegated jurisdiction, 7, 303–14, 310, 340, 359    Territorial jurisdiction of affected state, 301–3    Universal jurisdiction, 314–6      Floating universal jurisdiction, 7, 254, 301, 315, 319      Need for delegation of, 311–4      Universal jurisdiction from the nature of the crimes, 7, 312, 314–6, 357, 383 Jus cogen norms, 2, 15, 238 Kenya, 164, 172–78    ICC and, 53, 61, 173, 175–8, 199    Post-electoral violence, and, 49, 53, 172–3, 194, 230

466 Index Kosovo War and Ethnic Crimes Chamber (KWECC), 83–4 Legal assistance (see also cooperation) 25, 185–86, 190, 201, 209, 212, 230, 251, 364, 366, 371    Distinct from internationalised tribunals, 213–4    Internationalised Tribunals, and, 191–92, 211, 246, 253, 277, 281–2, 374–8    National courts, 10, 45, 59, 89, 93, 107, 114–5, 117–9, 140,147, 184, 193, 288–9, 293–99, 301    Security Council, and, 68, 75    United Nations, and, 66, 99, 117, 122–8, 145–6, 148, 161, 165–7, 170–2, 181, 187, 193, 210, 260, 304, 310, 361 Legal basis, (see also entry for each tribunal studied) 318–9    Amnesty, and, 351–62    As a defining feature of hybrid and internationalised tribunals, 212–3    General Assembly, established by, 7, 213, 294–5    Immunity, and 326, 331–8    National law, with international elements, 282–99   Nullum crimen sine lege, and 322–5    Security Council, established by, 31–3, 254–71, 274–8    Significance of, 7–9, 184, 212–3, 228, 247, 250, 253–4, 318–9, 326    Treaty between a state and the United Nations, 68–70, 121–8, 273–4    Treaty between states, 45–55, 135–9, 271–3 Legal capacity, 70, 78, 212–4    International law, 146, 171, 209, 212–4, 276, 278, 285, 338–9, 373, 376    National law, 44, 115, 212–4 Liberia, 66–7, 178–81, 193, 197, 204–5, 217, 226, 233, 300, 336–40, 347, 373 Lockerbie Court   Establishment, 142–3    Key features, 142–4    Legal basis, 142–3    Participation of international personnel, 142–3, 167, 249    Security Council, and, 141–4, 234–5    Temporary nature, of, 142–3    UK-Netherlands agreement, 142–3    United Kingdom, and, 141–3 Military occupation, 12, 90–1, 120, 136–9, 216,    Iraq, and, 110–3    Iraqi High Tribunal, and, 113–20, 193, 289    Powers of the military occupier, 110–3, 136–9, 318–20    Security Council, and, 110–3, 289, 292

National Commission of Inquiry on Human Rights Violations in East Timor (Indonesia), 93–4 National courts    Benefits of trials before, 63, 123, 251    Challenges and weaknesses of trials before, 4, 18–9, 52, 57, 72, 83, 98–9, 164, 177, 193, 201, 251–2, 327–30, 342, 380, 403    Competing claims (see also complementarity), and, 12, 54–5, 204, 399–403    Distinct from hybrid and internationalised courts, 204      International crimes and, 2, 11–8, 43, 240, 245    Jurisdiction, and, 11–2, 218, 242, 246, 301–3     Active nationality, 12     Passive personality, 12     Protective, 12     Territorial, 12      Universal jurisdiction, 12, 19–28, 202, 310, 326   Nullum crimen sine lege, and, 244, 322    Obligation to prosecute, 13–8    Relationship with hybrid and internationalised tribunals (see also competing claims), 10, 38–45, 61, 83, 104, 250, 254, 279, 286, 288, 384, 387, 389,390–8, 400, 406    Role of, 10    State sovereignty, and, 230    Third states, of, 19–28, 398–9 Ne bis in idem, principle of, 9, 321, 384, 389–90, 408–9, 414    Judgments by hybrid and internationalised tribunals     And national courts, 387–8     And the ICC, 388–9    Judgments by national courts, and 384–7 Nullum crimen sine lege, 19, 183–4, 252, 321,    Hybrid and internationalised tribunals, and, 227, 228–9, 244, 287, 323–6, 409    IMT and Tokyo Tribunals, and, 29, 321    Nature of, 321–3    Statutes of Limitation, and, 382–3 Nuremberg Tribunal (see International Military Tribunal) Obligation to prosecute (see also aut dedere aut judicare), 13–18, 54, 56, 141, 159, 333, 342, 345, 349–50, 352, 356–7, 358, 370, 413 Office of the High Representative (Bosnia) (OHR)    Dayton Peace Agreement (DPA), and 102–3    Mandate and powers, 103    Security Council, and 102–3    War Crimes Chamber, and 105–6, 107, 193, 207, 288, 318

Index 467 Office of the Special Prosecutor in Ethiopia, 147–8 Participation of international personnel, requirement for, 169, 172, 189, 202, 204–6, 184, 209, 249    Purposes, 63, 130–31 204, 285-86    Rationale, 63, 130, 151, 161, 168, 310, 389, 412    Systematic development, of, 117, 191, 203    State sovereignty, and 107    Third states, and    United Nations, and, 148 Piracy, crime of (see also extraterritorial piracy tribunal)    Customary international law, under, 162    Exercise of jurisdiction, and, 162    International Criminal Court, and, 165    International dimension, of, 237–8    Prosecution before national courts     Kenya, 164     Other states 163–4     Somalia, 163, 167, 170    Security Council, and 163, 165    UNCLOS and 162, 165,    Universal jurisdiction, and 163, 171, 237, Piracy tribunal (see extraterritorial piracy tribunal) Principle of legality (see nullum crimen sine lege) Prosecution strategy (see also seniority requirement)    International Criminal Tribunal for the former Yugoslavia, and 35    Iraqi High Tribunal, and, 225    Special Panels for Serious Crimes, and 225–6 Security Council (see also entry under each tribunal studied)    Amnesty, and, 350, 360–1, 362    Completion strategy, and, 35–6, 43, 104–5, 106, 154, 220, 288    Cooperation, 213–4, 232, 287, 331, 338, 340–6, 348, 364–5, 367–8, 373–4, 378–9    ICTR, 33–4, 37, 210, 250, 54–9, 316–7, 342–3, 350, 364–5    ICTY, 31–2, 37, 104, 105, 210, 250, 254–9, 280, 316–7, 342–3, 350, 364–5    Immunity, and 326, 331, 332, 334, 335, 339, 340–6, 347–8    International Criminal Court, and, 47, 48, 50, 57, 98, 153, 155, 156, 194, 197, 199, 210, 242, 250, 263, 344, 367–8, 405–7, 408    Iraq, 110–3, 289, 292    Jurisdictional basis of power, 312–3, 316–7, 319    Lockerbie, and, 141–4, 210, 234,    Piracy (see entries under piracy and Somalia)    Power to establish ad hoc tribunals, 4, 44, 11, 44, 50, 114, 124, 166, 169–70, 250, 254–9, 294,

   Power to establish hybrid and internationalised tribunals, 6, 7, 154, 250, 254, 259–60, 300, 318, 412    Primacy, and 37–8, 398    Requirement for involvement in establishing tribunals, 206–8    Review of, 394    Selectivity, and, 5, 44, 57, 60, 197, 232    Special Court for Sierra Leone, 68–9, 70, 192, 207, 214, 221, 223, 273, 274–9, 282, 303, 304, 373–4, 413    Special Tribunal for Lebanon, 73–7, 192, 207, 212, 233, 234, 244, 260–71, 276, 278, 281, 300, 318, 340, 340–6, 360–1, 369–72    UNMIK, and 81, 89, 283–6, 331    UNTAET and East Timor, and, 92, 94, 97, 98–9, 283–6 Seniority requirement, 40, 43, 72, 87, 97, 115, 122–3, 128, 140, 153, 158, 197, 206, 219–26, 294, 321, 329 Serbian War Crimes Chamber (SWCC), 8, 64, 134, 196, 398, 411, 212, 249, 251   Establishment, 139–40    ICTY and, 139, 140    United States, and, 140, 212 Serious Crimes Investigation Team in TimorLeste (SCIT), 99–100, 144, 147 Serious Crimes Unit (East Timor), 95, 97, 98, 99, 216, 231, 245 Sierra Leone    Amnesty, and, 217, 356–60, 362    Armed conflict, 65–8    Special Court for Sierra Leone, and      Cooperation with, 71, 372–3, 378     Request for establishment, 68–9    Truth and Reconciliation Commission, 67, 358–9, Socialist Federal Republic of Yugoslavia (SFRY)    Bosnia, and, 101, 104, 108, 248,    Disintegration of, 31, 80 n172, 101    Kosovo, and, 79–80 Somalia    Judicial system, 163, 167, 170    Piracy off the coast of, 161–2, 195, 197, 226    Security Council, and 162, 165, 171–2, 219, 238, 302–3    Specialised piracy courts, 170–2 Sovereignty (see state sovereignty below) Special Court for Darfur, 135, 208, 300   Background, 152–3    Arrest warrant for President Bashir, and 155–7, 199    ICC and 153–55, 194, 197–8, 199, 412    Complementarity, and 156, 199, 404, 406    Participation of international personnel, 204    Proposed jurisdiction, 156, 217, 226, 233    Proposed key features, 156

468 Index Special Court for Darfur (cont.):    State sovereignty, and, 194, 199, 200, 402    United States, and 154, 198, Special Court for Sierra Leone, 8, 64, 169    Amnesty, 217, 356–60, 362   Applicable law, 200         Nullum crimen sine lege, and 323, 324   Background, 65–8    Chapter VII powers, and    Charles Taylor, and, 72, 206, 336, 339–40, 373–4, 415    Completion strategy, and, 72–3, 203   Cooperation with      Sierra Leone, 71, 372–3, 378     Other states, 213, 37–74   Duration, 203    Establishment, 68–70, 191–2    Funding, 69, 211    Hybrid tribunal, as, 249, 250    ICC, and, 196    Immunity, 336–40, 347, 415    Implementation, 69–70, 71, 372    International legal personality, 70, 213,    Jurisdiction (see also material jurisdiction below), 232      Personal, 70, 72, 221, 223–5     Temporal, 216–7     Territorial, 218   Jurisdictional basis      Delegation of jurisdiction, and, 303–11, 312, 314, 319      Universal jurisdiction, and, 314–6, 319    Key Features, 70–1    Legal basis, 212, 228, 271–2, 282, 318, 374, 413    Legal basis, challenges to, 273–82    Material jurisdiction 247–8      Crimes against humanity, 71, 233     Genocide, 229, 233     War crimes, 71, 233      National crimes, 71, 243, 246, 323    National courts, and 70, 71, 372, 391, 407    Ne bis in idem, 384–5, 387, 388    Participation of international personnel, 204, 206    Procedural law, 71    Security Council, and 68–9, 70, 192, 207, 214, 221, 223, 273, 274–9, 282, 303, 304, 373–4, 413 Specialised Chamber in the Democratic Republic of the Congo, 135, 300    Background, 157–9, 194    ICC, and, 158, 159, 161, 198–9, 412    National courts, and, 157, 158, 161    Participation of international personnel, 161, 205    Proposed jurisdiction, 160–1, 217, 226, 233, 247–8,

   Proposed key features, 159–60    Proposed legal basis, 160    UNHCHR mapping report, and, 158–9, 160, 193 Special Panels for Serious Crimes, 8, 64, 154, 411    Amnesty, 352–3, 361    Applicable law, 97, 200       Nullum crimen sine lege, and 323   Background, 90–5    Cooperation with, 98, 374–5, 379   Duration, 203    Establishment, 95, 191, 299   Funding, 211    ICC, and, 196   Immunity, 331–2    Internationalised tribunal, as, 249–50    Key Features, 95–6    Jurisdiction (see also material jurisdiction below)     Personal, 97, 225–6     Temporal, 96, 216     Territorial, 218, 301    Jurisdictional basis, 301–2    Legal basis, 212–3, 262, 282–7, 293, 318, 332    Material jurisdiction, 96, 200, 231, 232     Crimes against humanity, 233     Genocide, 232     National crimes, 245, 246     Torture, 239     War crimes, 233    National courts, and 96, 249, 391, 398   Ne bis in idem, 384–5, 387,    Participation of international personnel, 204, 206, 209    Prosecution strategy, 97, 225–6, 231, 245    Review and re-activation of, 98–9    Security Council, and 97, 207, 283–5, 287    Serious Crimes Investigation Team, and, 99    Serious Crimes Unit, 147, 231    Suspension of, 97–8    Universal jurisdiction, and, 96, 218    UNTAET, and 95, 207, 282–3, 285–6    UNMISET, and 97    UNMIT, and 99 Special Tribunal for Burundi, 8, 135, 194, 208    Amnesty, 149, 258, 353 n165   Background, 149–50    Hybrid tribunal, as, 250, 299   Negotiations, 150–1    Participation of international personnel, 150, 204, 205    Proposed jurisdiction, 150, 226, 233, 247, 248    Proposed key features, 150–1, 205, 299    Proposed legal basis, 150    Request for establishment, 149

Index 469    Security Council, and, 149–51, 208 Special Tribunal for Kenya (STK), 8, 135, 194   Background, 172–5    Failure of proposal, 175–6    ICC, and, 175–8, 199, 200, 402, 404    Participation of international personnel, 173–4, 204    Proposed jurisdiction, 174–5, 217, 226, 233,    Proposed key features, 173–4, 203,    Waki Commission, 173–5 Special Tribunal for Lebanon   Amnesty, 360–1    Applicable law, 77, 231, 233–7, 243, 245     Nullum crimen sine lege, and 323   Cooperation with     Government of Lebanon, 369     Other states, 370–2     Syria, 214, 370–1, 378    Duration, 78–9, 203    Establishment, 75–7, 191–2   Funding, 212    Hybrid, as a, 250   Immunity, 340–6    International legal personality, 213    ICC, and, 197    Key Features, 78–9    Participation of international personnel, 78, 204, 206    Jurisdiction (see material jurisdiction below)     Personal, 77, 225       Temporal, 77, 216,     Territorial, 218    Jurisdictional basis, 316–7, 319      Legal basis, 213, 260–2, 318      As a treaty-based institution, 262–7      As a Chapter VII tribunal, 267–71   Material jurisdiction      Terrorism, 77, 233–7, 245, 246    National courts, and, 249, 391, 394   Ne bis in idem, 384–5, 387    Procedural law, 78    Security Council and, 73–7, 192, 207, 212, 233, 234, 244, 260–71, 276, 278, 281, 300, 318, 340, 340–6, 360–1, 369–72,    Syria, and, 75, 145, 261, 340–6   Trials in absentia, 363 n221, 372, 379,    UNIIIC and 78, 79–80, 144–5, 270, 340 Special Tribunal for the trial of Hissene Habre, 60, 135, 195, 335, 384 n357,    African Union, and, 184–5, 195, 208,   Background, 182–4    ICC, and, 197    International participation, 204    Jurisdiction, 226, 247, 249   Location, 206

  Nullum crimen sine lege, and, 325    Universal jurisdiction, and 219–20, 302, 312, 319, 414 State sovereignty, 107, 112, 116, 201, 215, 257, 271–2, 284, 290,    Accountability, and 1, 2, 3, 8, 10, 61, 65, 134, 194, 227, 248, 331, 410    Complementarity and, 50–1, 52, 55, 56, 250    Criminal jurisdiction, and 1, 7, 11, 230, 301, 310, 316–7,    Domestic trials, and, 13, 55,    Hybrid and internationalised tribunals, and, 58–60, 63, 65, 159, 187, 192, 194–6, 198–200, 250–2, 253, 265–6, 268, 293, 398, 415–6,    Immunity, and, 326–7, 335, 336, 339, 343, 347,    Primacy, and, 37–8, 44, 56, 256, 398,    Universal jurisdiction, and, 20, 26, 56 Statutes of Limitation    ECCC, and, 381–4    International crimes, and, 380–1    Iraqi High Tribunal, and, 381    National crimes, 4, 7, 9, 195, 200, 228, 252, 321, 380 Sudan    African Union, and, 156–7, 194, 199–200    Bashir, President, arrest warrant for, 153, 155–6, 199, 339 n89, 344, 367    Conflict in Darfur, 152–3    ICC, and, 48, 153–4, 98, 199, 200, 367–8 Syria    Amnesty, and, 360–1    Special Tribunal for Lebanon, and, 75, 145, 261, 340–6    UNIIIC, and, 74–5, 145, 214, 346, 369, 370 Terrorism, crime of, 12, 179, 195    Amnesty, and, 360–1    Bhutto, and, 145    Cooperation, and, 370–1    ICC, and, 197    IJPP, and, 87, 90    Immunity, and, 341–2, 345–6    International element of, 208, 234–7, 412    Lockerbie court, and, 140–3, 234    Piracy, and 170, 195    Security Council, and 141–3, 192, 262    Special Tribunal for Lebanon, and 77, 197, 234, 243–4    Under customary international law, 77, 235–7, 243–4    under Lebanese Criminal Code, 77, 243–4, 245–6    Universal jurisdiction, and, 20 Tokyo Tribunal (see International Military Tribunal for the Far East)

470 Index Torture, crime of, 21, 25, 31, 33, 91, 110, 121, 147, 152, 182, 190, 342   Amnesty, and  350–1      ECCC, and, 128, 129, 381    Inclusion in jurisdiction of hybrid and internationalised tribunals, 160, 183, 184, 238–40, 244–5, 302    SPSC, and, 96, 97, 239 Universal jurisdiction 8, 10, 12, 39, 57, 190, 202, 252, 353, 411    Customary international law, under, 20, 314, 357   Delegation of,   311–4, 414    Floating, 7, 254, 301, 314–6    Habre, and, 183–4, 218–9, 302, 414    Hybrid and internationalised tribunals, and, 58, 60, 124, 159, 160, 180, 181, 194, 204, 218, 219, 303, 310, 319, 390, 398, 414    International crimes, and, 3, 242, 326, 327    International Criminal Court, and, 27, 53, 311–2, 314    Limitations of, 22–8, 56, 57    Piracy, and, 161–3, 167, 171, 218, 237, 302–3, 414    Prosecutions based on, 20–1,    Rationale for, 20, 22    Sovereignty, and, 19–20, 56, 252    Special Court for Sierra Leone, and 314–6, 319, 357–8    Special Panels for Serious Crimes, and, 96, 218    Subsidiarity and, 26, 56, 57    Treaty-based jurisdiction, 20, 342    Widest view, 19 United Nations Assistance Mission for Iraq (UNAMI), 111, 113–4 United Nations Commission of Inquiry into assassination of Benazir Bhutto, 144, 145, 202 United Nations, establishment of hybrid and international tribunals, 206–10 United Nations Integrated Mission in TimorLeste (UNMIT), 99, 147, United Nations Interim Administration in Kosovo (UNMIK)    Accountability for violations of human rights, and, 82–4    Applicable law, 85–6    Cooperation, and, 374, 375–6   Establishment, 81    EULEX, and, 89–90, 203    ICTY, and, 82–3    Immunity, and 331, 395n    International judges and prosecutors programme and, 84–5, 86    Judicial system, and, 82–3

   Kosovo War and Ethnic Crimes Court (KWECC), 83–4    Legal basis, 103, 207, 283–5, 374,    Mandate 81, 83, 282–3, United Nations International Independent Investigation Commission (UNIIIC), 73–4, 144, 369   Establishment, 73–5   Mandate, 74–5    Security Council, and, 74–6, 144, 214, 260, 262, 268, 276, 346, 369, 370    Special Tribunal for Lebanon, and, 78, 79–80, 144–5, 270, 340    Syria, and, 74–5, 145, 214, 346, 369, 370 United Nations Mission of Support in East Timor (UNMISET), 93, 97 United Nations Transitional Administration in East Timor (UNTAET)    Accountability for violations of human rights, and, 94–5   Establishment, 92    Indonesia, and, 94, 374–5    Judicial system, and, 92    Legal basis, 103, 207, 282–5, 332, 374    Mandate, 92, 95, 97, 283, 287    Special Panels for Serious Crimes, and, 95, 211 War Crimes Chamber for Bosnia and Herzegovina, 8, 65,    Amnesty, 353, 361    Applicable law, 108     Nullum crimen sine lege 324   Cooperation, 376–7   Duration, 203    Establishment, 101–6, 193    ICC, and 196    ICTY, and, 108–9, 197, 401      Completion strategy, 40, 105, 193, 207    Immunity, and 332–3, 346    Internationalised tribunal, as, 250   Jurisdiction     Personal, 225      Material, 108, 232, 233, 246, 248     Temporal, 216,     Territorial, 108, 218, 301    Jurisdictional basis, 301, 319    Key features, 106–7, 108    Legal basis, 106, 213, 288–9    National courts, and 193, 391–2, 396, 398   Ne bis in idem, 385, 387    Office of the High Representative, and 102–5, 193, 207    Participation of international personnel, 107, 108, 204, 206,   Registry, 108    Security Council, and, 106, 193, 207    Transitional period, 107, 108