International Criminal Law and the Current Development of Public International Law: Proceedings of an International Symposium of the Kiel Walther Schücking Institute of International Law May 30 - June 2, 2002 [1 ed.] 9783428510917, 9783428110919

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ANDREAS ZIMMERMANN (Ed.)

International Criminal Law and the Current Development of Public International Law

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel Herausgegeben von Jost Delbrück, Rainer Hofmann und A n d r e a s Z i m m e r man n Walther-Schücking-Institut für Internationales Recht 144

Völkerrechtlicher Beirat des Instituts: Rudolf Bernhardt Heidelberg

Eibe H. Riedel Universität Mannheim

Christine Chinkin London School of Economics

Allan Rosas Court of Justice of the European Communities, Luxemburg

James Crawford University of Cambridge Lori F. Damrosch Columbia University, New York Vera Gowlland-Debbas Graduate Institute of International Studies, Geneva Fred L. Morrison University of Minnesota, Minneapolis

Bruno Simma Universität München Daniel Thürer Universität Zürich Christian Tomuschat Humboldt-Universität, Berlin Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

International Criminal Law and the Current Development of Public International Law Proceedings of an International Symposium of the Kiel Walther Schücking Institute of International Law May 30 - June 2, 2002

Edited by

Andreas Zimmermann Assistant Editor:

Ursula E. Heinz

Duncker & Humblot . Berlin

Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar.

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 2003 Duncker & Humblot GmbH, Berlin Fotoprint: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 1435-0491 ISBN 3-428-11091-9 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 §

Foreword This publication is both the continuation of a by now well-established tradition as well as a new start. On the one hand, it is part of the series of proceedings of symposia that have for many years been organized by the Walther Schücking Institute for International Law at the University of Kiel. In particular it continues the tradition of those symposia that have focused on current developments in internationallaw, beginning with the 1992 symposium on "The Future of International Law Enforcement: New Scenarios - New Law?" Given the forthcoming entry into force ofthe Statute ofthe International Criminal Court on July 1,2002 and the fast developing character of international criminal law in general, the organizers decided to deal with the issue whether and to what extent international criminallaw has already influenced or will influence general internationallaw. It is for the reader to decide whether - as envisaged in the tide of this symposium international criminal law is indeed nothing .but a symbol and a forerunner for more far-reaching developments which by now also concern general international law. In addition, the organizers hope that the symposium will continue the Kiel tradition of providing a forum for open and challenging discussion. On the other hand, this symposium is also a new start, given that lost Delbrück had retired as a director of the Walther Schücking Institute in 2001. Accordingly, this symposium was organized by the two current directors of the Institute, Rainer Hofmann and myself. It was a new start in another respect as well, since - given the subject-matter of the symposium - it inc1uded colleagues whose scientific focus is more on the criminallaw side of international criminallaw. Thus, the symposium served, I believe, as a fruitful forum for discussion between groups of scholars with different backgrounds. On the whole, the symposium held at the Walther Schücking Institute from May 30-June 2, 2002 brought together 32 participants from seven countries inc1uding Austria, Canada, Finland, Israel, Switzerland, the United Kingdom and the United States. The organizers are particularly grateful to Hans-Peter Kaul (Foreign Office, Berlin), Wolff Heintschel von Heinegg (Europa-Universität Viadrina Frankfurt/Oder), Jan Klabbers (Eric Castren Institute, University of Helsinki), Christine Chinkin (London School of Economics) and Leila Nadya

6

Foreword

Sadat (Washington U niversity School of Law), who, with their reports, paved the way for the intense and fruitful discussions which are also reproduced in this volume. The Walther Schücking Institute is greatly indebted to the Volkswagen Foundation, which by its generous support made this symposium possible. In addition, we wish to express our gratitude to the German Federal Ministry of lustice, which supported the publication of these proceedings. We are similarly grateful for the hospitality and support provided by the Christian Albrechts University. Rainer Hofmann and myself thank the entire staff of the Walther Schücking Institute, who by their efforts made this symposium possible. I am in particular personally grateful to Mrs. Marianne Nilsson for her effective management of the conference and its follow-up.

Kiel, lune 2002

Andreas Zimmermann

Contents Opening Addresses

Rainer Hofmann

11

Andreas Zimmermann. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

The International Criminal Court - Current Perspective

Hans-Peter Kaul. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

Criminal International Law and Customary International Law

Wolf! Heintschel von Heinegg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

27

The Spectre of International Criminal Justice: Third States and the ICC

fan Klabbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

73

Feminist Reflections on International Criminal Law

Christine Chinkin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

125

International Criminal Law and Alternative Modes of Redress

Leila Nadya Sadat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 161 Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

195

List of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 253

Abbreviations AJIL

American Journal ofInternational Law

AP

Additional Protocol

B-H

Bosnien-Herzegovina

BYIL

The British Year Book of International Law

Dept.

Department

ECIEU

European CommunitieslEuropean Union

ECJ

European Court of Justice

EJILlJEDI

European Journal of International Law/Journal europeen de droit international

GATI

General Agreement on Tariffs and Trade

ICC

International Crirninal Court

ICJ

International Court of Justice

ICRC

International Comrnittee of the Red Cross

ICTR

International Crirninal Tribunal far Ruanda

ICTY

International Crirninal Tribunal for the Former Yugoslavia

ILM

International Legal Materials

IMT

International Military Tribunal

IMTFE

International Military Tribunal for the Far East

IRRC

International Review of the Red Cross

LNTS

League of Nations Treaty Series

NGO

Non-Governmental Organization

PCIJ

Permanent Court of International Justice

prepcom

Preparatory Comrnission

PTSD

Post-Traumatic-Stress-Disorder

RdC

Recueil des cours de l' Acadernie de droit international de La Haye

RPE

Rules of Procedure and Evidence

Abbreviations TRC

Truth and Reconciliation Commission

U.K.

Uni ted Kingdom

U.S.

United States of America

UN

United Nations

UNTS

United Nations Treaty Series

WTO

World Trade Organization

WW

World War

ZaöRV

Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

9

Opening Addresses Rainer Hofmann: Ladies and gentlemen, dear friends: It is a great pleasure for me to be able to we1come you to this year' s Kiel symposium on "International Criminal Law and the Current Development of Public International Law." Among all the participants, I should like to particularly we1come our five speakers and I shall do so in a different order than they will address uso I should like to start with Professor Leila Sadat from the Washington University School of Law of St. LouislMissouri, who has had the longest trip to Kiel and will speak on "International Criminal Law and Alternative Modes of Redress." Then we have Professor Christine Chinkin from the London School of Economics, who will deal with "International Criminal Law and Feminist Approaches to International Law." I should also like to we1come Professor lan Klabbers from Helsinki University, who will address the issue of "International Criminal Law and Third States" and Professor WolffHeintschel von Heinegg from the University of Frankfurt/Oder, who will speak on "International Criminal Law and Customary International Law." Finally, as a particularly welcome addition to the list of speakers, I should like to we1come Hans-Peter Kaul, who was, as you know, the leader ofthe German delegation negotiating the Rome Statute, and in that capacity was instrumental for its final adoption and, thus, also for the topic of our symposium. Therefore, we are particularly grateful to you, not only for having joined us today but even more so for having agreed to being the first speaker of the symposium, who will inform us about the most recent developments concerning the International Criminal Court. As we all know, in the world of academia, there is always a shortage of funds, of money. Therefore, I should like to take this opportunity to particularly thank Dr. Alfred Schmidt not only as the person representing the institution which made this symposium possible, the Volkswagen Foundation which, throughout the years, has been our major sponsor, but also as a man who has been personally involved and has been most instrumental in assisting us in the task to organize our Kiel symposia. To put it bluntly: Without your support, we would not have met here today. So, thank you very much indeed both in your personal capacity and as representative of the Volkswagen Foundation!

12

Opening Addresses

As someone whose original intention was not to study law, but history, I am always tempted in such a situation to reflect, very briefly, on notions such as change and continuity, and I sincerely hope that you will bear with me for a few minutes. Four years ago, during the first symposium which I attended and which was devoted to the issue of "Non-State Actors as New Subjects of International Law," lost Delbrück introduced me as his then co-director of the Walther Schücking Institute for International Law. Last year - at exactly the same dates - we came together not only to discuss questions connected with "International Law of Cooperation and State Sovereignty," but also to mark the retirement of lost Delbrück as a professor of Kiel University and, at the same time, as co-director of the Institute. Those of you who were present then, will remember that Michael Bothe, in his cIosing address, mentioned that the successor of lost Delbrück, the corning new co-director, was already in the room then. Today I have the great pleasure, and I think it is really a pleasure for the entire Institute, to introduce Andreas Zimmermann not to the international legal community - since that would be far too late as he is already an internationally well-known scholar - but to introduce hirn to the "International Kiel Community" as the new director of the Walther Schücking Institute. I think it was and is really very fortunate indeed that we succeeded to get you, Andreas, to Kiel, and - even more so - to keep you in Kiel, to convince you that the shores of the Kiel Fjord are a better place than the banks of Lake Geneva. So, let me use this opportunity to stress how much we did appreciate that you did not accept this most remarkable offer to become a professor at the prestigious Institut des Hautes Etudes Internationales in Geneva but chose to stay with us! So, that was about the change as to persons. There is also a change as to topics, from non-state actors as new subjects of internationallaw over internationallaw of cooperation and state sovereignty to this year' sinternational crirninallaw and the current development of public internationallaw. This change does not mean that the topics we have been dealing with here in the Kiel symposia have lost their interest - quite to the contrary: I believe they continue to be of high relevance for the development of internationallaw; so there is this aspect of continuity. Then there is also some continuity - and I would Iike to stress that - as to the way in which we want to conduct these symposia: They have been and they will continue to be a forum for an open, scholarly discussion. Weshall also continue to try to maintain our interdisciplinary approach, in particular when dealing with subjects Iike the one we shall be discussing today and tomorrow. Therefore, we have among us not only colleagues doing research in public international law, but also colleagues who are specialists in international criminallaw. Finally, I should like to

Opening Addresses

13

stress that we sha11 also continue to add new members to the "International Kiel Community" by inviting persons for the first time to Kiel, and at the same time continue to invite as many persons as possible from the "old corps." Having said that, I should like to give the floor now to you, Andreas, and ask you to introduce more specifically the subject of our symposium. You know, Andreas, how glad and happy I am that you came to Kiel and still are here, and I am sure that you, as participants, will have understood after this symposium why this is so. Andreas Zimmermann:

Thank you very much, Rainer, for these very nice and kind words! I have to admit that I am somewhat flattered. But let me first of a11 thank everybody to have made a11 the way up to the Baltic Seal We are very happy to have all of you here in Kiel. Indeed, times are changing. You, Rainer, mentioned in one of the previous opening addresses to a Kiel symposium, I think it was in 1998, a song by one of my favourite singers, whose name is, by the way, Robert Zimmerman. Now, this time we are not so much dealing with the question of whether "times are changing" but instead of whether internationallaw is changing. So, I believe that is what this symposium is a11 about. Do we see changes in internationallaw, in particular in the field of international criminal law; and if that is true, are there some repercussions on general international law; and once again if so, to what extent? What are these changes when we think about the creation and development of customary international law or treaty law, but also when we focus on more theoretical approaches to internationallaw? Besides, we have to ask: What is the relationship between international criminallaw and issues ofjus cogens, in particular when we consider alternative measures to address some basic violations of internationallaw, which at the same time might constitute violations ofjus cogens? I do hope that we will be able after these two and a half days to see whether, indeed, some of these changes have taken place, why they have taken place and to what extent. I am very happy that we have among us not only co11eagues from pure internationallaw, but also co11eagues with a criminallaw background, because I have the feeling that especia11y in the field of international criminallaw there is a certain lack of communication between these two groups of scholars, and maybe in particular here in Germany, unlike in the U.S. and in other Anglo-Saxon jurisdictions.

14

Opening Addresses

As Rainer has already mentioned, we have, as usual, a relatively small group and we do have such a small group on purpose. Wehave allocated quite some time for discussion and we also do that on purpose, and I hope we will all really profit as much as we can from that time allocated to discussion. I also hope we will be able to have the same spirit as we had the last time. When I was here for the first time, it was a very friendly, open and very nice atmosphere inside and outside this room.

The International Criminal Court - Current Perspective By Hans-Peter Kaul'

It really is a great pleasure to make a contribution ' to this important, very timely symposium on "International Criminal Law and the Current Development of Public International Law." It is also a pleasure to be back once again in Kiel, at the Walther Schücking Institute, where on 26 November 1998 I had the chance to deli ver a Walther Schücking memoriallecture on the Rome Statute for the International Criminal Court. 2 This was on the kind invitation of Prof. Hofmann and Prof. Delbrück - and I am glad that both are with us today.

My task today is to give an introductory report on "The International Criminal Court - Current Perspective." I am, of course, aware that, just like Professor Zimmermann has reminded us aminute ago, the thematic scope of this symposium is much more encompassing, much broader. The Rome Statute and the ICC project are therefore only one limited area of a much broader picture. Nevertheless, I believe that the course of the international discussion on international criminal law and international law in general in the last four years, since the adoption of the Rome Statute, clearly demonstrates: the Rome Statute continues to be a driving force for internationallaw, it continues to have a powerful and lasting catalyst effect on international law in general and international criminal law in

• Hans-Peter Kaul, Ambassador and Commissioner for the ICC in the Federal Foreign Office, is since 1996 the German chief negotiator and Head ofthe German ICC delegation. From October 1996 to June 2002 he was Director of the Public International Law Division of the German Foreign Ministry. The views expressed in this contribution are not necessarily those of the Federal Foreign Office. 1 The form of an oral presentation as effectively delivered is maintained throughout the text. At the same time, some footnotes are inserted where appropriate. 2 See Hans-Peter Kaul, Das Römische Statut des Internationalen Strafgerichtshofs: Auf dem Weg zu einer humaneren Weltordnung unter dem Schutz des Rechts?, Schriftenreihe des Walther-Schücking-Kollegs, vol. 22, 1999.

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Hans-Peter Kaul

particular. 3 One mayaiso assume that, in some years, the decisions and the case law of the International Crirninal Court will have a sirnilar effect, both on internationallaw as on international crirninallaw in particular. Let me start with a quite factual, quite sober statement. Since 11 April, when we crossed the threshold of 60 ratifications, the project of the International Crirninal Court is now irreversible. I repeat: irreversible - in spite of remaining difficulties and challenges, the current V.S. attitude not being the smallest one. But as the Rome Statute will enter into force on 1 July 2002, we are now already in the absolutely decisive phase of the concrete establishment of the ICC in The Hague later this year. This is also the basic assumption of the German country report on "The International Crirninal Court" which will be presented to the XVIth International Congress on Comparative Law in Brisbane/Australia, 14 to 20 July 2002. As some of you know, the book "Stocktaking in German Public Law," edited by Eibe Riedel, has been publishedjust two weeks ago. 4 It is obvious that the process of the establishment of the ICC cannot be regarded only from a legal perspective. This process, which continues to evolve in a dynarnic manner, has also significant political and practical implications. Today I will concentrate my remarks on three questions: 1. What is the current situation of the ICC project? 2. What about the decision of the Vnited States made public on 6 May 2002 to henceforth categorically oppose the International Crirninal Court? What will this mean, also in a longer perspective? 3. What remains to be done to complete the concrete establishment of this new world court? Before I go into these issues, let me mention another reason why I am particularly glad to be able to contribute to this first symposium organized by Prof. Zimmermann: as some of you may know, Andreas Zimmermann has himself been a very respected member of the German ICC delegation in 1997/98. Not only has 3 See Hans-Peter Kaul, Die Entwicklung des Völkerstrafrechts: Auf dem Weg zur Herrschaft des Rechts in den internationalen Beziehungen?, Humanitäres Völkerrecht 14 (2001),251-254. 4 See Hans-Peter Kaul, The International Criminal Court, Country Report submitted by Germany to the XVIth Congress of the International Academy of Comparative Law, Brisbane, 14-20 July 2002, Section IV.A. Public International Law, in: Eibe Riedel (ed.), Stocktaking in German Public Law - German Reports on Public Law, 2002, 9-44.

The International Criminal Court - Current Perspective

17

he been present in the PrepCom and throughout the whole Rome eonferenee, five long weeks up to the dramatie climax of 17 July 1998, but already before he has had a key role as adviser to the Gerrnan Government on matters of international eriminallaw. This eoneerns in partieular the elaboration of the definition of genoeide, erirnes against humanity and in partieular war erimes pursuant to Art. 6 to 8 of the Rome Statute. Today I eannot give a fuII aeeount of his many eontributions during this important phase. But it is no exaggeration at aII when I say that he played a key role, in partieular, in the two multilateral eonsultations of NATO States in Bonn in June and Oetober 1997, whieh I ehaired and in whieh the "Bonn Paper on WarCrimes" was elaborated. In these workshop eonferenees, in whieh for example the V.S. was represented by David Scheffer and Professor Meron, Andreas Zimmermann - an aeademie, not a eivil servant - served on my request as delegate representing Gerrnany. Those of you who have foIIowed the travaux preparatoires with regard to Art. 8 of the Rome Statute on war erimes will know that this "Bonn Paper on War Crimes" later beeame, with only minor ehanges, eurrent Art. 8 on war erimes. So my eontribution here is also a "Thank you," a belated one, to Andreas Zimmermann. 5 At this juneture, I should also like to mention that we have two other meritorious members of the Gerrnan ICC delegation among us, Claus Kre}f' and Nils Geißler. Now, what is the eurrent situation of the ICC? Where do we stand with the ICC projeet? On the praetieal side it may be interesting to know that last week Germany sent its first eontribution of 811,000 euro to New York, to finanee the first Assembly of States Parties and as an advanee payment to the first budget of the Court. On Monday, on 3 June 2002, a so-eaIIed ICC Advanee Team eonsisting of six to eight independent VN experts will take up its work in The Hague to prepare for the praetieal establishment of the Court. This ICC Advanee Team is a Gerrnan proposal whieh is now implemented. The government building belonging to the Netherlands whieh will house the preliminary seat of the ICC will be renovated in the next months. It will be equipped with aII the neeessary Court faeilities so that it ean house the ICC until the definitive seat is built in 2007/2008. Currently an international arehiteetural eompetition is prepared by the Duteh government for the definitive building eomplex of the ICC. The definitive building eomplex will 5 See Andreas Zimmennann, The Creation of a Permanent International Criminal Court, Max Planck Yearbook ofUnited Nations Law 2 (1998),169 et seq. 6 See Hans-Peter Kaul/Claus Kreß, lurisdiction and Cooperation in the Statute of the International Criminal Court - Principles and Compromises, Yearbook of International Humanitarian Law 2 (1999),143-175.

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be completed in 2007/2008 on the property of the historic Alexander Wilhelm barracks in The Hague with planned costs of roughly 350 million euro. In the next 12 to 16 months the States Parties have the common task to conc1ude the very complex process of the establishment of this new world Court in a satisfactory manner. This promising perspective would not have been possible without the constructive work and considerable progress achieved by the ICC Preparatory Commission in New York. 7 As you are aware, this commission was formed on 17 July 1998.1t was charged with an extraordinarily complex program of work. This program inc1uded the elaboration of draft texts for the following instruments to supplement the Rome Statute: 4. Rules of Procedure and Evidence;8 5. Elements of Crimes,9 i.e. additional interpretation tools for the elements of offences; 6. a relationship agreement between the Court and the United Nations;lO

7. financial regulations and rules;11 8. an agreement on the privileges and immunities of the Court;12 9. rules of procedure of the Assembly of States Parties;13

10.

a budget for the first financial period;14

11.

basic principles concerning a headquarters agreement between the UN and the Netherlands as host country.15

It is almost astonishing that the ICC Preparatory Commission has now good chances to conc1ude the entirety of these eight secondary instruments at its tenth and last session, from 1 to 12 July of this year, as planned and on schedule. This, in turn, paves the way for the first Assembly of the currently 67 States Parties - more to come in the next weeks and months - which will take place in New See Kaul (note 4), 11. UN Doc. PCNICC/2000/INF/3/Add. 1. . 9 UN Doc. PCNICC/2000/lNF/3/Add. 2. 10 UN Doc. PCNICC/20011L.4/Add. 1. 11 UN Doc. PCNICC/20011L.4/Add. 2. 12 UN Doc. PCNICC/20011L.4/Add. 3. 13 UN Doc. PCNICC/200l/l/Add. 4. 14 UN Doc. PCNICC/2002/2/Add: 1. 15 UN Doc. PCNICC/2002/l/Add. 1. 7

8

The International Criminal Court - Current Perspective

19

York from 3 to 10 September of this year. This first meeting of the Assembly of States Parties will also decide upon the nomination and election procedure for the prosecutor and the 18 judges. They will be elected probably in January or February 2003 in a further meeting of the States Parties. It is obvious that among the draft texts elaborated successfully by the Preparatory Comrnission the Rules of Procedure and Evidence and the Elements of Crimes in particular will be of tremendous importance for the proceedings of the future Court. In this symposium on international criminallaw it may therefore be appropriate that I recall some aspects of the negotiation history and elaboration of the Elements of Crimes. This may also be useful as this new concept is not yet familiar to everyone and also as the German delegation, like others, in the end was forced to make special efforts to secure their successful elaboration.

As you are aware, Art. 9 of the Rome Statute provides that the Elements of Crimes shall assist the Court in the interpretation and application of Art. 6, 7 and 8 on genocide, crimes against humanity and war crimes. The concept is one that the Vnited States wished to include in the Rome Statute. It was unknown in almost all legal cultures prior to the Rome conference. It can also be considered a first in international criminallaw. The Elements of Crimes are in fact a kind of interpretative tool of a style found in V.S. criminallegislation which are in the American view binding on the judges. They are designed to tie them as closely as possible to the norms contained in the substantive criminal provisions. The vast majority of the States represented in the Preparatory Comrnittee and at the Rome Conference had strong reservations against this concept. Nevertheless, it was included, as yet another concession of the many, many concessions made to the V.S. delegation, in order to bring them on board, in order to win their support for the Statute. Most States are still of the opinion held since the Rome conference that the Elements of Crimes are, in accordance with the wording of Art. 9 of the Rome Statute, mere interpretative aids in the literal sense of the word. According to this view, they are designed to supportjudicial discretion, not to constrain it in a binding manner. But when the discussions of the Preparatory Comrnission began in 1999, the Court-supportive countries and signatory States realized that it would be counterproductive to prolong the differences of view on the Elements of Crimes. As this concept had been included in Art. 9 of the Rome Statute, it was clear that now the task was to make the best out of the situation. The idea was then to use the Elements of Crimes to specify and closely define the individual elements of the offences of genocide, crimes against humanity and war crimes under Art. 6 to 8 of

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Hans-Peter Kaul

the Rome Statute. The objective was that these aids to interpretation should be in full harmony with the general definitions and their international criminal law content. The ongoing difference of view on the question whether the Elements of Crime are binding or not should be left to the judges.

In hindsight it still seems remarkable that the Elements of Crimes were already completed on 30 June 2000. This concerns elements for a total of 66 "crimes," 5 variations of genocide, 11 for crimes against humanity and 50 for war crimes. The consultations were greatly facilitated by the fact that the U.S. delegation, then still led by Ambassador Scheffer of the Clinton administration, also did its best to realize "its" vision of the Elements of Crime. On the other side, delegations from Canada and Germany in particular, together with the United Kingdom and Switzerland, were active to move the work forward, with joint efforts and joint proposals for Elements of Crimes. A German-Canadian joint proposal on Elements of Crimes for crimes against humanity l6 provided the basis for a generally acceptable text in this area. It is worth mentioning that the German draft for this proposal was produced at a special workshop at the Max Planck Institute for International Law in Heidelberg in October 1999, which again was attended not only by Prof. Wolfrum, Prof. Bothe, Claus Kreß and myself, but also by Andreas Zimmermann. What can one now expect of the final text of the Elements of Crimes 17 adopted on 30 June 2000 which must be approved by a two-thirds majority of the members of the Assembly of States Parties? Many assessments are possible, including critical ones, at least when it comes to some detail. It remains to be seen how the judges of the future ICC can work with the "elements." Until then, the judgement must be preliminary. The U.S. insistence on this concept has forced the Preparatory Commission to make a very special effort to put the definitions of genocide, crimes against humanity and war crimes in terms as precise and solid as possible. Many do hope that the Elements of Crimes - an American concept, as explained before - will indeed contribute to legal certainty when the ICC commences its judicial functions. I now turn to my second question: What about the position of the Uni ted States on the International Criminal Court as publicly pronounced on 6 May? What does it mean, what consequences may this have for the Court? As you are aware, the Bush administration on 6 May, in a letter to the UN Secretary-General, denounced the signature of the Rome Statute effected under the Clinton administration. The 16 17

UN Doe PCNICCI1999IWGECIDP.36. Supra, note 9.

The International Criminal Court - Current Perspective

21

obvious aim was to do away with the obligation not to act against the object and purpose of the Rome Statute as laid down in Art. 18 of the Vienna Convention on the Law of Treaties. At the same time, the Bush administration proclaimed its new policy of non-co operation, rejection and opposition with regard to the Rome Statute and the future Court. 18 On 13 May, the European Union issued a statement of the Spanish presidency in which it strongly deplored the U.S. decision. The last paragraph of this statement expressed the hope that the U.S., in the longer run, will again change its position and come closer to the Statute. I stress this last element because it is based on a clear and widely shared EU realization: the future ICC ultimately needs the support of the United States. It needs American support in political, financial and other material and security policy terms. It is clear that America's enormous potential and any assistance it can provide, its abilities of intelligence, of investigations and interventions would be an enormous asset for the ICC. Already for this reason EU member States will continue to work closely with all those forces in the United States, senators, congressmen, American professors - I am glad that we have U.S. colleagues among us -, the American Bar Association, media, human rights organizations, Human Rights Watch, American Women, all the Court supportive mainstream forces in the United States, this in order to bring about a more positive U.S. approach to the ICC. At the same time, for a foreseeable future, there can be no illusions: - The American position of opposition and rejection is now very clear. - There are quite worrying signs that this policy will include overt and covert countermeasures to obstruct the International Criminal Court. Senior American officials have already announced such measures. In the Wall Street Journal of 6 May one could, for example, read "it is our firm intention to do

18 See Andreas Zimmermann/Holger Scheel, Zwischen Konfrontation und Kooperation - Die Vereinigten Staaten und der Internationale Strafgerichtshof, Vereinte Nationen 50 (2002), 137-144. See also Hans-Peter Kaul, The Continuing Struggle for the Jurisdiction ofthe International Criminal Court, in: Horst Fischer/Claus Kreß/Sascha Lüder (eds.), International and National Prosecution of Crimes under International Law - Current Developments, 2001, 21-46.

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a lot of things to undercut the Court."19 Among these measures that are already openly contemplated are, for example, the following: - A policy of strict non-cooperation with the Court; - U.S. efforts to achieve in Security Council resolutions immunity from the ICC for the members of peace-keeping operations; systematic V.S. efforts to conclude bilateral non-surrender agreements with other States prohibiting any cooperation with the ICC; - intensified efforts for adoption of the so-called "American Service members' Protection Act" (ASPA) promoted by Senator Helms which threatens smaller and weaker States with the denial of V.S. assistance if they ratify the Statute. As this is a conference on international law, I should like to recall that the Vnited States are using, time and again, in their public criticism of the Rome Statute some arguments which they say are of an international law nature or a legal nature: - In particular they regard Art. 12 of the Statute and the territorial jurisdiction contained therein as flawed because, according to them, it violates principles of national sovereignty with its claim to jurisdiction over the nationals of States not party to the Statute. - The V.S. now also criticize the complementarity principle - a new counterargument - because according to them the ICC would be final arbiter of whether a State's investigations or trials are genuine. - The V.S. criticize the Statute because according to them the ICC and the Prosecutor are not accountable to a democratically elected body or the VN Security Council, and this will, according to them, lead to politically motivated decisions. - A further V.S. argument is that the due process nonns as contained in the Statute are not sufficient.

19 See article D.S. to Pul! out of World Court on War Crimes, Wall Street Journal, 6 May 2002. The article contains also the fol!owing paragraph on the envisaged countermeasures against the lCC: "Among the steps the D.S. plans to take: refusing to contribute to the lCC or to honor any subpoenas or warrants it may issue, and asking foreign governments to sign agreements promising not to aid the court in any action against a D.S. national. Officials .said countries that refuse to sign such agreements might face a cutoff of D.S. military assistance or other penalties."

The International Criminal Court - Current Perspective

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Let me quickly illustrate these arguments with a quotation from the speech of Under Secretary Grossman of 6 May in which he said: We believe the ICC underrnines the role of the Vnited Nations Security Council in maintaining international peace and security. We believe in checks and balances. The Rome Statute creates a prosecutorial system that is an unchecked power. We believe that in order to be bound by a treaty, astate must be party to that treaty. The lCC asserts jurisdiction over citizens of states that have not ratified the treaty. This threatens V.S. sovereignty. We believe that the ICC is built on a flawed foundation. These flaws leave it open for exploitation and politically motivated prosecutions.

I leave it to your judgement or maybe also to the discussion during this conference whether these arguments are justified. But what they show is that we are now obviously in the situation of a serious and probably long-standing dispute between the U.S. and in particular the European Union. On 11 lune 2001 the EU foreign ministers adopted a proposal for a so-called "Common Position on the ICC" in which they commit themselves to promote the process of ratification and the early practical establishment of the Court in The Hague. Currently EU member States are in a process of intensive consultations to update the Common Position20 on the ICC with a view to intensify efforts to make it a universal institution and to put sustained EU support for the ICC on a formal basis. Already on Tuesday I will travel to Brussels for another EU coordination meeting on these issues. All in all, the ICC process thus will remain complex and difficult, each progress achieved only through hard work. This brings me to my concluding, third question: What remains to be done? What are the challenges and priorities ahead? Very briefly, in seven points: - There continues to be an absolute necessity, an immediate operational necessity for a targeted, sustained and well-coordinated ratification campaign. It must concentrate on some 50 countries or more where there seems to be a realistic chance that they ratify in the time until the second Assembly of States Parties which will take place at the beginning of the year 2003. What we need is not 67 or 70 ratifications, but 100 plus and more.

20 See the Authentie texts of Council Common Positions 20011443/CFSP and 20021 474/CFSP on the International Criminal Court as published in: Official Journal of the European Communities, nos. L 155 of 12 June 2001, 19, and L 164 of 22 June 2002, 1, respectively.

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Hans-Peter Kaul

- We need a successful start and efficient work of the ICC Advance Team at The Hague, six to eight of the best experts, no State delegates. Their work must begin as soon as possible and be as thorough as possible. - We need a successful course and completion of the last PrepCom in July. We must finalize, inter alia, the first ICC budget21 and the basic principles for a host State agreement22 and also prepare all the decisions to be taken by the Assembly of States Parties. - We also need continued dose mutual support with the International NGO Coalition for the ICC. Its contribution has time and again proven to be very helpful, often indispensable. There is no reason at all to give less priority to the partnership with the NGOs and civil society in the crucial 12 to 18 months ahead. - With regard to firm U.S. opposition, if not obstruction efforts, we need, in particular, on the EU side and on the side of the Court-friendly like-minded countries determination, steadfastness and a dear political will to go forward with the Court. There must be no appeasement, quite to the contrary, a firm will to complete the lee and to support it fully throughout its first years of consolidation which may be difficult. - The international standing of the ICC will in its first years certainly depend, to a large extent, on the integrity and authority of its first Prosecutor. EU member States, in particular, must make special efforts to solve as soon as possible this most important, indeed very urgent personnel question of the ICC concerning a highly qualified Prosecutor. On the German side we have taken note that some States Parties seem to look into the direction of Germany. - My last point is that we need in the next 12 to 18 months a conscious, wellplanned effort to manage international public expectations relating to the ICe. What is meant by this? Well, together we must explain, time and again, in a careful manner why there is unavoidably a gap of 12 to 18 months between the entry into force of the Rome Statute on 1 July 2002 and the beginning of the ICC' s operations. We need this time span for further preparations and building work until the ICC can effectively take up its work in 2003. At this point in time we want to see a well-prepared, well-equipped and well-financed ICC, one with the best starting conditions.

21 22

Supra, note 14. Supra, note 15.

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ladmit, this is quite a fun agenda. But there is no doubt in my mind: We will do it. At the same time we must be realistic: We an know that the future Court will be no panacea. It will be unable to prevent core crimes. It will obviously be unable to prosecute an the war crimes committed on this planet. It will probably be cumbersome and expensive, just like the ad hoc Tribunals. But we must not abandon the objective of strengthening the rule of law in international relations. Therefore we must not forfeit the hopes and chances for more international justice that the International Criminal Court offers.

Criminal International Law and Customary International Law By Wolff Heintschel von Heinegg

A. Introduction The subject we are entrusted with, in view of the multitude of legal problems involved, calls for a limitation. Therefore, we will not deal with all aspects of criminal internationallaw. Instead we shall concentrate upon war crimes. However, as such, this limitation does not necessarily narrow the scope of this paper if war crimes are understood to comprise all violations of the law of armed conflict that are punishable whether committed by combatants or civilians, inc1uding the nationals of neutral States. 1 According to that broad definition an act is a war crime because it is a violation of the laws of war, regardless of its gravity.2 If we take a look at the Statutes of the ad hoc Tribunals for the former Yugoslavia and for Rwanda and of the ICC, not every violation of the laws of war would qualify as a war crime. 3 In Artic1e 8 (2) of the ICC Statute war crimes are defined as: 4 grave breaches of the Geneva Conventions of 12 August 1949; - other serious violations of the laws and customs applicable in international armed conflicts; 1 This definition is given by Leslie C. Green, The Contemporary Law of Anned Confliet, 1993, 276. 2 Cf Christopher Greenwood, The International Tribunal for the former Yugoslavia, Foreign Affairs 69 (1993), 641-655, 641. 3 E.g., the ICTY has the eompetenee to, inter alia, proseeute "serious violations of international humanitarian law" (Artic1e 1), inc1uding "grave breaehes of the Geneva Conventions of 1949" (Artic1e 2), and "violations of the laws or eustoms of war" (Artic1e 3). 4 On Artic1e 8 see, interalia, Andreas Zimmermann, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999,262 et seq.; Darryl Robinson /Herman v. Hebel, War Crimes in Internal Confliets: Artic1e 8 ofthe ICC Statute, Yearbook of International Humanitarian Law 2 (1999), 193-209.

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in case of an anned conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions; and - other serious violations of the laws and customs applicable in arrned conflicts not of an international character. In view of the fact that the IMT at Nuremberg, despite the broad wording of Article 6 (b) of the London Charter, exclusively dealt with offences of a vast scale and committed in an organized and systematic manner, and in view of the individual crirninal responsibility of the perpetrators, such a narrow concept of war crimes has a value of its own. 5 Still, for reasons of clarity it is useful to keep constantly in rnind that the concept of war crimes can be rather broad and that it is understood in a restricted manner only in the context of individual crirninal responsibility under, or according to, internationallaw. A final prelirninary remark needs to be made with regard to the question whether there is the possibility of customary crirninal internationallaw at all. From the point of view of continental European law the maxim nullum crimenlnulla poena sine lege would probably role out such a possibility. That understanding of the lex is of relevance in the domestic context only. For the purposes of internationallaw, and thus for crirninal internationallaw, the generally recognized sources of public internationallaw would certainly qualify as leges in the sense of the maxim. 6

B. War Crimes and Customary International Law As emphasized in the report on the constitution of the international crirninal tribunal for the former Yugoslavia prepared by the Secretary-General of the

5 Cf Bing-Bing lia, The Differing Concepts of War Crimes and Crimes against Humanity in International Criminal Law, in: Guy S. Goodwin-Gill/Stefan Talmon (eds.), The Reality ofInternational Law. Essays in Honour ofIan Brownlie, 1999,243-271,246 et seq.; Hans-Heinrich lescheck, War Crimes, in: Rudolf Bernhardt (ed.), Encyc10pedia of Public International Law, vol. IV, 2000, 1349-1354, 1349 et seq.; Yoram Dinstein, The Distinctions between War Crimes and Crimes against Peace, in: Yoram DinsteinlMala Tabory (eds.), War Crimes in International Law, 1996, 1-18,3. 6 E.g., the European Convention on Human Rights, according to its Artic1e 7, would allow criminal punishment even under a general principle of law recognized by civilized nations; cf Gerhard Hoffmann, Strafrechtliche Verantwortung im Völkerrecht, 1962, 149; Otto Triffterer, Dogmatische Untersuchungen zur Entwicklung des materiellen Völkerstrafrechts seit Nürnberg, 1966, 127 et seq.

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United Nations,? the ICTY is to exclusively apply such norms of international humanitarian law "which are beyond any doubt part of customary international law." The same holds true for the ICTR and for the ICe. In this seetion, we will review the arguments put forward in favor of the customary character of certain prohibitions according to internationallaw applicable in international and in noninternational armed conflicts. I. International Armed Conflicts

The law of international armed conflict, as laid down in the Hague Regulations of 1907 and in the four Geneva Conventions of 1949, is a settled body of rules that is generally considered as declaratory of customary internationallaw. Especially weIl established are the prohibitions laid down in Article 23 of the 1907 Hague Regulations as weIl as the regime of grave breaches of international humanitarian law. 8 Accordingly, acts contrary to the Hague Regulations of 1907 and of the four Geneva Conventions of 1949 are prohibited by conventional and by customary internationallaw. 9 11. Non-International Armed Conflicts

States have always been reluctant to accept rules of internationallaw as applicable to internal armed conflicts. Therefore, in 1949, they merely agreed on Article 3 common to the four Geneva Conventions. And in the course of the Diplomatie Conference (1974-1977) the task to reaffirm and develop the law of non-international armed conflicts in the same way as the law of international armed conflicts proved to be too ambitious by far. Against that background the question arises as to the state of customary internationallaw applicable in internal armed conflicts. How can rules of customary law develop if the majority of States

7

8

UN Doc. S125704 (3 May 1993). Cf Greenwood (note 2), 644; Green (note 1),276 et seq.; Jescheck (note 5), 1350 et

seq. 9 For the various prohibitions of the law of international armed conflict see, e.g., Hersch Lauterpacht (ed.), Oppenheim's International Law, vol. II, 7th ed. 1952,336 et seq., 353 et seq., 376 et seq., 397 et seq., 413 et seq., 428 et seq., 457 et seq.; Lyal S. Sunga, The Emerging System of International Criminal Law, 1997, 163 et seq.; Heiko Ahlbrecht, Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert, 1999,374 et seq.

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are unwilling even to accept treaty rules whose scope of application ratione materiae is as restricted as in Additional Protocol 1I?IO The most prominent endeavour to prove the existence of customary prohibitions applicable in internal armed conflicts has been undertaken by the Appeals Chamber in the case of Dusko Tadic in 1995. 11 The arguments of the Appeals Chamber on "Customary Rules of International Humanitarian Law Governing Internal Armed Conflicts" can be summarized as follows. The Chamber starts by maintaining that the old dichotomy of belligerency and civil commotion has gradually become blurred since the 1930s. 12 In view of the increasing number of internal armed conflicts, their increasing cruelty and protraction (in that context the Chamber mentions the Spanish Civil War, the civil war in the Congo, the Biafran conflict in Nigeria, the civil strife in Nicaragua or EI Salvador), their implications for the economic, political and ideological interests of third States, and the development of international human rights, the "Statesovereignty-oriented approach has been gradually supplanted by a human-beingoriented approach." Therefore, as the Chamber concludes, "in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned."13 This means that the Chamber is ready to acknowledge a set of conventional and customary rules of international law governing internal armed conflicts that are interdependent and mutually supportive. As regards the determination of customary rules, the Chamber, noting the difficulties connected with the verification of the factual situation in such conflicts, decides to also rely upon official pronouncements of States, military manuals and judicial decisions. 14 The Chamber then undertakes to identify customary rules on the protection of the civilian population in internal armed conflicts by referring tO: 15 - the Spanish Civil War (1936-39), especially the statements ofthe British Prime Minister Lord Chamberlain of 23 March 1938 and of 21 June 1938; 10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Proteetion of Victims of Non-International Armed Conflicts (Protocol II) of 8 lune 1977. II Decision of 2 October 1995 on the Defence Motion for Interlocutory Appeal on lurisdiction, Case No. IT-94-1-AR72. 12 Ibid., paras. 96 et seq. 13 Ibid., para. 97. 14 Ibid., para. 99. 15 Ibid., paras. 100-118.

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- resolutions of the Assembly of the League of Nations with regard to the Spanish Civil War and the Chinese-Japanese war; - subsequent State practice in the form of instmction issued by Mao Tse-Tung; - special agreements under Article 3 common to the four Geneva Conventions of 1949, as concluded during the conflicts in Yemen and in the former Yugoslavia; - unilateral commitments to the protection of the civilian population (and of prisoners ofwar), as in the Congo (1964), Nigeria (1967), EI Salvador (1988); - appeals of the ICRC to the parties of non-international armed conflicts; - resolutions of the United Nations General Assembly; - statements by the member States of the ECIEU; - resolutions of the United Nations Security Council on conflicts in Somalia and in Georgia; and - the recognition of an assimilation of the law of international armed conflict and the law of internal armed conflict in the military manual of the German armed forces. In a next step the Chamber tries to identify customary prohibitions of methods and means of warfare. With regard to means of warfare it concentrates upon chemical weapons, especially on the different statements given in connection with the alleged gas attacks on the Kurdish population in Iraq.16 As to methods of warfare the Chamber merely refers to the decision of the Supreme Court of Nigeria on the matter of perfidy.17 While the Chamber is not ready to apply all mIes and principles governing international armed conflicts and while it cautions to apply merely the very essence of these mIes, it reaches the conclusion that the mIes of the law of international armed conflict applicable in internal armed conflicts "cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as weIl as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities."18

16

lbid., paras. 119-124.

17 lbid., para. 125. 18

lbid., para.127.

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Wolff Heintschel von Heinegg

This deeision of the ICTY has met with wide approval in the literature. 19 Henee, many are ready to agree with the aHeged assimilation of the law of international armed eonfliet and the law of internal armed eonfliet as weH as, even more importantly, with the applieability of a rather eomprehensive set of eustomary mles. 20

C. War Crimes and Individual Criminal Responsibility Having established whieh arguments are put forward in favor of the eustomary eharaeter of eertain prohibitions of the law of armed eonfliet we shaH now deal with the question whether violations of these prohibitions ean entail individual eriminal responsibility.

I. International Armed Contlicts As far as the law of international armed eonfliet is eoneerned, there is general agreement that the eoneept of individual eriminal responsibility for violations of the laws of war (war erimes latu sensu) as weH as for grave breaehes of international humanitarian law (war erimes strictu sensu) is weH established. 21 Aeeordingly, under eonventional and under eustomary law, States are obliged to proseeute and punish or extradite aH persons guilty of grave breaehes of the Geneva Conventions. The same obligation exists in ease of violations of Article 23 of the 1907 Hague Regulations, even though the eontraeting parties, in 1899 and in 1907, had not been prepared to include in Hague Convention IV a provision on penal sanetions. In the ease of less serious or grave violations of the laws of war 19 See, e.g., Claus Kreß, War Crimes in Non-International Anned Conflict and the Emerging System of International Criminal Justice, Israel Yearbook on Human Rights 30 (2001), 103-177, 104 et seq.; Michael Bothe, War Crimes in Non-International Anned Conflicts, in: Dinsteinffabory (note 5), 293-304, 294 et seq.; Ahlbrecht (note 9),380 et seq. 20 Kreß (note 19); Bothe (note 19); Antonio Cassese, The International Tribunal for the Former Yugoslavia and the Implementation of International Humanitarian Law, in: Luigi CondorellilAnne-Marie La Rosa/Sylvie ScheITer (eds.), Les Nations Unies et le droit international humanitaire, 1996, 229-247, 235 et seq.; Thomas Graditzky, Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Anned Conflicts, IRRC 80 (1998), 29-65, 34 et seq.; each with further references. 21 Cf Greenwood (note 2),644; Green (note 1),276 et seq.; Jescheck (note 5), 1351 et seq.

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States are allowed to apply their national criminallaw in order to prosecute and punish the perpetrators. 22

11. Non-International Armed Conflicts The basic provisions of international humanitarian law applicable in noninternational anned conflicts are less elaborated. Neither Article 3 common to the four Geneva Conventions of 1949 nor the 1977 Additional Protocol 11 contains a specific provision requiring States or other parties to a non-international armed conflict to prosecute and punish or extradite those guilty of serious violations of the applicable law. This is not surprising because States tend to consider internal conflicts as part of their domaine reservee and are reluctant to accept rules of internationallaw applying in such situations. Therefore, unti11990, nobody took seriously the position that the international law of internal anned conflict contained provisions on war crimes entailing individual criminal responsibility.23 Even the ICRC, in 1993, took the position that "according to humanitarian law as it stands today, the notion of war crimes is limited to situations of international anned conflicL,,24 Thus, it is more surprising that only two years later, the Appeals Chamber in the Tadic case had no considerable problems in identifying a customary regime of war crime applicable to internal anned conflicts. Again it is worthwhile having a closer look at the arguments put forward by the Chamber. 25 At first, the Chamber, citing the IMT at Nuremberg,26 holds that individual criminal responsibility need not necessarily be provided for in a rule of treaty law. Rather, if there were a clear and unequivocal recognition of the rules of warfare, indicating an intention to criminalize the prohibition as weH as punishment of violations, individuals could be held criminally responsible. These conditions, according to the Chamber, are met, because "principles and rule of humanitarian law reflect 'elementary considerations of humanity' widely recognized as Cf Green (note 1),282 et seq. See the references given by Graditzky (note 20), 33; Kreß (note 19), 104 et seq.; Stefan Oeter, War Crimes in the Former Yugoslavia. Some Remarks on the Question of Collective and Individual Responsibility for Violations of Humanitarian Law, ZaöRV 53 (1993), 1-48; Denise Plattner, The Penal Repression of Violations of International Humanitarian Law Applicable in Non-International Armed Conflicts, IRRC 72 (1990), 409-420. 24 DDM/JUR 442 b, 25 March 1993, para. 4. 25 Supra, note 11, paras. 128 et seq. 26 The Trial of Major War Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Part 22, 1950,445 et seq. 22 23

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the mandatory minimum of conduct in anned conflicts of any kind." No one, the Chamber goes on to state, could "doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.'>27 State practice, too, proved the intention to criminalize grave violations of humanitarian international law occurring in internal armed conflicts. For that purpose the Chamber refers to the case of Nigeria (1967-70) and to the military manuals of Germany,2s New Zealand,29 the US ArmylO and of the United Kingdom. II Furthermore, the Chamber cites the Belgian and Yugoslav criminallegislation l2 and resolutions of the Security Council on Somalia. All these factors, the Chamber concludes, and the special agreements entered into by the parties to the conflict in Bosnia-Herzegovina proved that grave violations of Article 3 common to the Geneva Convention of 1949 entailed individual criminal responsibility.ll Hence, the Chamber has satisfied itself with a rather short reasoning. Probably it was the result rather than anything else that preoccupied the Chamber most. Still, in the literature the arguments put forward by the Chamber in favor of an individual criminal responsibility are considered sufficient. In view of the difficulties in connection with the proof of the objective element, they not only apply a broad concept of practice but also minimize the relevance of the elements of duration, consistency and frequency.l4 According to that approach, labelIed "modem positivism,"l5 the Chamber has succeeded in determining not only customary prohibitions for the conduct in internal anned conflicts but also a customary principle of individual criminal responsibility in case of grave violations of these prohibitions. Supra, note 11, para. 129. Bundesminister der Verteidigung (Hg.), Humanitäres Völkerrecht in bewaffneten Konflikten - Handbuch - (ZDv 15/2), 1992. 29 New Zealand Defence Force Directorate of Legal Services, Interim Law of Arrned Conflict Manual, 1992. 30 Dept. of the Arrny, The Law of Land Warfare, Department of the Arrny Field Manual, 1956. 31 War Office, The Law ofWar on Land, Being Part III ofthe Manual ofMilitary Law, 1958. 32 Supra, note 11, para. 132. 33 Ibid., paras. 134 et seq. 34 See, e.g., Kreß (note 19), 107 et seq. 35 Obviously, this label sterns from the contribution to the "Symposium on Methods in International Law" by Bruno Simma/Andreas L. Paulus, The Responsibility ofIndividuals for Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, AJIL93 (1999), 302-316, 306. 27 28

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D. Critical Analysis Having, thus, summarized the arguments in favor of customary international law applicable to non-international armed conflicts, we shall now critically analyze the decision of the Appeals Chamber in Tadic 1995 (I.) and then the methodological approach of parts of the literature (11.). This will be followed by some short remarks on war crimes as part of criminal internationallaw (III.) and on the international subjectivity of individuals according to criminal international law (IV.). I. Tadic 1995

According to the view taken here, official pronouncements by States, military manuals and court decisions may be made use of for the purpose of establishing the existence of customary norms. 36 Nevertheless, it is important to clarify their respective relevance in that process. In that respect, the ICTY's reasoning is far from clear. Does the Chamber consider these as evidence of State practice, of opinio juris, or merely as subsidiary means for the determination of mIes of law? Thus, the Chamber paves the way for a rather eclectic approach to the determination of customary mIes and principles prohibiting a certain conduct in internal armed conflicts and to the alleged assimilation of the law of international armed conflict and that of non-international armed conflict. The State practice the Chamber is relying upon is not always conclusive. Even though, as the denomination suggests, the Spanish Ci viI War is generally considered an internal conflict, the Chamber itself cannot but concede that, in view of other States' and of foreign individuals' involvement in that conflict, the Spanish Civil War also showed some elements typical of international armed conflicts or of so-called mixed conflicts. 37 A number of States had taken a considerable interest in the Spanish Civil War because they and their nationals were affected not only by the conduct ofthe immediate parties to that conflict but also by acts of third States and by other foreign entities whose identity could not be clearly 36 Wolf! Heintschel v. Heinegg, 4. Kapitel: Die weiteren Quellen des Völkerrechts, in: Knut Ipsen (Hg.), Völkerrecht, 4th ed. 1999, 180-220, 188 et seq., 192 et seq. 37 For the latter and for the applicability of international humanitarian law see Martin Hess, Die Anwendbarkeit des humanitären Völkerrechts, insbesondere in gemischten Konflikten. Eine Untersuchung der Anwendbarkeit der Genfer und Haager Konventionen anhand der Konflikte in Afghanistan, Angola, Kampuchea, im Libanon und im Tschad, 1985.

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established. 38 The statements of the British Prime Minster Lord Chamberlain and the resolutions of the League of Nations have to be viewed against that background. They pertained either to a mixed armed conflict or - in the case of the Chinese-Iapanese War - to an international armed conflict. In this context, it should be noted that, e.g., the United Kingdom in the time following the Spanish Civil War was not always prepared to accept and adhere to international legal limitations during conflicts that, in those days, were generally characterized internal rather than international or "internationalized."39 Apart from the fact that for decades Article 3 common to the Geneva Conventions had been considered treaty law only, the reference to special agreements that were entered into according to that provision do not, as such, give sufficient evidence of an opinio juris that the parties to these special agreements considered themselves bound by customary international law going far beyond common Article 3. To the contrary: if Article 3 presupposes a special agreement in order to bring into force "all or part of the other provisions" of the Geneva Conventions, the contracting and the conflicting parties make sufficiently clear that they do not consider themselves bound by a rule of customary law to that effect. As regards the further State practice the Chamber is relying upon, it needs to be emphasized that that practice is far from meeting the requirements of "high frequency and high consistency" the ICI considers essential for the development of customary intemationallaw.40 The Chamber refers only to three conflicts in which 38 One interesting reaction by these States was the Nyon Arrangements of 14 and of 17 September 1937, LNTS, 181, 137-140, 151 et seq., printed in: Dietrich Schindler/Jil'li Toman (eds.), The Laws of Armed Conflicts, 3rd ed. 1988,887,889. For a summary and evaluation of the Nyon Arrangements see Louis Frederick E. Goldie, Commentary on the 1937 Nyon Agreements, in: Natalino Ronzitti (ed.), The Law of Naval Warfare, 1988, 489-502. 39 For the latter category and for Article 1 (4) Additional Protocol I of 1977 ("fight against colonial dornination and alien occupation") see Bruno Zimmermann, Article 1 Protocol I, in: Yves SandozlChristophe SwinarskilBruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987,41 et seq. 40 In the North Sea Continental Shelf cases the ICJ held: "Not only must the acts concemed amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a beliefthat this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis"; ICJ Reports 1969,44. In the Nicaragua Case, again, the Court considered the objective element to be essential: "The Court notes that there is in fact evidence [ ... ] of a considerable degree of

Criminal International Law and Customary International Law

37

the parties (or at least one party) considered attacks on the civilian population or the maltreatment of prisoners of war to be prohibited by (customary) international law. Moreover, it is interesting to note that the Government of EI Salvador was not prepared to apply Additional Protocol n41 although that State had already ratified it. The statement of the Govemment of EI Salvador and of the Deputy Legal Advisor of the US Government are obviously restricted to common Article 3. At first glance, the further elements put forward by the Chamber seem to be more convincing. It is, however, doubtful whether appeals by the ICRC,42 resolutions of the General Assembly and of the Security Council, and statements by the member States of the European CommunitylEuropean Union justify the conclusion that, according to the opinio juris of the bodies and States, parties to an internal armed conflict are under an obligation of customary international law exceeding the material scope of common Article 3. The fact that, in those statements and resolutions, no explicit reference was made to common Article 3 is certainly not sufficient proof of the existence of customary obligations to that effect. The only military manual which deliberately assimilates the law of international and the law of non-international armed conflict is the German Handbook on the Law of Armed Conflict. 43 Other military manuals exclusively apply to international armed conflicts. Hence, again, the Chamber has not provided sufficient evidence of a practice that would meet the threefold test of duration, frequency and consistency. The arguments put forward with regard to methods and means of warfare are interesting in so far as, when it comes to customary prohibitions of certain means, agreement between the Parties as to the content of customary internationallaw relating to the non-use of force and non-intervention. This concurrence of their views does not however dispense the Court from having itself to ascertain what rules of customary international law are applicable. The mere fact that States dedare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary internationallaw, and as applicable as such to those States. Bound as it is by Artide 38 of its Statute to apply, inter alia, international custom 'as evidence of a general practice accepted as law', the Court may not disregard the essential role played by general practice. [ ... ] in the field of customary internationallaw, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice"; ICJ Reports 1986, 97 et seq. 41 Supra, note 10. For an update of ratifications, accessions etc. see the website of the ICRC, http://www.icrc.orglihl.nsf/. 42 For the position of the ICRC with regard to war crimes in non-international armed conflicts see supra, note 24. 43 Supra, note 28.

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the Chamber solely concentrates upon chemical weapons. While we are prepared to subscribe to these findings, we do not consider them sufficient to justify the Chamber' s conclusion with respect to other means of warfare the use of which in internal anned conflicts is said to be prohibited qua customary internationallaw. It may be added in this context that the law of international anned conflict may be much stricter than the law of internal anned conflict. As riots and the like do not fall within the realm of internationallaw governing anned conflicts in the sense of common Article 3 (or of Additional Protocol 11),44 it is generally agreed that riot control agents, like tear gas, may be employed. In view of the lack of an explicit prohibition it may well be that their use is not prohibited in internal anned conflicts either. The reasoning of the Chamber in the context of prohibited methods of warfare allegedly applying to internal anned conflicts, again, is rather meager because it only refers to the decision of the Supreme Court of Nigeria and restricts itself to acts of perfidy. With regard to certain customary prohibitions applicable in internal anned conflict one may agree with the Chamber that it is prohibited to directly attack the civilian population as such or individual civilians. 45 Since the Chamber has failed to give evidence to this effect, it is far from clear whether the civilian population is also protected against indiscrirninate attacks. In contrast to Additional Protocol 1,46 Additional Protocol 11 contains no explicit provision on indiscrirninate attacks. The only provision that could be interpreted as acknowledging such a prohibition, Article 15 Additional Protocol 11, is restricted to "works and installations containing dangerous forces." Further agreement with the Chamber can be reached with regard to the protection of persons hors de combat47 and with regard to the prohibition on the employ44 See, e.g., Jean S. Pictet, Geneva Convention H - Commentary, 33 et seq.; SylvieStoyanka Junod, Article 1 Protoeol H, in: Sandoz/Swinarski/Zimmermann (note 39), 1350 et seq.; Michael B. Akehurst, Civil War, in: RudolfBernhardt (ed.), Eneyclopedia ofPublie International Law, vol. I, 1992,597-603,597 et seq. 45 This folIows, indireetly, from eommon Article 3 and, direetly, from Article 13 (2) Additional Protoeol H. In this eontext it has to be taken into eonsideration that Article 13 (2) AP H did not belong to the highly disputed provisions at the Diplomatie Conferenee of 1974-77; cf Sylvie-Stoyanka Junod, Article 13 Protoeol H, in: Sandoz/Swinarski/ Zimmermann (note 39), 1451 et seq. For the eustomary eharaeter of that prohibition see also Green (note 1), 310 et seq. 46 Article 51 Additional Protoeol I. 47 See eommon Article 3 and Article 7 (1) Additional Protoeol II and, on the eustomary eharaeter of that prohibition, Sylvie-Stoyanka Junod, Article 7 Protoeol H, in: Sandozl Swinarski/Zimmermann (note 39), 1408 et seq.; Green (note 1), 312 et seq.

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ment of chemical weapons. While this mayaiso hold true for biological weapons, it is doubtful whether the use of other means of warfare are prohibited as weIl. Similar doubts prevail as to methods of warfare other than perfidy and the customary protection of civilian objects, especially of cultural property. The reasons given by the Chamber on the issue of individual criminal responsibility for grave violations of the prohibitions mentioned above cannot be left uncriticized either. Of course, reference is regularly made to the jurisprudence of the International Military Tribunals at Nuremberg and Tokyo. However, as one of the most distinguished internationallawyers on the law of war crimes has noted, this reference may not be convincing after aIl: If the United Nations tribunal does in fact try those accused of the various breaches of the Geneva Conventions, international humanitarian law or the law of war, it will be possible to argue that a new regime in this matter has been established, and it is no longer necessary to cite the Nuremberg Iudgment as the basis of the law. This is important, since it may be argued that while the International Law Commission and General Assembly have both affirmed the principles of internationallaw embodied in the Nuremberg Charter and Iudgment, it must not be forgotten that this Tribunal was established for the limited purpose of trying the major war criminals of the European Axis during a conflict that was clearly international in character. 48

The fact that Article 3 common to the Geneva Conventions is generally considered as expressive of "elementary considerations of humanity,,49 merely allows for the conclusion that all States agree that they are not entitled to go beyond these minimum requirements of public internationallaw - be it in peace, in international armed conflicts or in internal armed conflicts. However, these requirements are addressed to States. Hence, if Article 3 is to be made use of for the determination of individual criminal responsibility, it has to be proved that this conclusion is weIl established in the practice and opinio juris of States. But the Chamber only refers to the case of Nigeria, to four military manuals, to two acts of national legislation and to resolutions ofthe United Nations Security Council on Somalia. As far as the military manuals are concerned, only the German Handbook gives evidence of an opinio juris to the effect that violations of the law of non-international armed conflicts entail the individual criminal responsibility of the perpetrator. The other manuals, in view of the dates of their respective publication, are far from supportive of that view. 50 At least they do not necessarily prove that the respective States consider themselves obliged under internationallaw to prosecute Green (note 1), 301. This quote is taken from the Corfu Channel Case, ICI Reports 1949,22, and from the Nicaragua Case, ICI Reports 1986, 112. 50 As already mentioned (supra, text accompanying note 24), in the time preceding 1990 no one was ready to apply the war crimes regime to internal armed conflicts. 48

49

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and punish such violators. Rather, since they all are standing in the Anglo-American legal tradition, they may have chosen to prosecute all violations of the laws of war latu sensu they consider necessary for reasons of national policy.51 The acts of nationallegislation of Belgium and of the former Yugoslavia have to be seen against the background of their respective ratifications of Additional Protocol 11. 52 The special agreements entered into by the parties to the conflict in Bosnia-Herzegovina are also of lirnited value since they are designed to meet the special characteristics of that conflict which, at least for a certain period of time, was rather international than purely interna1. 53 More important, however, is the fact that in those agreements no explicit reference is made to individual crirninal responsibility under international law. Finally, it suffices to reemphasize that agreements, especially those with a lirnited number of contracting parties, are, a priori, of lirnited relevance for the determination of customary internationallaw.

11. Methodological Aspects It may weH be that some internationallawyers are hesitant - if not reluctant to take the burden of scrutinizing State practice because there is not general consensus about the dogmatic and theoretical foundations of customary internationallaw. 54 Indeed, in view of the various theories ranging from naturallawand traditional positivism to voluntarism, modem positivism, constructivism and deconstructivism, this is and will be probably one of the most disputed matters of

51 For the broad understanding of the concept of war crimes in the Anglo-American doctrine see the references supra, notes 5 and 8. 52 The Yugoslav Federal Crirninal Code dates back to 1990, the Belgian to 1993. Belgium ratified Additional Protocol II on 20 May 1986. The former Yugoslavia, among the first States to ratify Additional Protocol II, in 2001 deposited its declaration of succession. 53 Cf. Green (note 1), 299, citing Commander William J. Fenrick, member of the Comrnission on the Legal and Policy Issues related to Comrnission of Experts, who recommended that "activities occurring in B-H during an armed conflict prior to 6 April 1992 should be considered as occurring in an internal conflict, [while1 acti vities occurring between 6 April 1992 and May 1992 should be considered as occurring in an international armed conflict land thosel occurring after 19 May 1992 should be considered as occurring during an internal armed conflict." 54 For the different theoretical, dogmatic and methodological approaches to customary internationallaw see, inter alia, Bruno Simma, Editorial, EJILlJEDI 3 (1992), 215-218; the contributions in: Antonio Cassese/Joseph H. H. Weiler (eds.), Change and Stability in International Law-Making, 1988; and the contributions to the Symposium on Method in International Law, AJIL 93 (1999), 291 et seq.

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the theory of public internationallaw. Still, in view of the limited space and time available, we will not enter the never-ending dispute between the various schools of thought. For our purposes it suffices to have a closer look at the position which, at first glance, is in full conformity with Article 38 (1) (b) of the ICI Statute as interpreted and applied by the Court and which is labelIed "modern positivisrn." Without necessarily sharing the view on the correctness of that denomination we will use it for reasons of convenience. In accordance with the jurisprudence of the ICI this position starts from the premise that "the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary internationallaw."55 Still, according to the Court, "an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform.,,56 The requirements of extent and uniformity do not pose considerable problems for the proponents of that position because they do not concentrate upon the "actual external State conduct with each other" but also take into consideration such State behavior "which is situated at the border-line between actual practice and opinio juris. "57 So far, according to the view taken here, that approach is conforming to the preconditions that, according to Article 38 (1) (b) ICI Statute, have to be fulfilled in order for a new rule of customary internationallaw to emerge. However, in the context of determining customary rules and principles on the individual criminal responsibility for violations of international humanitarian law in non-international armed conflicts, some representatives of the said position shift away from the dogmatic foundations to which they have so eloquently pledged allegiance before. They are not merely relying upon "repeated pronouncements of the Security Council," and the "almost complete lack of State protest,,58 but also on the signing of the ICC Statute. By the lauer, these authors maintain, States have, in their overwhelming and steadily growing majority solemnly expressed the view that the war crimes list in Artide 8 (2) (c) and (e) is based on customary law as "one of the major guiding principles in the elaboration of the definitions of the crimes was that these definitions should be reflective of customary internationallaw." They have done so despite the fact that the traditional "high-frequency and high-consistency test" was still very difficult to meet in the summer of 1998. Thus, the whole process of the adoption of these war crimes definitions must be seen as a most important piece of 55 56 57

58

North Sea Continental Shelf cases, ICJ Reports 1969, 43. Ibid. Kreß (note 19), 108. Ibid., 109.

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Wolff Heintschel von Heinegg evidence for the fact that States are prepared to allow for exceptions from the traditional "high-frequency and high-consistency test" in cases of rules which they consider essential for the protection of fundamental values of humanity.59

Firstly, the reference to the adoption and signing of the lee Statute is certainly not sufficient evidence for the alleged customary character of war crimes in internal armed conflicts. According to modern positivism, too, the opinio juris as a constitutive element of customary law has to be strictly distinguished from an opinio juris conventionis. While treaties may play an important role in the process of determining rules of customary law,60 they do not dispense with the necessity of proving that the States concerned do consider themselves bound also vis-a-vis States not parties/signatories to the treaty in question. Apart from that, one should be most careful to merely refer to the high number of signatures of a treaty that has not yet entered into force. In any event, even if the said prohibitions of the law of internal armed conflict were customary in character, that, as such, would not allow the conclusion of an ensuing individual crirninal responsibility. Secondly, there is no evidence that States are prepared to allow exceptions from the requirements of extent and uniformity - at least not in the context of customary internationallaw proper. In any event, such exceptions would no longer conform to the dogmatic basis of modern positivism. While it is true that neither a long period of time nor an "actual practice" is necessary, the requirements of consistency and frequency remain essential. This is so because modern positivism is far from assirnilating itself to the theories of "instant international law" or diritto spontaneo. 61 The less the duration of a certain conduct the more it has to meet the requirements of extent and uniformity. Otherwise, the conduct would not be eligible for the creation of a norm of customary internationallaw. In this context, it needs to be emphasized that the conduct, even if the objective element is underIbid., citing Robinson/v. Hebel (note 4),208. According to the ICJ this presupposes that "the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general ruJe oflaw"; ICJ Reports 1969,41 et seq. However, the opinio juris expressed in a treaty must of necessity be complemented by a corresponding practice, inc1uding "that of States whose interests are specially affected" (ibid., 43). For comprehensive studies on the relationship between treaties and custom see Mark Eugen Villiger, Customary International Law and Treaties, 1985; Richard Reeve Baxter, Multilateral Treaties as Evidence of Customary International Law, BYIL XL (1965/66), 257-300; Richard Reeve Baxter, Treaties and Custom, RdC 129 (1970 I), 25-104; Theodor Meron, The Geneva Conventions as Customary Law, AJIL 81 (1987),348-370. 61 Cf Bin Cheng, United Nations Resolutions on Outer Space - "Instant" International Customary Law?, Indian Journal ofInternational Law 5 (1965), 23-48. 59

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stood to comprise pronouncements etc., must have a genuine link to the contents of the alleged rule of customary internationallaw. Hence, when it comes to the determination of a customary rule prohibiting certain acts in internal armed conflicts, only those pronouncements etc. may be taken into consideration that explicitly refer to such conflicts. Statements on international armed conflicts are irrelevant. Neither the Appeals Chamber of the ICTY nor the authors referred to have observed these conditions when determining customary rules prohibiting a certain conduct in internal armed conflicts or entailing individual criminal responsibility. This is not to say that all those findings are incorrecL However, they are not based on asound and consistent methodological approach. III. War Crimes as Part of Criminal International Law? Obviously, there is no generally accepted definition of criminal international law. 62 There are, however, good reasons to apply a restrictive definition in order to be able to distinguish criminal international law from other concepts like the universality principle and the like. The proposal to use instead the notion "crimes under internationallaw"63 is, in view of its general character, of limited help. Accordingly, criminal internationallaw, as applied here, are norms of international law prohibiting a certain conduct and directly providing for individual criminal responsibility.64 Therefore, the provisions on grave breaches of the Geneva Conventions (and presumably of Article 23 of the 1907 Hague Regulations) that do provide for the prosecution and punishment of the perpetrators subject to nationallegislation only do not qualify as rules of criminal international law proper. The same, it is maintained here, holds true for the Statutes of the two ad hoc Tribunals and of the ICC. Firstly, it has to be kept in mind that the regime of grave breaches is quite special by obliging the contracting parties of the Geneva Conventions to enact nationallaws and to prosecute suspect war criminals under that law. 65 There is neither a provision aiming at a direct individual criminal 62 For a broad concept see Kreß (note 19), 110 et seq.; for a narrow concept see Hoffmann (note 6), 19 et seq. 63 For these and for various other definitions see the references in Kreß (note 19), 112; Hoffmann (note 6), 20 et seq.; further: Sunga (note 9), 2 et seq. 64 This position is also taken by Triffterer (note 6), 173 et seq.; Hoffmann (note 6), 19 et seq. 65 Cf Greenwood (note 2), 645.

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responsibility under international law nor one providing for the jurisdiction of some international court or other body. Secondly, the ad hoc Tribunals have been established on a special legal basis. 66 Hence, it may be argued that the United Nations Security Council, for the purpose of maintaining and restoring international peace and security, has transferred to the Tribunals the competence enjoyed by the UN member States according to the universality principle to prosecute and punish war crirninals. 67 Then, the ad hoc Tribunals are merely trustees of the interests of the international community or, rather, of those States enjoying jurisdiction under the regime of grave breaches and of other war crimes. The jurisdiction of the ICC, according to Article 17, is subsidiary; the primary competence for the prosecution and punishment of war crirninals remains with the Statute's member States. Therefore, the same considerations apply as with regard to the ad hoc Tribunals. So far we have concentrated upon war crimes in international armed conflicts. Since there exist no major differences (apart from the compIete siIence of common Article 3 and of Additional Protocol 11 on the issue of crirninal responsibility) with regard to - alleged - war crimes in internal armed conflicts, and since arguments put forward by the Appeals Chamber in Tadic 1995 on individual crirninal responsibility are far from convincing, such war crimes can not be characterized as part of crirninal internationallaw either.

IV. Individuals as Subjects of International Law? Some authors suggest that international individual crirninal responsibility entails the international subjectivity of individuals. 68 Starting from the prernise that individuals are addressees of the respective rules of internationallaw this position seems to be rather convincing. But even if the war crimes provisions we have been 66 For a discussion of the legality of the establishment of the ICTY see, inter alia, Wolf! Heintschel v. Heinegg, Die Errichtung des Jugoslawien-Strafgerichtshofes durch Resolution 827 (1993), in: Horst FischerlSascha Rolf Lüder (Hg.), Völkerrechtliche Verbrechen vor dem Jugoslawien-Tribunal, nationalen Gerichten und dem Internationalen Strafgerichtshof, 1999, 63-86. 67 For a detailed analysis of the relationship of the universality principle and war crimes see Yomm Dinstein, The Universality Principle and War Crimes, in: Michael N. Schmittl Leslie C. Green (eds.), The Law of Armed Conflict: Into the Next Millenium, 1998, 17-37. 68 See, inter alia, Kreß (note 19), 112 et seq.; Dieter Fleck, The Role of Individuals in International Humanitarian Law and Challenges for States in Its Development, in: SchmittlGreen (note 67), 119-139, 123 et seq.

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dealing with so far were understood to directly provide for individual criminal responsibility, they could not be interpreted as implying the international subjectivity of individuals. Rather, they are to be understood as prec1udingjustification of a certain conduct incriminated by internationallaw according to the national penallaw primarily applicable in such cases. 69 Of course, the rules of international law on war crimes also contain an obligation to abstain from such acts qualifying as war crimes of a special character (grave breaches). However, this is neither a direct nor a primary obligation. The jurisprudence of the ICJ on "elementary considerations of humanity,,70 does not justify a characterization to the contrary, the more so if some maintain the (implicit) obligation of abstention to apply erga omnes. 71

E. Concluding Remarks As Leslie Green stated in 1993, the Nuremberg Tribunal "was established for the limited purpose of trying the major war criminals of the European Axis during a conflict that was c1early international in character.'m This statement aims at the restricted usefulness of citing the Nuremberg Judgment as the basis of the law on war crimes. Indeed, since Nuremberg and Tokyo even gross violations, regardless of the character of the conflict, have either been left unpunished or have been prosecuted by national courts only for reasons of meeting public pressure. This is not to say that certain acts are not prohibited by internationallaw - customary or conventional. State practice, however, especially with regard to internal armed conflicts, has been far from meeting the requirements of duration, consistency and frequency to allow the conc1usion that a customary regime has emerged - not to mention a customary regime providing for the direct individual criminal responsibility. It suffices to merely mention in this context the case of Emperor Bokassa who had been welcomed in many parts of the world although it was no secret what he had been responsible for. Admittedly, we have chosen a rather easy way of dealing with the subject by concentrating on a critical analysis of the jurisprudence of the ICTY and of similar positions in the literature. Therefore, some further thoughts on the development of customary internationallaw have to be added at the end of this contribution. 69

70 71

72

Cf Hoffmann (note 6), 70 et seq. Supra, note 49. Cf Kreß (note 19), 112 et seq. Green (note 1), 301.

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Some may be inclined to make use of the Latin concept of the subjective element - the opinio juris sive necessitatis - that is regularly referred to by the IC].?3 According to this a rule of customary internationallaw can be said to have emerged if States behave in a certain manner and if they are convinced to act either in accordance with a legal duty - opinio juris - or - sive (= either ... or)because they believe their behavior to be necessitated by the emergency of circumstances - necessitatis. However, even then the objective element as weIl as its qualifications - duration, uniformity, consistency - do not become redundant. While there need not be a belief to be bound by a rule of law, and while the duration of a given conduct may vary depending on the circumstances, practice must still be uniform and sufficiently frequent. Others may point to the UN Security Council and may concede to it the competence of authoritatively determining rules of customary internationallaw. In view of the powers of the Security Council that, according to the UN Charter, are limited to the maintenance of international peace and security, it is rather doubtful whether it may go beyond its resolutions establishing the two ad hoc Tribunals. In any event, it seems to be impossible to allow the Security Council to determine a rule of customary international law regardless of the objective and subjective elements. Hence, resolutions of the Security Council may only be indicative of a (preexisting) rule of customary internationallaw. They do not absolve us from an analysis of the actual behavior of States. Still others may maintain that the catalogue of sources of internationallaw in Article 38 of the IC] Statute is binding upon the Court only and that States may agree on other sources of internationallaw, especially on an "informal consensus." They, indeed, would be able to refer to an impressive agreement of the majority of States as regards the punishability of certain war crimes. However, this approach implies two difficulties. Firstly, the consensus of States has to be overwhelming - the proof of which is not an easy task because it must be established that it is more thanjust a political aspiration. Secondly and more importantly, the question remains whether States have in fact agreed on a further source of international law. And even if that were true, it would not be customary internationallaw. At the turn from the 20th to the 21st century, it seems that not only the general public but also internationallawyers have become increasingly impatient. We are encountering this impatience in almost every field of public internationallaw humanitarian law, environmentallaw, law of development, etc. Many international lawyers tend to qualify new treaty rules or even non-binding statements of interna73

Cf supra, note 40.

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tional organizations and international bodies as declaratory of customary internationallaw because they wish to overcome the often limited number of ratifications or the lack of binding treaty provisions in order to accelerate the development of the law. According to the position taken here, this is the wrong way. This is not to say that internationallawyers should abstain frorn contributing to the progressive development of internationallaw. They should, however, always distinguish the existing law from that what they consider politically desirable. Otherwise, internationallawyers will no longer be taken seriously by the still most important subjects of internationallaw - the States. If internationallawyers wish to maintain their influence and importance, they should never forget one of their main tasks - to determine existing rules of customary internationallaw by applying the generally recognized methods of determining such rules.

The Spectre of International Criminal Justice: Third States and the ICC By Jan Klabbers

A. Introduction In September 1949, the erstwhile V.S. prosecutor at the Nuremberg trial, Robert H. Jackson, gave a speech to the Canadian Bar Association, in which he looked back at the Nuremberg trial. l The central theme of the speech, a bit surprisingly perhaps, was a defense of the Nuremberg trial and a forecast into what the effects of Nuremberg could possibly be; and one of the main points arising out of it was that internationallaw was still caught between two different conceptions. On the one hand, internationallaw was still seen by many as state-centric; yet on the other hand, and here Jackson quoted Philip Jessup with apparent approval, "internationallaw, like nationallaw, must be direcdy applicable to the individual."2 It is a truism to observe that internationallaw seems to be moving from a statecentric system to a system more direcdy in touch with the position of individuals. Human rights law gives individuals direct rights under international law; some forms of econornic cooperation also provide individuals and companies with direct rights, and since Nuremberg, individuals can be under direct obligations as well. 3

Yet, as Robert Jackson's curiously ambiguous speech suggested, the philosophical niceties were not yet completely worked out back in 1949. The surprising element of his speech, rendered some three years after the Nuremberg proceedings had come to a close, was that individual responsibility under international law I The speech has been reproduced as Robert H. Jackson, Nuremberg in Retrospect, Jus Gentium: Nordisk Tidsskrift for Folkeret og International Privatret 2 (1950),1-20. 2 Ibid., 20. 3 For a subtle analysis of the latter point, see Andre Nollkaemper, De dialectiek tussen individuele en collectieve aansprakelijkheid in het volkenrecht, 2000.

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might still to some extent be de lege ferenda. Coming from one of the founding fathers of the Nuremberg tribunal4 and the lead American prosecutor, this may have raised an eyebrow or two, all the more so taking into account the famous words of the Nuremberg tribunal itself, according to which individuals cannot hide behind the artificial creation of the state because, after all, crimes are committed by individuals, not by abstractions. 5 The care with which Jackson spoke in 1949 becomes even more curious in light of the carefree way in which present-day internationallawyers declare that individual responsibility is part and parcel of internationallaw and trace this back to those same Nuremberg trials. For most internationallawyers discussing war crimes and similar acts, since Nuremberg it is no longer unproblematic to hold individuals responsible under internationallaw if, indeed, it was ever problematic to begin with. 6 What, then, inspired Justice Jackson to make his ambivalent remarks? What I wish to explore is the idea that there might be a fundamental tension between the collective and individual orientations of internationallaw. That is not the same as saying that international law is moving from a Grotian conception, based on sovereign states, to a more Kantian conception in which individuals playamore central role. That argument already inspired discussion in the 1960s,7 and was recently revived with special reference to the ICC, the apparently definitive claim (judging by the article's title) being that since the V.S. has an interest in maintaining the Grotian conception, it refuses to give in to more radically Kantian notions. 8

See generally Telford Taylor, The Anatomy ofthe Nuremberg Trials, 1993. "Crimes against internationallaw are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced," see the Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Cmd. 6964, 4l. 6 A typical example is the discussion in Steven R. Ratner/Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 1997,3-8. See generally also Lyal Sunga, Individual Responsibility in International Law for Serious Human Rights Violations, 1992. 7 See most famously perhaps Wolfgang Friedmann, The Changing Structure ofInternational Law, 1964. 8 See Frediric Megret, Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution ofInternational Law, EJIL 12 (2001),247-268. 4

5

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I am also not going to argue something to the effect of internationallaw becoming more individual-oriented; something to the effect that it rnight take us a few decades still, but that at some historical point the individual shall have occupied a central place and then we reach, a la Fukuyama, the end of history.9 I am skeptical about this sort of liberal progressivism, not because of possible material resistance by powerful states, but more fundamentally because such an individualist conception disregards the rather structural given that man lives in groups, in societies, in collectivities. While sometimes our behavior will be that of ourselves as individuals, at other times it will be the behavior of us as members of a group, and will remain completely inexplicable without taking this collective element into account. lO Indeed, sometimes we do things in groups that we would not, and even could not, have done as individuals. It is this fundamental tension that lies at the heart of many developments in present-day internationallaw, and it is this fundamental tension which helps explain the V.S. reluctance to ratify the ICC Statute. Therefore, it is this fundamental tension which needs to be explored when investigating the relationship between the ICC and third parties.

B. Argumentative Culs-de-Sac At this point, it is perhaps useful to briefly discuss the legal debate that has ensued concerning the position of the V.S. vis-a-vis the Ice!! What I will indicate in the next few rninutes is that all strands of the debate turn out to be culs-desac: mere legal argument alone will lead us nowhere. Consequently, we will have to dig a bit deeper, and I will do so by looking at the tension between individualist and collectivist notions, by addressing the problematique of defining the undefin-

See Francis Fukuyama, Tbe End of History and the Last Man, 1992. My focus does not rest on the argument that since man is a social animal, therefore his behavior is always influenced by the groups of which he is a member (from family to circle of friends et cetera) so that really there is little point in having criminallaw focus on the individual and his or her mens rea. For a discussion, see Alan Norrie, Punishment, Responsibility and Justice: A Relational Critique, 2000. 11 Important contributions includeMadeline Morris, High Crimes and Misconceptions: Tbe ICC and Non-party States, Law and Contemporary Problems 64 (2001), 13-66; Michael P. Scharf, Tbe ICC's Jurisdiction over the Nationals on Non-party States: A Critique of the US Position, Law and Contemporary Problems 64 (2001), 67-117; Gennady M. Danilenko, Tbe Statute ofthe International Criminal Court and Tbird States, Michigan Journal of International Law 21 (2000), 445--494. 9

10

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able, by discussing the standardization of the unique, and finally by providing a brief, more straightforward law of treaties argument with an unexpected twist. A number of different legal arguments can be made (and have been made l2 ) conceming the position of the V.S. vis-a-vis the lee, usually rhetorically cast in the somewhat simplistic form of a "tug of war between the claims of humanity and those of sovereignty ... ".13 A first argument focusses on the wording of the lee Statute, and more particularly on the provision which has caused so much American unrest, Article 12 of the lee Statute. Read in isolation, Article 12 seems unequivocal: the only consent needed before it is possible to prosecute individuals is the consent of either the state on whose territory the crimes took place, or the state of which the suspect is anational. This, then, would seem to clinch the debate before it has properly begun: who needs the consent of third parties, as long as their nationals are within the custody of the state where the crimes were committed? On closer scrutiny, things are not quite that simple, for this literal reading of Article 12 is difficult to reconcile with a reading of other articles of the Statute, which all presuppose that obligations under the Statute only commence upon its entry into force for the ratifying state (Articles 11,22,24).14 Article 12 then, when read in context, becomes unclear, and since there is no rule of interpretation which can tell us whether to look at Article 12 in isolation or in context (the Vienna

12 An active participant in the debate is David Scheffer, Clinton's fonner ambassador at large for war crimes. See, e.g., David J. Scheffer, The United States and the International Criminal Court, AJIL 93 (1999), 12-22; David J. Scheffer, US Policy and the International Criminal Court, Cornell International Law Journal 32 (1999), 529-534. Scheffer is decidedly displeased with the Bush administration's position on the ICC: see David J. Scheffer, Staying the Course with the International Criminal Court, Cornell International Law Journal 35 (2001-2002),47-100. 13 The characterization sterns from Lawrence Weschler, Exceptional Cases in Rome: The United States and the Struggle for an ICC, in: Sarah B. Sewall/Carl Kaysen (eds.), The United States and the International Criminal Court: National Security and International Law, 2000, 85-111, 98. 14 See, e.g., David J. Scheffer, The International Criminal Court: The Challenge of Jurisdiction, Proceedings of the American Society of International Law 93 (1999), 68-72, esp. 70. See briefly also Mahnoush H. Arsanjani, Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court, in: Hennan von Hebel/Johan G. Lammers/Jolien Schukking (eds.), Reflections on the International Criminal Court, 1999, 57-76,64.

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Convention, after all, recommends both I5 ), the conflict cannot be solved as a simple matter of interpretation of the text of the ICC Statute. It is no surprise then that the debate shifted to a second argument 16 the argument aboutjurisdiction. 17 Here, the proponents of the ICC point out that, typically, for war crimes and the like states can exercise universal jurisdiction; 18 what states can do single-handedly, they can also do together (this echoes the construction used by the Nuremberg tribunal itself,19 and therewith seems uncontrovertible) and, to round off the argument, there is nothing in the ICC Statute which would prohibit the ICC from exercising universaljurisdiction. This too looks like a pretty convincing argument, but taken to the extreme it would mean that, say, Iraq and North Korea could together create a crirninal tribunal to prosecute war crirninals from all over the world, basing themselves on universal jurisdiction. 20 Moreover, while it is true that nothing in the ICC Statute prohibits the exercise of universal jurisdiction, the ICC Statute does not expressly prescribe universal jurisdiction either; indeed, a proposal to inc1ude universaljurisdiction as the basis for the ICC

15 Article 31, para. 1, speils out the general rule of interpretation: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." 16 Sometimes the order is reversed: having first established that universal jurisdiction exists, the third party argument can be dismissed, for the ICC merely creates a mechanism for the enforcement of existing law and thus in no way conflicts with the pacta tertiis maxim. For such an argument, see Hans-Peter KaullClaus Kreß, Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises, Yearbook oflnternational Humanitarian Law 2 (1999),143-175,150. 17 A useful general discussion is Christopher L. Blakesley, Extraterritorial Jurisdiction, in: M. Cherif Bassiouni (ed.), International Criminal Law, Volume II: Procedural and Enforcement Mechanisms, 1999,33-105. 18 So, e.g., Jordan J. Paust, The Reach ofICC Jurisdiction over Non-Signatory Nationals, Vanderbilt Journal ofTransnational Law 33 (2000), available at: http://law.vanderbilt. edu/journal/33-1-l.html (last visited 7 June 2002). 19 The signatory powers of the Nuremberg Charter "have done together what any of them might have done singly ... ". See the Nuremberg Judgment (note 5),38. 20 Orentlicher acknowledges the hypothetical possibility, but dismisses it without any argument: "Does [universaljurisdiction] mean that States enjoy unfettered power to subject any individual to the jurisdiction oftheir own courts or that of an international court merely by concluding a treaty between at least two of them? Of course not," see Diane F. Orentlicher, Politics by Other Means: The Law of the International Criminal Court, Cornell International Law Joumal32 (1999), 489-497, 492.

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was rejeeted in Rome. 21 Thus, again, the argument refuses to be solved: a valid argument ean be met with an equally valid eounterargument, and never the twain shall meet. Other possible arguments would foeus more on the law of treaties. Thus, one rnight imagine someone reading Lord McNair's monumental work and finding some examples of the British authorities clairning their approval would not be required in eases of extradition of British nationals under extradition treaties to whieh Britain was not a party.22 This eould be invoked in support of the lee eause, but the V.S. eould perhaps point out, rather quiekly, that at least two faetors render it problematie: first, those eases are from the 1840s and thus a bit antiquated, and seeond, and more fundamentally, those ineidents dealt with extradition between treaty partners, not, as with the lee, with extradition to a third party. For, lest we forget, the lee itself is not a party to its own Statute. 23 Another type of argument rnight be made aecording to whieh the lee would eonstitute an objeetive regime, and as such would eommand the respeet of all states, even those that have deeided not to join it. 24 Again, while not without merits, the V.S. eould point to two eounterarguments. First, objeetive regimes are mostly said to derive their legal basis from reeognition or aequieseenee;25 surely though, the persistent V.S. attitude suggests that it can in no way be regarded as having reeognized (or having aequieseed in) the leC's regime in all its details. Even if this argument eould be made with some degree of plausibility, the V.S. eould invoke the seeond argument: what the law of treaties talks about when it talks about objeetive regimes is the ereation of a regime that must be respeeted by states; intemationallaw remains silent as to what this means with respeet to the

21 See, e.g., Sharon A. Williams, Artic1e 12, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Artic1e by Artic1e, 1999,329-342. See also Kaul/Kreß (note 16), 154-156. 22 See Lord McNair, The Law ofTreaties, 1961,333-336. 23 The same distinction is captured (trying to make a different point) by Gerhard HafnerlKristen Boon/Anne Rübesame/fonathan Huston, A Response to the American View as Presented by Ruth Wedgwood, EJIL 10 (1999), 108-123: "Unlike the horizontal relations in extradition and judicial assistance, the relation between the ICC and states parties is a vertical one." (at 112). 24 A hint of such an argument is made by Orentlicher (note 20), 490, at note 6. 25 See, e.g., Bruno Simma, The Antarctic Treaty as a Treaty Providing for an "Objective Regime," Cornell International Law Journal 19 (1986), 189-209; see also fan Klabbers, Les cimetieres marins sont-ils etablis comme des regimes objectifs? Apropos de l'accord sur l'epave du MIS Estonia, Espaces et Ressources Maritimes 11 (1997), 121-133.

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nationals of those states, and here the V.S. could point to the complicated legal situation concerning the wreck of the M/S Estonia by way of example?6 Indeed, this reference to states and their nationals has been a recurring, and powerful, argument on both sides of the divide: while it is clear that the classic third party rule of the law of treaties (Articles 34-38) renders it well-nigh impossible to create treaty obligations for third states without their consent, this rule says nothing about the citizens of those states. Proponents of the lee readily concede that under the law of treaties, no obligations rest on the U.S. (other than those flowing from having signed the lee Statute27 ), but proceed by arguing that this is really beside the point, because what matters is whether the Statute can create or codify obligations for the nationals of those third states rather than for those third states themselves. 28 To this the U.S. can make the counter argument that it is not at all beside the point, because you cannot judge individuals in isolation of their states and the policies of their states. Rather, to be more accurate, you cannot do so when it concerns war crimes, crimes against humanity or genocide, for the possibility looms large that individual soldiers or even government members might have to face the music in Rome for activities that, in V.S. eyes, were perfectly laudable, or at least within the limits of the law. 29 This then brings us to the heart of the matter: all legal argument is bound to suffer given the circumstance that we cannot really separate the individual from his or her state. 30 We cannot solve the question of the effect of the lee Statute on third party nationals by reference to legal rules alone; indeed, we cannot even solve it by referring to first principles, as is wonderfully illustrated by the circum26 See Klabbers (note 25); see also Marie facobssonlfan Klabbers, Rest in Peace? New Developments Concerning the Wreck of the M/S Estonia, Nordic Journal of International Law 69 (2000), 317-332. 27 Such as the obligation not to defeat its object and purpose pending ratification or entry into force. See generally fan Klabbers, How to Defeat a Treaty's Object and Purpose Pending Entry into Force: Toward Manifest Intent, Vanderbilt Journal of Transnational Law 34 (2001), 283-331. 28 See, e.g., Kaul/Kreß (note 16), 150, arguing that the ICC Statute merely builds on already existing erga omnes obligations of individuals under internationallaw. 29 This would help explain Theodor Meron's celebrated proposal that non-party states could opt out of the ICC's jurisdiction whenever they would assume responsibility for official acts. As mentioned in, amongst others, Kaul/Kreß (note 16), 174. 30 Note how this tension between individual and state affects all ofthe above-mentioned arguments in one way or another. The general problem was already recognized by Hannah Arendt, Eichmann in Jerusalem: AReport on the Banality of Evil, 1994 (first published 1963),297-298.

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stance that both sides of the divide are able to invoke the Lotus case in their support. 31

c. PubliclPrivate, PrivatelPublic Why then is it that our problem defies an easyanswer? To some extent, the American opposition to the ICC and the broad scope of ICC jurisdiction c1aimed by some is exaggerated: as others have argued,32 the ICC Statute contains enough safeguards to make sure that an overambitious prosecutor is kept in check. Thus, he or she needs at least the green light of the Pre-Trial Chamber,33 and if I understand the principle of complementarity correctly,34 then the V.S. could even fend off any ICC action by starting prosecution itself; and surely, in the case of bona fide war crimes, genocide or crimes against humanity, the V.S. will wish to prosecute the crirninal itself. Thus, realistically, the V.S. does not have an awfullot to fear from the ICe. Instead, the heart of the American resistance is made up of the possibility that in prosecuting individuals, eventually the V.S. itself may find itself in the docket: finding an American soldier guilty of crirninal behavior may amount to finding the V.S. guilty of crirninal behavior. Yet, as the philosopher Thomas Nagel has pointed out, there is a difference between morality in private life and morality in public life: behavior that is unacceptable in private life may, under certain circumstances, be acceptable if done by public officials. 35 International law has long 31 Scharfinvokes Lotus to argue that the ICC can c\aimjurisdiction in the absence of a rule prohibiting it, see Michael P. Scharf, Application ofTreaty-Based Universal Jurisdiction to Nationals ofNon-Party States, New England Law Journal 35 (2001), 363-382. The U.S. could invoke Lotus to argue that it need not accept any obligations without consent. 32 See, e.g., Marten Zwanenburg, The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?, EJIL 10 (1999), 124-143. See also Christopher C. Joyner/Christopher C. Posteraro, The United States and the International Criminal Court: Rethinking the Struggle between National Interests and International Justice, Criminal Law Forum 10 (1999), 359-385. 33 See, e.g., Bartram S. Brown, US Objections to the Statute of the International Criminal Court: A Brief Response, New York University Journal of International Law and Politics 31 (1999), 855-891, 880-881. 34 For a fine analysis, see lmmi Tallgren, Completing the "International Criminal Order": The Rhetoric ofInternational Repression and the Notion of Complementarity in the Draft Statute for an International Criminal Court, Nordic Journal of International Law 67 (1998), 107-137. 35 See Thomas Nagel, Ruthlessness in Public Life, in: id., Mortal Questions, 1979,75-90.

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recognized36 this insight (but without full awareness of its philosophical underpinnings) in doctrines relating to immunity and acts of state; yet, increasingly, private standards are applied to public acts. 37 What the U.S. fears will happen, then, is that the acts of individuals will reflect on the U.S. itself. 38 Here then, in this conflation of individual and state, resides the heart of the matter,39 and this conflation itself is hopelessly inevitable. 40 When it comes to crirninal proceedings in intemationallaw, at least conceming war crimes, genocide and crimes against humanity, this is precisely what is bound to happen, because here the tension between the individualist conception and the state-centric or collectivist conception41 manifests itself in its most naked form. 42 Intemationallawyers, as noted earlier, are notoriously opaque when it comes to justifying the authority of intemationallaw over individuals. Usually we point to 36 And by and large continues to recognize this: see the decision of the ICJ in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), decision of 14 February 2002, reprinted in: ILM 41 (2002),536. 37 See also fan Klabbers, The General, the Lords, and the Possible End of State Immunity, Nordic Journal of International Law 68 (1999), 85-95. 38 It is no coincidence that the U.S. insisted on a high threshold for the Court's jurisdiction over war crimes, c1aiming that "individual soldiers often commit isolated war crimes that by themselves should not automatically trigger the massive machinery of the ICC". Scheffer, US Policy (note 12), 531. 39 Note also that staunch ICC proponents indeed do not hesitate to point out that purely individual proceedings (without any connection to states) are highly unlikely. See, e.g., Carsten Stahn, Gute Nachbarschaft um jeden Preis? Einige Anmerkungen zur Anbindung der USA an das Statut des Internationalen Strafgerichtshofs, ZaöRV 60 (2000), 631-662. 40 An earlier illustration of grappling with the same problem is the dissenting opinion of Judge Pal to the Tokyo judgment, trying hard to separate acts of state from acts of individuals, and conc1uding that with most of the charges made against the Japanese standing trial, such a separation was impossible to make. I have used the excerpt of Justice Pal's opinion as reproduced in: Leon Friedman (ed.), The Law ofWar: A Documentary History - Volurne II, 1972, 1159-1183, esp.1166. 41 faspers found a way out by distinguishing between political guilt (for which an entire state could be held liable) and criminal, moral and even metaphysical guilt, which could only apply to individuals, see Karl faspers, The Question of German Guilt, as excerpted in: NeiIJ. Kritz (ed.), TransitionalJustice. Volume I: General Considerations, 1995, 157-171. 42 Notice how Lauterpacht already struggled with the issue, see Hersch Lauterpacht, International Law and Human Rights, 1950, esp. 40-47. Quincy Wrightfound a way out by saying that ultra vires acts of states are not really acts of states and may therefore give rise to individual responsibility, see Quincy Wright, Legal Positivism and the Nuremberg Judgment, AJIL 42 (1948), 405-414, 411.

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the Nuremberg Charter and the Nuremberg Tribunal, and leave it at that. 43 Some might go a step further, and point out that individual responsibility was also applied in cases of piracy, or in the trial of Henry Wirz after the American civil war. Moreover, they might point out that individual responsibility was also envisaged in the Versailles Treaty, at least with respect to Kaiser Wilhelm. 44 In the latter case, so the argument might continue, individual responsibility just never materialized because, in a curious precursor to the present debate, the Dutch refused to extradite the Kaiser on the basis of, by and large, a third party argument: as third parties to the Versailles Treaty, its provisions were of no relevance to the Netherlands. 45 Usually, we leave it at this: as so often, we let history do the job of principled argument. We point out that individuals have been held responsible under intemationallaw since Nuremberg or before, and if it is done, it must thus be possible and justified. 46 To the extent that a discussion has taken place at all, the discussion concemingjustification has been held in slightly different terms (a sublimation of the real, underlying debate, one might say): and that is the discussion on the propriety of prosecuting individuals for behavior that was not per se illegal at the time they committed it. The standard response to this critique of retroactive lawmaking is twofold: one counterargument is that surely things which are morally horrendous must also be prohibited by law. This was, it would seem, the more or less official argument in Nuremberg,47 and has been repeated often enough ever since to be taken for granted48 but it is, to be sure, not without its problems, in the sense that morality 43 A more subtle version of the argument holds that there is no exact precedent for Nuremberg, but that it nonetheless represents the natural outcome of a number of trends. For such an argument, see Robert K. Woetzel, The Nuremberg Trial in International Law, 1962,36-39. 44 Artic1e 227 of the Versailles Treaty arraigned the Kaiser "for a supreme offence against international morality and the sanctity of treaties." 45 See farnes F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals ofthe First World War, 1982, 107-108. He also suggests (in chapter 6) that the Allied attempts to obtain the Kaiser were not all that serious to begin with. 46 For an example, see Kai Ambos, Artic1e 25: Individual Criminal Responsibility, in: Triffterer (note 21), 475-492, 477: "As far as the jurisdiction over national persons is concerned, [the ICC Statute] states the obvious." 47 The Tribunal suggested strongly that nullum crimen sine lege is a principle of morality but not oflaw: it "is not a limitation of sovereignty." See Nuremberg Judgment (note 5),39. 48 Akehurst, in his popular textbook, memorably put it as folIows: "It is true that retroactive legislation can lead to injustice in certain cases, but anyone who thinks that justice

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and law need not necessarily coincide. As ludith Shklar has pointed out, morality relates to the private sphere, whereas law relates to the public sphere: criminallaw is not about sinners. 49 The second counterargument to the idea that one should not prosecute people for behavior that was not crimina1 at the time they committed it, is the argument of reduction: killing 1arge numbers of peop1e is still killing peop1e, and thus murder, and surely there can be no doubt that murder is generally prohibited. 50 This argument too is problematic for, as one of the leading theorists of criminal law, George Fleteher, has observed, there is a difference between killing a neighbor in Berlin in 1943, and killing someone in an extermination camp in 1943. 51 To reduce genocide or crimes against humanity to multiple murder or multiple assault and battery cases is to somehow misconstrue them and turn them into banalities. For if genocide is mere1y multiple murder, then there is nothing special about the Holocaust anymore, and Srebrenica becomes similar to your average high school shooting spree. Rwanda turns into a slightly more dramatic version of a gang bang gone wild, and the slashings in Sierra Leone become just a pub brawl writ large: any differences that we can then perceive are purely quantitative, no longer qualitative. Surely, such an approach can only be counterproductive: if there is nothing special, really, about genocide, or war crimes, or crimes against humanity, then why have an lee to begin with?

D. Between Individual and Community Thus, there must be something special about war crimes, genocide and crimes against humanity, and at first sight, their special character may have a lot to do with evil. We usually perceive genocide, war crimes and crimes against humanity as highly evil, but they are evil not so much because of evil intent but rather because of the resulting destruction. The massacre at My Lai, in Vietnam, is as good an example as any of the intractable nature of war crimes and how little the notion of evil may contribute to our understanding: the very same soldiers of demanded the acquittal of the men convicted at Nuremberg has a very peculiar idea of justice," see Michael Akehurst, A Modern Introduction to International Law, 6th ed. 1987, 280. 49 See ludith Shklar, Legalism: Law, Morals, and Political Trials, rev. ed. 1986,47. 50 Used by some of the other war crimes tribunals, and approvingly cited in: Scharf (note 31). SI See George P. Fletcher, Basic Concepts of Criminal Law, 1998, 11.

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"Charlie company" who committed the massacre were sharing their lunch with some of the survivors a few hours later. 52 Thus, evil is not necessarily the defining element, the thing that makes the topics within the jurisdiction of the ICC so special. 53 Instead, what makes them special is precisely the link between individuals and their states. Genocide et cetera are often thought of as individual acts, but at a deep level it makes little sense to ignore their connection to something official. People do not wake up on a sunny morning and decide by themselves to go commit some genocide today;54 instead, genocide will usually be the result of some form of perverted official policy. So, in an important sense, it is beside the point to individualize proceedings and focus on the individual behind the genacidaire, for the simple reason that genocide is done by groups, and is done against other groupS.55 Yet the alternative is not very palatable either. Surely, as the Nuremberg Tribunal famously held, war crimeset cetera are, at the end of the day, committed by individuals, not by abstractions;56 indeed, it is awkward, at the very least, to ascribe criminal intentions to abstract entities or to collectivities,57 as the lengthy 52 See Herbert C. Kelman/Linda V. Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility, 1989,9. 53 Essentially the same point is made in Dana R. Villa, Politics, Philosophy, Terror: Essays on the Thought of Hannah Arendt, 1999, esp. sections 1-2. See also Robert Fine, Understanding Evil: Arendt and the Final Solution, in: Maria Pia Lara (ed.), Rethinking Evil: Contemporary Perspectives, 2001, 131-150. 54 Shklar puts it more accurately: "A criminal trial demands amens rea, and there is often no mens rea to be found in the development of socially complex events such as war," see Shklar (note 49), 172. 55 It has been argued that criminallaw, with its focus on the individual, has a hard time dealing with collective experiences, see Chrisje Brants, Dealing with the Holocaust and Collaboration: The Dutch Experience of Criminal Justice and Accountability after World War H, Crime, Law and Social Change 34 (2000), 211-236. 56 See supra, note 5 and accompanying text. 57 See also Gerry J. Simpson, War Crimes: A Critical Introduction, in: Timothy L. H. McCormackiGerry J. Simpson (eds.), The Law ofWar Crimes: National and International Approaches, 1997, 1-30, 17. Triffterer argues that collective responsibility is unproblematic, calling on domestic doctrines on corporate criminal sanctions in support, see Ouo Triffterer, Jurisdiction over States for Crimes of State, in: M. Cherif BassiouniNed Nanda (eds.), A Treatise on International Criminal Law. Volume H: Jurisdiction and Cooperation, 1973,86-96,92-93. However, some problems related to corporate responsibility are discussed in Eric Colvin, Corporate Personality and Criminal Liability, Criminal Law Forum 6 (1995), 1-44.

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discussion about the concept of crimes of state in international law has made clear. The ILC, when drafting its Code on offences against the peace and security of mankind, saw fit to dismiss the possibility of state crimes: 58 a crime is something only individuals can commit, but not abstract entities. 59 And while the same ILC introduced the notion of crimes of states in the 1970s when working on state responsibility,60 it eventually dropped it from the articles on state responsibility.61 Thus, where it is conceptually awkward to discuss the criminality of states, the law may have little choice but to focus on the criminality of individuals. 62 Moreover, even allowing for the possible criminality of states, it may be very awkward to think about punishment of states that have just lost a war. Chances are that those states are already in ruin, and as the Versailles story suggests, punishment of aggressor states may backfire in rather dramatic ways. From that perspective, it is much more practicable to focus on the responsibility of individuals. But that brings us back to square one, for we have just seen that those individual acts only take shape in light of state activities. Indeed, at the 1949 Geneva Conference leading up to the Red Cross Conventions, only three years after Nuremberg a number of states (including the V.K. and the V.S.) seemed convinced that the very notion of an individual crime could not exist under internationallaw but only under domestic law, and resisted attempts to qualify violations of the law of armed conflict as war crimes. As a result, the Geneva Conventions generally speak of grave breaches. 63 58 See the report by Jean Spiropoulos, UN Document A1CNA/25, reproduced in: Yearbook ofthe International Law Commis si on (1950/Il), 253-273, 261. S9 See also, for a general conceptual analysis, GeoffGilbert, The Criminal Responsibility of States, International and Comparative Law Quarterly 39 (1990), 345-369. 60 Without, however, seriously bothering to define the consequences of states crimes. This provoked Crawford to refer to international criminal liability as merely "a form of emphatic state responsibility, one might call it state responsibility in italies," see James Crawford, Prospects for an International Criminal Court, Current Legal Problems 48 (1995/I1), 303-326, 304 (emphasis in original). 61 The ILC's special rapporteur on state responsibility, James Crawford, qualified the concept of international crime of state as expressed in the earlier drafts as "unnecessary and divisive," see James Crawford, Revising the Draft Articles on State Responsibility, EJIL 10 (1999),435-460,442. 62 So, e.g., Sanford Levinson, Responsibility for Crimes ofWar, Philosophy and Public Affairs 2 (1972-73), 244-273. 63 See the rueful discussion in Richard R. Baxter, The Municipal and International Law Basis of Iurisdiction over War Crimes, in: M. Cherif BassiouniNed Nanda (eds.), A Treatise on International Criminal Law. Volume 11: Iurisdiction and Cooperation, 1973, 65-86,71.

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It is also well-established that there is an inherent difficulty in terms of finding responsibility of individuals for group activities. How do we detennine who participated in what activity, and who bears which portion of the guilt?64 Past legal proceedings do not inspire much confidence in this respect: before the Yugoslavia tribunal, the conviction of General Krstic was to an uncomfortable extent based on conjecture,65 and tort proceedings in the V.S. involving the Rwandan genocide have resulted in findings of huge damages against individuals on the simplistic and unproven proposition that without them, the genocide would not have occurred. 66 This, then, blows individual responsibility out of proportion. Curiously perhaps, this points to yet a different phenomenon: as soon as we are confronted with too much individual responsibility, we close our eyes and resort back to notions of group activities. Thus, we tend to think that the Rwandan genocide is not the work of a couple of hundred thousands of evil spirits, but instead the result of a conspiracy, of manipulation by cynical politicalleaders. 67 Likewise with Yugoslavia: the thought that all Serbs (and all Bosnians and Croats too) have murder in their blood is too much to handle, for no remedy could pos sibly cure this much evil. Thus, again an argument of reduction: the actions of large numbers of individuals are reduced to conspiracies. 68 Individual responsibility of all concerned is deemed undesirable, but collective responsibility does not materialize: instead, politicalleaders are being targeted. Nowhere is the intimate connection between state and individual seen more clearly than in the phenomenon that war crimes trials tend to put entire regimes or ideologies on trial, rather than merely the individuals that are actually being tried. Hannah Arendt has pointed out that the Eichmann trial was more about what the 64 Triffterer (note 57), 93, concedes as much, too. The argument is used differently by Levinson (note 62): for hirn, it is yet another reason to resort to individual responsibility, because you can never blame an entire group for the behavior of some of its members. To me, the argument also can be used to say that blame among participating members may be difficult to apportion. 65 See Prosecutor v. Radislav Krstic, judgement, ICTY, Trial Chamber. For an excellent discussion of some of the problems involved in this type of case, see Mirjan Damaska, The Shadow Side of Command Responsibility, American Journal of Comparative Law 49 (2001),455-496. 66 See Mushikiwabo v. Barayagwiza, decision of the V.S. Distriet Court, Southern Distriet ofNew York, 9 April 1996, International Law Reports 107 (1997), 457. 67 More subtle is Philip Gourevitch, We Wish to Inform You that Tomorrow We Will Be Killed with Our Farnilies: Stories from Rwanda, 1999, first published 1998. 68 See, e.g., Payam Akhavan, Beyond Impunity: Can International Crirninal Justice Prevent Future Atrocities?, AJIL 95 (2001),7-31.

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Jews had suffered than about Eichmann's activities, even to the point that witnesses for the defense were not adrnitted. 69 Something sirnilar has been said about the trial of Klaus Barbie,70 and could no doubt be said about pretty much any major war crimes trial. 7l Much the same transpires with respect to the ICTY and ICTR, especially in the prosecutor' s decision to concentrate on Milosevic and leading generals rather than on rnid-Ievel or even lower-Ievel soldiers: while following orders is not a reasonable excuse for comrnitting war crimes, it is nonetheless deemed crucial to get at the persons giving the orders, thus canceling a large chunk of the individual responsibility of the suspect by means of embedding hirn or her into the larger framework of the collectivity.72 Perhaps Antonio Cassese has put it most elegantly when discussing the Barbie trial: As in the Nuremberg and Eichmann trials, the accused had a walk-on role to play in a drama of far wider scope; Barbie was really apretext to put the history of a peop1e and of a nation in the dock; an opportunity to exorcize far more disturbing ghostS. 73

In the end, we face an oscillation (an inevitable oscillation) between individualist conceptions and collectivist conceptions: state-centric activities lapse into individual activities, and then lapse back into group work: conspiracies, manipulation by perfidious politicians, Nazism on trial rather than Barbie, Eichmann or Speer. 74 The weaknesses of collectivism are the strengths of individualism, and vice versa, but neither of the two is capable of c1inching the argument once and for all: as long as man lives and acts in groups, part of the responsibility for what

69 Arendt (note 30), 6: " ... this case was built on what the Jews had suffered, not on what Eichmann had done" and 274. 70 See Guyora Binder, Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie, Yale Law Journal 98 (1989), 1321-1383, esp. 1335-1339. 71 Simpson puts the point rather poignantly: "It seems that war crimes trials can only meet the requirement of legality if the crimes themselves are extinguished from memory prior to the trial," see Simpson (note 57), 21. 72 See also Simpson (note 57), 14, pointing out that when it comes to "superior orders, there is an awkward conflict involving military discipline, criminal deterrence and fairness to the accused." The problem can only be overcome by separating reasonable from c1early unreasonab1e orders, but this involves its own problems. 73 Antonio Cassese, Violence and Law in the Modem Age, 1988, translated by S. J. K. Greenleaves, 106. It is not self-evident that Cassese actually agrees with these words: he uses them to describe the attitudes of others but does so, or so it seems, with approval. 74 On Speer, see the wonderful biography by Gitta Sereny, Albert Speer: His Battle with Truth, 1995.

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he does as a group member must rest with the group or groups of which he is a part. There is one obvious way out: instead of proving guilt in individual cases, guilt may simply be presumed for high-ranking politicians and military leaders. This appears to have played an important role in the handling of Japan's war conduct, as indicated by the workings of the Tokyo Tribunaf 5 and, perhaps, also the trial of General Yamashita: 76 guilt was presumed rather than proven. Here the tension between individualism and collectivism recedes into the background, but it is replaced by a new tension, equally unsolvable: the tension between fairness to the accused (which would seem to insist on a presumption of innocence rather than guilt) and fairness at large (which might require some form of punishment for atrocities).

E. Definitional Disagreement The Vnited States argument that a trial of individual Americans might reflect on V.S. policies contains, somewhat below the surface perhaps, a few additional arguments, which I shall discuss in somewhat less detail. Not only does the V.S. argument appeal to the structural hovering between individual responsibility and collective responsibility, the argument also appeals to the fundamental circumstance that we do not quite agree on what constitutes genocide, crimes against humanity, or war crimes, never mind aggression. The V.S. is not just afraid of seeing individual soldiers run wild; if that were the problem, then there would be littIe to worry about. Instead, the fear is that what the V.S. will think constitutes legal military action might look illegal to others. A proportionate response on the battlefield may look like war crimes to the prosecutor, or even to other governments. 77 And while some talk is being devoted to the possible bad faith of such other governments, I would suspect that the V.S. itself might realize that no bad faith is required: there can, quite simply, be bona 75 See generally in this vein Bert V. A. Röling/Antonio Cassese, The Tokyo Trial and Beyond, 1993. 76 See In re Yamashita, U.S. Supreme Court, decision of 4 February, 1946, in: Annual Digest 13, 269, esp. 274 (merely stipulating the duties of commanding offkers in the abstract, without investigating the particulars of General Yamashita's behavior). 77 Some possible examples are listed in Ruth Wedgwood, The United States and the International Crirninal Court: Achieving a Wider Consensus through the "Ithaca Package," Cornell International Law Journal 32 (1999), 535-541, 538.

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fide disagreement on the scope of genocide, war crimes, and crimes against humanity.78 This finds its cause not just, as so often with disagreement, in different outlooks. It is not just the case that one person's war crirninal is another person's hero, although this too may playa role. The issue is more fundamental: genocide, war crimes and crimes against humanity are, in the end, undefinable; the law is not able to grasp with precision what constitutes genocide, war crimes or crimes against humanity, because so much depends on the circumstances of the case.79 Perhaps the best illustration hereof was offered, inadvertently, by the International Court of Justice when confronted with Yugoslavia's claim against a number of NATO member states over the bombing of Kosovo. 80 The Court found, as is well known, that air bombardments do not constitute prima jade evidence of genocide. But that is, as Martti Koskenniemi has pointed out, an impossible argument to make, at least as a prima jade matter. The Court could no doubt justify its decision that no genocide was taking place, but only upon a fuller investigation: if not even air bombardments raise the possibility that genocide is taking pace, at least at first sight, then nothing does. 81 What must have happened is that the Court indeed did take all sorts of other circumstances into account, not least of which must have been the history of Serb aggression in the area, the identity and general outlooks of those participating in the bombardments, et cetera. The point for present purposes then is that an air bombardment may in some circumstances point to genocide, while in other circumstances it may not, and any attempt to define this in advance is bound to fail. Definitions are inevitably both overinclusive and underinclusive: theyencompass 78 Wedgwood makes the related argument that norms for conduct on the battlefield are bound to be open-textured rather than self-executing, see Ruth Wedgwood, The Irresolution ofRome, Law and Contemporary Problems 64 (2001), 193-214, 194. 79 See also Herman von HebellMaria Kelt, Some Comments on the Elements ofCrimes for the Crimes of the ICC Statute, Yearbook of International Humanitarian Law 3 (2000), 273-288,282: "It is the context in which a certain act, e.g., a murder or arape, takes place that determines whether the act is a 'normal' crime or whether it amounts to a genocidal act, a crime against humanity or a war crime." 80 See, inter alia, Case Conceming the Legality of Use of Force (Yugoslavia v. Belgium), Request for the Indication ofProvisional Measures, order of2 June 1999, reprinted in: ILM 38 (1999), 950. 81 See Martti Koskenniemi, Evil Intentions or Vicious Acts? What is Prima Facie Evidence of Genocide?, in: Matti Tupamäki (ed.), Liber Amicorum Bengt Broms, 1999, 180-207.

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situations that they should not encompass, and exclude situations which ought to have been included. 82 As it is, the definitions of the crimes within the jurisdiction of the ICC already take up a lot of space, detailed as they are. On the initiative of the U.S. 83 (and it is, of course, no coincidence that it was precisely the U.S. that took the lead), it was thought useful to further define and refine the lengthy definitions by composing lists of the elements of which the various crimes could consist. The Preparatory Committee (PrepCom) has devoted considerable time and attention to further clarifying the elements of crime,84 and while it is, of course, true that the more refined the text, the more accurately it may reflect intentions, there will always be a grey area where judges have to make up their minds on a case by case basis. 85 If it is true that war crimes, genocide and crimes against humanity defy definition, then that spells both good news and bad news for war crimes tribunals. The bad news is that it means that bad behavior can never exhaustively be defined in advance, and that, in turn, means that judgments will always have to be ad hoc, intermittent, and to some extent at least seerningly unfair. The good news, however, is that it may still be possible to make ad hoc judgments, like those ofNuremberg and Tokyo and more recently relating to Yugoslavia and Rwanda. We may, as Zygmunt Bauman has suggested, not be able to agree on what constitutes justice, but we can still recognize and agree on injustice when we see it; we may not agree on the good life, but we can still agree on what constitutes the bad life. 86

82 See Martti Koskenniemi, Faith, Identity, and the Killing ofthe Innocent: International Lawyers and Nuc1ear Weapons, Leiden Journal ofInternational Law 10 (1997), 137-162, 145. See also Martti Koskenniemi, 'The Lady Doth Protest Too Much': Kosovo, and the Turn to Ethics in International Law, Modem Law Review 65 (2002), 159-175, 167 (where the same argument is made in connection with the conditions for humanitarian intervention). 83 See von Hebel/Kelt (note 79), 274. 84 Document PCNICC/2000IINF/3/add.2 of 6 July 2000. 85 Inadvertently, von Hebel/Kelt (note 79) make the same point over and over again. With respect to war crimes, e.g., they reach the important conc1usion that the question "which factual circumstances are relevant is one which can only be decided upon on [sie] a case-by-case basis by the judges," 287. 86 See Zygmunt Bauman, Morality Begins at Horne: Or the Rocky Road to Justice, in: id., Postmodernity and its Discontents, 1997,46-70. Essentially the same point is made by Andrew Linklater, The Transformation of Political Community, 1998.

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This mayaiso mean that the charge of nullum crimen sine lege is bound to be disappointed: any ad hoc judgment is bound to include things which were not yet written down in law, as recent events have made clear. Nullum crimen sine lege was invoked in a broad fashion in Nuremberg; it was invoked again in the context of Yugoslavia, relating to such crimes as rape; it seems fairly easy to predict that the defense will always be invoked, precisely because it is impossible to define things in a comprehensive manner. Yet, this very impossibility of defining things comprehensively also dictates that the nullum crimen sine lege defense need not be taken too seriously.

F. Retroactivity andlor International Criminal Law Now the idea that legality, in the formofthe nullum crimen sine lege principle, has fairly little place in the context of war crimes, crimes against humanity or genocide appears, at first sight, as a problematic statement. But how problematic is it really?87 The very idea of nullum crimen sine lege owes much of its attraction to the typically liberal notion of keeping governmental power in check. 88 Governments should not be able to introduce laws ex post facta because, in the long run, such would destabilize society: if people do not know which behavior is expected from them, they end up doing just as they please. Put like this, there are already two simple reasons visible why the principle has but a lirnited scope in respect of war crimes and the like. One reason is, quite simply, that there is no international government;89 at best, people need to be protected from other governments trying to impose their regimes. I will argue in a few rninutes that the law of treaties has a role to play here.

87 For a general discussion, pointing out that sometimes ex post facto legislation can actually contribute to legality, see Lon L. Fuller, The Morality of Law, rev. ed. 1969, 51-62. 88 The notion that criminallaw generally can be seen as a check on the exercise of govemmental power is derived from David Nelken, Critical Criminal Law, reproduced in: Thomas Morawetz (ed.), Criminal Law, 1991,213-225. See also Röling/Cassese (note 75),68. 89 A similar point was made by Georg Schwarzenberger in his seminal artic1e "The Problem of an International Criminal Law," first published in: Current Legal Problems 3 (1950), and reproduced in: Gerhard O. W. MuellerlEdward M. Wise (eds.), International Criminal Law, 1965,3-37.

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Second, in an important sense, people do just about whatever they please at any rate: there may be good reasons for having rules relating to the proper type of conduct in armed conflict,90 but deterrence is not one of them. To argue that the lee will deter possible future offenders is to miss the point that many nasty activities are being comrnitted out of idealism or in response to a perceived threat, however perverted the ideals or perceived threats themselves may be. And where idealism or a skewed sense of self-defense is a motivating factor, the law simply does not deter. 91 Indeed, hypothetically the war criminal might even claim the international equivalent of a right to civil disobedience: if the law is perceived as bad, why not ignore it? But there is perhaps a more fundamental reason why the nullum crimen argument need not worry us too much. One of the main functions of war crimes trials, historically at any rate, has been to make a clean break with the past. TypicaIly, trials for war crimes, genocide and crimes against humanity take place not during conflict, but after hostilities have ended (if only to prevent retaliation from taking place). They are prospective, in that they aim to pave the way for a bright and better future; but they are also retrospective in signifying that the black book of the past can be closed. Given these exceptional features, typical of successor justice92 or transitional justice,93 the application of ex post facta laws does not seem to be all that dramatic. The more fundamental problem, however, is that this may not reflect too weIl on the lee enterprise itself. Perhaps the most curious thing about the lee is that it does not, despite its name, deal with international crime. 94 It does not address the 90 It is often suggested (especially orally) that the ICC is somehow based on respect for the plight of the victims. Too elose an identification between ICC and victims may however be unwise: as Sereny has noted after the messy Demjanjuk trial, "no one accused of crimes against humanity or war crimes should ever again be tried by their victims," see Gitta Sereny. The Case of John Demjanjuk, reproduced in: id., The German Trauma: Experiences and reflections 1938-2001,2001,309-357,355. 91 I have developed this at greater length elsewhere. See lan Klabbers. Just Revenge? The Deterrence Argument in International Criminal Law, Finnish Yearbook of International Law 12 (2001, forthcoming). A similar point is among the issues explored by lohn Conroy, Unspeakable Acts, Ordinary People: The Dynamics ofTorture, 2000. 92 The term is derived from Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends, 1961, esp. section VIII. 93 See Ruti Teitel, Transitional Jurisprudence: The Role ofLaw in Political Transformation, Yale Law Journal 106 (1997), 2009-2080. 94 Baxter (note 63), 73, makes the same point (in support of something else though): " ... war crimes are of a basically different nature from crimes under internationallaw ... ".

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international manifestations of the type of things domestic criminal law deals with. 95 Thus, it has no jurisdiction over drug trafficking, people smuggling, counterfeiting, and perhaps not even over terrorism, and it is this circumstance which may explain why criminallawyers cannot seem to get too excited about the ICC: the ICC is very rnuch the province of internationallawyers, not of criminallawyers. 96 The types of things that the ICC has jurisdiction over are typicaIly the types of things that are exceptional, not just in their gravity but in particular in their occurrence; for want of a better term, we mayas weIl caIl them political. 97 The aim of the ICC is to routinize the exceptional98 or to catch intensely and quintessentiaIly political moments in the freeze-frame of law, as indicated perhaps most solernnly by the adoption, in Artic1e 22, of the nullum crimen principle. If that is so, then we may wonder why a permanent ICC was ever thought of as a good idea. Indeed, it may be worth questioning whether the institutionalization and routinization of war crimes does not render them trivial and banal: a tribunal dealing with genocide on an everyday basis cannot help but add respectability to genocide. If genocide is the object of routine proceedings in a routine court, then instead of being dramatic and exceptional, it becomes a fact of life, one of the things we just may have to live with on an everyday basis. 99

Arguably, this has already to some extent happened: the routinization of crimes against humanity is palpable when it comes to attempts to create ad hoc tribunals for Cambodia and Sierra Leone. These have met with a rather lukewarm response, at least if the corridors of law schools are anything to go by. In less than ten years, fatigue has set in. 100 What was exceptional in the early 1990s has become almost standard by now, and if it is almost standard, there is no need to get excited. This 95 On the various meanings ofthe term international criminallaw, see Schwarzenberger (note 89), esp. 5-14. 96 See, e.g., Peter Alldridge, Relocating Criminal Law, 2000. This aims to theorize about new developments in criminallaw, and while he devotes a chapter to the internationalization of crime, at no point is the ICC discussed. 97 FoHowing Tuija Parvikko, Positivists Versus Moralists: The Eichmann Trial and International Law, Finnish Yearbook ofPolitical Thought 4 (2000), 223-250, 244. 98 Suggested also by the title (as weH as tenor) of Louise Arbour's Friedmann Award Address: Litigation before the ICC: Not If and When, But How?, Columbia Journal of Transnational Law 40 (2001), 1-10. 99 The same point is made by Binder (note 70). 100 Scharfmakes a similar point, but limits it to a fatigue concerning setting up ad hoc tribunals, see Michael P. Scharf, The Politics behind the US Opposition to the International Criminal Court, New England International and Comparative Law Annual 5, available at: http://dredd.nesl.edu/annual/voI5/scharf.htm.

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may weIl be the biggest problem the lee may come to face: the very attempt to bring an end to the culture of impunity may bring us to stop caring about impunity. The very attempt to terminate genocide, war crimes and crimes against humanity may lead to us thinking of those grave crimes as just another day in court.

G. The Individual in the Law of Treaties The U.S. is on record as being in favor of ad hoc trials for the truly exceptional cases rather than standardized, routinized proceedings before a permanent lee, and with good arguments. There is, as we have seen, the argument that inevitably, trials ofU.S. nationals will become trials ofthe U.S.; there is, as we have seen, the argument that what looks like a crime to some may be perfectly innocuous, or at least fully justifiable, in the eyes of others; and there is, as we have seen, the argument that the lee may, all noble intentions notwithstanding, actually contribute to making shocking behavior somehow respectable. There is yet another argument, one that brings us back to the law of treaties and ultimately relates to democracy.101 The classic pacta tertiis maxim, as is well known, protects sovereign states from outside interference: states cannot create obligations by treaty for third states without their consent. What has been overlooked in the entire discussion is that this does not so much (or, not only) protect the abstract entity ofthe state, but also protects the people living within that state. To think of pacta tertiis as protecting abstract entities but having nothing to do with people displays eventually a rather impoverished vision on what law is all about, and it is rather disheartening to see that this position has been adopted, in particular, by the proponents of the lee. Admittedly, the pacta tertiis rule was never thought of as having much to do with the position of individuals;102 in fact, there is every reason to suppose, with Christine Chinkin, that often the pacta tertiis maxim works to the detriment of

101 A different appeal to democracy is contained in Lee A. Casey, The Case against the International Criminal Court, Fordham International Law Journal 25 (2002), 840-872, 843-848 (arguing that the ICC would exercise power without accountability). 102 See, e.g., a c1assic study such as Ronald F. Roxburgh, International Conventions and Third States, 1917. Likewise, the ILC' s Commentary on its final draft articles on the law of treaties, in its discussions of the pacta tertiis maxim, contains nothing to indicate that the position of individuals had been under consideration. See Yearbook of the International Law Commission (1966/11),173-274,226-231.

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individuals and may need to be overcome in the interests of justice and faimess. 103 But as so many things, the pacta tertiis maxim is a double-edged sword: it may also work so as to protect individuals from the designs of states other than their own. It may serve to protect members of a political community from intervention from without, which should be all the more re-assuring for neo-Kantian liberals if those political communities are based on democracy. What applies to the pacta tertiis maxim applies to the entire law of treaties: it was never conceived with a view to the position ofindividuals. Yet, flexible as the law of treaties is, it has already demonstrated to be of some use for the protection of individual interests. Thus, the EC Court of Justice held in 1998 that individuals, in principle, may invoke the law of treaties when they think a treaty affecting them is unlawfully suspended or terminated. 104 About a year and a half earlier, the EC' s Court of First Instance had in effect held that the interests of a single company were protected by the obligation not to defeat the object and purpose of a treaty prior to its entry into force. lOS Those are incidents, but they are telling: the law of treaties is capable of being moved towards greater protection for individuals. The same may well apply to the pacta tertiis maxim: to stipulate, as some have done, that it only applies to states but not to the state's citizens is a throwback to earlier times.

H. Concluding Remarks In the end, then, it would seem that we should not reach hasty conclusions about the impact ofthe ICC Statute (or any treaty, for that matter) on third states, however noble perhaps the inspiration for those hasty conclusions. The strict legal arguments, as we have seen, are inconclusive, and the more reflective arguments that I have addressed all point in the same direction: there is no good reason to apply the ICC Statute to nationals of non-party states without their consent, and a couple of good reasons for respecting the position of states unwilling to join the ICC regime.

See Christine Chinkin, Third Parties in International Law, 1993. Case C-162/96, A. Racke GmbH & Co v. Hauptzollamt Mainz, [1998] ECR 1-3655. See more generally also fan Klabbers, Re-inventing the Law ofTreaties: The Contribution ofthe EC Courts, Netherlands Yearbook ofInternational Law 30 (1999), 45-74. 105 Case T-115/94, Opel Austria GmbH v. Council, [1997] ECR 11-39. See also Klabbers (note 104) and, in greater detail, Klabbers (note 27). 103

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There is, of course, a nice litde irony in the circumstance that it is now the V.S. in particular which feels the need to defend itself against the imperial designs of a powerful coalition of NGOs and what are curiously referred to as "like-minded states." As many of the lee proponents have not ceased to point out, U.S. courts in the past have often claimed jurisdiction over nationals without bothering to figure out whether the states concerned would consent or not; typically, this has taken place with respect to drugs trafficking and terrorist acts. 106 By the same token, V.S. courts have, since Filartiga v. Pena-lrala, often claimed jurisdiction over foreign government officials (or former government officials) without paying too much attention to the roles of the governments in the cases concerned. 107 It is tempting, therefore, to simply adhere to the old maxim, that what comes around, goes around, all the more so as the like-minded coalition seems to have morality on its side. That would be too simple aposition, though. As noted, the morality of establishing the lee is not terribly clear-cut, but even if it were, things would not be self-evident. The like-minded coalition may well fall prey to the desire to take the politics out of politics; the lee represents an ambivalent attempt to, on the one hand, place truth and reconciliation in the hands of the law yet, on the other hand, to also extend the hands of the law to cover those who would rather not be included. This alone makes clear that international criminal justice is an intensely political affair: beacon of hope to some, awesome spectre to others.

See in particular Schaif(note 11). For abrief discussion, see Jan Klabbers, Doing the Right Thing? Foreign Tort Law and Human Rights, in: Craig Scott (ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, 2001, 553-566. 106 107

Discussion Andreas Zimmermann:

Thank you very much, Jan! You said that critique might be uttered vis-a-vis international criminal law, but there is definitely no critique to be made with regard to what you have said in your lecture. Thank you indeed very much for this very broad outline on the theoretical issues underpinning and underlying the role and position of States and of individuals in international criminallaw! It was very stimulating. I have already a couple of names on my list, and we have a U.S. citizen taking the floOf first: Fred, please. Fred Morrison:

Last night various people asked me whether I would defend the position of the United States government with regard to the International Criminal Court. I feel some obligation to say something to explain the U.S. stance, although I will not fully defend the United States government's actions. Indeed, mine may be a minority position within the academic community of internationallawyers in the United States, but it is not an isolated one. Other Americans in this colloquium may wish to differ from what I say. Let me reemphasize that this is a private perspective; I am not representing the U.S. government. I should start by saying that at horne I teach both of international law and United States constitutionallaw. So I sometimes look at international questions and ask myself how the international system has distributed decision-making powers, and how changes occur in that system of decision-making and normidentifying processes. Some of the concerns I express here - and they may not be all the concerns articulated by the U.S. government - stern from those kinds of constitutional concerns, issues about decision-making and norm-identifying authority in the international community. My comments will focus on several aspects of the Statute of the ICe. Most of them will look at two perspecti ves about each of these issues. One of these aspects is the constitutional or decision-making implication of the topic and how it im-

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pacts United States interests. The second is the application of general principles of criminallaw in this same set of circumstances. One of the major sticking points for the United States is the Artic1e defining the crime of aggression.1t is a sticking point because what it potentially provides is an ex post facto review of military actions to determine whether - in the opinion of two of the three members of the ICC panel - a military action conformed to the requirements of the Charter or conformed to other requirements of international law. The dynamics of adecision made in this way are very different from the dynamics of a Security Council decision. My impression is that some decisionmakers are quite concerned about that. First, let me ex amine this from the perspective of changes in international decision-making that it will bring about! It really limits the ability of the Security Council in general and the United States in particular to be proactively responsive in those situations. On its face it does not change the law, but it does bring into question whether adecision of the Security Council will be treated as conc1usive. Currently an American legal advisor may comfortably say that military action taken pursuant to Security Council mandate is legitimate action. After the adoption of this provision, the advice would have to be much more guarded. The legality of the action will remain open to question by the Prosecutor and by two of the three judges on the panel. The correct answer to "Is it legal to go forward?" would change from "Yes, certainly!" to "A good argument can be made for its legality." Especially if the decision-making is facing potential criminal prosecution, if he or she makes the wrong choice, this may reduce the willingness of the United States to involve itself in the most severe crises. Will relegation of the ultimate outcome of these issues to after-the-fact decision-making reduce the willingness of major States to be responsive to egregious humanitarian problems? This does represent a major shift in the political constitution of the United Nations system. The United Nations system was created with the Security Council vested with the power to deal with threats to the peace. The Security Council had definitive authority in this area. Some of you are uncomfortable with the vetopower in the Security Council, but it is there in the Charter. And if that vetopower and the power of the Security Council is replaced by apower of the ICC, this changes the world of the States which are the prominent members of the Security Council. I don't think that this is a change that is going to be easily made or that it is easily going to be acquiesced in by the United States. Let me shift to a criminallaw perspective with regard to the same issue. As the Statute is written, because of the exc1usion of superior orders defenses, it is

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possible that an individual military officer, acting fully in conformity with a Security Council mandate, will later be found criminally responsible for that action. In a domestic legal system, would we be willing to say that an officer, acting in good faith reliance upon astatute, can later be found responsible for having done so? I think not, at least if it was not absolutely patently dear that the statute was unlawful. The second major issue is the dosing item in the list of crimes against humanity. It is the one that prohibits "other similar crimes." Again, I want to make two points, one about the decision-making structure of the international community and the other about criminallaw. The document is quite capable of being read to give a legislative authority to the Assembly of States Parties to use its powers to define the elements of crimes to make virtually anything a crime against humanity. This again changes the dynamics of the international legal order in such a way that the Assembly of States Parties, by a two-thirds majority, is capable of legislating new rules of internationallaw. I understand that this was copied of some language in the Yugoslav Tribunal's Statute, with some precision added; but the Yugoslav tribunal is limited by time and place and the power to amend it is limited by the veto, while in the ICC neither of these limitations will be applicable. There may be some constraints there, but, given the breadth of the language, almost anything would be within the scope of what the Assembly, by two-thirds vote, could adopt and make part of the international legal order. This is a fundamental change in the way internationallaw is made, and, I think, it is going to be a serious concern for the United States, as weIl. On the criminallaw side of this point, it seems to me that this provision suffers from a vagueness that would be fatal to most legal systems. Under the common law in England there was a crime of common mischief. There was really no definition of common mischief. It was anything the judges didn't like. It was punishable at the discretion of the judges. If we are going to make conduct criminal, we need to be more precise than this. In American criminallaw we would say this was void for vagueness. The third major point involves questions about the fairness of the Tribunal. We should neither be too optimistic nor too pessimistic about the fairness of the Tribunal. I am afraid I may be too pessimistic having participated in an internationallitigation in which the President of the Tribunal announced his own views of the case in a press interview before we had even been allowed to present our arguments. I am not totally comfortable with a notion that an international tribunal would always be fair. In this regard I want to say one thing about European attitudes on this point. I am concerned that some of you are too optimistic. Euro-

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peans operate in a system in which there is already an international human rights tribunal, the European Court for Human Rights, which operates very fairly, largely because there is a broad consensus among the members of the Council of Europe about the underlying rights and shared values about the way in which judges should consider cases. That is not readily transferable to aglobaI community that inc1udes a number of countries whose systems of justice were described this morning by another speaker as "less than adequate" or "unusual." Finally, let me make a few conc1uding comments! First, I am concerned that the ICC Statute will make it harder to resolve some domestic conflicts. Will it make it impossible to use truth and reconciliation commissions or the like? Will the certainty of crirninal prosecution make it more likely that defeated dictators will fight to the bitter end, even at the cost of more human suffering? Here the acadernic search for an elegant solution may get into the way of a practical search for a feasible one. I'm not sure. Second, many of you have asked: "Will the U.S. ratify the Convention?" In the short and rniddle term, the answer to this question is "No!" A c1ear "No!", despite the arguments of the friends of internationallaw in the United States. The people who negotiated in Rome on behalf of the Uni ted States made the same mistake that the people who negotiated the Versailles Treaty did. They did not get support at horne as the process was going on, so they came back with a document that the Senate cannot approve for ratification. Remember that a two-thirds vote is necessary for ratification, so only one third of the senators can block it. There needs to be a broad consensus for something like this. It isn't there. Third, will the International Crirninal Court succeed? I have told some of my students that I am very sorry that the United States is not a party, because I would like to be a judge on it. It would be a sinecure, with no work to do - at least for the foreseeable future. With the combination of jurisdictionallirnits based upon ratification of the Convention either by the territorial State or the state of nationality, the temporal limits (only crimes after it comes into effect) and the complementarity principle, there are few - if any -cases that could come before the Court. If the membership remains as lirnited as it is now, there will be no cases; if it' s broadened, we have the question of whether the Court will be radicalized. So, that' s my pessirnistic statement on it. Fourth, will the Rome Statute affect international law? The ans wer is quite c1ear: "Yes!" For the same reason that various other documents that are unratified become part of the corpus of internationallaw, we are going to see the language out of those artic1es repeatedly cited in other kinds of context. It's not surprising

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to me that one sometimes sees the attacks of September 11 called "crimes against humanity." If citation of text is demanded, the reply is usually based on the first clause of the crimes against humanity definition in the Statute. Yes, it is part of the corpus of internationallaw. Finally, can the ICC be saved? Can something be salvaged from it? My own view is that this ICC be ars the same relationship to eventual prosecution of war crimes that the Permanent Court of Arbitration bears to the International Court of Justice. It is a worthy first step, but not an ultimate resolution of the very difficult issues that are presented.

Claus Kreß: Thank you very much for the two inspiring talks! Both tempt me to react but in order not to be too long, I confine my remarks to the first one as this was, in parts, immediately directed to me. It rnight be surprising, but I fully agree - with parts of Professor Heintschel v. Heinegg's paper (laughter). Let me start with the two key starting points I can fully agree with. First: the Tadic 1995 decision is debatable, even on the standard of "modem positivism" - and I am not discussing now whether this term is the ideal one; I simply use it in the way it has been introduced into the discussion by Simma and Paulus. It' s debatable on these standards. Second: international lawyers should not be too impatient; they should be reluctant to engage in rnissionary writing when they claim to present the lex lata. But neither should international lawyers be too patient, which can mean more reluctant than States in accepting legal evolution. And this is, where I have discovered rninor disagreements with your talk. I think the possible changes we have to discuss do not simply concern the area of substantive law, but the sources of law. The more fundamental question as regards the development of international crirninallaw in the last ten years is whether it teIls us something about a changed understanding of States towards the formation of internationallaw. Again, I agree that it is difficult to accept the corning into existence of many war crimes in internal armed conflicts on the basis of the North Sea Continental Shelf test. But the question is whether States have applied this test and if they have not applied this test, whether this is not a relevant fact in itself. Is it a fact that acadernics can disregard by saying that States have applied an "incorrect concept of custom?" Or, to put it very simply: Should acadernics teach States what the correct - eternally fixed? - concept of custom is, or should they not rather have a close look as to whether that concept is undergoing a subtle change?

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I agree with you, Professor Heintschel v. Heinegg, that signing the Rome Treaty would, in itself, not be a sufficient evidence for such a change. But clearly, in negotiating and adopting the core crimes of the Rome Statute, States thought to do more than crafting a new treaty: they took "customary international law" as their accepted yards tick. In that sense, the agreement on Art. 8 of the Rome Statute signals that quite a significant part of the international community thought that the list of "internal war crimes" has passed the custom test - perhaps not the old one but one applied by these States. And the development didn't stop here. It went on with the consensus adoption of the Draft Elements of Crimes by the Preparatory Commission on 30 June 2000. Soon after, the case of the Special Court for Sierra Leone came up. I give you one very specific example: The customary character of the war crime of the enlisting of children in Art. 8 (2) (e) (vii) has been challenged by the Secretariat of the United Nations very much along Professor Heintschel v. Heinegg's line of reasoning. But what happened? The Security Council - not composed by academics but by States - rejected this approach and said "No, we will take all of Art. 8 (2) (e) as customary international law. And in the case of East Timor, again, there was agreement that Art. 8 (2) could be copied as being reflective of customary law. All this taken together is, I think, sufficient to raise the question whether there has happened something which goes beyond the primary level of substantive international criminal law and concerns the understanding of States about the notion of international custom. I guess the matter of internationallaw formation has become more complex than the North Continental Shelf test suggests, and I also guess that the area of international criminallaw is just one - but certainly a particularly telling - example. I took some cornfort from your statement at the end, Professor Heintschel v. Heinegg, that perhaps those who have noted the striking features of the recent development of international criminal law are not completely wrong, but should just talk about something else than custom. This question of label is, in my view, of secondary importance, although I prefer to discuss the issue under the category of customary internationallaw as States do the same. The crucial question remains what the recent evolution of international criminal law tells us about the process of the formation of general internationallaw. To conclude, just one little point which is not directly related to the question of law formation. You, Professor Heintschel v. Heinegg, said that even on the assumption that war crimes in internal armed conflicts now existed under general internationallaw, this would not entail the international subjectivity of the individuals concerned but the effect was just the elimination of a possible justification. This is a puzzling idea. What, then, is the primary norm an international criminal

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court were to apply to the international crime in question? From which legal order do you take it? A truly international criminal court needs a primary norm of international legal character and it certainly cannot convict somebody just for a lack of justification. This primary norm can only be conceived as being addressed directly to the individual, and the necessary corollary of this is: passive international subjectivity of the individual concerned. Joachim Vogel: I teach criminal law at the University of Tübingen and serve as apart-time judge at the High Court of Appeal in Stuttgart where I am handling extradition cases. In my capacity as a criminallawyer: I would like to join Mr. Momson and comment on the brilliant speeches we heard this morning from a specific criminal law perspective. In particular, I would like to raise five questions: (1) Is nullum crimen, nulla poena sine lege a problem in international criminallaw? (2) Is there a place for case law in international criminallaw? (3), (4) Is Mr. Klabbers right in saying that crimes against internationallaw are "undefinable," and that criminal prosecution of these crimes inevitably results in a normalization or trivialization, whereas heinous crimes such as genocide should remain something "exceptional"? And (5): Why should we punish international criminals? (1) Both speakers did not worry about the principle nullum crimen, nulla poena sine lege. You may weIl understand that I, as a criminallawyer, do not agree. It is remarkable that the Rome Statute itself guarantees the nullum crimen, nulla poena sine lege principle and is not applicable retroactively (ex post facto) (Art. 22). So, I hold that nullum crimen, nulla poena sine lege does have a function in international criminallaw. But which? In German doctrine, it is usually said that there are two essential roots or rationales of the nullum crimen, nulla poena sine lege guarantee. The first one is the principle of culpability. A potential criminal must be given a fair waming, he or she must be able to know in advance what the law requires citizens to do and not to do and whether persons in breach of the law will be punished or not. ladmit that this rationale does not play a major role in international criminal law. Crimes against international law are atrocities, crimines naturales, and everybody knows that the relevant conduct is prohibited and - after Nuremberg and Tokyo - also punishable. Rather, the problem is connected with the second root or rationale of nullum crimen, nulla poena sine lege: democratic legitimacy of criminallaw. We do have a problem here because there is no global democracy, no global parliament, so that we need a substitute. Common law systems trust injudge-made law which indeed guarantees some sort of democratic

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legitimacy if and insofar judges are elected and representatives of the sovereign people. So, one way to solve the problem of democratic legitimacy is to give international crirninal tribunals and their elected judges the authority to speIl out international crirninallaw (which, in my view, was done when the ICTY and the ICTR were established). The other way is to make use of treaty law, i.e. international statutes such as the Rome Statute. Insofar, I would like to add a comment on the elements of crime. In my view, we find some sort of democratic mechanism in Art. 9 Rome Statute: the Assembly of State Parties - which is, of course, not a people's parliament - can darify international crirninallaw, even by two-thirds majority. In my view, such an assembly and the possibility of a majority decision are major steps towards a democratization of internationallaw. So I, as opposed to Mr. Kaul, have a favorable view of Art. 9 Rome Statute. (2) I am quite surprised about the efforts made by international lawyers to identify customary - or at least "instant" customary - law in the field of international crirninallaw. At face value, international crirninallaw is judge-made law, case law created by the respective Tribunals at Nuremberg, Tokyo, The Hague and Arusha. It is not up to me to discuss how such judge-made or case law fits into the traditional system of sources of internationallaw. But in my layman's view, it is quite dear that such a discussion should take place. It should take into account that there is no crirninallaw practice without crirninal courts so that, in the field of crirninallaw, State practice is necessarily court practice. Therefore, the case law approach may weIl be compatible with the customary law approach. (3) Let me now say some words about "grey areas" in international crirninal law and the "undefinable" in international crimes. WeIl, Mr. Klabbers, you certainly took a very interesting, post-modem and deconstructive perspective here. However, I believe that you exaggerated the problem. "Grey areas" are perfect1y known to lawyers and they can live with them quite cornfortably. I would even say that "grey areas" are the reason why we have law professionals - if each and every legal question would be a "black and white question," we would not need them. What I do in my capacity as ajudge is to decide "grey area questions." And I am very much convinced that we can decide legal questions, and that we can do it using legal arguments (as opposed to non-legal, philosophicalor political arguments) without necessarily ending up in a cul-de-sac where any or no answers are valid. Rather, legal questions are decided in a legal discourse by the force of the better legal argument - I refer to Habermas' discourse theory and Alexy' s theory of legal argumentation. I am also quite confident about the "undefinable" - which is not only a philosophical but also a legal problem because a law defining an undefinable offence rnight be either void for vagueness or overbroad. In

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tackling the problem, I would like to refer to the traditional distinction between offences on the one hand, and defenses (or grounds of justification or excuse) on the other hand. I feel that the offences under international crirninallaw are fairly clearly defined, and also definable. Historically and sociologically speaking, each single genocide may weIl be a very unique and "undefinable" phenomenon. But I simply cannot see what should be wrong with the legal definition of genocide under the Genocide Convention. In contrast, the defenses, in particular the possible grounds of justification, are by far less defined and possibly by far less definable. Of course, there is no possible ground of justification for genocide. But - and here I am corning back to a question raised by Mr. Morrison - the li ne between war crimes and legitimate war operations, between the crime of aggression and legitimate self-defense, is drawn by grounds of justification. However, we must bear in rnind that the possible grounds of justification are not really a question of international crirninallaw but of internationallaw as such. Indeed, any justification of per se crirninally prohibited behavior - e.g. the killing of human beings - is not really a question of crirninallaw but a question of the law as such. So, we do not have a specific problem of international crirninallaw. (4) Neither do I agree with Mr. Klabbers' thesis that an international crirninal justice system would nonnalize or even trivialize what is "exceptional": atrocities, heinous crimes under internationallaw. One may weIl argue that international crimes are "nonnaI" in the sense that they are, sadly enough, apart of history and occur from time to time. Gennan legal and crirninological doctrine has even developed the concept of Makrokriminalität (macro crime) to cope with what is legally defined as international crimes and dates back far into history. Therefore, international crirninal justice does not nonnalize the exceptional but stigmatize those who have enjoyed impunity for too long. Further, I do not really see how crirninal prosecution nonnalizes and trivializes crirninal offences. Do we nonnalize or trivialize a murder, a rape or a robbery by putting the offenders on trial? And should we refrain from crirninal prosecution if a murder has been comrnitted in an exceptionally cruel way? (5) And that brings me to my last point: Why punish international crirninals? Mr. Klabbers hinted at deterrence. But many, perhaps even most crirninallawyers do no longer believe in deterrence. Crirninality is a nonnal phenomenon, any society must cope with crirninality, and we have good reasons to assume that a crirninal justice system will not have major influence on the level of crirninality in a society. In particular, situations of anonyrnity - such as war or civil war - will not be significantly influenced by even harsh crirninal sanctioning. Therefore, deterrence is quite a problematic purpose of international crirninallaw. But there

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are other purposes an international crirninal justice system can serve. The first one is very traditional (and prevails in the present American discussion and legislation): just deserts. The second one is that a crirninaljustice system establishes and reiterates norms or standards of behavior. This may very well be the main purpose of an international crirninaljustice system: to say what is right and what is wrong, even in hard cases such as necessity or superior order. The main success of the ICTY and ICTR has certainly not been to deter war crirninals, and the ICTY and ICTR have not yet brought along comprehensive just deserts. But both Tribunals have been very successful in developing the standards of international crirninal law including - for example - superior responsibility. This may well suffice to legitirnize the Tribunals (and any international crirninal law system). Another question is whether we should adrnit alternative redresses. I feel that the Rome Statute went too far in barring alternative redresses, in particular insofar they are connected with arnnesties. We should accept certain alternative redresses and also arnnesties granted bona fide, that is to say: in a non-abusive way. But it will be up to tomorrow's discussion to explore whether the Rome Statute really requires crirninal prosecution even if the State Party prefers a non-crirninal redress, e.g. a truth commission which, as case may be, grants arnnesty to crown witnesses even if they are guilty of international crimes. Carl-Friedrich Stuckenberg: I had several points but most of them are already covered by Prof. Vogel' s remarks, so I can be brief. I think we have reached a stage in international crirninallaw - after this unexpectedly rapid and rash development of the Rome Statute and now its entering into force - where a certain void has to be filled in. Still absent is what I would call a "general theory" of what international crirninallaw - and an international institution like the ICC - "is all about." Prof. Klabbers mentioned several purposes you can think of, and there is certainly a whole lot of not only legal, but also political perspectives in which an institution like an ad hoc tribunal, a truth commission, anational or international tribunal, can be seen. For instance, providing a clear break with the past may be an implicit or explicit function on anational level in case of a truth commission. An international tribunal could also - implicitly or among others - serve that purpose. But we should have an idea of what the principal aims of crirninalization and punishment on the international level, i.e. the foundations of international crirninal justice, are in general, not only in a specific incident - beyond the shared feeling that it is worthwhile "getting the bad guys" and punishing them for those undisputedly atrocious crimes.

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We should develop a somewhat more elaborate concept, not in the sense of "theory for theory' s sake," but also to give guidelines for more specific questions. First attempts have been made by acadernic writers, and even the ICTY has devoted some thought to the aims of punishment at an early stage (in the Erdemovic Sentencing Judgement of 29 November 1996, paras. 57 et seq.) when it had to decide on how to determine a sentence: For what purposes do we punish if we punish? Is deterrence on the international level perhaps a less convincing concept than it may be, if at all, on the national level? Or has punishment a mere symbolic value so as to reaffirm the international legal order, to make the prohibition of genocide etc. a lex peifecta? The time is now ripe to ask these very basic and old questions anew for this new branch of both international and crirninallaw lest it be restricted to blind, piecemeal pragmatism. This research into the foundations of international crirninal law should be a "joined" acadernic enterprise involving both disciplines, internationallaw and crirninallaw. A resulting "general theory" would not be a mere theoretical advance, but would help to solve certain specific legal problems (e.g. in the determination of general rules of liability or the interpretation of the Rome Statute), and would also give a c1earer idea of what an institution like the ICC is expected to do, what it can and what it cannot achieve, and how to criticize its work.

Michael Byers: Are all rules of customary internationallaw formed in exactly the same way? Does one require the same balance of State practice and opinio juris for human rights and international humanitarian law as for the rules concerning the delirnitation of maritime boundaries? In 1990, Martti Koskennierni published an artic1e in the Michigan Law Review in wh ich he questioned efforts to justify the customary law of human rights and international humanitarian law within traditional frameworks. He suggested that it was time to think about these rules in a new way, to recognize that their development is c10sely connected with the existence of some sort of international social consciousness. There would appear to be some truth in Koskennierni's suggestion. The average person probably does not have an opinion about the law governing maritime boundary delimitation, but they certainly will have an opinion as to whether genocide is right or wrong. Perhaps, in some areas of internationallaw, we do need to acknowledge more openly the common understandings that inform whether we think something is right or relevant. Doing so rnight, in fact, strengthen the

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case for human rights and international humanitarian law, and thus counter those who seek to criticize these rules on traditional, positivist grounds. One could even argue that the new approach advocated by Koskennierni is in fact the old approach. In 1986, Peter Haggenmacher published an article in the Revue generale de droit international public in which he demonstrated that, in the North Sea Continental Shelf Cases and elsewhere, the judges of the International Court of Justice did not actually look for evidence of opinio juris in the behavior of States. Instead, Haggenmacher argued, they based their assessments of State practice on shared conceptions of legal relevance. These shared conceptions may be difficult, if not impossible, to define, but international judges - indeed, all internationallawyers - know intuitively what they are. To adapt the famous words of an American judge speaking about pornography, we all know legally relevant State practice when we see it. And pornography is but one possible domestic analogy here: Think of the principle of proportionality in continental legal systems, and the principle of reasonableness in the common law! Turning to the Rome Statute of the International Crirninal Court, it is important to note that we are not dealing here with universal jurisdiction. We are instead dealing with delegated territorial jurisdiction, which is even less contentious in terms of its being part of customary internationallaw. Nobody disputes that States have jurisdiction over crimes comrnitted on their territory, and nobody disputes that States can delegate their judicial powers to international courts. The delegation of territorial jurisdiction to the International Crirninal Court is, therefore, simply a combination of two unquestioned State powers. The Vnited States, however, insists that when the customary rule of territorial jurisdiction developed, States never envisaged that this jurisdiction would be delegated to an international court. Consequently, the inclusion of delegated territorial jurisdiction in the Rome Statute, insofar as it rnight be applied to the nationals of non-party States, is contrary to customary internationallaw. There is, of course, a flaw in the V.S. argument. Rules of customary internationallaw, because they are derived from State practice and opinio juris, are often less than clear-cut around the edges. In contrast, the distinction drawn by the V.S. between territorial jurisdiction as exercised by aState and territorial jurisdiction as delegated to an international court is extraordinarily specific. Indeed, to the degree that there is a distinction, it is procedural rather than substantive - it concerns the implementation of the rule rather than its content. There would be very little left of customary internationallaw, generally speaking, if we sought to differentiate between applications of otherwise identical norms every time that we assessed State practice and opinio juris in respect of a putative rule.

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The U.S. position does not constitute opposition to a change in international law; it constitutes opposition to the current state of the law. Thus - and this is the critical point - if other States accepted the U.S. position, they would in fact be taking a step backwards. The U.S. is insisting that the 120 signatory States and the 70-plus ratifying States should deny the applicability of a long-accepted, unquestionably valid basis of jurisdiction. And this in turn raises what is perhaps the most important issue in internationallaw today. Does the United States have the right to tell the rest of the world what is or is not internationallaw? Or, perhaps even more disturbingly, does it have the right to tell the rest of the world that the rules are different for the United States? In my view, the only appropriate response is for other countries to stand up to the United States on this issue and insist that institutional developments aimed at the better implementation of existing principles will not be reversed. That said, it is important that we all understand the enorrnity of such adecision. It is very easy for internationallawyers to argue about technical details, for example, to dispute ad infinitum whether the customary rule of territorial jurisdiction extends to delegation or not. Yet U.S. opposition to the ICC is not really based on a dislike of delegated territorial jurisdiction - the legal argument is but a front for a deeper, ideological position. The United States is opposed to the ICC because influential forces within the United States are opposed to internationallaw and international institutions, indeed to any instances of decision-making involving non-Americans that might, perhaps, have a negative impact on the freedom to act of the United States. The Republican Party controlled the U.S. Senate in the period during which the Rome Statute was negotiated, and the consent of the Senate is required before any treaty can be ratified. The Clinton Administration's position on the ICC was thus heavily influenced by the position of people like Senator Jesse Helms, the thenChair of the Senate Foreign Relations Committee. And Helms' concerns had little to do with the technical issues discussed by internationallawyers, and everything to do with his vitriolic distaste for all things international. The situation today, under President George W. Bush, is very much the same. The issue of ICC jurisdiction is not a legal issue; it is an ideological issue that concerns how the United States relates to the rest of the world. How should other countries react when the United States seeks to modify or destroy international rules and institutions in pursuit of a narrow, parochial conception of the U.S. national interest? The contest over the Rome Statute could become one of the most significant challenges that those who support internationallaw will ever face.

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Moreover, we are not speaking about something that will happen only in the distant future. Earlier this year, I was involved in a project that analyzed the policy and legal implications of c10ser military cooperation between Canada and the Uni ted States within the context of the new, U.S.-created "Northern Command." We discovered that a serious problem could arise under the Rome Statute if Canadian soldiers were placed under U.S. command. In short, Canadian soldiers would be bound to the Rome Statute but their American superiors would not. Suppose that a Canadian soldier detained a suspect who was wanted both by the ICC and by the United States. Would the soldier be ordered to transfer the suspect to U.S. authorities, in violation of Canada' s treaty obligations? Indeed, might that order be required under the new American Servicemen Protection Act? And wh at would happen if the ICC were to request the transfer of a U.S. soldier deployed on Canadian territory? The problem of military cooperation and the Rome Statute is not confined to relations between Canada and the United States. What will happen to NATO operations? What about joint operations in Afghanistan and elsewhere? And finally, what will happen if the Uni ted States intervenes, without UN Security Council authorization, in a country that has ratified the Rome Statute? What kind of political pressures might it apply if the Court were to investigate, indict or perhaps even secure custody over and prosecute an American soldier? And how would countries such as Germany, the United Kingdom and Canada react, given their alliances with the U.S. and their strong support for the Rome Statute? Iraq, North Korea and other "rogue States" might be advised to ratify the Rome Statute as quickly as possible, because doing so could cause enormous difficulties for relations between the United States and its c10sest allies. How we deal with the difference of opinion over the Rome Statute will define not just the future of international criminallaw but the shape of the entire international order.

Eyal Benvenisti:

First of all we have to examine the relevance of the question to what extent the Statute ofthe International Criminal Court reflects customary internationallaw. Is it important for deterrnining its bases of jurisdiction? I don't think so. Is it important for the definition of crimes? I think that it is also not a major issue. Even if relevant, we all know that it is very difficult to prove what is customary, as there are always several viewpoints and interpretations. Furthermore, if you take the intertemporal perspective, we know that customary law changes, and what was illegal a couple of years and months ago becomes legal a few years later. In a

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sense, by definition, if customary law changes, the first that acts is in breach of the old law. AState hesitating to accept universaljurisdiction because of its dubious status as customary internationallaw could very weIl take the position that what may perhaps be at present a violation of customary internationallaw may subsequently become the new nonn provided a sufficient number of countries follow its lead. One known example is the extension of the exclusive economic zone in the 1970s, a nonn that was transfonned radically despite the fact that its first practice (by Iceland) was found by the leJ in 1974 as violation of customary international law. So, from this perspective, I think the discussion of whether the lee Statute reflects or does not reflect customary internationallaw may weIl be rather soon beside the point, even if today it is still open to debate. The other point will deal with Prof. Klabbers' idea of the (im)possibility of defining crimes. He noted the difficulty that so much depends on circumstances, and that the definitions are both over- and underinclusive. I agree with this, one hundred per cent. One response to this point was that this is not new, and that judges feel comfortable with the grey areas created by over- and underinclusive definitions. I have one difficulty with this response. In every society we often tolerate grey areas and under- and overinclusive definitions because we trust our judges to have social sensitivity to make the "right" choice, namely the choices that are deemed legitimate by their society. This is so, because our judges face the consequences of their decisions like most other citizens. As a judge, you live within the society that would face the consequences of your decision. And my question is whether this is the same thing with the lee. I come from a country which is facing severe security issues. When beingjudged from the outside, being judged by people who do not or cannot or do not want to become sensitive to the threats and to the dilemmas that we face, these judges may fail to internalize the constraints within which our decision-makers operate. That leads me to the final point, with regard to potential defensive practices that States could adopt in the shadow of potential criminal prosecution. Let me describe you what' s happening now in Israel! Israel cannot allow itself to follow the United States' attack on the lee. And in Israel now, the question of international criminal liability is very much on people's minds, very high on public agenda, and we already see two outcomes. First of aIl, there is no tolerance in Israeli public opinion towards examination of the potentialliability of soldiers and officers with respect to their acts during combat. Following the events in Jenin in early April there was no support for the establishment of a domestic commission of inquiry to examine what had happened there. It was far easier for domestic human rights NGOs to demand inquiries before the threat of international criminal

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liability existed. So, we would encounter defensive practices and less domestic willingness to get really into the details of what has transpired. The second development which could be positive or negative is a shift in the policy of the Israel Supreme Court sitting as High Court of Justice. The Supreme Court has during the last 35 years heard petitions against the acts of the Israeli Defense Forces in the occupied territories. From time to time the Court resorted to the argument that specific questions - like, for example, the legality of Jewish settlements, or the "targeted killings" - were not justiciable. Very recently, in the last couple of weeks, there were several cases in which the court actually said, "WeIl, despite our earlier hesitation, we want to hear those cases. Please argue this, provide us with briefs about the illegality under internationallaw of this or that policy!" implicitly suggesting that, by its intervention, the court could offer a shield to the military from international criminal responsibility if the court finds that under international law the practice in question was not illegal. This effort could lead to a more intrusive and comprehensive inspection of what the army is doing. But at the same time this policy could also lead to justification of practices that are quite questionable from the internationallaw perspective. I certainly hope for the first outcome, but there is also a possibility of the other negative consequence of this international criminalliability. Gearg Nalte: I want to comment on Jan Klabbers' sophisticated and thorough presentation. At the beginning I was uncomfortable with his description of an impoverished legal world view, one which I identified as my own. After further consideration, however, my convictions hardened and I feel that I need to acknowledge and defend my own conceptions of an impoverished legal world view. I think that Jan Klabbers' critique of international criminal law is not specific to international criminallaw but an - ultimately unconvincing - general critique of criminallaw. The connection between the individual and the group exists in domestic contexts as weIl. It is, however, precisely the isolation of the individual from the group that has been brought about by civilization and progress in national criminallaw. In the national context, it also reflects badly upon many groups if one member is convicted of a crime. In this sense there is nothing novel about the ICC project. Indeed, everybody admits that, in a broader political sense, it would reflect badly on the United States if a U.S. soldier were to be convicted of war crimes by an international criminal tribunal. My question is: Why should that be important? To isolate the individual from the group is precisely the aim of the law and the pur-

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pose of the distinction between law and politics. Therefore it is precisely the point of the law to be somewhat impoverished and not to take account of every conceivable "reality" and "context." I think that we should not be seduced by Jan Klabbers' argument that everything is very complex. Take his proposition that the pacta tertiis rule should protect not only States but also their people. Well, the response to that is simple: If an American commits a crime in Germany, then he or she is normally liable to German crirninal jurisdiction no matter how badly this reflects on the United States. This fact is not changed to the detriment of either the Uni ted States or its citizen if Germany concludes a treaty with a third State about the common exerci se of their crirninal jurisdiction. The delegation issue is not a serious problem. I am not terrified by the prospect of what would happen if Iraq and North Korea created an international crirninal court between themselves. Why should they not do so? Why should they not call their common court an international crirninal court and why should they not exercise their respective territorial crirninal jurisdiction together? From a legal point of view they have the right to do so. Their court would not, however, have the same legitimacy as the ICC and this is why these countries will probably not create a common crirninal court. This brings us to the argument which Professor Morrison has raised. Is the ICC an attempt to change the "constitution" of the international community of States? Of course, it is not! It is merely the international balance of power which is being changed by way of institutionalization, by pooling the powers of a large number of weaker States. The Security Council still possesses every right to stop the ICC from taking adecision. It is perhaps unfortunate for the United States that it does not possess more legal powers than the veto power in the Security Council. This is, however, only a reflection of the basic rules of the game as they have always existed. Professor Morrison's perspective may be influenced by the historically more or less accidental developments of the nineties, that is by the fact that it was the Security Council which created the first international criminal courts (after Nuremberg and Tokyo). From this point ofview, those States which now advocate an alternative mode can be perceived as upstarts. The basic rule of international law, however, is that States may conclude treaties and pool their legal powers and resources with other States. The Security Council can only intervene under exceptional circumstances if it should determine that the development poses a threat to the peace. This is the constitutionallaw of the international community and the ICC would not bring about any changes in that respect. The ICC project only changes the balance of power, and more specifically, the balance of moral power.

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This may be the United States' true concern. After all, it is accustomed to occupying the moral high ground.

Rudolf Bemhardt:

At first I would also like to thank the speakers of this morning. I would like to add some more general remarks. Treaty law, customary law and general principles of law playa role in this area, and one source cannot entirely be separated from the other ones. First the treaty: It is c1ear that to a great extent a treaty was and is necessary, the creation of the court, the main rules of the procedure and other basic elements must be contained in the treaty. The first step is also the interpretation of the treaty, taking into ac count its object and purpose. As far as third States not parties to the treaty are concerned, it is in my view entirely c1ear that the rule pacta tertii nec prosunt nec nocent is applicable here. Therefore, the United States is not obliged to cooperate with the Court. This seems to me to be obvious. But it is a different question whether - and this has also been said several times - States which are parties to the Statute cannot only punish offenders themselves, but can de1egate the possibility to punish. 11' s not only the question of universal jurisdiction of States, but also the question whether States which are victims of some violation delegate the possibility to prosecute. And here customary law can provide supplementary rules for the application of the treaty. In my view, customary internationallaw can also be deduced from the internal practice of States, the relevant laws, the practice of national courts, etc. But I would like to stress that we must take even more into account the general principles of law in this area. Many States now seem to accept in their legal orders the principles contained in the Statute of the Tribunal. In sum, the great majority of States is prepared to open a new chapter in the area of international criminal law, and I don't see anything in the Statute which is incompatible with existing rules of internationallaw.

Horst Fischer:

As my colleagues around the table, I am also grateful to the speakers of this morning. I think all presentations were stimulating and challenging. Nevertheless, many questions were left open by Wolff von Heinegg's and by Jan Klabbers' lectures, both in their reasoning and their conc1usions. I will raise some of these questions. But before I come to Wolff von Heinegg and Jan Klabbers, let me just make aremark on Mr. Kaul' s presentation. He said that the project, meaning the

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ICC, now is irreversible. My question is: Shouldn't we also consider the other alternative that the ICC will become useless? I will try to give two examples to support my conc1usions. If we assume for aminute that a major war between India and Pakistan breaks out and both sides use nuc1ear weapons against the civilian population, such as the inhabitants of a city; and that the Ice would be in existence but will take no action, and at the same time the Security Council of the United Nations cannot agree on actions. How would the States and the citizens appraise the ICC? Probably the impression would be a rather negative one. If, on the other hand, the Security Council is active, can agree on measures, and creates a new special tribunal, what would then be the effect on the ICC? Probably the result will be exactly the same. The other scenario, which would raise questions as to the uselessness of the ICC is related to the trying of terrorists and war criminals by the U.S. courts. If they do it in a satisfactory fashion - I mean satisfactory from the perspective of the international community - the question immediately will be: Why and for what do we need the ICC? If, on the other hand, the United States courts try and prosecute such persons, they were to deliver judgements containing serious deviations from valid interpretations of international law and from the wording in the statutes - Prof. Benvenisti made a very good point On targeted killings in this regard then we would need to identify the impact on the definition and the interpretation of the ICC Statute. These are two options, two scenarios which need to be taken into account when answering the question, what should we do next in regard to the ICe. Mr. Kaul, it would be very useful if you could refer in your response to the obvious difficulties we are facing with respect to the present U.S. policy. Now, with regard to Wolff von Heinegg, I would like to stress the points already made by Claus Kreß and others concerning the theory of customary law and what elements in the process of identifying customary law rules should be taken into account. Therefore, I focus my remarks on the question of whether there have been customary rules in the field of international humanitarian law and international criminallaw developed since 1991. Prof. von Heinegg, I would like to get some more information on how you really justify the results presented, because in your presentation you completely left out the Statute of the Rwanda Tribunal which had been established for a situation of a non-international armed conflict and which, of course, refers to the Geneva Conventions' common Art. 3. This tribunal has been established in 1994, it must therefore be taken into account in an analysis of the type suggested. In your ans wer please also refer to the accel-

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erating speed of creating tribunals since 1993 and how this influences your interpretation. My second point refers to the question of whether there have already been crimes accepted as customary-based crimes regarding non-international armed conflicts. You have been referring to chemical weapons, but you did not mention biological weapons. Why was the criminalization of the use of biological weapons not on your list as already existing crime for non-international armed conflicts? A final but also important point from a theoretical perspective: I would like to raise the issue of whether your rather restrictive approach can be maintained in the light of the recent developments after September 11. If you apply your approach to the reaction of States, it would probably be quite difficult to justify on legal grounds the use of military force to counter terrorism and to prevent further attacks by patrolling e.g. the high sea areas. Despite the existent Security Council Resolutions, States took a dynamic approach to the justification of their actions and their interpretation of existing law. The ambiguities about the definitions of terrorism and military and police actions taken are a good example for that. When we look at the definitions of crimes and of non-international armed conflict, a more positive result could be reached, bearing in mind the recent State activities and their justifications. With regard to the third presentation of this morning dealing with the positivist conception and the individualist conception and presented so eloquently by Jan Klabbers I would like to offer a comment concerning one specific line of reasoning. When I first listened to J an Klabbers' conception it sounded very convincing, but then I developed some doubts comparing your theoretical analysis with the examples given to support the concept. When you referred to the individualist conception and famous criminals, you mentioned the Eichmann and Barbie cases in the context of war crimes. They cannot function as useful examples as the focus of both. The Eichmann and Barbie cases were on crimes against humanity and genocide and not isolated war crimes. If you want to give more weight to your argument, you need to refer to other war crimes cases where war crimes which were committed against prisoners of war or against the civilian population were central to the judgement. My second point still on the same issue relates to Japanese war crimes. Let me just mention before I deal with your re marks that the Milosevic cases before the ICTY are the only cases with a genocide charge before the ICTY with a probability of success. When referring to the Japanese war crimes cases you said "guilt was assumed rather than proven." That is a very strong and also misleading

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statement. Some have taken that line with respect to the Tokyo trial but even Japanese colleagues have judged the result ofthat trial differently. This statement cannot be justified regarding the so-called Band C trials, and let me just mention that there were more than two thousand cases with five thousand seven hundred prosecuted in these trials. These were mainly trials before allied courts and other national courts outside Japan. Also the Yamashita case in that regard is not really helpful. The Yamashita case reflects a specific post u.S.-World War 11 perspective of command responsibility. The judgement is neither based on the specificities of Japanese war crimes nor does it prove a general understanding of alljudges and prosecutors involved in war crimes cases how to prove guilt. Obviously - and you quite rightly referred to the ICC Statute - today we have indeed a different understanding of command responsibility. Your rigidity in judging the past is also expressed in your statement - if I remember correctly - "there are no definitions." If you look at typical war crimes, e. g. some of those listed in Article 3 of the ICTY Statute and you compare the relevant paragraphs with those of the ICC statute, would you really be able still to claim that there are no definitions of such crimes? Even taking into account the criteria for accepted penallaw ruIes under the different national penallaws I find your reasoning unpersuasive. Michael Bothe:

I also agree with all those who said that it has been an inspiring and challenging moming. Listening to Wolff von Heinegg' s paper, I feIt that an old cherished illusion of mine has been laid to rest, and that is that intemationallaw has something to do with the problems of today. Is intemationallaw what the devil says in "Paust" when he speaks about law? I'll quote it in German and try to translate it into English: Das ganz Gemeine ist's, das ewig Gestrige, das heute gilt, weil's gestern hat gegolten. Vom Rechte, das mit uns geboren ist, von dem ist leider nie die Rede. (It is the mean, eternally yesterday, valid today, because it's been before. The law which is born with us is buried under silence.)

I think, customary law is not something static. This has been said before in the discussion, and it has to be emphasized. Customary law is constantly changing. There is a dynamic process of development of customary law. Customary law today is not necessarily what it was yesterday. If that is true, and I think it is true, we have to live with uncertainty because it is very difficult to pinpoint the law as it is at a particular moment in time.

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That brings me to what I consider to be a misjudgement concerning the Tadic judgement. The judgement is not a scientific treatise on a question of customary law. There is a big difference between the written motivation given by the judges for their judgement, on the one hand, and a detached scientific analysis of an academic researcher, on the other. Prof. Byers already described this process of what happens in the deliberations of a court. There is a big difference between the actual input which goes into the deliberation and the written reasoning afterwards given by the court. The latter is always selective. Courts have always been selective, and they will continue to be selective, in their quotes. It is hard to get hold of the rules governing this practice. Take as an example the judgement of the German Federal Constitutional Court concerning the use of German Armed Forces abroad. It quotes the writings of the advocates of the defendant and those of the advocates of the plaintiff by turns, which shows the balanced approach of the Court, paying equal respect to the representatives of the parties appearing before the Court. To sum up: The courts have functions different from those of scientific analysis. This is the fundamental point which - I think - got lost when you treated the Tadic judgement like a doctoral thesis. The Tadic judgement forms, indeed, part of this dynamic process of the development of internationallaw. It formulated a rule at a certain point in time. Then it was interesting to note the reaction of other actors. The judgement turned out to be a kind of band wagon on which the States hurried to jump. Some years ago, in a colloquium held here in Kiel, we already discussed the development of customary law, in particular through resolutions of the General Assembly. One participant said, on that occasion, that States cannot be cheated into customary law. That may be true, but if you look at what sometimes happens, it is fair to say that States stumble into customary law. Of course, that fact does not relieve us of the responsibility to closely look at what States really do. What we have is case law. Case law is very important, but it does not necessarily have the last word. The acceptance of case law in the international community varies. Take the example of the Tadic judgement! I think it has become accepted case law. Take the Nicaraguajudgement of the ICI! We are right now witnessing a situation where the definition of aggression which might trigger the right of selfdefense in relation to private non-State transborder violence, as contained in this judgement, is challenged. Some argue that the intervention in Afghanistan cannot be justified on the basis of the Nicaragua standards. If that is true, the next question is: Will this case law hold? I think it is too early to tell.

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Taking all this into account, what is the situation of individual responsibility, of criminal responsibility under internationallaw? Nuremberg, it is said, set a precedent. The somewhat curious fact about Nuremberg is that it is a precedent which was left in abeyance for a couple of decades. For a while one couldn't really know whether it was a precedent or just a singular event. It took until the 90s that this precedent was taken up and really became the basis for the development of new law. It is stilllegitimate to ask how far this development has gone and whether it is a positive development. U.S. says no, China says no, others say yes. My visceral reaction is that, if the United States and China agree, something must be wrong. But that may be wrong. What is the useful purpose of international criminal law? I think it is about time to seriously ask that question because a lot of the development just took place by doing what comes naturally. I agree very much with Prof. Klabbers, who said that deterrence is not the point. This is true for criminallaw in general. But it is even more true for crimes against humanity and war crimes. The normal war criminal or the "normal" genocides we can, alas, observe is part of a system. The law prohibiting such conduct is a signal which comes from outside the system and is just not received. It has no deterrent effect whatsoever. Nevertheless, the deterrence theory obviously reappears from time to time in Sunday speeches of politicians and diplomats. In my view the decisive points are two: one has to do with the relationship between perpetrator and victim. Compensation is at issue, justice must be done to the victims. This is hotly debated under the heading of "impunity." I think this is important. The other point is - and that has to be distinguished from deterrence - that international criminal justice serves for the clarification of the law and, thus, contributes to the intern alization of the law, to the formation of a legal culture. This aspect, too, is important. For that purpose, would it be better to deal with international criminal justice on a case-by-case-basis, as it was advocated? I really do not think so. The fact which distinguishes the ICC from the ad hoc Tribunals is just that it is a means to avoid selectivity. The establishment of these tribunals were the result of a selective political process, and this political process in the Security Council is bound to be selective, whether you call it a "CNN-effect" or whatever. For good or bad reasons, that process is selective. But if there is a selective process in the application of the law, an equal protection problem arises. Thus, what the ICC could do and should do, is to place the useful function of a criminal court to define criminal behavior in relation to the crimes of the State on a more just, on a more equal basis. That - I think - is indeed a very useful purpose, and it should be promoted.

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Hans-Peter Kaul:

There was only one comment which was directly addressed to me. Prof. Fischer has contrasted my statement, that the ICC is now irreversible, with the notion of uselessness, of potential uselessness of the ICe. And he has developed a potential case of obvious uselessness, a nuclear conflict maybe between India and Pakistan or some other scenarios, hypothetical scenarios to which it is always hard to respond. Nevertheless, I will try to respond. The first one is that I want to clarify my statement about the irreversibility of the ICe. What this means basically is very, very, simple. What Iwanted to convey to this audience is that we now have a 99 % prob ability and likelihood that in 12 t014 months you will sit at horne and watch television, and you will see Kofi Annan inaugurating the Court with 18 judges and a prosecutor, and the Court will come into existence and this despite all the opposition which will emanate from the U.S. and which will continue to emanate from the U.S. On the other hand, what I did not imply in this remark was that it is irreversible that the Court will indeed work successfully. You cannot make any prognosis like this. There are limitations to it, there are limitations with regard to the number of State Parties, the jurisdiction system is very weak, the complementarity system is, as I have written before, probably too strong. There is, maybe, a lack of cooperation even from States Parties in given situations. In general, there are a number of imponderabilities which you cannot foresee. But with regard to the ad hoc Tribunals and the question whether there will be further ad hoc tribunals, so to speak, dirninishing the ICC, I would like to make a prognosis. The time of the ad hoc Tribunals is over. It is definitively over. On what do I base this prognosis? On 11 April, when I was in New York, when we had the ratification event, there was the statement by the delegate from Russia. Russia has signed and is considering ratification, and he said loud and clear that "today the 66 ratifications mean the end of the practice of Security Council to establish further ad hoc tribunals." This was a statement which maybe was not remarked by everyone and was not reported in the press. But for those who were there it had certainly an impact, and I think that also the other permanent members, for example, France and Great Britain, will be very reluctant to open up or to go along with further ad hoc tribunals, and by the way, the same applies with regard to China. So, this is the situation in which we are. I would like to conclude with one thought which came again to my rnind and I have made this argument before. We are all aware that, so to speak, the U.S. arguments are largely based only on apprehensions, on fears, on assumed risks

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that the institution will create for the international order. But, really, is this the proper way for such a powerful State as the U.S. to argue against a new world court by basing your own analysis constantly only on risks, fears, and worst case scenarios? I don't think so and I think that the 67 States Parties and more to come will continue their work for the speedy establishment of the Court. Wolff Heintschel von Heinegg: I am glad to hear that Tadic 1995 may be disputed after all. I will come back to the question of what a judgement should be in contrast to a legal dissertation. Yes, maybe internationallawyers should not be too patient either, you are right. But if we are looking at what has happened in the last ten years, quite dramatic things have happened, but nobody has convinced me yet that what the International Court of Justice has said not only in the North Sea Continental Shelf cases - it reiterated these principles, for example, in the Nicaragua case in 1986, and in other cases too - is irrelevant or has become irrelevant with regard to the creation of customary international law. The fact that there has been no considerable protest against what the Security Council has maintained to be customary and what others have doubted to be customary law in character is not convincing either, because it is not always important and there is no duty to protest if somebody claims customary law to be x, y or z. If certain institutions or bodies like the General Assembly claim something to be customary internationallaw, for ex ampIe, there is no need for States to immediately react by protesting against that statement, for the mere reason that General Assembly resolutions have no binding force at all. And the same would also apply even with regard to binding resolutions of the Security Council because they are binding only in so far as the Security Council is acting within its competence. So, you, Dr. Kreß, and I think you too, Mr. Benvenisti, said there is no relevance of discussing whether there is already existing customary law or not. Well, I don't think that this discussion is futile, for the following reason: I would agree with you very much that customary internationallaw is never static, it' s always in astate of development. But the mere fact that something might in some near future be customary law should not satisfy us - it should especially not satisfy us - and make us shut OUf eyes, and say, well, then we are not going to talk about customary law any more because we all believe that in some near future something will be customary law. That is an approach I would not subscribe to, because it is our duty as internationallawyers, as well as that of international courts, if they are acting upon the assumption that something is customary in character, to

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prove that it is customary law after all. And if we cannot prove that, we have to find some other arguments that something is law. Whether case law, Mr. Vogel, is the solution, I have my doubts. Your argument is that case law can be a source and thus you conclude by saying: Case law can only be made by courts, accordingly courts are contributing to the emergence of new rules of intemationallaw. Well, if you show me the consensus among the main subjects of intemationallaw, that they agree that the decisions of courts go beyond their inter partes effects, then I would be able and willing to agree anytime. But the mere fact that a criminal court will convict somebody for certain war crimes or whatever he or she is accused of, is for me not yet a substitute for what is understood by the objective elements of practice of States. Michael Byers has said we have to look at customary intemationallaw from different angles, so something might prove customary law according to certain methods in the field of border disputes and it may be very different in the case of humanitarian or human rights issues. What has struck me most was that you were hinting to some kind of general conviction of what should be law or what should be justice or what should be just. You were referring to the common people in the street. That is something that really makes my stomach aching, because if you are asking the common people in the street of what should be done with Mr. Milosevic or somebody else who may be in the newspapers right now, well I don't know whether you would be very happy with that what they would say. So, the question of course is: Is there really a need? And that is something you should consider. Is there areal need to refer to the people in the street? I think we have some things in public intemationallaw understood in the traditional sense that we haven't been talking about today. Mr. Bemhardt, you were referring to the interplay, the interlude of the different sources, and you were especially referring to the general principles of law. But I would even go beyond that. Because with regard to the general principles of law one may also take a very restrictive position and say, if you're claiming general principles of law, you also have to prove their existence, so you have to look into 193 national legal orders in order to find out if there exists such a principle. That could be an approach to general principles of law, but there is something else which we should think about: there are the general principles of intemationallaw, which are very different from the general principles of law as laid down in Art. 38 para.1 lit. c. And if we are looking at these general principles, then - to my mind at least - we immediately come to the Martens Clause. That was already generally accepted by the contracting parties in 1907, it was beyond any doubt accepted also in 1977, when the first Additional Protocol was elaborated by the diplomatic

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conference. And if you look at the contents of the Martens Clause, you will be able, maybe, to even find a legal judgement on the premise that States are obviously convinced that international law does provide - even though in a general way or sense - certain rules or principles that would apply to a certain conduct, even if that is a conduct not of States as the traditional subjects of international law, but of human beings, because that is what humanitarian law is all about. It is primarily designed to regulate the conduct of human beings and not so much of States, especially in 1907 with the Hague Regulations which were fonnulated in a way enabling the contracting parties to transfer them immediately into national law. That brings me to you, Mr. Bothe, with regard to the Tadic case. WeIl, you may be right that in an international court the judges do not care too much about really proving the existence of a rule of law, they can satisfy themselves with certain examples for reasons of convenience, maybe for reasons of a common conviction among the judges. But if a court, an ad hoc tribunal that is dealing with its first important case, and that was the Tadic case, if this court claims to identify in ten or twenty pages the existence of certain customary principles, then, I think, I am entitled to ask that court to do it properly. And if the court claims that it is proving the existence of customary law, I cannot satisfy mys elf by saying: "WeIl, that is only an example and it, so to say, stands for many other examples or practices not being referred to before." I think the Court and the Appeals Chamber should have done a better job, and by the way, probably, for the Tribunal it wasn't even necessary to go that far. But obviously the Tribunal, especially some of its prominent judges, were eager to develop the law at a time when there was no necessity of doing it. But even that is something that would prove what I have said before, that maybe according to some of the judges it was necessary to do something, and the States were obviously not yet willing to do it. So, the judges did it. But anyhow, that is not customary law. Horst Fischer, I did mention biological weapons. Astonishingly enough the Appeals Chamber in the Tadic case restricted itself to chemical weapons and did not refer to biological weapons. And in my summary I said I would agree that the prohibition of certain methods of war would also apply to biological weapons. So, I would agree with you in that. With regard to the Rwanda Tribunal I also referred to it, but I have to admit I didn't give much room to it, but with regard to both Tribunals I said, and I reemphasize it now, these are ad hoc Tribunals established on the basis of Chapter VII. And this is something very, very different from, for example, the ICe. If the Security Council establishes a criminal tribunal by referring to Chapter VII, that is something which aims obviously at the mainte-

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nance of international peace and security, and it has a very different legal basis in comparison to the ICC, for example. I believed I could be a little bit shorter about that what regards the development since September 11 of last year on the doctrine of customary internationallaw, I don't know whether this event and all those events following that day, dramatic as they were, should make me reconsider the theory of customary international law. You said: "We have Security Council decisions" - as simple as that. They may be very far-reaching and we discussed that at noon, when we were having our lunch, whether the Security Council did not go too far, for example by Resolution 1373. But what I said about the status of the Security Council in the lawmaking process, I think I was quite clear on that. I would deny the Security Council the power to establish new rules of international law, be they customary or anything else in character. That is nothing we find within the competences of the Security Council. So, let me come to the end of my first answers. I would tend to follow the same approach you suggested, Mr. Bernhardt, by not looking at customary internationallaw as such, not looking at treaty law as such, but trying to find out what States considered to be necessarily the contents of internationallaw. But then indeed we are in a situation where we cannot clearly say something is or has already become internationallaw. Maybe we as internationallawyers often are in a situation that we must say the law may be in a process of developing into customary law, it may be not, it may stop and the whole process may reverse. So, we may be in a situation where we have a non liquet situation, perhaps. It's quite possible. But this does not enable me to say that what I cannot really identify as customary internationallaw is already customary internationallaw.

fan Klabbers: The reference to the Martens Clause also includes a reference to the dictates of public opinion. In that case Michael may still have a point when he refers to the man in the street. I will make five points, briefly, four of which relate to the points made in response to what I have said earlier, while the last one relates to something Wolff said in the beginning, very much in the beginning this morning. The point Horst Fischer made is well accepted. There is always room for sharpening the argument and for thinking of better examples, and he is the expert in the area, I am not.

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Point number two: contrary to what Prof. Vogel seems to suggest, I do not argue that deterrence would be the main point of the lee, far from it. As Prof. Bothe has pointed out, my point is precisely the opposite: the deterrence argument will not work. There were other arguments made in favor of international criminal law, in favor of the lee. One of them holds that international criminal tribunals would strengthen the norms and c1arify the precepts of internationallaw. I have a bit of a problem with that. Surely, we don't need a court to remind us that genocide is a bad thing. I would think that knowledge so inherent in us that we have no problems with that. Third point: Prof. Vogel accuses me of post-modernism. I thought that was a bit of a cheap shot, really, although probably not undeserved. I am going to accuse hirn of post-modernism in its own right, for saying that the lee Statute is crystal c1ear because it c1early lists the offences, but just doesn't list possible defenses. Somebody else was saying that in the end, it would be merely a problem of definition. It would seem to me, however, that, by being c1ear on the offences, only half of it is c1ear. So, to argue that c1arity as far as offences go means that I should no longer think of genocide as undefinable strikes me as a bit bizarre. Or perhaps it is post-modem in its own right. A main point that I tried to make is that in matters relating to the lee jurisdiction, be it crimes against humanity, war crimes or genocide, there is a c10se and inextricable connection between the individual and the State. That means - and this is in response to Prof. N olte - that I was not at all making an argument against criminallaw in general, because most crimes, I guess, do not have that characteristic. The average murder, the average rapist, the average shoplifter: they do not act somehow in the employment of public authority. So, the domestic analogy has its limits. I would like to argue against the example which Prof. Nolte gave about the American in Germany before a court and being tried. Again, if that' s a drug smuggler or a common criminal the analogy would possibly apply, but if we're talking about a war criminal or a genocidaire, then we ought to recognize a linkage between the individual accused and his or her State. And then, I think, the V.S. has the point in saying that how we look at individuals will always reflect on the V.S. Finally then, W olff Heintschel spoke this morning extensively about customary law in relation to non-international armed conflicts which have non-State actors as part of the combatants or belligerents, whichever the current term iso Yet in order to establish those rules of customary law, the argument remained very traditional:

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looking at traditional customary law doctrine, looking at State practice. And that raises the awkward problem that you look at what States are doing in order to find rules to regulate the behavior of entities other than States. That is not a semantic thing, I think that' s a fundamental thing. If one thing is made dear by September 11, then it is that international law has a problem dealing with non-State actors, and it may simply not be good enough to leave it to States to handle that problem. It may very weIl be that in order for solutions to be legitimate, to be acceptable to actors other than States, that we would need to involve actors other than States somehow, in some way in the lawmaking process. That does not necessarily mean that Osama Bin Laden should become a member of the VN (laughter). Still, I do think that internationallaw is bursting at the seams, so to speak. I do think that the influence and importance of non-State actors is becoming increasingly visible, and that we somehow need to come to terms with that, not just when it comes to normcreation, but also when it comes to formulating rules of responsibility. What is the authority of a bunch of States in the end to tell non-State actors how to live, how to organize their relations? I think that's a question not of law, strictly speaking, but needs to involve political philosophy: But it's a question that we somehow have to ans wer.

Eibe Riedel: This morning we have had truly challenging, inspiring and very witty introductions to the complex issue raised by the speakers, and in particular by lan Klabbers. I really enjoyed that I am going to address two questions or comments to each of the two speakers, but I will also look at what Mr. Kaul has said, particularly in answer to some of the questions this afternoon. So, my first point is addressed to you, Mr. Morrison, because I do think it was the shortest and most succinct expose of the V.S. position that I have come across and, of course, we are used to that at the Kiel Symposia from you. I heard it in the coffee break, and I had hoped that this was just a resume of the American position, but in fact it is your own, if I understood you correctly, and I will make a few comments on that. The sovereignty incursion argument that you made, for instance the example of relying on a domestic statute and later finding that one is being criminalized at internationallaw, or the fairness argument of the Tribunal: Are that really serious arguments against the ICC which accommodates those apparent dichotomies? After all, States Parties have the option of out dedere, out iudicare, so the American stance is really without a real basis on this ground.

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My own remarks support the position taken by the European presidency saying that the United States should look at the options offered by the ICC Statute carefully, before coming to very sweeping political judgements about the usefulness of such an institution. In my opinion the sovereignty incursion argument which lies at the root of this debate, and also how it possibly affects the balance of power of the Security Council, lies at the heart of the problem. And I should like to support what Mr. Bernhardt said when he spoke about the sources arguments. The sovereignty incursion argument was at the forefront of most of the States when they set up the European Convention on Human Rights. There was precisely the same kind of suspicion that the traditional notion of a sovereign State might be undermined by a couple of wise men, or not so wise men, coming from States which are far less democratic and far less "human rightsy" than themselves. And yet the practice of the Strasbourg system dispelled such initial fears. Similarly, I do not think that the potential dangers emanating from the ICC will produce a situation calling for unilateral responses, or even adoption of national laws in violation of existing internationallaw. What we are discussing in terms of the ICC also applies to international environmentallaw, and the topic here would gain probably quite a bit if we do not just talk about the ICC, but also about international environmentallaw, about international human rights law and the role how internationallaw changes by many different modes, not just by what States actually do. Of course, States are still the most important actors in international law. Nobody denies that. But apart from States, as some of the speakers have said, non-State actors, the internationallaw representatives of States acting in international commissions, and other international bodies are all relevant actors at the international level, and the presumption that this has anything to do with unfairness or the allusion that there might be unfairly pressed statements, surely, there are many existing mechanisms and modalities to prevent such things from happening. We do have cases in national courts when higher court judges suddenly go to the press, but then they are called back by a process of restraints. So, I do not really believe that these are really very strong points. But I will admit that the United States is very much aware that this might change the balance of power in international organization. And the U.S. is more used to that than many others and they are very honest about it. And for that clarity of position, at least, they can be admired to a certain extent, though I do not share the conclusions you draw from that. And now I come to two points Mr. Klabbers raised. The first one is the beautiful dichotomy that he proposed between the punishment of atrocity on the one hand and the presumption of innocence on the other and all what we have heard

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about nullum crimen, nulla poena sine lege. He said that the ICC, and I noted this, is not something that criminallawyers might get very excited about. Listening to Mr. Vogel I think he is right. They do not get very excited about it, but excited enough to realize that it is not an aporia. It is a contradiction that can be resolved. How? Maybe not theoretically or philosophically, that is true, but in practice. What we have not talked about this afternoon and this morning is the effect and the roIe of national implementation and the domestic level in developing international law. I really think of the promotional and educative effect of the ICC Statute in influencing the national developments like the statute that the German Parliament just adopted, listing international crimes at the national level. That is a very interesting statute. A critical note on that point: if all States did that we might get into trouble because then the double criminality rule might be affected. It might give countries like the United States the idea: let's join, let's adopt anational domestic statute embodying the internationallaw criminal rules, and thereby making quite sure that the double criminality rule will always prevent an exception to that. Maybe criminallawyers know about that. But in my opinion the promotional and educative effect of the ICC Statute should not be underrated. You then mentioned almost as an aside the alternative of truth and reconciliation commissions instead of the justiciability argument that we have been concentrating on this morning. In my opinion, the truth or reconciliation commission really is an excellent opportunity and a real alternative when one is dealing with just an internal conflict. But whether and to what extent there is a dichotomy between truth and reconciliation commissions and an international court solution is open to debate. On the general level I have some doubts and I would like to know from the main speakers how they feel about it, whether that dichotomy can be solved or whether it is unsolvable and whether we all should have gone for the South African model. In my opinion, we should not have done so. Mr. Heintschel von Heinegg, concerning your arguments about ad hoc tribunals, the ICTY and ICTR - and I might add the Lockerbie follow-up case - I liked your expression that they are merely trustees of the Security Council. But on reflection I beg to differ. Why? Because trustees hip situation means that you are taking on a common good, a "PIN," a public interest norm of the community as a whole, for which you are trustee and take decisions in lieu of that State. So, I have my doubts if that picture is really correct. As for the hypothetical cases: I think that is the strongest point Mr. Kaul could make, in that it extends the tradition al function of internationallaw. The ICC solution is the strongest possible solution. As regards the atrocity argument, that there might be an end to it once the Court

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functions, I am not so sure. It depends on the future action of the Security Council, but it will be much harder to get consensus for setting up a new ad hoc tribunal, now that the ICC has come into being. But I have no difficulties with that. I think that is also a viable solution opening up alternatives. If we did not have that alternative and if we were prevented from dealing with gross atrocities, then, I think, it would be a valid argument. But the ICC offers answers to all that. And now Mr. Heintschel von Heinegg, the last query that I have, is: I did not understand your argument about opinio juris sive necessitatis in the two components of opinio juris and the consuetudo element. I usually teach to my students that opinio juris sive necessitatis really amounts to dealing with three elements of customary internationallaw: (1) custom, actual practice (consuetudo), (2) opinio juris and (3) the consensus ad idem. And I think what we really should address is whether there is a consensus ad idem, i.e. that this particular practice by States and this particular legal opinion that flows from it and which might also be generated as a structure principle in internationallaw, whether this is sufficient to call it a rule of customary internationallaw. After all, there is a lot of agreement in the literature that no customary rule on asylum or on extradition exists because there, despite identical opinio juris and much consuetudo, that consensus ad idem is missing. Although we have lots of practice that States do grant asylum and extradition, and there are lots of legal opinion about it, we do not have an established rule of internationallaw there, because States regard these issues as belonging to the domaine reserve. So, from that point of view I think the definition of customary rules that you have given is a bit too narrow and other speakers after me, no doubt, will give more examples of that. I really think that the general principles, which were brought in by Mr. Bernhardt, and the other sources of Article 38 of the ICI Statute and their relative importance, and also the subsidiary sources in Article 38 (1) (d) ICI Statute make it clear that the Martens Clause and general principles in conjunction with no binding treaty obligations can yet create very substantial sources, in the sense of interpretive aids, to establish what the precise content iso The actual cases will be very important in this respect. So, we do need the general principles of internationallaw. And these are generated solely at the international level and represent the seven pillars of Article 2 of the Charter, for example, in particular Article 2 (6) addressing non-member States. This is really very important when we talk about custom under traditional internationallaw. When I listened to you, Mr. Heintschel von Heinegg, I feIt that you were actually stating the law as it stood before World War I, and in the inter-war years, i.e. between 1900 and 1945; this was an exact summary of what customary inter-

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nationallaw relating to wars amounted to. But the newer sources since World War 11, particularly under the aegis of the United Nations, changed customary law considerably. But I think this is probably just amisapprehension of our respective views, and so I think we are not really that far apart. The newer sources of international law that we have developed since W orld War 11 take into account such phenomena as a great deal of new actors, a great deal of new and complex norms, and a great deal of variant degrees of binding, covariant and interacting norms. Sorry, I was a little bit long, but I really feIt that we should bear in mind that the sources discussion is really at the core of the whole debate we are leading, and the United States playa key role in that process. But anything that goes in the direction of law as fact, and taking the facts of what States actually do as a primary source of how internationallaw is created, to me is, quite frankly, an outdated and even dangerous concept. Thilo Marauhn: Our discussions invite a few critical remarks on the relationship between theory and doctrinal analysis on the one hand and the "real" problems of international criminallaw on the other. In order to properly assess the consequences of our debate we have to bear in mind the meaning and purpose of theory and doctrinal analysis. Listening to the presentations this morning leaves me with a degree of ambivalence. On the one hand I am fascinated by the stimulating intellectual exercise, on the other I am worried that we lose sight of what is actually at issue here. We may take up more or less extreme doctrinal positions just for the sake of academic discourse, but we should not forget that we are dealing with an issue of utmost sensitivity. As Hans-Peter Kaul has explained to us, we are facing serious problems as far as the implementation of the Rome Statute is concerned - and only very few of these problems are of purely academic character. What does this mean for our discussions? I think we have to carefully reconsider the role of lawyers and the contribution of the scientific community to the development of international relations. Basically we may have two different roles to play: a purely academic one focusing on our perception of public internationallaw and the consequences arising or a more or less practical one striving to be creative in finding solutions to the problems faced by the international community. Both roles are undoubtedly interrelated. However, I am afraid that we have concentrated too much on the academic one this morning - and in doing so we may have missed the point. In calling for a more practical perspective I am not pleading for a purely descriptive and pragmatic approach. However, we should

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move beyond our academic dispute and focus on the application and implementation of the law. Let me first address our discussion of the nature and scope of customary internationallaw. There were certain presumptions put forward in respect of the criteria applied in order to prove the existence of a rule of customary international law which suggest a degree of agreement which in fact does not exist. Academia and State practice seem to agree that there has to be consistent State practice, related opinio juris and consensus ad idem. But what actually does State practice mean? And what is the precise meaning of opinio juris? Should we refrain from arguing in favor of a rule of customary international law as long as we are not sure? Do we need proof beyond doubt? Or do we need a plausible argument? Can we precisely assess whether or not a particular rule of customary internationallaw is in existence? What is the degree of agreement required - 60 %, 75 % or 90 % probability? Since there is no agreement on methodology, 1 think there is no chance to be sure that a certain rule of customary international law is in place. There are only more or less good arguments but there is no definite proof of a rule of customary internationallaw. This leads us to one of the problems discussed this morning, namely the relevance of silence and inactivity of States in respect of certain developments. It has to be stressed that silence and inactivity is part of State practice and can evidence norms of customary law. If we look at the Tadic case, it is true that the judgement is debatable as far as the theoretical construction is concerned. However, not only has the Tribunal been empowered by States to rule on pertinent cases but today - more than five years after the Trial Chamber' s judgement - we should also take into account that States have not seriously protested against the approach taken by the ICTY. Simply applying the inter partes rule when assessing the impact of the Tadic judgement on the formation (and perhaps even confirmation) of customary internationallaw would not meet the underlying motives of the Security Council when establishing the ICTY. The Tribunal decides individual cases, but in doing so it contributes to the development of customary internationallaw, in particular if States acquiesce in respect of certain rulings. May 1 add some criticism in respect of the approach towards positivism taken by the speakers? Wolff Heintschel von Heinegg has presented himself as a positivist in respect of customary internationallaw. However, in arguing in favor of a limitation of the powers of the Security Council he obviously has moved beyond a strict1y positivist approach on Charter interpretation. While - in principle - 1 agree that it is possible to develop certain legal limits in respect of Security Council powers, 1 don't think that it is easy to find a proper provision in the Charter as

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a basis for precise limitations. We need more than mere creativity to solidly identify such limitations. But, please, take this simply as an indication of what I perceive as a certain methodological inconsistency as far as the presentations are concerned. I would suggest that you cannot rely upon positivism alone, neither in respect of customary internationallaw nor in respect of treaty interpretation. This gives rise to abrief comment on Fred Morrison's intervention on the relationship between the Security Council and the ICe. I want to voice some skepticism in respect of the use of the "constitutionalization" metaphor in this context. Talking about the constitution of the international legal system - or more generally of the international (legal) order - is a fascinating exercise and gives rise to intellectually stimulating academic debates on the conceptual framework of public internationallaw. But what do we actually mean by "constitutionalization"? Is this merely a descriptive approach based on systems theory? Or do we actually believe that there is a normative meaning of "constitutionalization" with an impact on the substance of public internationallaw (without explicitly changing the law)? If that is the case, then we should know in advance what the substance and meaning of the constitution of the international legal system iso However, I think we can address the problems at hand in a much easier way because we have two multilateral treaties at issues here, namely the Charter of the United Nations and the ICC Statute. At issue is the relationship between the two treaties. This relationship is governed by rules of international law, inc1uding Art. 103 of the Charter. That's all what it is about. We don't have to rely upon some undefined constitution of the international legal order with a presumably higher degree of normativity to c1arify the interrelationship between the two instruments. In effect I would rather agree with Georg Nolte that the process of juridification and the changes we experience in international relations are not related to constitutional issues but to the balance of power. To conc1ude, let me add two brief remarks: The first one concerns respect for the principle offair trial in proceedings before the ICTY and the prospective ICe. Both institutions are bound to respect human rights standards - and if they don' t respect them then they will be in violation of customary or treaty obligations. There is no room for double standards - thus we don't have to worry about the approach taken by the ICTY or the ICC. Second, we should not overestimate the relevance of particular changes in international criminallaw. They are - as Eibe Riedel pointed out - part and parcel of a huge number of changes in international law in general. Most of these changes are pointing to the same direction, namely towards global governance based on the rule of law.

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Andreas Zimmermann: Yes that is indeed the interesting point, we have to look at: How is the development, the formation of customary internationallaw changing, to what extent is the number of subjects of internationallaw increasing. That is what I would say this symposium is all about, indeed (laughter).

Erika de Wet: I will keep this very brief. It is more a comment than a question and it relates to what Prof. Bernhardt has already mentioned about sources of law and general principles. I am not sure that I am as enthusiastic about the way in which the ICTY has used general principles in some of its recent decisions. I should perhaps first note that the ICJ, in particular, rarely resorts to Art. 38 (I) (c) of the ICJ Statute in an explicit fashion. This could be explained, inter alia, by the fact that is has not been necessary as treaties and/or custom have so far provided most of the answers. Instead, the general principles in terms of Art. 38 (I) (c) featured in a more subtle way. As Prof. Bernhardt explained, the judges instinctively rely on the basic legal principles of the systems in which they were trained, and to the extent that there is a common understanding about these principles, it ultimately influences the outcome. The ICTY, on the other hand, has taken a different course by explicitly resorting to general principles of law. This can partly be explained by the fact that national crirninallaw is much better developed than international crirninallaw, which is a relatively new subject with many gray areas. As a result, there may be a greater need to resort to domestic laws than in other, more developed areas of internationallaw. Unfortunately, however, the methodology applied by the ICTY is rather confusing and can leave one with a suspicion that the judges applied the general principles in a very result-oriented way. Instead of resorting to general principles in a systematic and coherent fashion, they just seem to touch upon it whenever it suits them and particularly when it supports a conclusion which they rnight have already decided to reach in advance. In the Furundzija case, for example, the ICTY deterrnined that the definition of rape as a crime against humanity resulted from the convergence ofthe major legal systems of the world. In doing so, the ICTY reduced the major legal systems to the common law and civillaw systems. In addition, it remained unclear if and to what extent the nationallegislation to which the ICTY resorted represented the majority of legal orders within these two major categories. In essence, the methodology applied remained vague and unconvincing and one could not help question-

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ing whether the judges had any clear concept regarding the application of general principles. In conclusion therefore, I am not opposed to the invocation of Art. 38 (I) (c), as it can serve as a fruitful source oflaw. This has to be done, however, in a way that is consistent and that presupposes a clear understanding of what constitutes the "major legal systems of the world." If this is not the case, it could result in retroactive criminalization which, in turn, could be severely detrimental to the rights of the accused. Since the rights of individuals are at stake during international criminal proceedings, there is every need for international criminal tribunals to be as sensitive to the rights of the accused, as international human rights tribunals have proved themselves to be.

Nils Geißler: I would like to refer to both, the development of customary internationallaw and the effect of international criminallaw on third States. It was in 1992 when Telford Taylor, the former chief prosecutor of the Nuremberg Tribunal, said that humanitarian law, the law of armed conflict had no firm mechanism of implementation. He made that statement with regard to the fact that Yugoslavia had indeed ratified the Geneva Conventions of 1949. But back then there was basically no way to effectively implement them and at the time his assessment was certainly true. However, ever since 1993, and this has been stated before, we can observe an abundance of developments in that respect if you consider the establishment of criminal courts at the international level, criminal investigations and proceedings at the national level or the so-called mixed tribunals such as in Sierra Leone or East Timor. And I am convinced that we cannot just stop with a methodological critique of the Tadic judgement of 1995 which in fact might be doubtful in some aspects. Wehave to take into account the fundamental legal developments in all these areas and especially the adoption of the Rome Statute of the International Criminal Court in 1998. But also at the national level there has been a number of cases of considerable importance and one of them to my surprise has not been cited so far: it is the Pinochet-case of 1998 and the respective decisions of the British House of Lords. There were other important cases such as the indictment of Hissene Habn! in Senegal and numerous other cases in various countries around the world, mainly in Europe, of course, but also in Mexico where international criminallaw has been implemented.

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All this proves that international law to some extent moves from theory to practice. What do I mean by that? I mean that there is a sort of merger between the sometimes a bit more theoretical concepts of internationallaw and the practice of criminallaw, which is far more concrete. I hope that the criminallawyers among us do agree that criminallaw is often more precise and more down to earth, so to say, than the more or less theoretical concepts of internationallaw. There are, from my perspective, two consequences to this. First, customary internationallaw in the area of human rights and humanitarian law is developing a lot faster than in other areas of internationallaw. It is mainly because of this fusion or infusion internationallaw gets by criminallaw cases which is far greater than in other areas of internationallaw. I think that is a very important point to note and case law can, of course, be seen as an expression of State practice. I probably disagree with Wolff Heintschel von Heinegg on that point. Second, we will also see a lot more proof with regard to the existence of customary internationallaw in the areas of human rights and humanitarian law. The recent ICJ case Congo vs. Belgium is one example, even though the judgement was from my point of view seriously flawed concerning the existence of the rule of immunity. Yet, there will be other decisions in the near future both at the international level but also at the regional level taken by human rights courts, by which the existence of customary law will be proved or newly established. It is going to be interesting to see whether the ICJ might at some point even adjudicate on judgements of the ICe. As far as I am aware, this question has not really been dealt with so far. Turning now to the effects of international criminallaw on third States: I think there is one particular development, and Eibe Riedel has referred to it, that next to the ICC we have to take into consideration all developments with regard to universal jurisdiction. Especially trials based on either the passive personality principle or cases where States act on behalf of the international community as a whole because of matters of international concern are extremely interesting here. They do, of course, have a direct effect on third States. Either by the effect on the individual himself who is anational of a certain State or, as has been referred to by Jan Klabbers, we have to take into account that the individual, who is standing trial in a court somehow has a relation to a particular State policy behind the acts in question, like genocide or other serious crimes we are dealing with here. To some extent the principle of universal jurisdiction operates next to and independent of the pacta tertii rule. The principle should generally only come into play when aState actually fails to act with regard to certain crimes under internationallaw. This would be parallel to the concept of complementarity which is underlying this idea and at the same time the very basis of the ICC and its jurisdic-

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tion. The concept of complementarity will certainly be one of the key areas for future research. There are numerous other and crucial questions for the future to be dealt with, such as the ne bis in idem principle, the question of how to deal with immunities and, maybe we come to hear something about that tomorrow, with regard to truth commissions, amnesties and pardons but also concerning sham trials which might be held at the national level. And, to conc1ude, I take it that all these developments show that there is, of course, a direct effect of international criminallaw on third States irrespective of the pacta tertii rule and also notwithstanding the concerns about Art. 12 (3) of the Rome Statute which the United States is so afraid of.

Christian Tietje: I would like to discuss two points: first, the question of a balance of power with regard to the International Criminal Court and whether we have a shift in the constitution of the international system and, second, some aspects on sources of law. First of all, if we have a question of balance of power and not a constitutional law question as referred to by Fred Morrison, it is my opinion that we still have to discuss a possible change in the global balance of power in legal terms. The idea of a balance of power is an old idea in the international legal system. In fact, this idea was one of the basic constitutional principles during the cold war ensuring stability in the international system. Thus, it is certainly up to internationallawyers to have a look at the balance of powers. Without making a final decision whether the international balance of power is an issue with regard to the ICC, I think that the arguments put forward by Thilo Marauhn, that the current problems are exc1usively related to questions of the relationship of treaty regimes and the United Nation Charter, are to narrow. Ifit is a question ofbalance ofpower, what Fred Morrison referred to, then we have to discuss it. Moreover, I disagree with Fred Morrison as to the substance of the debate. If we have a shift in the balance of power in the international system because of the ICC, this shift is in accordance with the developments in the international legal system that occurred since 1989. The establishment of the ICC does not create a situation of instability, neither for the United States as an individual State nor for the international community as such. But that is a legal question. I think it is a question that has to be of importance for an internationallawyer. Further on, I think the real and more concrete legal question with regard to the U.S. position is a question we have discussed last year at the Kiel symposium. The

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current U.S. position raises issues of international cooperation, namely the question of whether there is a possible duty to cooperate. There are two aspects to this: first, are the United States, even though they will not ratify the ICC Statute, obliged to cooperate with the Court? That might be a far-reaching possibility, but what is certain in my opinion is, second, that the United States are under an obligation not to interfere with the process of cooperation of other States with regard to the stability and function of the ICC. I think that one can make good positivistic, hard law arguments with regard to a prohibition interfering with efforts of other States to implement the ICC project successfully. The second point I like to discuss concerns the sources of internationallaw. I would like to follow up on what Eibe Riedel said on this. To be honest, I was disappointed as regards the presentation by Wolf Heintschel von Heinegg - I am sure he knows about that. The whole discussion we had and will certainly have tomorrow on the question of customary internationallaw with regard to criminal international law is to a certain extent a moot question. I think what is missing here is the end in the title of our pro gram "International Criminal Law and the Current Development of Public International Law." Until now, we totally disregarded developments in the international system that can be quickly referred to as the proteetion of global public goods. I think we have in numerous areas of internationallaw processes of the creation of internationallaw that go beyond Art. 38 of the ICJ Statute. Certainly, Art. 38 has some importance with regard to interState relationships based on the notion of reciprocity. However, Art. 38 has not much importance anymore once we look at areas of public internationallaw that are related to the proteetion of global public goods. Thus, we have to discuss aspects of what has been named by Chamey "Universal International Law" also with regard to international criminallaw. The label for internationallaw protecting global public goods - custom or whatever - is not of importance. The only question is: Is that law? Is the international community willing to accept what we have and what we see as law? In my opinion, today the international community is willing to accept a lot of things as law. Just a few examples: we have numerous examples for reservations on closing documents of the world conferences in the 1990's that do not make sense, because these documents are non-binding instruments in the sense of Art. 38 of the ICJ Statute. Making a reservation to a nonbinding instrument thus indicates that the legal value of such non-binding instrument is way more than just "non-binding." Moreover, we have the jurisprudence of the International Court of Justice with regard to the law of the sea, referring to the United Nations Law of the Sea Convention at a time it was not yet in force. The Court simply took the "non-binding" convention as an authoritative statement, so to speak, of internationallaw, thus - at least to a certain extent - disre-

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garding Art. 38. And I think we see similar developments in the criminallaw area as weH. In my view, in this regard there is also no difference in the perspective of law referring to individuals and law referring to States as Michael Byers said with reference to Koskenniemi. The only difference we have is that there is law applying to relationships based on reciprocity and relationships concerning the protection of global public goods. Andreas Zimmermann: And you would accordingly count the prosecution of such international crimes as being part of the protection of global public goods? It would at least go into the same direction, wouldn't it? Christian Tietje: In historical perspective, criminallaw has been the essence of public goods. This has been true in national legal orders until today and that is what we see in the international legal system, too. Where else is a public good at issue if not in the criminallaw area? Andreas Zimmermann: Exactly! Christoph Schreuer: I would like to make three brief comments. The first one concerns the United States' position. The second one concerns customary law and the third one concerns the usefulness of the lee. On the U.S. position, I think one has to grant the United States that at least their position has been fairly consistent throughout. I do not believe that there has been a major turnabout by the Bush administration on May 6, 2002 and that the Republicans are to blame for this. On this one, they are relatively innocent for a change. Even long before the Rome conference, very c1early the main concern in Washington was to keep U.S. officials and officers out of the dock of any future lee. It was only when it became c1ear that this was not going to work that the Pentagon started a campaign against the plans for the lee. On this particular occasion it was not the State Department, it was not the White House, it was not

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the Congress, but it was very c1early the Defense Department that was the driving political force. That they were successful in this particular campaign is reflected in the position of the D.S. delegation in Rome. The signature of President C1inton in the last hours of his administration was never a serious expression of an intent to ratify the Rome Statute, although this may sound ilIogical from the perspective of the law of treaties. The position of the new Bush administration may be more pronounced than that of the old administration, but this was c1early not a major change. Therefore, I believe that the May 6 letter was neither surprising nor a change of policy. It simply announced what everyone knew or should have known, namely that the Dnited States had no intention to ratify. The underlying fear, I believe, is fairly straightforward. lan Klabbers summarized it very weIl. It is the fear that trials of U.S. citizens would amount to trials of D.S. foreign policy, put differently, that actions taken by the D.S. and seen as legitimate by the D.S. may be seen by others, inc1uding an international criminal court, as crimes in the sense of the ICC Statute. In fact, the earlier discussion in the Dnited States was much c1earer and more honest on this particular point. The additional arguments like due process and impartiality were introduced into the discussion later on to add respectability to the D.S. argument. My second point is customary internationallaw. Mr. Heintschel v. Heinegg was criticized for his strictures against the ICTY in the Tadic case and has already defended hirns elf. I just want to add that the high standard for the proof of customary internationallaw that he demands of an international criminal court and the ICTY in particular are not even applied by the ICl whom he quotes as the author of these standards. If you look at the recent judgment of the ICl in the Congo v. Belgium case, you will see that the ICl came to the conc1usion that Belgium had breached internationallaw by issuing an arrest warrant against the incumbent Congolese foreign minister, but did not even try to prove that there was customary international law to this effect. It simply postulated it. The ICl said there is a treaty rule for diplomats, there is a customary rule for heads of States and it will be very useful for the relationship of States in general to have the same rule for foreign ministers. Perhaps even more disappointing in this particular judgment is the complete lack of any balancing of interests. The Court looks at the immunity argument, but it does not even deal with the issue of the necessity to prosecute crimes against humanity. It never discusses the tension between those two concepts. The Court seems to say that the smooth functioning of the relationship between States is important. That's it. It seems to think that prosecuting a foreign minister who may have blood on his hands is not really an issue of public concern.

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My third point concerns the usefulness or uselessness of an international criminal court. Paradoxically, a criminal justice system may be most effective when it does not need to be used. In an ideal world there would be no opportunities for its use. Therefore, the fact of non-use is not necessarily a proof of uselessness. In the case of an international criminal court there is an additional element to this phenomenon, the principle of complementarity. If domestic courts do their job effectively, if they prosecute genocide, crimes against humanity and war crimes, the ICC will not be used. But that would not make it useless. The ICC's Statute may actually be the trigger for the nationallegislation that leads to effective national prosecution. So, I believe that one could only call the ICC useless if three elements were present. The first would be the comrnission on a large scale of the crimes listed in the Statute. The second that domestic courts would not act effectively. And third, that the ICC also does not act at all or at least not effectively.

Daniel Thürer: Just a few remarks. I think that in our discussion too much stress was laid on customary internationallaw. We live in a time of globalization, and we should develop concepts that include, for instance, globalization of responsibility. Customary internationallaw seems too artificial, too State-centered and too rigid as an approach to embrace the variety of problems of our globalizing world system. It was mentioned that the ICRC is elaborating a compendium on customary internationallaw as it is reflected in conventions of international humanitarian law. Prof. Fischer served as an expert on this project. Besides international customary law, it seems to me that the general principles of law referred to by Prof. Bernhardt have a key function as a basis of modern international law. They also display considerable potential for the further development and greater attractiveness of the idea of the international rule of law. We should distinguish between two types of general principles of law. One type is the principles emerging within individual sectors of the law: for instance, principles of liability and human rights as developed by the European Court of Justice and the European Court of Human Rights, or principles of lex mercatoria as developed by courts of arbitration. In addition to these sectoral principles there is, as we know, another type, namely the allembracing general principles of law described in our textbooks. The concept of a constitutional basis for the international order was also mentioned in our discussion. I am, of course, attracted by the idea of a "constitutional architecture" as the foundation of internationallaw, but I would limit it to

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a set of basic rules of justice, i.e. to the core principles that hold the system together and give shape, structure and coherence to the international legal order as a whole. The Martens Clause, as an expression of public conscience, might be a good example. I think quite a number of "constitutional" principles could be identified. The ICRC recently conducted a public inquiry into such principles. Nearly everyone taking part believed that there is, for instance, a general rule of justice that holds that a distinction is to be made between combatants and noncombatants and that attacks are not to be directed at civilian objectives or civilian populations. I believe that there must be a set of Grundnormen (basic rules) of internationallaw - rules of equity, rules of justice - and that the Martens Clause might be part of such a constitutional basis of the international legal order. Decisions such as the Advisory Opinion of the IC] concerning the legality of the threat or use of nuclear weapons or the Pinochet judgements of the House of Lords or events such as the Kosovo intervention cannot be explained by relying only on the traditional rules about the sources of internationallaw. We must have recourse to the constitutive elements of the international legal order and must develop new paradigms to explain and elaborate this order. There have been, throughout the history of law, phases in which the established law was revealed to be too rigid. The civillaw that regulated interactions among Roman citizens proved too rigid, and in aperiod of expanding economy and political rule, ius gentium was developed to replace part of it and to enlarge its reach. Equally, the common law became too rigid, and rules of equity were infused by the Lord Chancellor into the law of England. I think general principles of law may in a similar way be able to infuse new values of justice and reason into existing public internationallaw, which obviously continues to develop organically.

Leila Sadat: I sometimes feel out of place as an American who supports the ICe. I will just make one point about that. I think that the debate about whether or not to support the International Criminal Court sometimes gets lost in legalities and technicalities: What is the jurisdictional mechanism, and will the complementarity regime be effective, and are there adequate due sufficient, due process rights for the accused, etc., etc.? Yet I think that it is essentially a question of the heart - do you believe that some atrocities are so terrible that they must be punished and do you think the international community has some responsibility to do something about genocide, crimes against humanity, and war crimes? Once you have answered that question in the affirmative, the rest is a question of how best to accomplish that objective.

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My feeling is that many people in the United States have missed the point, particularly because they were not present in Rome to experience how the desire to do the right thing brought people together to support the ICe. Rome was a very special place to hold the Diplomatic Conference. From the terrace on the top of the FAO building, you could look out and see the traces of war everywhere. No institution that is human will ever be perfect. The ICC will never be a perfect institution. But I think that the delegates at Rome did the best they could and created a very good institution. The United States just ought to get on board and not be so fearful. By way of full disclosure, I should add that I am a federal commissioner, but that I am not speaking either in my official capacity or as a member of the Government on this issue. On a more general note, what struck me about the conversation today - and I will keep my intervention extremely short because I think there is time tomorrow to discuss this - is how legalistic our conversation has been even when addressing fundamental questions such as whether the international community has a constitution and whether it is an autonomous legal order. I personally think it is an autonomous legal order, and, as Rosalyn Higgins has argued, that is not just a set of rules, but constitutes a normative system. To the extent that it is a normative system, it must have an organic structure of some kind. I believe that its organic structure has been shifting during the last fifty years, and particularly recently, so I would agree with Fred Morrison that there have been shifts in the constitutional or organic or some kind of structure. In my work on the Rome Diplomatic Conference, I have argued that it functioned as a quasi-legislative process. With respect to the Court's jurisdiction: I think one of the few differences I might have with Michael is that I do believe that the treaty is based on a form of universal jurisdiction. I just don't think that it is inter-State universal jurisdiction in the classic sense. I think it is a new form of universal international jurisdiction. The Rome Treaty sets forth prescriptive norms that, when the Court is used by the Security Council, apply to every human being in the world, unbounded by geography and unbounded by nationality. It has extremely broad reach, and it would be disingenuous to try to convince the United States that this aspect of the Court's jurisdiction is uncontroversial, although, interestingly, the United States Government has never really objected to the prescriptive jurisdiction of the Court - only to its jurisdictional mechanisms for adjudication. What I think is uncontroversial, however, is that obviously if a U.S. soldier commits a war crime on the territory of aState, that State may try the individual itself. So, handing the person over to the ICC if the U.S. does not invoke complementarity is uncontroversial.

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One of the things I plan to discuss tomorrow is the jurisdictional mechanisms of the ICC, and the changes they portend, which are in my estimation positive, not negative. In response to the last speaker, we need to find new mechanisms to deal with globalization and its problems. Considering the jurisdiction of the international community as separate from the jurisdiction of States vis-a-vis each other will actually give us some very useful tools for reconceptualizing and rethinking how to address interesting problems such as the validity of amnesties, the relationship between nationaljurisdictions and internationaljurisdiction in the exercise of international crirninallaw. Finally, I have found today's discussion really fascinating, and I have learned a great deal. Thank you, Prof. Hofmann and Prof. Zimmermann, for inviting me. I cannot speak on behalf of my Government, but I am very glad that Germany is in the forefront of promoting the International Criminal Court. Doris König:

I don't want to dweIl on the issue of customary internationallaw. A lot of what Iwanted to criticize has been said already. I just think that we have to adapt the concept of customary internationallaw to the era of globalization and find new ways to apply it. Now I want to make a few brief remarks on the usefulness of the ICe. We have heard a lot of skepticism about this new international court. I think that there are three important functions of the ICe: the first one is - that is at least my hope that it will contribute to the progressive dynarnic development of international crirninallaw. I think this hope is not without substance because, when you look at the jurisprudence of the ICTY and the ICTR, you can observe some progress. We can see that the judges of both Tribunals try to clarify definitions and the contents of international crimes. It has to be pointed out that such progress is not only the judges' achievement, but it is also due to the statutes their work is based on. When you look at Art. 7 (g) of the ICC Statute, you come across rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of comparable sexual violence. These are quite new international crimes and, nevertheless, they have become part of the ICC Statute. This did not happen by chance, it didn't fall from heaven like manna. It rather is the result of NGO work and the NGOs found support for their arguments in the jurisprudence of the two UN Tribunals who specified and clarified the contents of the above-mentioned crimes. So I hope that the ICC will continue this work. The second function, as was mentioned before, is not so much deterrence - I think that we all agree that the

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Court cannot prevent people from perpetrating these crimes - but satisfaction. I think one point is very important and that is the relationship between perpetrator and victim. Again, when I think of the ICTY, when I think of the abused women giving testimony there which is a very painful process, there is at least a forum where they can tell what happened to them and they can see that there is no impunity for their torturers. They can see that these people finally get punished and have to stay in prison for years. This function of crirninal court proceedings is not only important for every national legal order but also for the international legal order. That, I think, is a very important argument when we have to explain why we need the ICe. The third function: Eibe Riedel mentioned the role of the implementation of national crirninallaw into the ICC Statute which in my view was important for the development of international crirninallaw. I want to point out that vice versa international criminal law is also important for the future development of national crirninal legal systems, and that is another important function. In conc1usion, when I look at the ICC, it is like looking at a glass that is half full or half empty. For me it is half full and I hope that it will be filled up to the rim. fan Klabbers: I have three small points to make. One is, I guess, a bit of an elaboration on Prof. Thürer' s plea for recognition of principles related to justice. I guess you could make an argument that the ICJ, upon c10se analysis, has already been doing that. The Corfu Channel case was decided on the basis of elementary consideration of humanity; I would be hard pressed to find in 1949 a hard law source for that, and I was struck by the fact that the very term recurred in the Tadic case, as we learned this morning. In the Reservations Opinion of 1951, the Court held that the Genocide Convention would be binding upon States even without conventional obligation. That is taken by some authors to be a reference to customary internationallaw, but one may have one's doubts a mere six years after Auschwitz. I tend to take it as a reference to more of a justice- or moraliiy-based line of thinking. In the Nicaragua case, Nicaragua could not with impunity escape certain human rights obligations, so the Court said, despite the fact that Nicaragua had not made a comrnitment to all these obligations. This can only be explained, if at all, on the basis of some form of morality- or justice-type of thinking. One rnight even argue that the weird decision in the Nuc1ear Weapons opinion owes a lot to the Martens Clause which again is not very "hard," so to speak, in being very open textured. By this I merely wanted to add to Prof. Thürer's comments.

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Eibe, you asked about truth and reconciliation, which I indeed mentioned somewhat in passing. I am still trying to figure out what I think of truth and reconciliation commissions. I have a feeling that there is something to be said for truth and reconciliation commissions, at least in internal affairs. When it comes to the externallevel, it is indeed an open question. For full-fledged World Wars perhaps truth commissions are not ideal, but for events like Yugoslavia they could perhaps be useful. The one thing that makes them useful is that at least truth commissions give politics its rightful place; they recognize the intensely political nature of some conflicts. Somehow I find it illusionary to expect that the law can intervene and interfere where politics have gone astray, although this might amount to giving little honor to the law. So, with that in mind, truth and reconciliation might be a useful alternative or perhaps even be more useful on occasion than prosecution. But, as I said, I am tentative on that. The third point is something Thilo Marauhn said about theory being agame perhaps and that even academics should not be too indulgent in theory and instead look at practice and solve problems. To my mind, and this is a motto I have been using before, there is nothing so practical as good theory. Wolff Heintschel von Heinegg: Let me ans wer to your contributions. Mr. Riedei, I just said that the ad hoc Tribunals can be considered trustees of the international community or rather of those States enjoyingjurisdiction. I think there was a little misunderstanding with regard to that. The sive necessitatis part of the subjective element can be understood in my opinion as replacing the opinio juris. States may behave in a certain way not because they are convinced to be obliged by some rule of law but by the necessity of circumstances. I think we have encountered that, for example, in the Kosovo, it may have been a first precedent of the feeling that something has to be done without a legal basis which can in the future - or not - develop into a customary rule of internationallaw. We have to wait and see about that, whether humanitarian intervention may become part of customary international law. I would, of course, any time agree with you that the consensus ad idem is important, so you may have an abundant number of examples of practice, without the consensus ad idem you have no customary rules. Thilo, I expected something like that from you. I agree with you, Tadic was in 1995. I am glad that I am only considered to be the devil's advocate and not the advocate's dient. But we have to look at Tadic certainly as a precedent to which has been referred to in the literature and I have not left that out. Of course, you are

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right, in those seven years since Tadic 1995 many things have happened, that is correct. However, I still have my doubts. That does not mean that I deny or object rigorously to any assumption of legal mIes to that effect. I just object to the assumption that it is customary internationallaw as understood in Art. 38, and that brings me to the second point of criticism you put forward. I don't see any contradiction between my interpretation of the Charter and what I understand to be customary internationallaw according to Art. 38, because, as we all know, when it comes to the interpretation of an international treaty, the subsequent practice plays an important role. So, I can even identify certain legal limits, even with regard to the competences of the Security Council. They are limited to the maintenance of international peace and security. Even apart from that, if you look at the practice, for example humanitarian exceptions when it comes to enforcement measures, I think that is something which can be generally accepted as a legal limitation to the measures taken by the Security Council under Chapter VII. I think I am standing on firm ground of treaty interpretation when I say that. Once again, even though you were not referring to me, Mrs. de Wet, I would agree with you that general principles are a tricky thing, especially those general principles referred to in Art. 38 (e), and I would like to emphasize that indeed they may not be applied arbitrarily by any court but they have to be applied in a very sound way which stands any tests. Let me also reemphasize that, according to my view, the general principles of internationallaw, which were also referred to by Mr. Thürer - and he seems to agree with me that the Martens Clause would belong to such general principles of internationallaw - could be upheld even in the context of the questions we have been discussing so far. It may well be, Mr. Geißler, but in my opinion it is too easy to say that international criminallaw develops faster than other parts of internationallaw if you just keep it to that statement. I tend to agree that when we take the Bernhardt approach, so to speak, that we look at it in a very holistic way and try to figure out what States consider the law to be without trying to press that into a certain scheme, then I would tend to follow you any time and you too, Mr. Tietje, but before you do that, you have to identify the elements that have to be fulfilled in order to come to the conclusion that States really consider something to be law beyond just a treaty obligation, beyond something which may be in astate of development. So again, it is clarity what I am trying to look for rather than a principal objection to any of those aspirations.

Mr. Schreuer, I am very grateful for your statement, but if the ICJ itself does not adhere to the standards it itself has developed and always emphasized in its judgments, as you were referring to the Congo-Belgium case, this is not my

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problem, because the ICJ can be criticized for that, and I would be the first to do that because I have a very strict view on that. This does not give me any too hard time. Maybe for the end of our discussion today let us reconsider which other possibilities exist as regards the question of what States consider to be intemationallaw, but then we have to ask, why. If we have already generally accepted principles which are decades old and have always been referred to unequivocally and undisputedly by the States and if we as lawyers are able to scrutinize those general principles and to make them applicable to concrete cases, I think then we have done a good lawyer's job and then we can go on that basis without putting into question the basic ideas of the sources of intemationallaw.

Feminist Reflections on International Criminal Law By Christine Chinkin

A. Introduction The Women' sInternational War Crimes Tribunal on the treatment of J apanese cornfort women by the Japanese military throughout the 1930s and 40s until the end of WW 11 took place in Tokyo December 2000. This paper begins with abrief account of the Tribunal for it raises many of the issues central to a discussion of a feminist analysis of international criminallaw. The hearings las ted for three days during which Prosecution teams from ten countries presented indictments: North and South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor and the Netherlands. The overall prosecution strategy was based on the argument that trials at the end of the Second World War with respect to the Japanese conduct of war, including the International Military Tribunal for the Far East, were incomplete in that they had in adequately considered rape and sexual enslavement and had failed to bring charges arising out of the detention of an estimated 200,000 women for sexual services. Accordingly this Tribunal could be seen as an addendum to those earlier proceedings and the named indicted persons were those who had been earlier tried, with one major exception: this Tribunal named the Emperor Hirohito as an accused. For three days the Tribunal heard prosecution statements supported by oral and documentary evidence. Over seventy-five survivors from the cornfort stations were present and many gave evidence. Videos of interviews with many other survivors and affidavits were also submitted in evidence to the Court. Their testimonies built up a picture of their experiences of "recruitment" through force, kidnapping, coercion and deception. Women were then transported in J apanese army and navy vehicles to wherever the authorities ordered. Once confined in the facilities, the women were exposed to lives of utter misery, fear and brutality. Removal from their horne territories meant that they were isolated and made escape impossible. Their very names were changed to Japanese names, further denying their own identity. As the war closed with Japanese defeat, the women

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were abandoned, killed by the Japanese or killed by allied bombing. From those abandoned, some died, others returned horne by various means while others remained permanently exiled from their hornes. Evidence was also given on how the physical and mental effects of these harms had las ted throughout the survivors' lives and how for many years they had remained silent fearing shame, further humiliation and rejection. Some married - but many did not and had no form of family life. Poverty was a common characteristic of their lives. But the Tribunal was not just about hearing the stories of the survivors - it was also about legal analysis and determination of how internationallaw in 1945 could have been applied to their situation, if anyone had taken the knowledge they had and thought to do so. Legal excavation has shown that the laws and customs of war had undoubtedly long prohibited crimes of sexual violence, indeed that they had become "core crimes" even before World War 11. Patricia Seilers asserts that "rape and other forms of sexual violence are core crimes within humanitarian law, and, as such, inductively shape the very interpretation of the procedural doctrines and the breadth of substantive crimes within humanitarian law."l Nevertheless, they remained largely unremarked - the forgotten crimes of internationallaw that were only occasionally subject to scrutiny through prosecution. Accordingly survivor testimony was supplemented by legal argument on command responsibility, elements of the offences and sexual slavery as a crime against humanity, and by documentary and expert evidence that provided the factual basis for the legal chain linking the atrocities to the organs of the J apanese state and the Emperor Hirohito. Their relevance was explained by experts on Japanese military and constitutional history and Japanese bureaucracy. Other expert evidence was offered on the structure of the Japanese army, psychological and other trauma. Two former Japanese soldiers gave testimony on their involvement in and use of such facilities. The expert and documentary evidence was used with the oral testimony of the comfort women to support the Tribunal' s findings that the Emperor Hirohito was guilty on the basis of command responsibility for violations of international criminallaw, that is that he knew or should have known of the offences and had taken no steps to prevent their comrnission or to punish those responsible. The evidence showed the comfort stations to have been systematically instituted and operated as a matter of military policy and that they constituted crimes against 1 Patricia Viseur Seilers, The Context of Sexual Violence: Sexual Vio1ence as Violations of International Humanitarian Law, in: Gabrielle Kirk McDonald/Olivia SwaakGoldman (eds.), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, vol. I, 2000, 263, 264.

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humanity under the law then applicable. The Judges also indicated that they had determined the State of Japan to be responsible under internationallaw applicable at the time of the events for its violation of its treaty obligations and principles of customary internationallaw relating to slavery, trafficking, forced labor and rape, amounting to crimes against humanity. The Tribunal was organized and carried out by women's non-governmental organizations (NGOs) across Asia because of an overwhelming feeling among survivors and their supporters that international criminal law and international criminal procedures had failed the cornfort women. The failure of the IMTFE was followed by that of the negotiators of the Peace Agreements concluded between the allies and Japan in the 1950s that also made no provision for recompense, apology or even acknowledgment that the events had occurred. These treaties went further in that they purported to bar any further claims arising out of the events of W orld War 11. As the 20th century moved on, the survivors grew older, the human rights institutions were developed and their situation was raised before them, but with no positive outcome. Similarly, cases in national courts were dismissed, often summarily. There grew a strong conviction that internationallaw is an instrument of global ci vii society that does not belong exclusively to governments. When states fail to exercise their obligations to ensure justice, civil society can legitimately step in. Such actions reject the culture of impunity that has been especially strong in the context of crimes against women and considers that where traditional, statebased forms of internationallawmaking and application fail those marginalized by the law - in this instance women from Japan's colonial possessions and women subject to military occupation - other processes and methodologies should be sought. Thus the Tribunal combined the functions of law reinforcement and lawmaking. The Women's Tribunal illustrates a number ofthe main themes that I regard as integral to a feminist analysis of international criminallaw. These are the grip of the public/private distinction in internationallaw; identifying the silences of the law; reconceptualizing international criminal offences; and the procedures of international criminallaw. In addition the Tribunal illustrates the importance of women' s networking and organization as strategies for bringing neglected issues onto the international agenda. Any advances that have been made in making international criminal law more receptive to women's concerns have been a consequence of internationallobbying and campaigning by the women's movement, particularly since the end ofthe UN decade for women in 1985. Campaigns have been mounted within existing state structures for the progressive develop-

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rnent of international law, for exarnple the intensive lobbying throughout the prepcorns and diplomatie conference for the establishment of an International Crirninal Court. However, where state-based arenas have been inadequate, as with seeking redress for the comfort wornen, new processes have been devised by taking established rnechanisrns and adapting thern to different objectives. Along with issues of substance, a ferninist analysis of internationallaw challenges the lirnitations of traditional internationallawrnaking and requires consideration of the role of international civil society in this.

B. Feminist Perspectives There is no single ferninist perspective but rather the rnany different viewpoints of diverse wornen across the globe that are rooted in their own experiences and present their own theoretical frarneworks. 2 Sorne ferninist perspectives rnay be in conflict with each other. My starting point is that ferninist analysis takes "gender as its prirnary category, places wornen at the center of its inquiry, and strives to create a progressive praxis to end the oppression of and discrirnination against wornen."3 This definition focuses on the use of the concept of gender as the rnain organizing category, requiring us to distinguish between gender and ferninist analysis. The notion of gender captures the ascribed, social nature of distinctions between wornen and rnen, that is the cultural baggage associated with biological sex. "Gender" therefore draws attention to aspects of social relations that are culturally contingent and without foundation in biological necessity. It ernphasizes relationality, that is the connection between definitions of rnasculinity and fernininity,4 thereby avoiding the irnplication that only wornen should be involved in an investigation of gender. 5 Sex, on the other hand, is typically used to refer to biologie al differences between wornen and rnen. Legal gender analysis requires examination of how 2 Hilary CharlesworthiChristine Chinkin, The Boundaries of International Law: A Feminist Analysis, 2000, 38-48; Joshua Goldstein, War and Gender: How Gender Shapes the War and Vice Versa, 2001, 38-54. 3 Shefali Desai, Hearing Afghan Women's Voices: Feminist Theory's Reconceptualization ofWomen's Human Rights, Arizona Journal ofInternational and Comparative Law 16 (1999),805,806. 4 Joan Scott, Gender: a Useful Category of Analysis?, American Historical Review 91 (1986), 1053, 1054. See also Ann Oakley, ABrief History of Gender, in: Ann Oaldey/Juliet Mitchell (eds.), Who's Afraid ofFeminism? Seeing Through the Backlash, 1997,29. 5 Goldstein (note 2), 2.

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social constructs of male and female roles - masculinity and femininity - lead to different experiences for men and women and consideration of how these differences should be given account in the substance and processes of law. For exampIe, war, violations of human rights and criminal activity are all experienced differently by women and men, because they are women and men. However, it is the male experiences that have shaped the framework for traditionallegal enquiry and analysis. These are made to appear objective, natural and universal in contrast to women's experiences that appear as exceptional, deviant and the "other." Feminist theorizing uses gender analysis to dual ends. First, it seeks to expose the "overwhelming masculinity of privileged and historically dominant knowledges"6 that have subordinated women and, second, it has an overtly political agenda for change. There is tension between these two agendas that coexist somewhat uneasily and engender male intellectual criticism for lack of impartial scholarship and further criticism from feminist activists who see little point in seeking change through the very constructs that have contributed to that oppression.? Many of the gendered experiences and responses to them are fashioned by stereotyping and prejudice that attributes certain behaviors to men and women. These can be linked with the imperatives of internationallaw that can be stated through paired dichotomies, for example intervention/non-intervention; sovereign/ domestic jurisdiction; protector/protected; objective/subjective; action/passivity; combatantlnon-combatant. Feminist scholars have pointed to the gendered coding of binary oppositions within many disciplines whereby the first term is associated with male characteristics or identity, the second female. In turn these shape the law's priorities and the values to be protected. A number of these dichotomies are especially pertinent to military activity and accordingly to the application of international criminallaw through international humanitarian law. ludith Gardam argues that centrality of the doctrine of military necessity in international humanitarian law rests upon a gender hierarchy which favors the lives of primarily male combatants over those of ci viIi ans - where most women are to be found. Both thejus ad bello andjus in bellum legitimate certain forms of international violent behavior. Gardam asserts: Far from being a neutral yards tick, military necessity in fact incorporates a hierarchy of values. It assumes [makes natural] that the military victory of the State is pre-eminent. From this flows the seemingly logical value judgment, that the life of the combatant is 6 Elizabeth Grosz, A Note on Essentialism and Difference, in: Sneja Gunew (ed.), Feminist Knowledge: Critique and Construct, 1990, 332. 7 Hilary Charlesworth, Feminist Methods in International Law, AJIL 93 (1999) 379, 380.

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more important than that of the civilian, even more so if that civilian belongs to the enemy 'State' .... The military resists strongly the notion that combatants should assume risks to protect the civilian population. But their position is not immune to challenge. It assurnes that war is inevitable ... 8

The assumption of inevitability pervades military language through concepts such as "collateral damage," but as Gardam goes on to ask: "But is this everyone's reality?" In the bombing of Afghanistan harm to civilians (protected men and women) has been largely discounted as a natural and inevitable consequence of living near possible Al Qaida strongholds, and therefore becoming military targets. Normal rurallife becomes deviant and expendable as the unknown number of resulting deaths has been rendered irrelevant,9 while the foreign military presence has been normalized and harms to the (largely male) attackers (protectors) recorded as such. The militarized state operates on the assumption that military values and policies are the appropriate means of creating an orderly and secure society, including in the context of terrorism. Such analysis of international violence reflects arguments of feminist domestic criminallawyers that the law's condoning of forms of violence allows men to use violence against each other, and thus also naturalizes violence against women. 1O Gender analysis requires the deconstruction of stereotypes to determine the realities that lie behind them. It also requires identifying those areas where the law fails to take account of women's experiences and putting women back into the picture. Evidence before the Tokyo Tribunal shows how men' s experiences of war included access to women for sexual services and how it appeared natural that women should be made available for this purpose and could be readily construed as prostitutes or camp followers. Unlike the abu ses committed against the almost exclusively male prisoners of war, no one argued that the cornfort woman system was an international crime. The practice remained unchallenged by the allied leaders, although they had found details of what occurred and it was omitted from the indictments they brought. In contrast the comfort women experienced what happened to them as rape, as humiliation, as terror, as denial of their bodily integrity and sexual autonomy - itself something that throughout history has been "naturally" denied to women. Feminist analysis required unpicking these events and presenting them properly as sexual slavery and crimes against humanity. It is 8 Judith Gardam, Wornen and the Law of Armed Conflict: Why the Silence?, International and Comparative Law Quarterly 46 (1997), 72. 9 Jonathan Steele, Forgotten Victirns, The Guardian, 20 May 2002, Comment and Analysis, 17: "The full human cost of US airstrikes will never be known ... ". 10 Lais Bibbings, Boys will be Boys: Masculinity and Offences against the Person, in: Donald NicolsonILois Bibbings (eds.), Feminist Perspectives on Crirninal Law, 2000, 231.

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about making wornen, and what is done to wornen because they are wornen, matter. Certain crirnes can be seen as inherently gender-related, that is that they are cornmitted most frequently, although not exclusively, against rnernbers of one sex, or have different consequences for wornen and rnen. Such crirnes have been the prirnary focus of feminist analysis in dornestic law. ll Similarly, there are genderrelated international crirnes, for exarnple rape, sexual slavery, sterilization, forced irnpregnation and trafficking. Although most sexualoffences can be, and are, perpetrated against rnen as weIl as wornen, they rernain prirnarily directed at wornen because they are wornen and rnay have gender-specific consequences such as pregnancy, HIV/AIDS that rnay be transmitted to children, and specific bodily harrn caused by forced sterilization. Their greater incidence for wornen and the potential severity of their consequences have made these crirnes the focus of international carnpaigns by wornen' s groups throughout the 1990s for their acceptance as constituting violations of internationallaw, for their inclusion in the jurisdiction of the ad hoc Tribunals and the ICC, and for their prosecution in those arenas. These have been the focus of feminist organizing through networking, forming alliances, lobbying, seeking political space to raise thern at the prepcorns and Global Summit meetings of the 1990s, including Vienna, Cairo, Beijing and Rorne and through the submission of amicus briefs to appropriate tribunals advocating feminist interpretations and applications of the law. I inevitably support this focus, and indeed have been part of it, but nevertheless wish to add a note of caution. While it is irnportant to recognize crirnes of sexual violence against wornen and their gender-specific consequences, exclusive attention to these crirnes offers a limited perception of ferninist analysis of international crirninallaw and has certain disadvantageous consequences for feminist enquiry itself. First, focus upon specific crirnes excludes broader enquiry into the motives for such crirnes and fails to ask irnportant questions: Why is it that crirnes of sexual violence against wornen are consistently cornmitted both in armed conflict and non-conflict situations?12 What is the proper response of international crirninal law to the gross inequalities of power that rnakes their commission so regular?13 Why does violence against wornen not stop when a cease-fire or negotiated II Nicola Lacey, General Principles of Criminal Law; A Feminist View, in: Nicolsonl Bibbings (note 10), 87, 88. 12 Susan Brownmiller, Against Our Will, 1975. 13 Lacey (note 11), 9l.

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settlement is achieved but continues in ways directly connected with conflict? Second, exclusive concentration upon these crirnes depicts wornen prirnarily as victirns of international crirnes rather than as agents for change or as autonornous actors in the international arena. Third, ernphasis upon wornen as victirns of sexual crirnes that define wornen through their sexuality and reproductive capacity rather than as holistic beings rnay obscure the rnany gender-specific ways in which wornen experience other international crirnes, for exarnple disappearances of male farnily rnernbers and the destruction of property and food sources for wornen who are the prirnary carers within farnily and community; the denial of econornic and social rights exacerbated by dernographic changes in conflict zones where single parent wornen have becorne the rnajority of the population; the use of wornen as rnules for drug trafficking. In addition, exclusive focus on wornen as victirns of sexual crirnes of violence is a disservice to rnen. There is a significant silence about sexualoffences comrnitted against rnen, and identification of thern as crirnes that are comrnitted against wornen facilitates the stereotyping of rnen who suffer such violence as in sorne sense ferninized and sharned. Fourth, it ignores wornen as perpetrators of international crirnes and inhibits analysis of the different paths wornen take into crirninal activity, the application of defenses to wornen and sentencing considerations, issues that are generating more research in dornestic law but are largely ignored in the international context. 14 Unlike the ICTY, the ICTR has wornen accused 15 which rnay open up space for such enquiry. In the context of a different international crirne, trafficking, a way of escape frorn the powerlessness experienced by a trafficked wornan rnay be through working up to a position of becorning the brothel owner, thus rnoving frorn victirn to perpetrator. Such a trajectory requires a different analysis and response to those accorded to traffickers who commenced their activities in other ways, for exarnple in conjunction with arms or drugs trafficking, or in crirninal activities throughout conflict. In this paper I will concentrate upon crirninal offences within the jurisdiction of the ad hoc Crirninal Tribunals and the ICC because the ernergent jurisprudence offers prirnary sources. However, this gives a lop-sided and incornplete picture of international crirninal law. It is lop-sided because of the linkage with armed conflict and the legal regimes of international hurnanitarian law and human rights. 14 E.g., in national courts it has been suggested that Judges interpret men's crirninal behavior as the result of choice for which they are responsible and women's criminal (deviant) activity as pathological or a result of mental disorder for which they are not; Hilary Allen, Justice Unbalanced, 1987. 15 Judgement has not yet been given in the case of Prosecutor v. Pauline Nyiramasuhuko, ICTR-97-21-AR72.

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Admittedly, crimes against humanity and genocide do not have to occur in armed conflict, but there is the likelihood of a strongly militaristic environment that fosters their commission. This focus is incomplete because it ignores those international crimes omitted from the jurisdiction of the ICC, such as those contained in specific treaties relating to terrorist activities (hijacking, hostage taking, crimes against protected persons) and suppression of other activities such as trafficking in drugs, corruption and bribery. It fails to address why other gender-related crimes, such as honor killings and infanticide of girl children 16 are not elevated to the status of international crimes and why other crimes flourish post-conflict, for example the enormous increase of trafficking in women and children that has occurred in what might be called "post-conflict" Balkans. It also reduces enquiry into aspects of gendered dimensions of globalization that are conducive to the commission of international crimes with particular consequences for women, again trafficking is an example. Feminist and gender analysis take sex or gender as a point of identity and ex amine the consequences of that identity. But this is an essentialist viewpoint that assurnes sex or gender to be the key defining characteristic. In reality people have multiple, intersecting identities, for example racial and ethnic identities, nationality, age, religion, disability, sexuality, education and dass. Sex or gender cannot be considered in isolation from these other identities that shape a person's experience. The Women's War Crimes Tribunal illustrates the intersections of racism, dass and sexism: The comfort women were selected because they were women, because their peoples had been colonized or defeated in conflict, and because they had received little education and were poor. This ac count is necessarily written through the prism of my own experiences and its limitations must be recognized.

c. The Public/Private Distinction in International Law Western feminists have challenged the dualism between public and private spheres of activity that has been identified as a key feature of liberal thought as especially detrimental to the interests of women. 17 The public realm of the work16 Amartya Sen, More than 100 million wornen are missing, New York Review of Books, 20 Decernber 1990, 61. 17 Carole Pateman, Feminist critiques of the publiclprivate dichotorny, in: Stanley BenniGerald Gaus (eds.), Public and Private in Social Life, 1983,281; Margaret Thornton (ed.), Public and Private Feminist Legal Debates, 1995.

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place, the law, economics, politics and intellectuallife are regarded as the natural and proper province of men while the private world of the horne and children as that for wornen. The public/private distinction has a normative as well as descriptive dimension for greater legal and social significance is accorded to the public world than to the private. The distinction drawn between the public and the private vindicates and rnakes natural the division of labor and the allocation of rewards between the sexes. Its reproduction and acceptance in all areas ofknowledge have conferred primacy on the male world and supported the dominance of men. The grip of the public/private dichotomy has been criticized on a nurnber of grounds, for example that there is no reliable or constant basis for the distinction. Concepts of the public and private are cornplex, culturally deterrnined and shifting. They reflect political preferences with respect to the level and quality of governmental intrusion rather than objective criteria for the distinction. In particular feminist writers have argued that it has both supported and obscured the structural subordination of women. The role of law in the public sphere is protection from harm, while its role in the private domain is about preserving (male) autonorny. The concentration of legal regulation on the public sphere has allowed the private to remain relatively free from state intrusion, so that abuses committed there, for example domestic violence, can be readily discounted. In addition women' s location in the private realm renders them largely invisible in public life, while ignoring that the smooth functioning of the public sector depends upon unpaid and unregulated support from the private. At the same time, focus on the implications of the public/private divide has been criticized by feminists from the South who see it as a preoccupation of Western women with little to say about their own societies. Despite these concerns and unsurprisingly in light of its historic derivation from European thought, distinctions between spheres of public and private define the scope of internationallaw. Internationallaw operates in the most public of all public worlds, that of the inter-state system and intergovernmental organizations. The Uni ted Nations Charter makes the (public) province of international law distinct from the (private) sphere of domestic jurisdiction,18 the acquisition of statehood or international personality confers "public" status on an entity with consequences for jurisdiction, representation and ownership; the law of state 18 Artide 2 (7) of the UN Charter provides: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to sub mit such matters to settlement under the present Charter."

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responsibility has traditionally separated (public) actions for which the state is accountable from those "private" ones for wh ich it does not have to answer internationally. Even international human rights law, which is regarded as radically challenging the traditional distinction between international and domestic concerns, has targeted "public," state-sanctioned violations rather than those that have no apparent direct connection to the state, either because they are committed in the private worlds of the family and community or by non-state actors. Strategies for imputing responsibility for the state's failure to prevent or punish human rights abuses committed by non-state actors and for the direct responsibility under international law for compliance with those standards by non-state actors have been a focus of feminist human rights advocates throughout the 1990s, in particular in the context of violence against women. 19 There has been a steady expansion in understanding of what matters are of public (international) concern at the same time as a decline in acceptance of public responsibility through pro grams of privatization of government services. 20 However, the demarcation line between the public and private is as blurred and contingent in international affairs as domestic, as becomes very apparent when considering international crimes against women. Such crimes have in a sense been obscured by at least two layers of the public/private distinction. First, much that takes place within conflict has traditionally been shielded from international scrutiny by the legal distinction between international and internal armed conflict and the very limited regulation of the latter. 21 The privatization and criminalization of contemporary forms of conflict blurs even this distinction. So-called "new" wars 22 do not necessarily involve govern19 CharlesworthiChinkin (note 2), 148-151. For a more eritieal perspeetive see Karen Engle, After the Collapse of the PublielPrivate Distinetion: Strategizing Women's Rights, in: Dorinda Dallmeyer (ed.), Reeoneeiving Reality: Women and International Law, 1993, 143. 20 Christine Chinkin, A Critique of the Publie/Private Dimension, EJIL 10 (1999), 387. 21 Common Artic1e 3 of the Convention for the Amelioration of the Condition of the Wounded and Siek in Armed Forees in the Field, UNTS, vol. 75, 31, ofthe Convention for the Amelioration of the Condition of the Wounded, Siek and Shipwreeked Members of Armed Forees at Sea, UNTS, vol. 75, 85, of the Convention Relative to the Treatment of Prisoners ofWar, UNTS, vol. 75,135, and ofthe Convention Relative to the Proteetion of Civilian Persons in Time of War, UNTS, vol. 75, 287, all of 12 August 1949; Protoeol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Proteetion of Vietims of Non-International Armed Confliets (Protoeol II), 8 lune 1977, UNTS, vol. 1125,609. 22 Mary Kaldor, New and Old Wars: Organized Vio1enee in aGlobai Era, 1999.

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ment forces and are characterized by violence between individuaIs, clans and groups. They are fought for the private objectives of control of resources such as diamonds and timber which are themselves used to finance the continuation of conflicL Their protagonists may have little interest in public forms of powersharing but seek power through their criminal activities and the spread of terror directed at the civilian population. Such new wars are fought directly against women, children and the elderly. Criminal activities associated with conflict are internationalized through transborder activities such as trafficking in drugs, arms and people. Assertion of international accountability for crimes committed in these conflicts establishes the conflict in the international public domain and imposes duties upon states for mutual assistance in pursuit of the perpetrators and in bringing them to trial. Terrorist activities and the so-called war against terrorists add a further dimension to the public/private divide, through a confusion of the public international law language of war and that of crime. There is no international definition of terrorist acts, but they are essentially violent acts committed by non-state actors against civilian populations for private ends such as intimidation or to compel a government or an international organization to do or to abstain from doing any ace 3 rather than the traditional state objectives for the use of force such as acquisition of territory or national security. Terrorist acts fit at best uneasily within the international legal framework for the regulation of the use of force. The controversy as to whether the Guantanamo Bay detainees are prisoners of war with internationally guaranteed rights under the Geneva Conventions or criminals is precisely the issue about the location of the public/private divide in international law and exposes its manipulation for political ends. Categorization of terrorist acts as private criminal acts allows the state to pursue the perpetrators without the restrictions imposed by internationallaw except for those relating to the human rights of the detainees. On the other hand, the labeling of their acts as public, internationalized acts is necessary for pursuit of the "war" against terrorism. It is also possible to argue that terrorist acts are what women have always faced: random acts of violence from non-state actors for the private ends of domination and control, and submission to the perpetrator's demands. 24 However, and this is the second layer of the public/private divide that obscures crimes against women from international scrutiny, far from being accorded recognition as requiring international response, terrorist violence against women has been 23 Article 2 of the International Convention for the Suppression of the Financing of Terrorism, 9 December 1999. 24 Robin Morgan, The Demon Lover: On the Sexuality ofTerrorism, 1989.

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deemed private, a matter of culture and community mores that should not be challenged. In some states the exclusion of women from public space has led to attacks upon them when they venture out, and their manner of dress has become a matter of public censorship. In March 1994 the Armed Islamic Group in Aigeria issued a statement that all unveiled women in public were potential and legitimate targets. The killing by gunmen of two unveiled women at a bus stop showed that this was not an idle threat but the gendered dimensions of this conflict are still not widely recognized. 25 Early realization of the political significance of organized violence and terror against women could provide warning signals of the potential for broader conflict. Similarly, the Taliban' s war of terror against women merited virtually no international action although it might have served as an alarm for further aggression. Women's sexuality has been designated as a private sphere even when they are located in the public realm, excusing their abusers from accountability. Thus workplace sexual harassment was long viewed as the "private" behavior of the abuser26 and rape in detention was not recognized as a form of torture especially applicable to women but as the private sexual gratification of their guards. Traditional military action by government forces is the most public of activities, but even in these circumstances rape and abuse of women has been presented as servicing the natural needs of male combatants or as pro vi ding rewards for fighting men rather than as an integral aspect of that action. When confronted by claims of the COlnfort women in the early 1990s, the Japanese government responded that the comfort stations had been set up by private entrepreneurs or that the women were prostitutes, thus attempting to shift the responsibility from the public actions of the state to the private acts of individuals and even of the victims themselves. However, analysis of the reasons for violence against women in armed conflict show that it is structural, part of the instrumentality of conflict and often inherent to the very aims of conflict. The Special Rapporteur on violence against women has discussed some of the reasons for its commission such as the inherent misogyny of military establishments;27 the fact that sexual violence against women is seen as a means of humiliating the opposition by demonstrating victory over the men of the other group who have failed to protect their women; to gain support 25 Karime Bennoune, Between Betrayal and Betrayal: Fundamentalisrn, Family Law and Feminist Struggle in Algeria, Arab Studies Quarterly 17 (1995), 51, 64. 26 Catharine MacKinnon, Sexual Harassrnent of Working Wornen: a Case of Sex Discrimination, 1979. 27 Cynthia Enloe, Bananas, Beaches and Bases Making Sense ofFeminist International Politics, 1989.

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for the use of force by rnen to protect their wornen; to terrorize populations and induce civilians to flee their hornes and villages; and as a "perk" for soldiers and an inducernent to display courage on the battlefield. 28 In conternporary forrns of conflict expressions of nationalism and ethnicity are essentially antithetical to wornen's autonorny.29 The cases before the ad hoc Tribunals bear out this analysis. They confirm that rape and sexual abuse of the civilian population are public crirnes of violence inherent to the airns of the warring parties. 30 They are not the randam, private or personal acts of individual fighters that can sornehow be distanced frorn the broader picture. Rather, as in non-conflict situations, violence against warnen "is a manifestation of historically unequal power relations between rnen and warnen, which have led to domination over and discrimination against warnen by rnen and ... is one of the crucial social rnechanisrns by which warnen are forced into a subordinate position cornpared with rnen.,,31 A nurnber of exarnples of this structural domination and discrimination can be given. In the Akayesu judgernent, sexual violence and mutilation was recognized as an "integral part of the process of destruction specifically targeting Tutsi warnen and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.'>32 Sirnilarly in Kayishema, in describing the rnassacre of children and the rape of warnen it was said that "[n]o Tutsi was spared.'m Their ethnicity and sex tagether determined the fate of Tutsi warnen who were subjected to sexual violence because they were wornen. 34 Tutsi rnen were killed; Tutsi wornen were subjected to sexual 28 Report of the Special Rapporteur on violence against wornen, its causes and consequences, Report of the mission to Rwanda on the issues of violence against wornen in situations of armed conflict, E/CN .4/1998/541Add.l, 4 February 1998, paras. 2-6. 29 Andjelka Milie, Nationalism and Sexisrn: Eastern Europe in Transition, in: Richard Caplan/John Feffer (eds.), Europe's New Nationalisrn: States and Minorities in Conflict, 1996, 169. 30 "Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishrnent." Proseeutor v. Jean-Paul Akayesu, ICTR-96-4, judgernent of2 September 1998 (hereinafter Akayesu), paras. 597, 598. 31 Dec1aration on the Elimination of Violence against Wornen, GA Res. 48/104, 1993. 32 Akayesu (note 30), para. 731. See also Prosecutor v. Musema, ICTR-96-13, judgernent of27 January 2000 (hereinafter Musema), paras. 933, 934. 33 Proseeutor v. Kayishema, ICTR-95-1, judgernent of 21 May 1999, para. 532. 34 "This sexualized representation of ethnic identity graphically illustrates that Tutsi wornen were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the Tutsi group - destruction of the spirit, of the will to live, and of life itself." Akayesu (note 30), para. 732.

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violence and mutilation, even being kept alive for a short time for this before they were killed. This element of sex discrimination, that is that women are raped because they are women, was made more explicit by the ICTY in the Celebici case where Trial Chamber Two concluded that "[v ]iolence suffered by Cecez in the form af rape was inflicted upan her by Delic because she is a woman .... this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture.,,35 This analysis identifies the intersectionality of sex and ethnicity and brings rape in conflict directly into the public realm by equating it with the public purposes of torture. It is unsurprising therefore that Western feminists have been to the fore in demanding that the jurisdiction of the international tribunals collapses the distinctions between public and private acts by designating international accountability for crimes of sexual violence in international and non-international armed conflict. There has been some considerable success. For example, under the Statute of the ICC torture as a crime against humanity need not be committed by or at the instigation of astate officiaj36 as is the case in human rights law with its focus on state responsibility for the public acts of the state. The assertion within international tribunals of jurisdiction over individuals for crimes against humanity and genocide, including over acting heads of state, severs the link between the state and the crime by basing jurisdiction upon the heinous nature of the crime and the individual's responsibility for it. However, the International Court of lustice's affirmation of immunity from jurisdiction within domestic criminal courts for serving heads of state or other government members 37 reinforces state sovereignty and the public position of such an official. The prohibition of scrutiny by the courts of other states allows all states to maintain a wall of private action that can only be breached by concerted action of the international community through the exercise of jurisdiction within an international criminal court. 35 Prosecutor v. Zejnil Delalic Zdravko Mucic aka 'Pavo', Hazim Delic Esad Landzo aka 'Zenga', IT-96-21, judgement of 16 November 1998 (herein after Celebici), para. 941. In Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23 and IT-96-23/l, judgement of 22 February 2001 (hereinafter Kunarac), para. 592, the interaction between religion and sex was emphasized: "Radomir Kovac and Zoran Vukovic mistreated Muslim girls and women, and only Muslim girls and women, because they were Muslims." 36 Article 7 (2) (e) of the Rome Statute of the International Criminal Court defines torture as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused." 37 Arrest Warrant 0/11 April 2000 (Democratic Republic of the Congo v. Belgium), judgment of 14 February 2002, reprinted in: ILM 41 (2002),536.

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There is similar tension in the understanding of crimes against humanity. On the one hand, it has been accepted that the required plan or policy to constitute a crime against humanity may be that of either a government or non-governmental organization, for example paramilitary forces. This opening of international accountability to non-state actors is essential. However, a limitation on the full exposure of such acts to international scrutiny is then imposed by the threshold requirements. The listed acts, inc1uding acts of sexual violence, only constitute crimes against humanity when they amount to "a course of conduct involving the multiple commission of acts ... against any civilian population, pursuant to or in furtherance of aState or organizational policy to commit such attack.,,38 Rape of civilians is only a matter of international concern when it is committed on a widespread or systematic scale. No such limitation is required for abuse of prisoners of war where a single violation suffices. In the draft text on the elements of crimes it is explained that "policy to commit such attack" requires that the State or organization "actively promote or encourage" the attack against a civilian population. Only exceptionally would this threshold be satisfied "by a deliberate failure to take action, which is consciously aimed at encouraging such attack." The explanation continues that "[t]he existence of such a policy cannot be inferred solely from the absence of governmental or organizational action." Despite the understandings described above that sexual violence is structural and systemic, the attitude that it is private and random remains deep-rooted. Producing evidence of its planning and promotion by the state or organization in question may be difficult, and the failure of those bodies to prevent such crimes may not be deemed sufficient to establish the threshold. This discussion illustrates the complexity in determining the proper scope of international regulation, the lack of consistency in application of the multiple layers of public/private distinction in international law and some of the consequences of that distinction.

D. The Silences of International Law A second focus of feminist analysis has been to expose the silences of international law. "All systems of knowledge depend upon deeming certain issues as irrelevant or of little significance. In this sense the silences of internationallaw may be as important as its positive rules and rhetorical structures.,,39 In the case of crimes against women this has been a literal silence. Despite the reality that

38

39

Article 7 (2) (a) of the Rome Statute of the International Criminal Court. Charlesworth (note 7), 38l.

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"[v]iolence against women during times of armed conflict has been a widespread and persistent practice over the centuries, there has been an unwritten legacy that violence against women during war is an accepted practice of conquering armies."40 Women's voices, such as those ofthe cornfort women, challenging this practice have not traditionally been heard within international arenas, such as international tribunals or peace treaty negotiations. Ferninist analysis requires asking why this is so, why sexualoffences are deemed to be in some sense inevitable in armed conflict and yet have traditionally been little remarked or perpetrators made accountable. It proceeds from the assertion that the catalogue of international crimes must be accompanied by an understanding of those offences based upon women's experiences of them. Taking account of women's experiences of crime requires listening and responding to women's own stories about what has occurred to them and applying legal analysis to these accounts. If such cases are not prosecuted, legal development cannot take place, and while there may be general acceptance that they come within the mbric of the law, this is not tested. 41 There are many reasons for the silence: nobody has asked; the experiences are not considered important or are seen as a natural and inevitable part of conflict; women do not speak of what has occurred because they feel shame and think they must have deserved their treatment. Perhaps the more interesting question is not why there has been traditionally silence about women's experiences of international crimes but to ask what were the factors that led to the breaking of the silence and the explicit inclusion of crimes against women in the catalogue of international crimes in the 1990s. An important aspect of the prosecutions of such offences before the ICTY and ICTR is that they have provided a generally respectful42 and authoritative space for some women to speak for themselves about what happened to them, albeit mediated by legal personnel and mIes of procedure and evidence. The explicit 40 Report of the Special Rapporteur on violence against wornen, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission resolution 1997/44, E/CN.411998/54, 26 January 1998, part I, para. 1. 41 In 1992, before the creation ofthe ICTY, there was considerable debate as to whether rape was a war crirne or a crirne against hurnanity; see Christine Chinkin, Rape and Sexual Abuse of Wornen in International Law, EJIL 5 (1994), 326; Theodor Meron, Rape as a Crirne under International Hurnanitarian Law, AJIL 87 (1993),424. 42 This rnay not always be the case. It has been reported that three judges in the ICTR laughed during a wornan's lengthy testirnony ofhow she was raped. They later asserted that the laughter was directed at defense counsel's questioning, but such an incident rnust have adetrimental impact on how the Tribunal is regarded by potential witnesses; Chris McGreal, Second Class Justice, The Guardian, Analysis and Comment, 10 April 2002, 15.

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inclusion of rape as a erime against humanity in the Statutes of the ICTY and ICTR43 was an important first step,44 but nevertheless it was not always included within indietments. Indeed it was only through women witnesses who spontaneously told of rape and sexual assault as integral to attaeks upon them and their ehildren in the R wanda genoeide that the insights into how gendered sexual violenee ean be genoeidal beeame possible. In Akayesu witness J, a Tutsi woman, told how her six year-old daughter had been raped by three Interahamwe who killed her father and that she had heard that young girls were raped at the Taba bureau eommunal. Another Tutsi woman, witness H, said that she had been raped in a sorghum field and that she had seen other Tutsi women being raped. 45 This evidenee eaused the proeeedings to be adjourned and the indietments to be amended to include eh arges of multiple rapes, testified to by many witnesses, that had not earlier been taken into aeeount. This episode shows both how gender speeifie erimes ean still be deemed unimportant and marginal to the eore story of what oeeurred by those proseeuting and adjudieating. It also shows the importanee of the inclusion of women judges in international tribunals. It was only the intervention of Judge Navanethem Pillay that ensured the eontinuation of this unsought evidenee. This is not to say either that only women are sensitive to women's experienees of erime or that all women would have reaeted in the same way as Judge Pillay. Nevertheless it seems more likely that this would be so. Other faetors are also important in ensuring that women are able to speak of what has oeeurred to them, for example the inclusion of male and female investigators who have reeeived training in gender sensitive questioning and interviewing and in dealing with survivors of sexual violence, providing an understanding, nonjudgmental forum for the hearing and taking of evidenee, ensuring eonfidentiality and effeetive proteetive measures for those who are prepared to testify and their families. 46 But only very few women are able to tell their stories to international eriminal tribunals - even where steps are taken to faeilitate their doing so. Other venues are 43 Artic1e 5 (g) of the ICTY Statute; Artic1e 3 (g) of the ICTR Statute. Rape had not been inc1uded as a crime against humanity in the Charter Annexed to the Agreement for the Establishment of an International Military Tribunal, UNTS, vol. 5, 251. 44 Rape, enforced prostitution and other forms of sexual abuse were also inc1uded as crimes against humanity in the International Law Commission, Draft Code of Crimes against the Pe ace and Security of Mankind, 1996, UN Doc. A/48/I O. 45 Akayesu (note 30), paras. 416, 417. 46 Christine Chinkin, The Protection of Victims and Witnesses, in: McDonald/SwaakGoldman (note 1), 451.

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needed where wornen's accounts can be collected and preserved as part of the historical record. Other arenas have been created within the UN system as in the personal stories included in the reports of the Special Rapporteur on violence against women. 47 Formal avenues have been supplemented by the activities of NGOs, for exarnple through the testirnony given by women victirns of violence in armed conflict at the Vienna W orld Conference on Human Rights in 1993 and the Fourth W orld Conference on Women in Beijing in 1995 and, of course, the Women's International War Crimes Tribunal. There is little doubt that for those survivors who attended, who were able to give their accounts and show their scars, physical and psychological, this was an important part of reclaiming international criminallaw despite the non-authoritative nature of the proceedings.

E. Definitions of Crimes Another aspect of breaking the silence of law is ensuring that relevant crimes are included within the international instruments and that the definitions and elements of all international crimes take into account women's experiences of them. As argued earlier, a significant step through the drafting of the Statutes for the ad hoc War Crimes Tribunals was the inclusion of rape as a crime against humanity. With respect to war crimes the Geneva Conventions were limited, seeing sexual abuse as crimes of honor rather than of violence. 48 Following the Geneva Conventions, the Statute for the ICTY did not explicitly include rape as a grave breach of those Conventions (Article 2) nor as a violation of the laws and customs of war (Article 3). Through its jurisprudence, however, the ICTY has asserted rape as a war crime. In contrast, the Statute for the ICTR included "[o]utrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault,,49 as violations of common Article 3. Despite the affirmation of rape as a war crime the legal concept remains inadequate for capturing all of women' s experiences. Women suffer sexual violence in 47 Report of the mission to Rwanda, part II, gives the stories of Bernadette, Monique, Denise, Jeanne, Donatilla and Marcelinne. Such accounts are both personalized and

representative of how women suffered genocide in Rwanda. 48 E.g., Article 27 of the Convention Relative to the Protection of Civilian Persons in Time ofWar; Article 76 (I) ofProtocol I; Article 4 (2) (e) ofthe Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection ofVictims ofNonInternational Armed Conflicts (Protocol II), 8 June 1977, UNTS, vol. 1125,609. 49 Article 4 of the ICTR Statute.

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ways connected with the conflict that are not covered by the legal requirements to constitute war crimes. For example, women ci viii ans are often targeted for violence by both sides in conflict; women fleeing conflict and becoming refugees or internally displaced persons become subject to sexual abuse in exchange for papers, food or shelter; women have been subject to sexual exploitation by UN peacekeepers; and research has shown that domestic violence increases in the immediate aftermath of conflict. But none of these occurrences comes within the legal definition of a war crime which must be committed against a protected person in the terms of the Fourth Geneva Convention. If the attacks are insufficiently widespread or systematic to constitute crimes against humanity, they fall outside the construct of international crimes. The continuum of violence against women in war and peace makes such legalistic distinctions meaningless. When the ad hoc War Crimes Tribunals commenced their work there was no definition of rape or other sexualoffences under international law and no accepted applicable general principles. The Tribunals have had therefore to determine the understandings of sexual crimes under internationallaw. The jurisprudence they have developed is likely to be influential both for the work of the ICC and in building understandings of these crimes in national courts. This section will briefly consider the crimes of rape, forced impregnation, sexual slavery and humiliating treatment to deterrnine how these offences have been constructed. I. Rape How the law constructs rape deterrnines who has in fact been raped. Where there is dissonance between survivors' perceptions of the offence that has been committed against them and the law's verdict on this point, the impunity granted means that the law ceases to have relevance for them as either an instrument of protection or of punishment. It must be remembered that this is precisely what happens in rape trials in many national jurisdictions where there are higher rates of acquittal than for other offen ces. 50 Such impunity is often based upon the myths and stereotypes about male and female sexuality that inform decisions about rape. Consent is an especially controversial issue as it confronts many of the myths and prejudices of women's behavior and, of course, offers a complete 50 A Uni ted Kingdom report has shown that only 1 in 13 reported rapes results in a convictioll. "At each stage of the legal process, stereotypes and prejudices playapart in decision-making." Vera Baird, You 've Been Raped. Why Bother Reporting It?, The Guardian, 10 April 2002, G2, 16.

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defense. Accordingly the woman's behavior and imputed character are scrutinized for evidence of implied consent. Examples of such myths are that since "nice" women do not get raped, the victim must have consented; that sexually experienced women always consent to sex with any man; that women say "no" when they mean "yes"; that a woman would fight her aggressor and failure to do so implies consent; and that if rape had really occurred, it would have been immediately reported and that not doing so suggests that rape is being subsequently alleged to cover the woman's sexual misconduct. These myths ignore the realities of the trauma of rape, the practical and security reasons against reporting rape, especially in conflict or to corrupt or insensitive police or security personneI, and the fear and shame experienced by the survivors. If impunity for sexual violence is to cease in international criminallaw, it is essential that such myths are confronted and dispelled. It is therefore important that the definitions, understandings and procedures for the prosecution of such crimes reflect the perspectives of women and that prevailing myths about sexualoffences prevalent in domestic arenas are not perpetuated in international ones. The ad hoc Tribunals have shown themselves generally to be sensitive to the realities of sexual violence and have taken a less restrictive view of rape than is prevalent within some national jurisdictions. The Tribunals had to evolve their own definitions of rape and other sexual offences and there are divergent views between the different Trial Chambers. The lack of any internationally agreed definition has led judges to ex amine the rape laws of the major legal systems of the world to determine commonalities and to deconstruct the elements of the crime. One definition is that in the Furundzija judgement51 where rape is defined through mechanical description of body parts. ICTY Trial Chamber Two held that the actus reus of rape constitutes: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator 2 (ii) by coercion or force or threat of force against the victim or a third person.

51 Prosecutor v. Anto Furundzija, IT-95-17, judgement of 10 December 1998 (hereinafter: Furundzija), para. 185. This definition was not part of the appeal. 52 The Trial Chamber held oral rape to be "a most humiliating and degrading attack upon human dignity" and that "that such an extremely serious sexualoutrage as forced oral penetration should be classified as rape." Ibid., para. 183.

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This definition has the advantage of ensuring inc1usion of male rape and of non-penile rape53 but is also controversial for its appearing to require coercion or force and its failure to refer to other factors which would make an act of sexual penetration non-consensual or non-voluntary.54 Further, a mechanical description of objects and body parts fails to capture the aggression of rape. In Akayesu the ICTR Trial Chamber One pointed out that the definition of torture within the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment55 does not list specific prohibited acts but rather attempts to get to the essence of state-sanctioned violence. 56 The Chamber recognized rape as an act of aggression and: as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which inc1udes rape is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. 57

This definition not only avoids the mechanical description of acts but also goes to the heart of the contes ted issues of consent and coercion. The issue of implied consent has been raised in various ways before the Tribunals. In Akayesu a number of women from the Taba commune were not killed at once but retumed and sought refuge at the bureau communal. They stayed there as they had nowhere else to go and "death would be waiting for them anywhere else." Many were raped by Interahamwe and police at the bureau communal and in other places around the area such as the cultural center, sorghum fields and forests. It was subsequently argued that they had impliedly consented to sexual intercourse because they had stayed in their place of refuge and had not fled. In Kunarac the defendant c1aimed that one of the women had voluntarily sought hirn out for sexual intercourse, that she had taken an active role in it and that accordingly there had been no rape. These arguments demonstrate the advantage of the emphasis on "coercive circumstances" in the Akayesu definition of rape rather than on individual coercion as in Furundzija. Reliance on coercive circumstances addresses the situation where an individual may not have actually protested or fought against sexual activity, but only because of fear and the desperate nature of the situation she found herself in. 53 E.g., witness KK testified that the Interahamwe inserted wood into the sexualorgans of a dying woman; Akayesu (note 30), para. 686. 54 Kunarac (note 35), para. 438. 55 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, 10 December 1984, UNTS, vol. 1465,85. 56 Akayesu (note 30), para. 597. 57 Ibid., para. 598. This definition was accepted by Trial Chambers in Celebici (note 35), para. 479, and Musema (note 32), para. 965.

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While such a victim may not have been directly forced, coercion is inherent in conflict and in the very presence of anned militia and those responsible for ethnic cleansing and mass killings. The definition of rape in international criminallaw is in the context of the particular crimes within the Tribunals' jurisdiction - war crimes, crimes against humanity and genocide - with all the elements of force, terror, and helplessness that are integral to situations where such offences are committed. The domestic law contexts of rape are quite different and the definition in international law might therefore be expected to be less restrictive than under national jurisdictions. The expression "coercive circumstances" is broad enough for an assessment of the precise situation that confronted the particular victims. In Kunarac Trial Chamber Two emphasized issues of coercion, consent and implied consent. It concluded that what appears to be common to legal systems around the world is "the basic underlying principle ... that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim.,,58 It emphasized the victim's sexual autonomy and personal integrity, thereby rejecting the concept of implied consent and delay in reporting as relevant. 59 The Chamber identified three elements as especially applicable to understandings of rape: sexual activity accompanied by force or threat of force; sexual activity accompanied by force or a variety of other specified circumstances that "made the victim particularly vulnerable or negated her ability to make an informed refusal" and sexual activity which occurs without consent. 60 It adopted the Furundzija definition but addressed the issue of consent by adding a final sentence derived from Akayesu: "Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances.,,61 Consistently with this approach the Trial Chamber did not accept that internationallaw requires "proof of force, threat of force or coercion.,,62 The Tribunal applied its understanding of rape and focused on the experience of the woman victims, not that of the male perpetrator. It accepted the evidence of the witness who Kunarac alleged had consented to, and even initiated, sex that she had been threatened by another soldier that he would kill her unless she satisfied his commander, Kunarac. The Chamber was unmoved by Kunarac' s claim that he Kunarae (note 35), para. 440. lbid., para. 441. "Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant." lbid., para. 457. 60 lbid., paras. 439-456. 61 lbid., para. 460. 62 lbid., para. 1119. 58 59

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did not know she was acting out of fear. In the general context of war and the position of Muslim women and girls detained at that time it was not credible that he was "confused by her motives." As is apparent there have been varying perspectives on the definition of rape within the ad hoc Tribunals. In June 2002 the Appeals Chamber approved the definition of the Trial Chamber in Kunarac. 63 It added that there is no basis in customary internationallaw for requiring resistance on the part of the victim, a requirement that would be "absurd on the facts." The International Crirninal Court will not have to determine its own definition as this has been agreed in the finalized draft text of the Elements of Crimes, Article 7 (i) (g).64 Under this text there is rape when: 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of vio1ence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

Like that in Kunarac, this definition attempts to combine an iternization of bodily parts with recognition of coercive circumstances or environment. However, it places greater emphasis on coercion and force rather than on the victim' s autonorny, sexual integrity and lack of consent. As discussed above, rape and sexual violence constitute genocide "in the same way as any other act as long as they were comrnitted with the specific intent to destroy, in whole or in part, a particular group, targeted as such." A particular manifestation of genocidal rape has been recognized in aseparate crime, that of forced pregnancy. Forced pregnancy comprises two separate acts, the forcible impregnation, that is rape,65 and then the forced carrying of the foetus through to birth, through denial of access to abortion and detention. Forced pregnancy where a woman of one group is deliberately forced to bear the child of another group 63 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23 and IT-96-23/1, Appeals Chamber, judgement of 12 June 2002, paras. 128-133. 64 Report of the Preparatory Commission for the International Criminal Court, Addendum, part II, PCNICC/2000/1/Add 2, 2 November 2000, Article 7 (1) (g) of the Finalized Draft Text of the Elements of Crimes. 65 Prosecutor v. Radovan Karadzic and Ratko Mladic, IT-95-5, Rule 61 Hearing, para. 64. "The aim of many of the rapes was enforced impregnation."

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with the intent to have her give birth to a child of the father' sand not the mother' s group has been held to constitute genocide within Article 11 (d) of the Genocide Convention. 66 The recognition of rape as an element of genocide and ethnic cleansing is important, but it has had an unfortunate consequence in the Statute of the International Crirninal Court where forced pregnancy as a crime against humanity is lirnited to where there is the "intent of affecting the ethnic composition of any population.,,67 The reasons for this restrictive understanding of forced pregnancy relate to religious objections to abortion as is made clear by the rider that the definition "shall not in any way be interpreted as affecting nationallaws relating to pregnancy." In no other instance is there a requirement for an additional intent or motive for an offence to constitute a crime against humanity. Forced pregnancy is the only offence that is comrnitted exclusively against women. It constitutes a very particular denial of a woman's autonomy and bodily integrity by forcing her to bear a child. The lifetime implications are endless. Yet in this one instance the continuing insistence by religious leaders that control is maintained over women' s reproductive capacity has subjugated gender identity, that the crime was comrnitted against her because she is a woman, to ethnic identity. In this context "international crirninallaw incorporates a problematic public/private distinction: it operates in the public world of the collectivity, leaving the private sphere of the individual untouched."68

11. Sexual Slavery

Just as Akayesu was crucial to the understanding of genocidal rape, Kunarac has elucidated the concept of enslavement as a crime against humanity (also previously undefined in international humanitarian law) and emphasized its gendered aspects. This case is especially important as the indictment featured only crimes of sexual violence rather than including such crimes as an "add-on" to other offences. In this way it contributes to the overall picture of the wars in the Former Yugoslavia that have been presented by the cases before the ICTY. 66 Akayesu (note 30), para. 507. "In patriarchal societies ... an example of a measure intended to prevent births within a group is the case where, during rape, a woman ... is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group." See also Karadzic and Mladic (note 65), Rule 61 Hearing, para. 64. 67 Artic1e 7 (2) (f) of the Rome Statute of the International Criminal Court. 68 Charlesworth (note 7),387.

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Muslim women in Bosnia were detained at the Foca camp and were found to be physically and psychologically unable to leave. The ICTY held that the factors of enslavement included control of movement, control of physical environment, psychological control and control of sexuality.69 This holding removes the need for a commercial transaction: what is important is the exercise of any or all of the powers attaching to the right of ownership over a person. 70 Such powers of ownership are present in the refusal of sexual autonomy and denial of choice to the detained women who had to provide sexual services on demand. When a woman has no right to refuse any man, where such matters as abortion, contraception and personal hygiene are totally under the control of her abusers and she has "[n]owhere to go and no place to hide,'m then her captors exercise ownership over her and she is subject to sexual enslavement. The camps at Foca are a modern manifestation of the forced detention of the cornfort women in World War 11. Those women, too, had no control over their own destinies; even where they were not physically locked into cornfort facilities, they were enslaved. In both instances, designation as enslavement removes issues of consent to individual acts of intercourse. The finalized draft text for the elements of crimes prepared by the Prepcom for the ICC has unfortunately retracted from this broad approach and has narrowed the concept of slavery by reverting to the concept of commercial transaction. It has defined the actus reus of slavery as the exercise of any of the powers of ownership "such as by purchasing, selling, lending or bartering ... or by sirnilar deprivation of liberty." While the catch-all phrase, "such as" rnight be interpreted more flexibly, the qualification of "sirnilar" rnight reduce this possibility. "Not only is the emphasis on commercial exchange or sirnilar deprivation of liberty antiquated, it is contrary to the lived experience of women and men coerced or deceived into enslavement situations and sexual slavery.'>72

Kunarac (note 35), paras. 542, 543. lbid., para. 539. The elements of ownership are taken from the Slavery Convention, 25 September 1926, LNTS, vol. 60, 253. The Appeals Chamber (note 63) preferred the definitionallanguage of slavery in the Slavery Convention to that of the Trial Chamber and noted that it is impossible to enumerate all the contemporary forms of slavery. It concurred with the Trial Chamber' s findings of enslavement in the present case, paras. 116-124. 71 Kunarac (note 35), para. 740. 72 Women's International War Crimes Tribunal for the Trial of Japan's Military Sexual Slavery, The Prosecutors and the Peoples ofthe Asia-Pacific Region v. Hirohito Emperor Showa and Others and the Government of Japan, Case No PT-2000-1-T, 4 December 2001, corrected 31 January 2002, paras. 630-631. 69

70

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Other manifestations of the exercise of ownership were the designation of some women as the personal property of particular men and the requirement that they perform tasks such as cooking and cleaning, alongside the demands for sexual access. It is important that these typical "women's roles" were recognized in Kunarac as forced labor and aspects of enslavement. Assignment of domestic tasks to women can be seen as everyday, natural and as too mundane to be conceived of as constituting crimes against humanity. Forced labor is more readily associated with building the Burmese railway or factory labor, but at Nuremberg it was recognized that forcing women to perform domestic tasks can constitute slave labor, in that case in the sending of 500,000 women domestic laborers to Germany to relieve German housewives and the wives of German farmers. 73

III. Public Outrage and Humiliation Sexual violence is perpetrated in many other forms than rape. The ICTR has noted that it "could include forced nudity, forced sterilization or experimentation, sexual mutilation, sexual threats, rape and so forth.,,74 It need not include sexual penetration or even physical contact. The recognition of hurniliating and degrading acts as constituting forms of sexual violence is another significant advance in international crirninallaw. The reports are replete with ac counts of women being forced into behaviors that cause male ridicule while being deeply distressing and frightening for the fernale victirns. Hurniliation is clearly gendered, for example forced nakedness, women being required to do gyrnnastics naked, to perform public exercises displaying naked thighs in front of large numbers of people,75 or forced to dance naked on the table. 76 Outrages on personal dignity77 are sirnilarly gendered. For exarnple in Kunarac witnesses told how the sexual exploitation and sale of wornen was accompanied by laughter at the srnall payrnents and the inclusion of a truck load of washing powder. 78 Allocating insufficient food and leftover scraps to the detained victirns also underlines their unimportance, the control of their captors and their hurniliation. 79 73

74 75

Kunarac (note 35), para. 523. Akayesu (note 30), para. 688. Ibid.

76 Other elements may add to the humiliation, for example age; Kunarac (note 35), para. 767. 77 Common Article 3 (1) (c) of the Geneva Conventions. 78 Kunarac (note 35), paras. 756, 775. 79 Ibid., para. 752.

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The Trial Chamber in Kunarac stressed the inherent objective of preserving human dignity. It held that the loss of dignity need not cause "lasting suffering" to constitute a violation of international criminallaw and that it is irrelevant that the victim recovers or overcomes the effect of the outrage. so Humiliation may be viewed differentlY by the victim and the perpetrator and an objective test of what constitutes an outrage might fail to take account of the victim's personal experience of suffering. In Kunarac neither an objective or subjective test was definitively preferred and an outrage on personal dignity was held to be "any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity."SI This is appropriate, provided that in deterrnining what is "generally considered" to be humiliating the gender of both victims and perpetrators is taken into account, as weIl as other factors such as age, status and cultural understandings.

F. Legal Proceedings There is little advantage in developing gender sensitive jurisprudence about the nature of international crimes if onerous procedural rules inhibit women from testifying or if stereotypes are engaged to discredit their testimony. Testifying before the ad hoc Tribunals has not been easy for many witnesses, men and women. They have had to give details of painful and traumatic events. The ICTY was established before the Dayton Peace Agreement terminated the conflict in Bosnia and even since then witnesses may weIl be afraid of the consequences of giving evidence for themselves and for their families. As time has passed the events have become more distant and precise details might become blurred, giving rise to suggestions of unreliability and lack of credibility. The ad hoc Tribunals have had to combine the need to ensure a fair trial with sensitivity towards witnesses. This section looks briefly at two aspects of this: attempts to discredit witnesses and issues of protection. Defense counsel have made attempts to discredit, especially female, witnesses by treating their accounts as fantasy or lies. For example in Akayesu the defense had scorned that a pregnant woman had c1imbed a tree, hidden there for a week and come down for food only at night. The Trial Chamber rejected this attempt 80 lbid., paras. 501,503. Trial Chamber One in Prosecutor v. Zlatko Aleksovski, IT-951411, judgement of 25 June 1999, paras. 54-56, had required the humiliation to be "real and lasting." 81 Kunarac (note 35), para 507.

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and responded that "[w]hat the defense characterized as the 'fantasy' of this witness, which may be 'of interest to psychologists and not justice', the witness characterized as desperation, answering his challenge with the suggestion, 'If somebody was chasing you, you would be able to climb a tree. ",82 The judges have also been understanding about inconsistencies in evidence, implicitly rejecting stereotypes of women as unreliable and hysterical witnesses. They have accepted that inconsistencies can be rationally explained by the difficulties of recollecting precise details several years later, trauma, the difficulties of translation, and illiteracy.83 In Kunarac the Trial Chamber accepted that the very nature of the ordeal might inhibit precise details of the detention, such as the sequence of events, exact times and dates. While needing to ensure the reliability of witnesses, the Tribunals have shown themselves sensitive to the realities of sexual violence and have rejected the distorted pictures presented by defendants. Many aspects of procedures could be mentioned. In many national laws the "myths and stereotypes [of rape] not only undermine the effectiveness of rape law, but have also led to a number of important roles of evidence which seriously obstruct the ability of rape complainants to obtain a fair hearing." It should be remembered that trials of sexualoffences in domestic law are seen as especially intimidating and groeling by victims. Survivors relive the attacks as they have to recount intimate, humiliating and degrading details of their ordeal and are subjected to hostile questioning as though they, not the accused, were on trial. Unwillingness to face the legal process results in low reporting rates and even lower conviction rates for rape and other sexualoffences. It is therefore important that the roles and procedures for trials of international crimes of sexual violence do not replicate the myths and stereotypes and that the accused's right to a fair trial does not allow for legal abuse of survivors. The concept of international accountability for crimes committed against women will become meaningless if survivors do not feel able to testify. In the ad hoc Tribunals special roles of procedure were adopted by the judges for cases of sexual assault that address a number of these issues by rejecting the need for corroboration, asserting the irrelevance of the victim's previous sexual his tory and limiting the defense of consent. 84 Since in many jurisdictions women are believed to be unreliable and untruthful, it is considered unsafe to convict a rational man on the basis of a woman' s uncorroborated evidence. This ignores the

83

Akayesu (note 30), para 455. Ibid.

84

Rule 96 of the ICTYand ICTR Rules of Procedure and Evidence.

82

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fact that rape is likely to occur when there is no one else present and that there are many factors inhibiting the immediate reporting that might supply medical or other corroborative evidence. These are accentuated in arrned conflict where medical services might be unavailable, the police forces might be unreliable or a source of further danger, and where there is an environment of fear and coercion. The relevance of a woman's past sexual history in a trial for sexual assault is highly contested in domestic law. International criminaljurisdiction is only applicable to war crimes, crimes against humanity, and genocide. These situations are far removed from the setting of many domestic rape trials and defenses that might be raised in such trials relating to consent (and evidence of previous sexual conduct as providing a reasonable basis for assuming consent) are simply irrelevant in these circumstances. Rule 96 recognizes this through the exclusion of past sexual conduct and its constraints on raising consent as a defense. These rules require the judges of the ad hoc Tribunals to deterrnine the reliability of evidence on its own merits and not on the basis of myths about victims of sexual assault. The Rules of Procedure and Evidence for the lee have not been left to the lee judges but have been subject to drafting and negotiation in the prepcoms that have followed the adoption of the Rome Statute. In these negotiations, considerable attention has been given to evidence in cases of sexual violence, in particular that of consent. Situations where inferences of consent shall not be made have been identified, although they do not include failure to report, and some procedural protections are provided for the inclusion of the defense of consent. The assessment of all evidence is subject to Article 69 (4) of the Statute of the lee which provides that: The Court may role on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Ru1es of Procedure and Evidence.

Much will therefore depend upon the attitude taken by the judges to these issues. A problem that has been identified in feminist analysis of domestic criminallaw, is that "feminist strategies for improving the legal treatment of women frequently come into conflict with mainstream liberal attempts to ensure greater protection of human rights and civilliberties in criminallaw."85 Thus in domestic courts safeguards provided for victims of rape have been disregarded or reduced in the interests of ensuring a fair trial. This tension is perhaps even greater in international criminal tribunals that must be seen to adhere to the human rights 85

1,22.

Donald Nicolson, Criminal Law and Feminism, in: NicolsoniBibbings (note 10),

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protections guaranteed by regional and international human rights instruments. This tension has surfaced in the particular context of provisions for the protection of victims and witnesses, especially where anonymity for such witnesses from the public and from the accused has been requested. In such cases there must be a careful balancing of competing interests: the rights of the accused to a fair trial against fear for the safety of witnesses and their families and the interest of the international community in the fair administration of criminal justice that might be underrnined if witnesses are unwilling to testify. In a highly controversial decision 86 the ICTY specified guidelines for the exceptional circumstances when anonymity might be ordered as a last res ort. The guidelines require: - Areal fear for the safety of the victim or witness. (In the Tadic case it was stated that the nature of the crimes satisfied this requirement, but that judgment was rendered during the continuation of the conflict. This may be a crucial factor in subsequent cases.) - The testimony must form an important part of the prosecution's case. - There must not be any prima facie evidence that the witness is untrustworthy. (Having a criminal record does not of itself amount to untrustworthiness, but when it emerged in Tadic that the evidence of L was not reliable, the prosecution moved to have the protective measures removed and the evidence redacted.) - The ineffectiveness or non-existence of domestic protection programs is a factor to be taken into account. - Witness anonymity can only be accorded on the basis of proof with respect to each particular case; there can be no blanket provision for anonymity. The ICTY also spelled out further guidelines to minimize the adverse impact for the accused in a case where a witness has been accorded anonymity: - The judges must be able to observe the demeanor of the witness in order to determine the witness's reliability. - The judges must be made aware of the witness's identity. 86 Prosecutor v. Dusko Tadic, Decision on the Prosecutor' s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, IT-94-I-T. For opposing views on the decision in this case see Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses against Accused, AJIL 90 (1996), 235; Monroe Leigh, Witness Anonymity is Inconsistent with Due Process, AJIL 91 (1997), 80; Christine Chinkin, Due Process and Witness Anonymity, AJIL 91 (1997),75; Olivia Swaak-Goldman, The ICTY and the Right to a Fair Trial: a Critique ofthe Critics, Leiden Journal ofInternational Law 10 (1997), 215.

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The defense must be able to question the witness on all issues unrelated to identity, for example how the evidence was obtained. - Anonymity is not accorded on a permanent basis, and if the need for anonymity is deemed to have passed, the witness' s identity must be released. These provisions are especially relevant to testimony in cases of sexual assault but are not only applicable to women witnesses, or to prosecution witnesses. Their application has also shown that no assumptions should be made about the willingness of women to confront their abusers 87 or to describe what occurred to them. A number of survivors have spoken of feeling empowered by testifying and have reportedly been pleased to have done so, as was the case with the comfort women who testified before the Women's Tribunal. Protective measures are stipulated in Artic1e 68 of the Statute for the ICe. They inc1ude ensuring confidentiality through in camera proceedings and the presentation of evidence by electronic or other special means, but appear to prec1ude anonymity. lt may be that witnesses testifying before the ICC will not experience the same elements of fear for themselves and their families caused by ongoing conflict or the highly volatile aftermath of genocide as those before the ad hoc War Crimes Tribunals. Certainly the ICC has not been created under Chapter VII of the UN Charter, with the specific mandate with respect to the maintenance of international peace and security as was the case with the ad hoc Tribunals, a fact of which the ICTY was mindful in Tadic. But other security concerns may continue to be valid, and the ICC is unlikely to have the same resources as those at the disposal of national police forces to ensure the safety of witnesses. The argument that protection for witnesses must come from state proteetion programs may not be appropriate for cases of sexual violence. A witness may not fear harm from the accused but from her family or her community. If she testifies to sexual abuse, she may be seen as shamed and unmarriageable, or she may be reviled as a collaborator for having had sexual relations with an enemy. In such circumstances provision for anonymity may be the only means of securing her testimony.

87 In Decision on the Prosecutor' s Motion to Withdraw Protective Measures for Witness K, 12 November 1996, the ICTY Trial Chamber withdrew anonyrnity after witness K had indicated her willingness to testify in open court.

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G. Conclusions Feminist analysis of international law has two distinct strands. The first is to deconstruct the explicit and implicit values of the international legal system, challenging their claim to objectivity and rationality because of the limited base on which they are built. All tools and categories of international legal analysis become problematic when the exclusion of women from their construction is understood. The "international" the canon purports to represent is, in Elizabeth Grosz' words, in fact a "veiled representation and projection of a masculine which takes itself as the unquestioned norm, the ideal representative without any idea of the violence that this representational positioning does to its others.,,88 Such deconstruction has trans formative potential because it reduces the imaginative grip of the traditional theories. The second role of feminist analysis of internationallaw is that of reconstruction which requires rebuilding the basic concepts in such a way that they do not support or reinforce the domination of women. This paper has attempted both these tasks: to identify some of the silences of international criminallaw and those areas where international criminal law has been reconceptualized so as to take account of agendered analysis. I conclude that the overall picture is mixed: There has been progress from this perspective, but the overall position is not clear-cut. The uneven record may be accounted for by the very nature of the process which has been largely NGO conceived and driven. The conviction of women's NGOs that the evolving international criminallaw must encompass women' s realities has necessitated constant advocacy, lobbying, negotiation and vigilance. In many instances there has been success but in others compromises have had to be made and equivocallanguage accepted. The very success has engendered backlash and the formation of strong alliances against further progress. Some of the positives are as follows: The unarguable conclusion that crimes of sexual violence are included within the jurisdiction of the ad hoc Tribunals and the Statute of the ICC; the definitions and understandings of these crimes and the introduction of appropriate rules of procedure and evidence to encourage the giving of evidence. - The importance of the prosecution of an incident of rape against a single victim in Furundzja and of a prosecution based solelyon sexual violence against women and sexual enslavement in rape camps in Foca cannot be overstated. 88 Elizabeth Grosz, Volatile Bodies: Towards a Corporeal Feminism, 1994, 103.

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- The importance of gender sensitivity in all stages of the criminal process has become accepted. This encompasses both the need for gender balance and gender sensitivity in interpretation and application of law. Gender balance requires the appointment of women in relevant positions, including among those conducting investigations and collecting evidence, the prosecutors and the judiciary, and the need for gender training for all those involved. The Statutes ofthe ICTY and ICTR made no such stipulations butArticle 36 (8) (a) (iii) of the Rome Statute for the ICC requires "[a] fair representation of female and male judges," as well as judges who have "legal expertise on specific issues, including, but not limited to, violence against women or children." It is essential that the first elections to judges of the ICC give effect to this provision and that fair gender representation is not reduced to a token woman or two. This is not say that women will decide cases differently from men but it is important that diverse life experiences are brought to decision-making. Further, human rights norms of equality should be applied in international institutions and the value of women role models in senior positions should also be recognized. Nevertheless, that the presence of women among the internationaljudiciary can make a difference is illustrated by J udge Pillay' s recognition of the importance of the "spontaneous" evidence of sexual violence in Akayesu. It is also doubtful whether the jurisprudence on sexual violence would have evolved in the way it has without the appointment of a legal gender adviser within the prosecutorial office of the ICTY. - The application of command responsibility to sexualoffences and the conviction of people who have not been personally accused of sexual violence (for example in Akayesu and Furund?ja) has been important to recognition of these acts as part of the group enterprise of conflict or genocide and not private acts of the perpetrators. This list suggests that the silence about women in armed conflict has been broken and that the importance of taking account of women's experiences has been accepted. Nevertheless, there has been another side to the story which has seen the repetition of many of the myths and prejudices about women that have haunted domestic legal systems. For example, in Furund?ja achallenge to the credibility of a witness who had received treatment for post- traumatic stress as a consequence of rape led to the reopening of the trial and further cross-examination in connection with the medical, psychological or psychiatric treatment or counseling she had received. At the reopened trial experts testified on the nature of post traumatic stress and the Trial Chamber found that "even when a person is suffering from PTSD, this does not mean that he or she is necessarily inaccurate in the

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evidence given. There is no reason why a person with PTSD cannot be a perfectly reliable witness."89 Indeed, as has been cornrnented, the problem a woman faces after such trauma is forgetting, not remembering the details. Another example from the same case was the challenge that was made to the impartiality of a woman judge, Judge Mumba. The appellant claimed thatJudge Mumba' s personal interest in, and association with the work of the UN Commission on the Status of Women and the agenda of the Platform for Action, especially with respect to violence against women, should have disqualified her from hearing the case. The Appeals Chamber also dismissed this claim, but the very fact that these grounds for appeal were entered and considered illustrates the types of arguments that are addressed about women. The word of a torture victim is not doubted because of the stress of torture, and male judges are not perceived as biased when they preside in rape trials. At Rome, alliances between conservative religious forces from the West and Islarnic groups made the inclusion of forced pregnancy and persecution on the grounds of gender as crimes against humanity and the definition of gender among the most contes ted issues. All these examples show that it cannot be assumed that interpretations and applications of international criminallaw deemed progressive by feminists will be continued without challenge. Finally, there are two further considerations. International criminal law is reactive and its remedies are limited to punishment. There is a practical need for international criminallaw to be applied in conjunction with other long-term financial and other remedies, such as medical care, support, shelters and refuges, resettlement and retraining. This is especially the case where criminal proceedings are part of post-conflict reconstruction. But there are also more theoretical questions. Inclusion of crimes against women within the canon of international criminallaw does not address fundamental issues of power or question the "objectivity" of the international legal system and its hierarchy based on gender. But there are also concerns about whether criminallaw is in any case the appropriate instrument for feminists to promote their interests or whether feminist activists would be better advised to seek reform outside of the legal structures. 90 Certainly, at the internationallevel women's organizations have shown a striking faith in legal reform that is perhaps not borne out by its actual potential. On this basis it might be argued that the Women's International War Crimes Tribunal was an inappropriate strategy to pursue: Formal international legal proceedings have only limited results, and lack of any means of enforcement of those proceedings minimizes their impact. These deficiencies can only be exacerbated in the case of informal tribunal. 89 90

Furundzija (note 51), appeal 21 July 2000, Appeal Chamber, para. 122. Carol Smart, Feminism and the Power ofLaw, 1989, 144.

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Perhaps focus on the feminist ethic of care would have been more appropriate. However, other forms of proceeding had been earlier attempted. At the World Conference on Human Rights and again at Beijing, the comfort women (and other women victims of violent crimes) had given testimony, but there was no analysis of legal responsibility. Their testimonies were strongly emotive, but the intended audience is important. For presentation to the Japanese government, the language of law, not of harm, is stronger and more pertinent. Whether enforced or not, the language of international law is one that is recognized by governments and is accordingly harder for them to discount. Without feminist critique and initiative, international criminal law would have continued to exonerate the most blatant crimes against women, thereby enhancing the expectation of impunity and allowing the unchallenged continuation of gender constructs.

International Criminal Law and Alternative Modes of Redress By Leila Nadya Sadat

A. Introduction It is an extraordinary privilege to be here today and to have heard the exceptional presentations thus far. I am honored to be permitted to share some of my ideas with you and benefit from your collective wisdom and expertise. Our hosts assigned me the topic of "International Criminal Law and Alternative Modes of Redress." In this connection, my paper will address three primary subjects: (1) Accountability for the commission of atrocities that can be fairly labeled international crimes; (2) Prescriptive, adjudicative and enforcement jurisdiction with respect to those crimes; and (3) The relationship between accountability and jurisdiction.

My work on accountability began with a study on the case of Paul Touvier, who was accused of crimes against humanity for ordering the execution of seven lews (among other misdeeds) in a small French town, Rillieux-Ia-Pape, during World War IL I There was little doubt Touvier had committed the crime, but it took the French courts twenty years to decide he could stand trial. By that time, Touvier was quite old and many wondered whether his trial would serve any real purpose. Moreover, former President Fram;ois Mitterand and others suggested that trials of Vichy collaborators would ruin la paix sociale, or civil peace, by reopening old wounds and dividing French society.2

I Leila Nadya Sadat (formerly Wexler), The Interpretation ofthe Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, Columbia Journal ofTransnational Law 32 (1994), 288. 2 Leila Nadya Sadat (formerly Wexler), Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes Against Humanity in France, Journal ofLaw and Social Inquiry 20 (1995),209.

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In fact, Touvier's trial proved instructive for the French. Not all agreed that it was socially beneficial, and many argued that Touvier was merely a scapegoat. Yet, for the victims of his crimes the trial was cathartic, productive and appropriate and clearly served as a focal point for French society's reexamination of the Vichy period. One of the most poignant moments in the trial occurred when the son of one of Touvier' s victims, Henri Glaeser, testified as to how he remembered the photo of his father after the massacre - his mouth open as if someone had poured concrete in it to render hirn speechless. Young Glaeser testified that he was content to finally find hirnself before a tribunal in which everything could be said, even by the accused. 3 Thus, French society, as well as the victims' families - who were still holding onto the idea of justice fifty years after the crime appeared to have benefitted from the trial. So we see that the idea of requiring an official reckoning and accountability for the commission of crimes is strong certainly in Western culture. So it is not surprising that international criminallaw has also gravitated towards a model of individual accountability in the form of criminal responsibility since the Second World War.

B. Combating Impunity for International Crimes: The Accountability Paradigm Devastated, demoralized and depressed by war and the commission of atrocities on a massive scale, humankind has left the 20th century desperately seeking new institutional and legal mechanisms capable of restraining its darkest impulses. The gravity of the problem cannot be overstated: it is estimated that 170 million people have been killed in more than 250 conflicts since World War 11. 4 The proposed remedy has been the establishment of international legal regimes and, more recently, international institutions, that can bring about the transition from a culture of impunity to one demanding accountability. Although mechanisms such as truth commissions, reparations to victims and civil proceedings have been proposed and used to address the problems suffered by societies victimized by mass atrocities, a corners tone of the effort to combat impunity has been the traditional framework of the criminallaw: the condernnation of certain behavior

Ibid., 219-220. M. Cherif Bassiouni, The Nonnative Framework ofInternational Humanitarian Law: Overlaps, Gaps and Ambiguities, Transnational Law and Contemporary Problems 8 (1998), 199,203. J

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as criminal, not simply a breach of treaty or customary internationallaw obligations, and the imposition of individual criminal responsibility therefore. 5 This use of the criminallaw is not accidental. Standard criminology was developed in the context of behavior that attacks norms established by the State, not in the context, as is so often the case in international crimes, of normatively unacceptable behavior by the State. Nevertheless, the international community, frustrated with the inability of civil sanctions, military reprisals and the doctrine of State responsibility to deter atrocities,6 has increasingly moved towards a criminal model that treats the commission of atrocities as unacceptably disruptive behavior, for which individual offenders must be tried and punished. 7 Modem theories of criminal justice generally justify the punishment of criminals either on the basis of some benefit society can expect to receive as a result to deter other criminals or to rehabilitate or incapacitate the offender (utilitarian theory), or because the criminal "deserves" punishment for the injury he has inflicted on society (retributive justice). 8 Both utilitarian and retributive aspira5 In 1996 the United Nations Commission on Human Rights issued areport to which was attached a set of principles defining and attacking the culture of impunity. The report defined impunity as "the impossibility, de jure or de facto, of bringing the perpetrators of human rights violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, convicted, and to reparations being made to their victims." Question ofthe Impunity ofPerpetrators ofHuman Rights Violations (CiviI and Political), UN Doc. E/CN.4/Sub.2/1997/20 (1997), Annex H, Definitions, A. Although it appears to leave room for a variety of legal responses to the commission of atrocities, by referring to "criminal, civil, administrative or disciplinary proceedings," the definition cJearly contemplates that "criminal proceedings" are the most appropriate response to atrocity. 6 Antonio Cassese, On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, EJIL 9 (1998), 2, 3-4; Leila Nadya Sadat, The Establishment of the International Criminal Court: From the Hague to Rome and Back Again, Detroit Journal ofInternational Law and Practice 8 (1999), 102-107. 7 See Theodor Meron, Is International Law Moving Towards Criminalization, EJIL 9 (1998),18. 8 Sadat (note 2), 210. Retributive justice has many variants, as wonderfully explained in Joshua Dressler, Hating Criminals: How can Something That Feels so Good be Wrong?, Michigan Law Review 88 (1990), 1448, 1451-1453, reviewing Jeffrie G. Murphy/Jean Hampton, Forgiveness and Mercy, 1998. The most widely supported variant is what he calls "negative retributivism," which holds that it is morally wrong to punish an innocent person even if society might benefit from the action (but does not require that the guilty be punished, which "positive retributivism" does), ibid., 1451. For a critique of modem retrib-

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tions are found in international criminal justice. Certainly it is hoped, although not empirically demonstrable, that erecting a system of international criminal justice (inc1uding national and international prosecutions) will prevent the reoccurrence of abu ses and assist in repairing the havoc wreaked upon society thereby.9 The criminal justice apparatus is also designed to ensure respect for the rule of law as a value in and of itself. lO FinaIly, by channeling accountability and punishment through an official mechanism, society hopes to avoid individual vigilantism, as weIl as to provide an impartial forum in which individuals accused of crimes during a prior regime may have their cases heard, with all the due process rights necessary to ensure that their treatment is not tantamount to a purge. 11 That is, the legitimacy of the trials require that the offenders receive all the benefits of due process and legality they themselves denied to their victims. 12 Public trials in courts using rules of evidence and formalized procedures are invested with a solernnity and transparency often absent from other venues. It is hoped that this will not only provide a forum for the punishment of a particular defendant, but also an arena in which the victims may be heard, and an "official" version of the utive theory see David Dolinko, Three Mistakes of Retributivism, University of California at Los Angeles Law Review 39 (1992), 1623. See also generally Israel Law Review 25 (1991),283-791. 9 Stanley Cohen, State Crimes ofPrevious Regimes: Knowledge, Accountability and the Policing of the Past, Journal of Law and Social Inquiry 20 (1995), 1, 22. 10 Indeed, "the idea that wrongs should be redressed, that reparation should be made to the injured is among the most venerable and most central of legal principles." Naomi RohtArriaza, Punishment, Redress and Pardon: Theoretical and Psychological Approaches, in: Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice, 1995,17. 11 Purges have been another traditional response of societies in transition. As Professor Osiel notes, many societies have seen a "quick, decisive purge of enthusiastic collaborators" to be an effective alternative to criminal trials. Professor Osiel mentions Argentina and de-Nazification in Germany as examples, and notes the serious due process and other problems that attend the use of purges by a society, Mark l. Osiel, Why Prosecute? Critics of Punishment for Mass Atrocity, Human Rights Quarterly 22 (2000), 118, 133. In postWar Europe they were common, the purge in France resulting in as many as 40,000 extrajudicial executions, Sadat (note 2),197, note 34. Indeed, the purge in France, while perhaps understandable, probably increased tensions in post-War France that, in combination with other factors, created a deep schi sm in French society that persists to this day, see generally lohn F. Sweets, The Politics of Resistance in France, 1976,213-217. 12 Cohen (note 9), 22. For a critique of this position, suggesting that many safeguards afforded to defendants in national courts should not be extrapolated to the international arena, see Tom l. Farer, Restraining the Barbarians: Can International Criminal Law Help?, Human Rights Quarterly 22 (2000), 90, 92-98.

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truth recorded. 13 In addition, there is no doubt that by employing the criminallaw - the most coercive fonn of power generally available to a society to regulate social behavior - the international community (and its component States) is constructing a normative dis course that expresses deep condemnation of the behavior as weIl as support for its victims.

C. Challenges to the Accountability Paradigm: The Peace vs. Justice Debate The quest for accountability rests on the premise that there can be na real peace without justice. But individual or even collective accountability confronts many challenges borne of either pragmatic or self-serving concerns - it may be complemented by or threatened by national amnesties, truth commissions, conditional amnesties and even international Realpolitik. 14 I. National Amnesties Amnesty is essentially an act of oblivion. 15 Derived from the Greek word amnestia, meaning forgetfulness, "[a]mnesty ... connotes that the offender's crime has been overlooked because that course of action benefits the public welfare more than punishment would."16 Unlike pardons, which imply forgiveness of the offender and are generally particularized in nature, amnesties typically apply to groups of offenders, and neither eradicate the offense nor the moral guilt that might be associated therewith. 17 They are thus practical, if somewhat unsatis13 For a superb treatment of many of the issues surrounding the use of criminal trials following mass atrocities see Mark Osiel, Mass Atrocity, Collective Memory, and the Law, 1997. 14 For the view that State sovereignty is the principle obstac1e to the enforcement of international humanitarian law see Antonio Cassese, Reflections on International Criminal Justice, The Modem Law Review 61 (1998), 1. 15 Fania Domb, Treatment of War Crimes in Peace Settlements - Prosecution or Arnnesty?, Israel Yearbook on Human Rights 24 (1994), 253. 16 Daniel T Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, Texas Law Review 69 (1991), 569, 576. 17 lbid., 575-577. Recent surveys ofthe pardoning power worldwide suggest that "this institution remains an integral part of the constitutional scheme in almost every jurisdiction," Leslie Sebba, The Pardoning Power - A World Survey, Journal of Criminal Law and Criminology 68 (1977), 83,120.

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factory solutions to the problem of mass atrocities: Justice is traded for peace, or at least a temporary truce, in the hopes that the atrocities will stop and the society will be able to move on. Domestically, two principle justifications have been advanced for offering blanket amnesties for human rights violations committed by a regime in power against its citizens. 18 First, dictators and military leaders have often demanded impunity as a condition of relinquishing power. 19 In response, societies eager to end a conflict and fearful of repercussions from attempts to pursue accountability may shy away from criminal trials or other proceedings to hold responsible those accused of committing human rights violations in the former regime. New govemments mayaiso feel too fragile to take on former dictators and their followers. 2o Thus, some societies emerging from periods of repression, such as EI Salvador/ 1 have offered blanket amnesties to perpetrators. 22 Moreover, even without the 18 This section addresses blanket amnesties, that is, amnesties granted pursuant to a general law or decree that do not require the recipient to account in any way, through confession or other method, for the crime of wh ich he or she is accused. Amnesties granted after ajudicial or quasi-judicial official proceeding of some kind are similar to pardons, and are therefore considered in connection with the South African experience, outlined below. 19 See Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, Cornell International Law Journal 32 (1999), 507, 509, arguing that civilian rule was restored to Haiti because the members of the military regime who had been accused of massive human rights abuses received amnesty for their crimes pursuant to the Governors Island Agreement negotiated in July 1993 under international auspices. But see contra Irwin P. Stotzky, Haiti: Searching for Alternatives, in: Roht-Arriaza (note 10), 185, 189, stating that the "Governors Island Agreement was a total failure. Neither Cedras [the military leader] nor Fran7l A different variation of this critique suggests that internationallaw enforcement is so sporadic that it is unlikely to deter, and so plagued with "liberal" safeguards for criminal defendants, that international criminals, who often represent State power, are able to thwart the international tribunals' ability to mete out justice. 72 Finally, some recognize the value of criminal trials in theory, but suggest that truth commissions that promote healing and truth telling may be more useful for societies than criminal trials which they believe may be, in contrast, divisive, expensive and possibly unfair. 73

Osiel (note 15); Carlos S. Nino, The Duty to Punish Past Abuses ofHuman Rights Put Into Context: The Case of Argentina, Yale Law Journal 100 (1991), 2619; Carlos Santiago Nino, Radical Evil on Trial, 1996; Orentlicher (note 20); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, California Law Review 78 (1990), 451. 69 Professor Diane Orentlicher in particular is identified with this position and has argued eloquently in favor of prosecution as a tool for reestablishing the rule of law, Orentlicher (note 20), 2547-2549; M. Cherif Bassiouni/Edward M. Wise, Aut Dedere, Aut Judicare: The Duty to Extradite or Prosecute in International Law, 1995,20-25. The reader should note, however, that Professor Orentlicher advocates a duty to punish; the aut dedere autjudicare principle set out by Professor Bassiouni is slightly different, being to prosecute or extradite. Professors Wise and Bassiouni are not completely in agreement in their treatise on the subject, Professor Bassiouni arguing that the principle is not only a customary, but ajus cogens norm, Professor Wise being skeptical as regards either proposition. 70 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, Fordham International Law Journal 23 (1999),473. 71 lose Alvarez, Crimes of State/Crimes ofHate: Lessons from Rwanda, Yale Journal of International Law 24 (1999), 365, 385. Professor Alvarez is particularly critical of primacy jurisdiction whereby the ICTR can require defendants to be turned over to it. He suggests that "bottom up" solutions may be the most appropriate. 72 Farer (note 12), 94-98. 73 Bradley (note 24).

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D. Accountability and Jurisdiction The quest for accountability is thus pursued in the hope of peace and justice. But the question arises, accountability to whom? And for what crimes? This is where jurisdiction comes in. It has been written that common lawyers, and particularly American lawyers in the United States, are obsessed withjurisdiction. But if you will briefly indulge my American preoccupation with jurisdiction, I believe thinking about international crimes and international criminallaw injurisdictional terms is actually quite useful. When we think about the kinds of crimes generally committed by regimes against their own people or in non-international or international armed conflict, we are generally speaking of a limited set of international crimes over which it is said universal jurisdiction exists - genocide, crimes against humanity, war crimes, torture and, historically, apartheid, and perhaps, now, we might add terrorism particularly after September 11th and the Security Council resolutions that followed it. Following World War 11, the international community exercised its prescriptive jurisdiction to define these crimes either by treaty or customary internationallaw. However, prior to the establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and later the permanent International Criminal Court, adjudication and enforcementjurisdiction were exercised by States, not by the international community as a whole. At the international level, the Rome Statute for the International Criminal Court sets out the Court's jurisdiction to prescribe, to adjudicate and to enforce. Premised upon the well-accepted idea of universal inter-State jurisdiction that perrnits all States to exercise jurisdiction over criminals whose criminal activity is sufficiently harrnful or threatens important interests of the international community, the Rome Statute extends this, following the precedent of the IMT and the two ad hoc Tribunals, to a principle of Universal International Prescriptive lurisdiction which perrnits the international community as a whole, acting through the Security Council, to supplement or even displace ordinary national laws of territorial application with international law that is universal in thrust and unbounded in geographic scope. 74 States seeking to exercise jurisdiction over perpetrators accused of international crimes do so pursuant to internallegislation adapted to that end. Until recently, 74 For an analysis ofthe Court's prescriptive, adjudicative and enforcementjurisdiction, Leila Nadya Sadat/S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, Georgetown Law Journal 88 (2000), 403--420.

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there have been few examples of States directly prosecuting the crimes found in the Rome Statute. Some, such as the Pinochet and Eichmann cases, have been based on universal jurisdiction - others, such as the Touvier case, referred to earlier in this paper, have not. In each, as the Rapporteur recognized in the Touvier and Barbie cases, a national court, hearing a prosecution for the commission of an international crime, is not only applying nationallaw, but also is sitting as a court of the international community, raising interesting questions as to the substantive law applied, as weIl as the procedural regime that accompanies it. The three categories of jurisdiction (prescriptive, adjunctive and enforcement) are quite sirnilar in national and international persecutions for international crimes, with one major difference: although the national court is applying prescriptive norms that apply worldwide, its adjudicative power and enforcement authority are confined to its territory. Many fascinating questions arise from the application of international prescriptive rules by States. For example, may the State vary the norm and still posit the universal application of its legislation? What procedural regimes apply - domestic or international? May defendants invoke international immunities or arnnesties granted abroad; should international law develop a set of principles to resolve conflicts of jurisdiction between States? The remainder of this paper will consider only the third question posited (the treatment of amnesties and immunities), leaving the others for another day.

E. The Implication for Amnesties and Other Challenges to Accountability on the Exercise of Universal Jurisdiction by States This section will consider:first, the nature of any legal obligations to disregard amnesties or other challenges to accountability; second, the desirability of accepting domestic immunization from prosecution for international crimes; and finally third, suggest how aState, confronted with an amnesty decision or sirnilar obstac1e to prosecution from a third State (or international body) rnight resolve the situation. I. The Validity of Amnesties in International Law As regards the validity of amnesties for war crimes, most commentators appear to make a distinction between international and non-international armed conflict.

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With respect to international arrned conflict, although arnnesty clauses for war crimes committed in international armed conflict were generally incorporated in peace agreements prior to W orld War 1,75 they were vigorously rejected thereafter. The decision by the Allied powers to prosecute war crirninals following the First World War (with little actual success) and following the Second World War brought about the expectation that war crirninals would be punished, an expectation codified in the four Geneva Conventions of 1949, as discussed previously, and expanded upon in the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Proteetion of Victims of International Arrned Conflicts (Protocol I?6 which extends the grave breaches regime substantially.77 It is generally agreed that these Conventions are now a source of customary internationallaw. Thus, while it is certainly possible that only the substantive provisions of the Conventions and not their procedural provisions have risen to the level of custom, most commentators have accepted that at least with respect to war crimes committed in international arrned conflict that fall within the grave breaches regime, a fair (but not watertight) case can be made not only for the existence of a customary internationallaw duty to prosecute or extradite the offender, but also, as a corollary,78 for a rule prohibiting blanket arnnesties. 79 Domb (note 15),256-257. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, vol. 1125,3. 77 Domb (note 15), 261; Michael Bothe, War Crimes in Non-International Armed Conflicts, Israel Yearbook on Human Rights 24 (1994), 241. 78 There are two related, yet distinct, issues raised by the question of arnnesties. First, whether States have a duty to punish and prosecute (or extradite) those who commit crimes falling under universal jurisdiction. Second, even if no such duty to punish exists, whether internationallaw recognizes the legality of arnnesties for such offenses. The two questions are often conflated, but they are distinct. One can answer the first question in the negative, for example, but still recognize that the absence of an affirmative obligation to prosecute does not permit States carte blanche in their reaction to the commission of mass atrocities. On the other hand, an affirmative duty to prosecute or extradite would appear to rule out the legality of arnnesties. 79 Scholars are evenly divided as to this question, however. For the view that the duty imposed by the Geneva Conventions to prosecute or extradite offenders under the laws of war is part of customary internationallaw, see Domb (note 15), 263. Professor Meron argues that every State has a duty to try or extradite those guilty of grave breaches, and has "the right, although probably not the duty, to prosecute [other] serious violations of the Geneva Conventions," Meron (note 7), 23. On the other hand, States have generally not 75

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As regards non-international armed conflicts, at least some take the view that general arnnesties are not only permitted, but are encouraged by existing law. 80 This view relies upon Article 6 (5) of Protocol 11 relating to the Protection of Victims of Non-International Armed Conflict, which provides: At the end of hostilities, the authorities in power shall endeavor to grant the broadest possible arnnesty to persons who have participated in the arrned conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detainedY

Certainly, one could take the position that this language was intended to apply to those combating the State, not those acting as its agents. 82 Nonetheless, some courts have taken a different view. For example, a lower South African court held that this provision permitted the South African Truth and Reconciliation Commission to grant arnnesties in regard to human rights violations committed under the apartheid regime. 83 The South African Constitutional Court affirmed, stating: [in the case of] violent acts perpetrated during ... conflicts which take place within the territory of a sovereign State in consequence of a struggle between the arrned forces of that state and other dissident arrned forces operating under responsible cornmand, within such astate ... there is no obligation on the part of a contracting State to ensure the prosecution of those who might have performed acts of violence or other acts which would ordinarily be characterized as serious invasions ofhuman rightS. 84

This decision has been criticized on the grounds that it fails to analyze the crimes committed as crimes against humanity (of which apartheid is clearly one), and to establish whether there exists any customary international law duty to punish offenders of a prior regime for such crimes. 85 This criticism is consistent

complied with this obligation, thereby undermining its claim as custom, Cassese (note 6), 5; BassiouniJWise (note 69), 44--46. Professor Orentlicher takes no position on whether the Geneva Conventions impose a duty to punish that would prohibit arnnesties, Orentlicher (note 20), 2562, note 100. 80 Domb (note 15),266-267. 81 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection ofVictims ofNon-International Arrned Conflicts, 8 June 1977, Art. 6 (5), UNTS, vol. 1125,609,614. 82 Schey/Shetton/Roht-Arriaza (note 40), 340. 83 Case No. 4895/96, South African Cape Provincial Div. Supreme Ct., 9 May 1996, quoted in Sarkin (note 44),626-628. 84 Azanian Peoples Organisation (AZAPO) v. The President of the Republic of South Africa, South African Const. Ct., South African Law Reports 4 (1996), 671, para. 30. 85 Dugard (note 32), 302.

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with the view, held by some, that there is an international duty to punish offenders after a civil war as a necessary corollary of the need to protect human rights. 86 With respect to crimes against humanity and genocide, some commentators have strenuously argued for the existence of a duty to investigate and punish human rights violations comrnitted under a prior regime. 87 Certainly, the Genocide Convention and the Torture Convention suggest that a duty is assumed by States Parties to those conventions to pursue and punish (or extradite, in the case of the Torture Convention) those who violate the Conventions' terms. 88 However, even those treaties are unclear as to the precise modalities of such punishment. They would thus appear to leave a certain degree of discretion to national legal systems in their implementation. As to a generalized customary internationallaw rule requiring punishment, the evidence of State practice seems weak. As Professor Roht-Arrizia notes, in general, the human rights instruments that guarantee human beings a right to bodily integrity and to be free from torture and other abuses do not typically, by their terms, require States to investigate and prosecute abuses of rightS. 89 A handful of decisions, however, emanating from the Human Rights Comrnittee, established to monitor compliance with the International Covenant on Civil and Political Rights and the Inter-American Court of Human Rights, charged with application of the American Convention on Human Rights, have imposed affirmative obligations on States to investigate human rights abuses stemming from provisions in the treaties 86 Bothe (note 77), 248, arguing that principles of State responsibility may require prosecution. Nonetheless, while one may argue that the distinction between international and non-international armed conflict is disappearing, it has not done so yet, Schey/Shelton/ Roht-Arriaza (note 40),339. 87 Orentlicher (note 20). 88 Article 3 of the Genocide Convention provides that "genocide ... is a crime under internationallaw which [Member States] undertake to prevent and to punish." The Convention is not based on a principle of universal jurisdiction, but of territorial jurisdiction; that is, pursuant to Article 6 of the Convention, those charged with genocide or similar acts "shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by [an international penal tribunal]," Convention on the Prevention and Punishment of the Crime of Genocide, UNTS, vol. 78, 277. Similarly, Article 4 of the Torture Convention requires States Parties to "ensure that all acts of torture are offences under [their] criminallaw" and Article 7 requires them to either extradite or prosecute alleged torturers, Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, UNTS, vol. 1465,85. 89 Naomi Roht-Arrizia, Sources in International Treaties of an Obligation to Investigate, Prosecute and Provide Redress, in: id. (note 10), 28.

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that require States to respect and ensure to all persons subject to their jurisdiction the free and full exercise of the rights and freedoms contained in the treaties. 90 The European Commission of Human Rights has, similarly, suggested that States may have affirmative obligations to prevent and remedy breaches of the Convention in quite limited circurnstances, suggesting in one case that criminal prosecution could be required as part of that obligation. 91 Although these decisions are highly significant, they cannot, without more, establish that a duty to investigate and a prohibition against arnnesties have become mies crystallized as a matter of general customary internationallaw. 92 Many countries have granted arnnesties to the perpetrators of atrocities under a prior regime, and while some lower national courts have overturned them, they have generally been sustained by higher courtS. 93 Indeed, the international community "warmly welcomed" the decision of South Africa to pursue a course involving conditional arnnesties "thereby casting doubts on the existence of an obligation upon successor regimes to prosecute those suspected of having committed international crimes.,,94 Of 90 lbid., 29-32. The leading case is Veldsquez Roddguez, Inter-American Court of Human Rights, 29 July 1988, Ser. C, No. 4 . Veldsquez has been followed by the InterAmerican Human Rights Commis si on to find that Chile's amnesty laws violated the right to judicial protection in the Convention, as well as the States duty to "prevent, investigate and punish" any violations of the rights found in the Convention, Garay Hermosilla et al. v. Chile, Inter-American Commission of Human Rights, 15 October 1996, Report No. 36/96, para. 73. 91 X and Y v. The Netherlands, European Court of Human Rights, Judgment of 26 March 1985, Series A, vol. 91, para. 27, holding that the Netherlands was required to adopt criminallaw provisions to remedy sexual abuse of a mentally handicapped individualliving in ahorne for mentally handicapped children because "the protection afforded by the civil law in [this] case is ... insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions." 92 But see contra Orentlicher (note 20) 2568-2581; Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice, 2000, 248-253. 93 Professor Roht-Arriaza notes that although some lower courts have been willing to strike down arnnesties, or not to apply them in particular cases, courts in Chile, EI Salvador, Guatemala, Peru and South Africa have all ultimately sustained the validity of national amnesties, under internationallaw, their own constitutions, or some combination of both theories, Roht-ArriazaiGibson (note 22); Schey/SheltonJRoht-Arriaza (note 40), 341-342. 94 Dugard (note 32), 279. While noting several flaws of the South African process, Professor Dugard suggests that it complies with internationallaw by requiring that wrongdoers be held accountable by combining a truth commission, conditional amnesties and criminal prosecutions that were politically feasible, ibid., 307.

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course, the situation might have been different had South Africa, instead of adopting a course involving conditional arnnesties, adopted a policy of blanket arnnesties. 95 The Rome Statute for the International Criminal Court is explicit on certain challenges to accountability such as superior orders,96 head of State irnmunity97 and statute of limitations 98 but is silent both as to any duty to prosecute and with regard to arnnesties. 99 Although the issue was raised during the Rome Conference at which the Statute was adopted, no dear consensus developed among the delegates as to how the question should be resolved. This too suggests that customary internationallaw has not yet crystallized on this point. According to the Chairman of the Conference, the question was purposely left open by the drafters: while the Statute does not condone the use of arnnesties by its terms, presumably the Prosecutor has the power to accept them if doing so would be "in the interests of justice."IOO

11. Are Amnesties or Other Challenges to Accountability Generally Desirable, from a Normative Perspective? Although it is undear whether international law dearly prohibits blanket arnnesties for international crimes, it seems that if it does not already, it should. 101 95 Even if amnesties are not "illegal" under internationallaw per se, continuous objection to them from the international community, some international courts and the human rights community has tended over time to reduce the scope of the amnesties themselves. One study found that with the exception of one country, "the trend has been from broader to more tailored, from sweeping to qualified, from laws with no reference to international law to those which explicitly try to stay within its strictures," Roht-ArriazaiGibson (note 22),884. 96 Art. 24 of the Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. NCONF.183/9 (1998), Annex II [hereinafter: Rome Statute]. 97 lbid., Art. 27. 98 lbid., Art. 29. 99 For a good discussion of some of the issues raised by the Statute, see Scharf (note 19),523-525. 100 Rome Statute (note 96), Art. 53 (1) (c). The delegates were largely unable to achieve consensus on the issues of pardons, commutations and amnesties, see lohn T. Holmes, The Principle ofComplementarity, in: Roy S. Lee (ed.), The International Criminal Court: The Making ofthe Rome Statute, 1999. 101 According to the Princeton Principles, terrorism, which is not the subject of this essay, is not a crime of universal jurisdiction, see The Princeton Principles on Universal

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Blanket amnesties undermine the rule of law, and are, for the most part, simply self-serving dec1arations by government officials exempting themselves from the reach of the law. They represent an attempt to trump the application of rules of law, and as such constitute a threat to both the legitimacy and the fairness of the rules. 102 Justice Richard Goldstone has advocated this position, at least as regards international prosecutions, suggesting that although it would be appropriate to consider amnesty proceedings on a case by case basis, they should have "no standing" in internationallaw and would not be a bar to prosecution in any court other than the court of the country granting the amnesty.103 Moreover, the argument that amnesties are necessary due to the sheer volume of potential criminal cases does not appear to refute the overwhelming evidence that addressing the past is necessary for countries to break vicious cyc1es of human rights abuses that there can be no real peace withoutjustice. As one Rwandan lawyer poignantly stated: We are in the process of falling into the trap that these murderers have set for uso This genocide is distinguished by the fact that a maximum number of people have been implicated in the killings - there is talk of a million killers. The Hutu extremists estimated that no court in the world could judge that many criminals, and they bet that they were going to get off. Are we going to say that they're right?104 Conditional amnesties, such as those granted in the South African case, are of a different kind, and would not appear to threaten accountability, but would actually bring it about using a variation of the criminal process. Yet, even the amnesty process in South Africa has been criticized and it may be too early to tell whether the use of limited amnesties is more effective than criminal trials in bringing about reconciliation. Although some have suggested that the South

Jurisdiction, published by the Princeton University Program in Law and Public Affairs, 2001, Principle 2 (1), available at: http://www.princeton.edurlapa/univejur.pdf (last visited 22 November 2002). However, Security Council Resolution 1373 of 28 September 2001, which "decides" that every State must punish and prevent terrorism, suggests that it is the Council's beliefthat this crime is now one for which universaljurisdiction exists and for which a duty to punish is present. Therefore, in the Council's view, presumably any amnesties gran ted to terrorists would be illegal. 102 Cf Thomas M. Franck, Fairness in International Law and Institutions, 1997, 16. 103 Goldstone (note 44), 122. Justice Goldstone would leave this to the discretion of the Prosecutor. Another alternative would be to forrnulate principles capable of judicial application. 104 Laurent Bijard, Can Justice Be Done? Massacred: 1,000,000: Tried 0, World Press Review, June 1996, 7, quoting Rwandan lawyer Frederic Mutagwera, cited in Bradley (note 24), 139.

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African effort was a creative response to past atrocities,105 the response within South Africa has arguably been mixed. 106 Due process concerns for perpetrators either named before the Commission or brought before the Commission have required the process be judicialized to the point that the proceedings resemble trials in fact. Scandals, perhaps inevitable in any human institution, also have periodically tainted the process. Moreover, the South African experience is unique in that the two sides negotiated a power transition without the intervention of a civil war and the victory of one side or another. When a country has emerged from a bloody genocide, as in Rwanda, the idea of amnesties, even conditional amnesties, for the perpetrators of genocide appears unthinkable, particularly for the leaders. If the international community truly believes that some behavior is criminal, indeed, pathologieal, with all that implies, amnesties would appear to be inconsistent with the reestablishment of peace and the rule of law. 107 Even those ultimately supporting the use of conditional amnesties have suggested that criminal trials, particularly international criminal trials, may be appropriate for the leaders, while other mechanisms of accountability, including the use of conditional amnesties, truth commissions, lustration laws and reparations may be used for lower-Ievel perpetrators. 108 If these arguments prove persuasive as to the dubious value of immunities granted at the domestic level, they appear equally fruitful in evaluating international immunity agreements. Indeed, the case for tradingjustice for peace to bring about the international settlement of disputes appears to be quite weak. In addition to the moral repugnancy of turning a blind eye to the commission of atrocities, it may well be contrary to self-interest. Examples such as Milosevic and Sankoh suggest that granting impunity, rather than definitively settling a conflict, simply encourages the criminal behavior to reappear in the future. If one of the most important purposes of the criminallaw is to remove dangerous individuals from society, it suggests that Slobodan Milosevic and Foday Sankoh should have been tried and indicted years ago. 109 105

Minow (note 31).

106 In addition to the constitutional challenges brought against the amnesty laws, the

families of many of those who were tortured and killed have objected to amnesty proceedings for the perpetrators of those who victimized their loved ones, Dugard (note 32), 301. 107 Others go further and label them as morally unjust, Kent Greenawalt, Amnesty's Justice, in: RotbergrI'hompson (note 41), 189. 108 Dugard (note 32). 109 Belatedly recognizing that fact, Sankoh and his followers are likely to be defendants before a new ad hoc tribunal currently being forrned under the aegis of the Security Couneil. Security Council Resolution 1315 of 14 August 2000 provides for the establishment of

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Finally, if internationallaw and State practice is increasingly moving towards rejecting bl anket amnesties per se, and lower-Ievel perpetrators are finding themselves in the dock in increasing numbers, it is difficult to support the notion that the leaders of a genocide or ethnic cleansing should receive immunity as a condition of relinquishing power, while their followers will be prosecuted or otherwise held accountable. Scholars who have critiqued the work of the two ad hoc Tribunals or the inappropriateness of crirninal trials generally have traditionally suggested that arguments supporting the establishment of a system of international crirninal justice lack empirical foundation. Deterrence, they argue, is unproven. Because deterrence is also largely unproven in domestic legal orders, 110 it is not clear whether commentators relying on this argument believe that national, as well as international, crirninal justice systems should be abandoned. 111 The key difference may be that if it is true that a high probability of punishment generally deters more effectively than a severe sanction rarely applied,112 the international crirninal justice system has not yet reached the stage at which its deterrent value may be fairly assumed, largely to problems of inter-State cooperation and State sovereignty. Yet, as Aryeh Neier has remarked, if there appears to be little decisive evidence as to whether disclosing the truth about past abuses or punishing those responsible an "independent special court" with jurisdiction over persons who bore the greatest responsibility for the commission of crimes against humanity, war crimes and other serious violations of internationallaw, as weil as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone. Tbe Resolution specifically rejects arnnesty for the perpetrators of such crimes in spite of the provisions of the Lome Agreement, negotiated with Sankoh in 1999 to attempt to settle the conflict last year, that provide for amnesty, on the basis that the Secretary-General ofthe United Nations appended to his signature of the Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement would not apply to the international crime of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. 110 See Dan M. Kahan, Tbe Secret Ambition of Deterrence, Harvard Law Review 113 (1999), 414, 416 and note 6, noting that empirically, deterrence claims (in the United States) are speculative. 111 If they concede that empirical claims for deterrence in national legal systems are also speculative, but do not think that national criminal justice systems should be abandoned, the question is why they perceive the importance of deterrence in justifying the existence of an international system of criminal justice to be different. 112 Farer (note 12),92.

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will necessarily deter future abuses, there is equally little proof that amnesties promote reconciliation whereas criminal trials provoke relapses. 113 With neither side being able to stake a clear claim to the truth, what appears to be at issue is a competition over the values underlying the normative claims. Those supporting the use of criminal trials believe (even if they cannot show empirically) that changing the prevailing discourse about the commission of mass atrocities by condemning the behavior as criminal and punishing those that can be brought to justice will, over time, bring about a decrease in the number of situations involving the commission of mass atrocities. Those rejecting the accountability paradigm tender the opposite view: that "evil will always be with us ... and genocide and mass violence are their case in chief."1l4 Indeed, some suggest that the evils perpetrated are so terrible that "no legal norms can cope."ll5 They also note that the much narrower scope of legal responsibility, as opposed to moral responsibility, may lead observers to regard the response of the law with suspicion, or even hostility.1l6 Their solution then, is not to waste resources pursuing the offenders, but to establish mechanisms to cornfort the victims. 117 It will be of small cornfort to the victims, however, if the conflict resurges and leaders who were never punished become increasingly emboldened by their apparent impunity. In the final analysis, framing the debate as "utter impunity v. individual trials," is largely counterproductive. Instead, justice and accountability need to "be conceptualized as but one aspect of a larger series of possible interventions."1l8

113 Aryeh Neier, What Should be Done About the Guilty, The New York Review of Books, 1 February 1990, 35. 114 Minow (note 31), 146. 115 Osiel (note 11), 123, quoting ludith Shklar, Legalism: Law, Morals and Political Trials, 1964, 167. 116 Osiel (note 11), 127-128. 117 A different branch of this critique expresses the view that forgiveness may be more important to healing a society, a view often expressed by feminist writers urging reevaluation of the values underlying the criminal justice system (both domestically and internationally), see Dressler (note 8); cf Hilary CharlesworthiChristine Chinkin, The Gender of Jus Cogens, Human Rights Quarterly 15 (1993),63. 118 Human Rights Center, International Human Rights Law Clinic, University of California, Berkeley/Centre for Human Rights, University of Sarajevo (eds.), Justice, Accountability, and Reconstruction: An Interview Study of Bosnian Judges and Prosecutors, May 2000, 41, 47.

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III. What Considerations Should Amnesties or Other Challenges to Accountability Receive from States Seeking to Pursue Individual Perpetrators Using Universal Jurisdiction to Do So? Having concluded that the accountabi1ity paradigm is nonnative1y desirable (if not 1egally required), we are square1y faced with its operation through the mechani sm of universal jurisdiction exercised either by States or the international community as a whole. States seeking to exercise universaljurisdiction over perpetrators do so pursuant to internallegislation adapted to that end. If faced with claims of a defendant's immunity, granted by domestic arnnesty provisions, how should the State in question (the forum State) respond?1l9 With respect to arnnesties or immunities granted by municipal law, the first question to be answered is the difficult question of what law applies. Public internationallaw has not yet developed a system of conflicts of laws to address this question, because it is largely operating under the Lotus paradigm: every State being an independent sovereign, every State may apply its law to a problem unless there is some rule prohibiting it from doing SO.120 Moreover, many States refuse to enforce foreign public law and would consider criminal proceedings as weIl as arnnesty laws "public," applying what one writer has dubbed the "public law

119 The question how national and international fora should treat international amnesties negotiated in peace treaties or dictated by Security Council Resolution is beyond the scope ofthis essay. Although there is some contention on this point, it is currently the practice of the United Nations to reject amnesty for crimes against humanity and genocide (and presumably serious violations of international humanitarian law, as well). Moreover, two treaties codified in the Rome Statute, the Genocide Convention and the Grave Breaches provisions of the Geneva Conventions, arguably prohibit amnesties by their requirement that offenders must be punished. Thus, presumably this problem will not surface extensively. Nevertheless, particularly if immunity is granted pursuant to a treaty to which the forum State is not a party, it is difficult to see why it should or would apply. If the immunity is granted pursuant to a Security Council Resolution, however, the question becomes more difficult, particularly if the Council is acting pursuant to its powers under Chapter VII. With respect to the International Criminal Court, Article 16 ofthe Statute appears to specify the only mechanism by which the Council may stop a prosecution from proceeding by requiring an affirmative vote from the Council to do so. It is unclear how carefully the ICC would treat an amnesty imposed pursuant to a Security Council Resolution, although the ICC would presumably think hard before disregarding it out of hand, see Scharf (note 19), 522-524. I have alluded to this problem as regards terrorism earlier, see supra, note 10. 120 The case ofthe S.S. Lotus (France v. Turkey), 1927, PCIJ, Ser. A, No. 10.

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taboo.,,121 Yet to the extent that national courts are using universal jurisdiction as the bases for the trial of perpetrators that otherwise have no connection to the forum (as in the Pinochet case, for example), they are already applying, through the medium of internationallaw, an exception to the rule that penal jurisdiction is generally territorial in character. Thus, the national court exercising universal jurisdiction has a dual role: to apply and interpret nationallaw, and to effectively sit as a court of the international community, applying international legal norms. Thus in considering what effect anational amnesty should have before a foreign court, it is appropriate to consider whether the applicable law should be the law of the forum State, the law of the State granting the defendant immunity, the law of the State of the defendant's nationality, the law of the State upon whose territory the crimes were cOInmitted (the territorial State), or internationallaw to resolve the question. While a full treatment of this subject is beyond the scope of this paper, I will nonetheless suggest some general parameters that may be of use. To begin with, surely, it would be paradoxical for the forum State to use the law of the State granting immunity as the measure of its own exercise of universal jurisdiction. First, as most of these crimes are committed in internal conflicts by regimes in power, the State granting immunity will typically be the State of the defendant's nationality as weIl as the territorial State. Since the defendant will presumably have violated c1ear norms of international law, there can be no issue relating to nullum crimen, nullum poena sine lege - no punishment without law - if an amnesty granted after the crime's commission is ultimately ineffective if the defendant travels abroad. 122 Moreover, many immunities are gran ted by regimes to themselves just before they step down or are extracted from a successor regime with threats of rebellion and violence. The former situation is a c1assic example of 121 William S. Dodge, Breaking the Public Law Taboo, Harvard International Law Journal 43 (2002), 161, quoting Andreas Lowenfeld, Public Law in the International Arena: Conflict of Laws, International Law and Some Suggestions for their Interaction, RdC 163 (1979-II), 311, 322-326. 122 This may be less true, however, in the case of conditional arnnesties, where the defendant has voluntarily come forward and placed him- or herself in jeopardy of prosecution by confessing the crime. In this case, the better rule may be that the forum State should examine the particular proceeding to see if the principle of ne bis in idem should attach and imrnunize the particular defendant from subsequent prosecutions. Again, the issue arises whether the forum uses its own rules or an international rule of ne bis in idem. The practical response of most fora will most likely be to use some combination of the two, due to the fact that the internationallaw on the subject is not weil codified, and the need to balance the competing interests involved.

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law that is blatantly self-interested and illegitimate and need not detain us further. The second situation, while involving amnesties granted by a presumably legitimate government, could appear to be an illegal contract, void ab initio, if the beneficiary seeks to enforce it, as against public policy and extracted by duress. 123 Assuming then that it is not aState other than the forum State whose law should govern the question whether the amnesty or other immunity is valid, the choices remaining are the law of the forum and internationallaw. I discuss the last possibility first. As other essays in this collection have noted, the internationallaw criminalizing gross abuses of human rights has developed considerably since World War 11. There is general agreement that the substantive norms, whether initially established by treaty or by custom, are well-established norms of customary internationallaw, and indeed, jus cogens norms that are non-derogable in nature. 124 This position was reaffirmed during the Rome Diplomatie Conference to establish the International Criminal Court, where most governments were comfortable codifying these norms and applying them universally in the event the Security Council referred a particular case to the Court. AState investigating a non-national for one of these crimes pursuant to an exercise of universal jurisdiction, is thus applying, through the medium of its nationallaw, internationallaw. What is not c1ear is whether the State is bound, in the absence of a specific treaty obligation, to apply international rules related to the substantive norm. The most that can be said is that there is at least some evidence that aState is required to do so, at least as to certain rules. First, the Charter and the judgements of the International Military Tribunal at Nuremberg c1early affirmed the primacy of internationallaw over nationallaw, at least insofar as crimes against peace, war crimes and crimes against humanity were concerned. The Charter essentially abolished the defense of superior orders, and was explicit in rejecting municipallaw as a defense to an international crime. The Nuremberg principles were adopted in aresolution by the United Nations General Assembly in 1946,125 and have not been seriously questioned since. It would seem odd for internationallaw to prime nationallaw, only for nationallaw to extinguish the legal obligation imposed either through the application of a statute of limitations, amnesty or some other form of domestic immunity. AIthough there was some doubt as to whether a rule concerning the statute of limita123 As between the State of nationality and the territorial State, if the two were to differ, it would seem logical to look first to the territorial State, the application of the criminallaw generally being territorial in nature. 124 Bassiouni (note 4),201-202. 125 UN Doc. A/611Add.1 (1946).

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tions existed in customary internationallaw, 126 that doubt would seem to be laid to rest after the widespread adoption of the Rome Statute which provides that the crimes therein do not expire. 127 Similarly, the issue of superior orders is c1early addressed in the Rome Statute, and its widespread adoption by States will presumably create a c1ear legal rule on those issues. Thus, although the manner in which internationallaw is applied by States is generally a question of nationallaw, given that these particular rules of international law· appear to be inextricably intertwined with the application of ajus cogens norm of fundamental importance, the better rule would be that national legal systems are bound, as a matter of internationallaw, to apply international, and not national, rules regarding superior orders and statutes of limitation. Head of State immunity presents a slightly different problem, as the House of Lords recognized in the Pinochet case, for if internationallaw abolishes head of State immunity as regards the international prosecution of current, as well as former, heads of State, national prosecutions of current leaders (unlike their predecessors) might unduly strain the international legal system, which is still premised largely on the sovereign equality of States. The International Court of Justice took this view in its recent decision on the Congo v. Belgium case, holding that Belgium' s arrest warrant against an incumbent minister for Foreign Affairs of the Congo, alleging grave breaches of the Geneva Conventions of 1949 and the Additional Protocols thereto and crimes against humanity, violated international law by failing to respect his international immunity from jurisdiction. 128 126 There are two treaties on the subject, but they have not been wide1y adopted. United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968, UNTS, vol. 754, 75. The Convention came into force on 11 November 1970 and, according to the United Nation's web site, current1y has on1y 10 signatories and 44 parties, http://untreaty.un.org/. Short1y thereafter, the Counci1 of Europe adopted a simi1ar Convention. European Convention on the NonApplicability of Statutory Limitation to Crimes Against Humanity and War Crimes, 25 January 1974, ETS No. 82, reprinted in: ILM 13 (1974), 540. The European Convention was on1y ratified by two States and ne ver entered into force. Interesting1y, both Conventions were 1arge1y a response to German statutes of limitation that wou1d have caused Nazi crimes to prescribe and prevented prosecution. This resu1t, which was apparent1y perceived as desirab1e in Germany, was viewed as unacceptab1e by many other countries, see Sadat (note 1), 127,318-321. 127 Art. 29 of the Rome Statute (note 96): "[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of 1imitations." 128 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Be1gium), 14 February 2002, reprinted in: ILM 41 (2002),536.

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I turn now to the last issue, the difficult question of amnesty, either de facto or de jure. If our earlier analysis is correct, the most that can be said is that internationallaw appears to reject amnesties with respect to grave breaches and perhaps other serious crimes committed in international armed conflict. 129 However, with respect to crimes against humanity, genocide and other war crimes, a dear international rule does not appear. If we reject the law of the State granting the amnesty as a source of law to apply (for the reasons given above or through a simple refusal to accord the amnesty any extraterritorial effect), we must assume the relevant law to be the nationallaw of the forum State. Of course, it is quite likely, however, that the forum State may not have any law on the question, for its legislature probably has not considered the problem. Thus, the remainder of this section proposes some policy considerations that a court in the forum State rnight use in evaluating a foreign amnesty, keeping in rnind that it will need to balance the international community's interest in pursuing justice against concerns of cornity and the importance of respecting the difficult choices a particular jurisdiction has made as to how it will treat the perpetrators of past atrocities. Courts in the forum State (or international tribunals) should keep in rnind that, as a general principle, amnesties should be disfavored, as argued above. Moreover, although internationallaw may not yet have crystalized as to the legality of amnesties per se, to perrnit national amnesties to extinguish obligations imposed by internationallaw would seem contrary to the foundational principles of international crirninal law and stand in opposition to the dear weight of authority and much of the State practice emerging in this field. This should create a presumption that the forum State should refuse to accept the amnesty. This presumption would be rebuttable, however, in specific cases. First, even the Rome Statute for the International Crirninal Court did not prohibit amnesties per se. Instead, as noted earlier, it left open the possibility that some amnesties rnight serve the interest of justice. Assurning the decision is made in good faith, national fora presumably should have the same margin of appreciation. Their courts may already be overburdened, the defendant may have already been placed "in jeopardy" of crirninal prosecution elsewhere, or cornity may require that the forum State abstain from prosecution in a specific case, particularly with respect to conditional amnesties that have resulted from a carefully negotiated and potentially fragile agreement 129 Pardons and conditional arnnesties may be distinguishable, for both involve the use of judicial or quasi-judicial proceedings and involve particularized consideration of a defendant's guilt or innocence in a particular case. Assuming the proceedings are not a sham, even where arnnesties are generally prohibited, pardons and conditional arnnesties may be acceptable or even required by the legality principle if the defendant has been "put in jeopardy" of criminal proceedings.

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entered into as part of a transition to democracy. Assuming the decision of the forum State is made without the influence of political pressure and pursuant to sound jurisprudential reasoning, a case-by-case approach to the problem of amnesties would appear to serve the interest of justice more than a per se rule might. Before concluding this section, it is worth noting that the conundrum posited by the application of intemationallaw by national Iegal systems is not new. All legal systems involving multiple and overlapping courts must address this problem. As an example, the United States Supreme Court has articulated a complex doctrine goveming the application of state law by federal courts, a brief look at which may prove instructive. In the seminal case of Erie Railroad v. Tompkins,130 the Court held, for a variety of reasons having to do with the peculiarities of the United States Constitution and Statutes granting federal jurisdiction, that federal courts sitting in diversity, meaning that they were essentially hearing cases involving citizens from different states, were required to apply state law to decide the case before them. The Court was later faced with the difficult question, very similar to our problem here, of what the state law goveming a case included. That is, if N ew York law was to be applied to assess the tort liability of a particular defendant, should New York' s statute of limitations apply to the case or was the federal court free to apply its own law to the problem? In aseries of complicated decisions, the Supreme Court suggested that many factors would govem whether state Of federal law would apply, in particular relying upon whether the application of one or the other would be "outcome determinative,"!3! or bound up in the fights and obligations created by the state law to be applied. 132 Thus, if the state law question was "substantive," state law applied. If it was simply procedural, federallaw applied. The Court has often suggested that the purpose of the Erie doctrine, aside from its constitutional underpinnings, was to avoid "forum shopping" and the "inequitable administration of the laws."133 Erie and its progeny have plagued first-year law students ever since its elaboration, but there is no doubt that federal and quasifederal systems in which many courts may potentially hear a case need to systematize the situation and balance the competing interests involved if the legal ruIes sought to be enforced are not to be undermined by inconsistent and widely varying application. The European Court of lustice has developed similar doctrines goveming the application ofEuropean law by national courts (this is Erie in reverse). Faced with 130 131

132 133

304 V.S. 64 (1938). Guaranty Trust Co. v. York, 326 V.S. 99 (1945). Byrd v. Blue Ridge Rural Electric Cooperative, 356 V.S. 525 (1958). Hanna v. Plumer, 380 U.S. 460 (1965).

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the disparate application of EU law by national courts, the ECJ has, through a set of complex and sophisticated cases, developed doctrines that require national courts to apply EU law, but allow them a certain degree of discretion in how they do so. A central point in the ECJ's jurisprudence, however, which the Erie doctrine also underscores, is that a national court' s application of procedural rules to an EU cause of action may not discriminate against the application of Community law or completely vitiate the substantive right, nor render the right impossible to exercise in practice. 134 The relationship between EU courts and national courts, and between federal and state courts in the United States, are of course quite different than the diffuse and relatively informal links that characterize the relationship of national courts to each other, to other international tribunals such as the ICTY and ICTR and to the International Criminal Court and the International Court of Justice. The treaties establishing the European Communities and the European Union form a nascent constitution constraining the member states, the communities and the EU in a much more formal and legal relationship than exists in the international arena. Similarly the balance between the federal and state courts in the United States is governed by a written constitution. Nevertheless, as the international legal system matures, and as symposia such as this consider questions involving the multiple and conflicting application of the law by courts with concurrent jurisdiction, it may be instructive to consider case law elaborated in two well-developed twotiered legal systems as a guide to doctrines that might ultimately be useful to international criminallaw.

F. Conclusion Societies in transition and international negotiators are often tempted to suggest that justice should be traded, or at least postponed, in exchange for peace. They argue that prosecuting perpetrators of human rights atrocities from a former regime may plunge fragile societies back into chaos or bring about an endless cyde of recriminations. They also suggest that criminal trials may do more harm than good. Yet a thorough study of the literature suggests that the evidence to support this position is weak, although studies of the Rwanda and Yugoslavia Tribunals suggest that sensitivity to local context is important if international justice is to succeed. While it is impossible to try every perpetrator under a prior regime, criminal trials, particularly of the leaders, may serve many useful goals. 134

Paul Craig/Grdinne de Burca, EU Law: Text, Cases, and Materials, 1998,214-215.

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Moreover, framing the peace vs. justice debate in terms of absolutes is neither necessary nor useful - criminal trials need not replace other mechanisms of achieving national reconciliation or addressing victims' losses. Instead, they complement them. Thus, this paper concludes that the international community should stay the course set for itself since World War 11 and continue to demand legal accountability for human rights abuses. The legal regime applicable includes both the exercise of universal jurisdiction by the international community as a whole, a point not vigorously discussed here, and the robust exercise of universal jurisdiction by States. It is suggested that States confronted with challenges to accountability should treat them as presumptively invalid; a presumption that can be overcome if the State granting the immunity in question did so pursuant to a process that did not undermine the quest for accountability as a whole. In particular, bl anket arnnesties and any grant of immunity to a former leader should most likely be rejected out-of-hand. As Tom Farer imaginatively suggests: Negotiators, after all, can give no more than they have. They can guarantee Pinochet's ilk impunity at horne but cannot assure their freedom to take tea abroad with honorable and right honorable persons or to exercise their human right to shop at Gucci in Miami. If the lee stood alone as a threat to the pleasures of retirement, sociopathic leaders in States that had become parties ... could simply withdraw ... The beauty of national tribunals enforcing international criminallaw is their immunity to such ploys.135

The international community should, over time, develop a set of conflicts of law and conflicts of jurisdiction rules to assist States in considering arnnesties or other immunities granted by other States with regard to the perpetrator(s) in a particular case. The law must retain flexibility, yet not be so flexible that the progress made on the problem of impunity disappears entirely. Rather than abandon its recent effort to construct a regime of accountability premised largely (but not exclusively) on the application of the criminallaw, the international community should redouble its efforts to make the system more effective.

135

Farer (note 12), 115-116.

Discussion Rainer Hofmann: Ladies and gentlemen, dear friends, welcome to this afternoon's discussion session. I trust that you will agree with me that we had two outstanding papers this morning which will serve as an excellent basis for our discussion. First, we had Christine Chinkin who, I think, gave us a very precise general introduction into what is generally referred to as ferninist approaches to internationallaw and then proceeded to discuss the profound changes this approach has or will have on the traditional way of understanding international crirninallaw, in particular as regards the various crimes falling under the jurisdiction of the International Crirninal Court. Then we had Leila Sadat who presented to us the pros and cons of national arnnesty laws or, more broadly speaking, whether or not one should trade off reconciliation and internal peace against justice. Your major thesis, at least as I understood it, was that there is a presumption of invalidity concerning such national arnnesty laws, but that this is rebuttable presumption. I also found very interesting your idea of establishing a kind of conflict of laws system which would apply in situations of concurringjurisdictions of domestic and international courts in matters of international crirninallaw; such a system rnight indeed draw from the experiences gained in existing systems like in two-tiered systems, which we find in many federal systems or complex regional systems; moreover, I think, one could also look into the system provided for by the European Union and the Strasbourg system. Therefore, I should like to give the floor now to Professor Rudolf Bernhardt as the former President of the European Court of Human Rights. Rudolf Bernhardt: At first I would like to say again that I am extremely grateful for the two reports we heard this morning. Let me make a few additional remarks on the role which regional human rights conventions can play in connection with our subjecl. I mean the European Convention on Human Rights and the American Convention

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on Human Rights, these two Conventions can now protect more than one billion people. It is now firmly established that under the European Convention - and the same is true, I think, for the American Convention - that individuals are not only protected against State intervention or interference, but that States also have positive obligations. Among these obligations can be, and often is, the duty to protect persons by enacting penallaws. This was stated in the 1980s by the European Court of Human Rights: A young, mentally handicapped Dutch girl was abused by a guardian, and by some strange interpretation of Dutch law it was not possible to prosecute the perpetrator. The European Court of Human Rights decided that the State is obliged to have adequate penallaw for such a situation. One can now mention many cases conceming the situation in Turkey, especially in the Kurdish territory of Turkey, when persons disappeared or were killed, and the govemment claimed that it was not responsible for the events. The European Court of Human Rights decided that the State has violated Art. 2 or Art. 3 of the European Convention, the right to life and the right not to be tortured. In the Dutch case just mentioned, Art. 8 was concemed, the protection of private life. In many Turkish cases it was decided that the State violated the Arts. 2 and 3 by not investigating adequately the facts and the responsibilities. The logical consequence is that if the State had investigated and found some perpetrators, the authorities were obliged to prosecute these persons. I am sure that if you apply this doctrine to the situation in other parts of Europe, for instance parts of Russia, it is clear that under the European Convention on Human Rights States are obliged to enact criminallaw, to prosecute and to punish, and to execute sentences. The same can probably be said for the American Convention of Human Rights and the recent case law of the Inter-American Court of Human Rights. Under the regional Conventions, general arnnesties for grave violations of human rights would probably not be considered compatible with the human rights guarantees. The Conventions mayaiso in other respects contribute to our subject. An interesting question is, for instance, how far the Conventions are also applicable for activities of State organs outside the State territory. This has been decided by the European Court of Human Rights in the Loizidou case conceming the responsibility of Turkey for the situation in Northem Cyprus. In the recent judgement conceming the NATO bombardment of a radio station in Belgrade the situation was different. But in general, regional human rights conventions are of some importance for the problems here under discussion.

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Rainer Hofmann: This statement obviously supports your point, Leila, namely that there is a tendency in internationallaw that such kind of far-reaching arnnesty would not be acceptable, that there would be a presumption of invalidity. Anne Peters: I would like to make aremark on Christine Chinkin's wonderful presentation. I want to elaborate on a point which you mentioned and which needs dose attention: Every individual is a member of different groups which are overlapping and everybody has different roles at the same time, the relative importance of which may change according to the circumstances. When I am here I rather feel as an international lawyer, in other cases I am a parent, and although being now in Switzerland I feel more German than ever before. By the way, the phenomenon of multiple identities is important with regard to the question of a European identity in the context of European integration and a European transnational democracy. But that is not the issue now. We must be aware of the multiple identities because there is always the danger of falling into essentialism, believing in "the" female voice etc. I do not think that this is very helpful. Moreover, this type of reasoning is connected to the rnisconception that one's professional authority or competence is inevitably deterrnined by one's personal links. You, Christine, went a litde bit in that direction when you said: Put a woman on the bench and all is fine. Then the rest of the judges does not have to pay attention to specific women' s complaints, because it is the female judge's job to pay attention to those issues (I am exaggerating, but I want us to keep away from this slippery slope). Emancipation is not a one-way road but a two-way road, because it liberates both women and men and all other individuals from their preconceived roles. So the matter is not one of two camps. Berta Hernandez-Truyol has written on this issue, on multiple ferninisms, in the last focus section of the German Yearbook. Eyal Benvenisti: I have two comments or thoughts with respect to the paper of Professor Sadat that I enjoyed very much concerning the skeptical approach to arnnesties which I share. I just want to hint at one factor which, I think, is decisive in evaluating arnnesties. It concerns the process through which the arnnesty was adopted. Being

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skeptical about the outcome I would look to what extent the affected group, usually the minority group, participated in the decision and whether it agreed or not to the outcome. May I suggest that the international community accepted the South Africa arrangement because the affected group accepted it? If it is a minority group that was affected I would not give the political process too much margin of appreciation because I would be skeptical about the ability of the minority to influence the political process. This is why I am also skeptical of the margin of appreciation doctrine to the extent that the margin of appreciation seeks to defer to State sovereignty. State sovereignty often does not work in case of deprived minorities. My emphasis then would be on the attitude of the minority. Having said that I have one question: Can the minority or the affected group by its acceptance of the deal, say for an amnesty, can it bind an individual member of the minority who wants to pursue the individual remedies that international law provides? In this context let me give you all an example with respect to the IsraeliIPalestinian conflict and most specifically to the problem of the Palestinian refugees' right to return that came up during informal talks. There has been suggested a very sophisticated process of accepting individual rights for compensation or other forms of redress. Then the question came up: What happens if Palestine and Israel agree to a certain international institution or any arrangement for the settlement of the questions, and then an individual refugee seeks other forms of redress? This could affect the entire structure. When you talk about millions of people, this becomes areal issue. For the governments who negotiate it is very important to know the answer as much as possible in advance rather than ex post facto. Wolf! Heintschel von Heinegg:

I have two shorter remarks, more or less to both presentations. If I put myself into the row of those who have congratulated you on your papers, maybe that would be regarded as stereotype, nevertheless I do it. Let me start with your paper, Leila. In the context of adjudicative and enforcement jurisdiction and amnesty, you were referring to the IMT and your starting point in those judgements was the exclusion of amnesty or the presumption that there is an invalidity of such amnesties. If you look at these judgements of Nuremberg and if you look also at the State practice following Nuremberg, obviously States would be prepared for various reasons not to make use of their jurisdiction, prescriptive or not. In the Dönitz case, for example, the IMT did not sentence Dönitz because of the tu

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quoque argument, as simple as that. So obviously there are ways which States are willing not only to find but also to go in order to evade consequences which they consider negative or inappropriate for various reasons. The same happened in the years after Nuremberg. Look at the Irak case and the Kurdish population in Irak! Gf course, it was condernned but there were no major consequences drawn. It took quite a long while for the State community to react on Rwanda, we aB know that, and I could now cite many other cases. We have to be a little bit aware of the fact that if States are willing to find ways not to make use of their jurisdiction, theyare obviously willing and able to find them and go them. With regard to both papers, there came a quote to my mind which in Germany was quite famous after the reunification, namely by Bärbel Bohley, who was one of the main actors in the opposition movement in the former GDR. She said: We wantedjustice, but what did we get? We have got the rule of law! Possibly being overcited, but still there is some truth in it, especiaBy when it comes to the question of justice and of the object and purpose of criminallaw in general, not to speak of international criminallaw. Gf course, when it comes to amnesties, Leila, the negative aspects you were referring to also apply to arnnesties under nationallaw, the same arguments being put forward, being discussed maybe not to the end, but exactly based on the same arguments.

I now come to your presentation, Christine. I told you before that I consider yourself on the one hand a little bit too demanding, on the other hand maybe that is not right, maybe I should have said you are not satisfied enough with the development, because as in many spheres of internationallaw, progressive development of international law presupposes to a certain extent a harmonization of the nationallegal orders of a smaBer group of States which may then give an impetus to the progressive development on the regional level and then, maybe, on the uni versallevel. What brings me to think you are not satisfied or too demanding - whatever you may choose - is that if you look at international criminallaw right now, I believe that what has been achieved in international criminallaw is by far more than has been achieved in many national legal orders so far. You were referring to aB these examples, especiaBy in the context of rape. I believe, even though I am not a criminallawyer, even in Germany and other States of the European Community we would still encounter aB these negative aspects of such proceedings you were referring to which at least on the international level will not be encountered. My final remark would be on non-State actors. Gf course, we have many pressure groups, and, of course, there are feminist and female groups who are trying to speed up the development of internationallaw. That brings us a little bit back to what was discussed yesterday. States obviously for various reasons are willing

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to accept a certain influence, a certain role of NGOs in the widest sense of the word. But what we always encounter as well is that if we have reached a certain threshold, then States very quickly and very easily turn back and exdude NGOs and all other groups and then they decide what they consider appropriate, whether that is correct or not. We have to see that, we have to have open eyes for that. Claus Kreß:

This time I shall not resist the temptation to react to both highly interesting papers. Starting with your analysis of rape under internationallaw in light of the Kunarac decision, Professor Chinkin, I would like to get a darification on the status of lack of consent. Seen from a ferninist perspective: Do objections against the construction as "negative material element" persist if "consent" is understood as "voluntary" in the sense of the Kunarac judgement? Your private/public distinction, Professor Chinkin, was at the heart of the most controversial issue as regards the crimes against humanity: the possibility of aState policy by inaction. The "solution" found in the Draft Elements of Crimes comes very dose to a contradiction for the sake of comprornise. My question is, first, whether this comprornise falls short of what is called for from a ferninist perspective. A related and more fundamental question pertains to the universality (and hereby: legitimacy) of the International Crirninal Court which was very much at stake here. What do you think of the argument that - going even beyond the "solution" suggested in the Elements of Crimes - had provoked "a dash of cultures" by imposing Western human rights standards not acceptable for the Arab world - or at least their representatives? The last question addressed to you, Professor Chinkin, relates to crirninal procedure. You have been directly involved in the arguments leading to the 1995 Tadic decision on anonymous witnesses - adecision which was very controversial but went, I think, in your direction. It seems to me that the subsequent case law has not really followed the 1995 Tadic line. How do you see this subsequent development? As the unfortunate step back from Tadic or as evidence for the possibility to reconcile the conflicting interests without going so far as to completely withhold the witnesses' identity from the defense. Two questions related to your paper, Professor Sadat. First of all, I think the ICC Statute is not completely silent on arrmesties. I agree it says nothing in the operational part. But preambular paragraph 6 is crystal dear in its recognition of a duty to prosecute for - at least - the territorial State. If we take this together with the essentially positive reaction of the international community as regards South

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Africa's endeavors, I am wondering whether we are moving to an emerging duty to prosecute or to establish genuine truth and reconciliation mechanisms. With respect to the conflict of jurisdictions, I wholly agree that this is one of the most important facets of the emerging system of international criminallaw. May I have your views on the idea of subsidiarity of universal jurisdiction in this context? As you know, there are quite a number of signals in the recent practice pointing to the importance of such a principle and I just note the recent Spanish case law, the joint separate opinion by judges Higgins, Kooijmans and BuergenthaI in the KongolBelgian case, and the new German VölkerstraJgesetzbuch. If we accept that universal jurisdiction should be exercised only on the basis of subsidiarity and if we, at the same time, hold, that a genuine truth and reconciliation mechanism may be an acceptable reaction to international criminality, could that mean that States should refrain from exercising universaljurisdiction in light of a genuine truth and reconciliation mechanism set up by the State directly concerned?

Michael Bothe: I have aremark on both brilliant papers. First, on the question arnnesty versus prosecution. I think that although a general tendency has been shown to assimilate international and non-international conflicts, a distinction is in order in this respect. Let me start with international armed conflicts. I think it is crystal c1ear that the Geneva Conventions create a general obligation to prosecute grave breaches, which should exc1ude unilateral amnesties. This is a somewhat neglected provision, however, and not the only provision of the Geneva Conventions which has just been forgotten. I know of no case that third States ever tried to get hold of a Pakistani general, for instance, who was guilty of grave breaches of the Conventions in the conflict during the creation of Bangladesh, as would have been required if the duty to prosecute, on the basis of universal jurisdiction, were taken seriously. I have always thought and sometimes said that this is a very dangerous obligation, in the sense that if taken seriously, it may lead to political difficulties. This is probably the reason why it has been forgotten. But the obligation is on the books, it is not obsolete. In relation to a non-international armed conflict we have to realize that the historic situations vary. There are countries where a peaceful transition was rendered possible by some type of amnesty, not even an explicit one. Take the redemocratization of Spain. Had Spain tried to combine a peaceful transition with doing justice in respect of what had happened in the past, a peaceful transition

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would not have worked. There are other cases, however, where it is quite obvious that transition does not work without doingjustice. That being so, the question is: How far should third parties, be they States or international organizations, intervene in this process, which is in each case a particular and specific historic process in the country concerned? It is a difficult question, and I must admit that I do not know the answer. Every case is different. It seems that in some cases some kind of international involvement has been necessary and helpful, indeed. From the reports of Christian Tomuschat, who headed the Truth Commission for Guatemala, it becomes quite dear that a purely Guatemaltecan attempt to deal with the terrible past would have been futile. The peace process would not have worked without the assistance and contribution from the outside. This particular case had the authority of the United Nations behind it, as the chair of the Truth Commission was appointed by the Secretary General. It was a positive experience, but the question remains difficult. It is not as simple as to say: It is a good thing if third States do what the society of a conflict-ridden country cannot do alone. The next point is along the lines of what Prof. von Heinegg just remarked. Where are we in relation to the recognition of the particular fate of women in armed conflict? This, by the way, and here I want to link yesterday and today, is a good example of the contribution of the ICTY to the development of the law. The preexisting law, i.e. the Geneva Conventions and the Protocols Additional thereto, protect what in various provisions is called the "honour of women." But the Court developed a protective content of these provisions which is much more specific than that. This case law is then reflected in the Statute of the ICC where it deals with sexual violence. In this respect, the development of the case law established by the Court in the cases which were cited is taken up in the Statute. This is a very important development. It shows what I meant by the dynamics of the political process. Should we go further? Finally, I have a question in respect of the remarks on the distinction between public and private. This is, of course, fundamental, it goes well beyond the question of a feminist view. Armed conflict causes an upheaval of the entire human existence. Should the law not take better account of this fact? I am, of course, very sympathetic to this consideration. The real question I have is this: How far can we get in this respect without losing the necessary touch with reality? True, the complaint is not unreasonable. Perhaps should I say feasibility instead of reality. Is this more comprehensive approach at all possible? I would like it were, but I am not sure. If we want to change something, we should not lose sight of the concrete possibilities in the real world.

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fan Klabbers: Yesterday, after I had spoken, I was very relieved that neither Christine Chinkin nor Leila Sadat took the opportunity to attack me. Unfortunately, I cannot reciprocate. Of course, I am not going to attack either of them; I am far too civilized for that. But I would like to raise a few points. One of them goes back to deterrence. Yesterday we had a consensus, a general agreement across the room, that deterrence is not a good argument at any rate, be it domestically, be it internationally. Today it popped up again in Leila's presentation. That seems to be the general gist of the deterrence argument: Everyone agrees that it does not work, but we always fall back on it anyway because we don't really have much else. That is the reason why I bring it up again, not so much to say that it does not work, but the point why it does not work is not because it is unproven or unprovable. I think the reason why it does not work is that the deterrence argument is based on individuals being rational actors, making a cost-benefit analysis. If the costs become too high, then the benefits will no longer compensate for the costs; among those costs might be future prosecution, and therefore the idea is that we shall stop committing genocide, stop committing war crimes or crimes against humanity. I think that is fundamentally flawed when it comes to genocide, war crimes or crimes against humanity. I don't think those are based on profit motives or whatever. There is no cost-benefit analysis here to be found. Instead people act for political motives without necessarily gaining a whole lot in return for themselves. If that is the case, then deterrence becomes very implausible. The point I am trying to make is not that deterrence cannot be proven or unproven: as with so much social facts, social scientists may testify that a lot cannot be proven in social sciences. The point is that it is simply implausible in connection with political crime. The second point is a bit of a worry. This relates to Leila again, who spoke a few times in terms of a simple dichotomy of justice versus peace. I realize that this is a shorthand way of saying that there is prosecution and the rule of law and a lot of other things on the one hand, and peace on the other hand. However, there is the risk that this idea of justice versus peace becomes a sort of dogma and starts to take on a life of its own. The problem I have with this is that we start to assurne perhaps thatjustice is the equivalent of simply putting people behind bars. I would have a problem with that. I don't know what justice is, perhaps it does include occasionally putting people behind bars, perhaps justice mayaiso include getting amnesty in some cases, as Philipp Kirsch apparently pointed out, when talking of amnesty in the interest of justice. I do not know what justice is; not even lohn

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Rawls knows what justice iso One should be careful not to press that simple dichotomy too far. The third point: Christine tried to destroy the public/private distinction and I think for good reasons. But, as so many things, the public/private distinction is a double-edged sword and may have its good sides. What I would like to say about it now could - somewhat tongue-in-cheek perhaps - be summarized under the heading "three cheers for the public/private distinction." First cheer: without a private space the State would be free to intervene in our lives, no matter what. This means that "Big Brother" (and it's George OrweIl's big brother, not the tacky TV show) will enter our living rooms, our kitchens, our bedrooms. I am not so sure whether I would be very happy with that. The second cheer for the public/private distinction is that it prevents us from tuming all our social relations into legal relations. I will give you a very prosaic mundane example: I have promised my five year old son that I would bring hirn a gift: a private promise between hirn and me. Should he end up in court getting me to enforce that promise? I would hope not. This is a weird example, but nonetheless, there is the risk that if we do not respect the idea of a public sphere and a private sphere, then all our social relations become legal relations. We become individualized, atomized little islands incapable of living together except by means of reference to legal rules and legal procedures. I would have a problem with that as weIl. The third cheer for the public/private distinction is that we would need a public space, or something similar, in order to discuss what the Brundtland report referred to as "Our Common Future." Inviting all things private into the public sphere might end up killing off the very public sphere and therewith killing off politics. As Hannah Arendt would say, "politics is the one thing standing between us and evil." There are six billion people on this planet and we better leam to live together. We need a public sphere to do so. In conjunction with that let me say a word in defense of the Congo vs. Belgium decision of the ICJ. I think that this is precisely what the ICJ realized: we need to leave space for politics among nations by giving a certain deference to immunity. Perhaps this comes at a price, but nonetheless: we need to retain (or recreate, perhaps) the possibility of meaningful political debate.

Horst Fischer: Some remarks on this moming's papers which were both enlightening and excellent: The first remark relates to Christine Chinkin's paper and is of a more technical nature. First about Christine Chinkin and deconstruction and reconstruc-

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tion: In your enlightening deconstmction analysis you referred to Afghanistan. As far as I have observed the conflict and read reports about the conflict, it cannot be used to identify your "agenda" analysis. What we have been witnessing as international community is the widespread reluctance to discuss the questions of how civilians were affected by the war on terrorism. As far as we have been able to judge the available information, aerial bombardment did not distinguish between men and women in Afghanistan. The real problem is how the distinction between civilians and Taliban and between civilians and Al Kaida members was observed and implemented in general. The State community was so much in agreement on the war against terror that we acquiesced to the means and methods without confronting ourselves with the obvious questions. I would not really like to see that aspect in your deconstmction basket. At the end of your presentation you referred to reconstmction. I was wondering whether you should not also inc1ude in your analysis the specific protective mIes for women in arrned conflicts as laid down in the Geneva Conventions of 1949 and the Additional Protocols of 1977. You were focusing on the criminal law aspect but you did not refer to such mIes as Art. 76 of the First Additional Protocol of 1977 and related ones in the Fourth Geneva Convention of 1949. What are the reasons having left such often detailed and comprehensive mIes untouched in your analysis? When confronting us with the public/private sphere dichotomy you referred to the example of Nigeria. When describing to us the murder of women at a bus station you said "attacks against women are not seen as war crimes." My question here is: Does your example refer to the distinction between the public and private sphere or rather, as I would see it, to the distinction between international and non-international armed conflict or evenjust between arrned conflict and domestic issues? I would say that c1early the attack mentioned is a crime under domestic law, but if committed in an arrned conflict it is a war crime according to all Tribunal Statutes and the ICC Statute. Here I would need some comments to better understand the relationship between the exampIe and the reasoning. At the end you described to us methodology and the involvement of women's groups in the identification of gender issues in the evolving international criminallaw. In this context it is surprising to see that the feminist movement in Germany at least to my knowledge has never been dealing with the rape cases in the Eastern part of Germany at the end of World War 11. Other groups which reflect on gender issues in war have also not been dealing with it. Of course, one can see a hierarchy in the magnitude of the type of crimes committed. But what were the reasons not to incorporate this issue into the general debate and wouldn't it be time to do so?

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With regard to Leila Sadat' s presentation, my remarks are of a more general nature. Your presentation dealt with other forms of redress and you focused on amnesties and truth commissions. I was wondering whether there isn't a third level of such "forms" and I am thinking of methods available in the different cultures. When I was listening to your examples, I remembered areport by my students who had worked in Liberia for quite some time. They experienced a specific way of dealing with child soldiers who had committed crimes in some of the villages. They described the way used by the villages to deal with the child soldiers. The former child soldiers were invited to participate in a type of washing procedure. Pouring water over the children was an obvious process of cleaning and served as a means of redress to the affected community. That is just one example but there are others and I was wondering whether we, when looking at amnesties and truth commissions, are guided by our Western perspective and whether we should not enrich our debate by taking into ac count other culturally based means of redress. My last point follows up on what Michael Bothe said. I would like to add some more examples of the type of cases he was referring to. First of all: the case of Mozambique. It is now the tenth anniversary of the peace agreement in Mozambique. To my knowledge, there has never been any war crimes case brought in Mozambique despite the fact that it was a very barbarous civil war. The slogan "No peace without justice" seems convincing, but the question is whether there were cases where we have had peace without justice, at least the particular type of justice we have in mind. This consideration leads to a second aspect of this question because, if I noted correctly, you were referring to a general agreement in customary law not to accept blanket amnesties. Iwanted just to highlight that when we look at South Africa's peace process and in particular at the work and procedure of the truth commis si on, in fact one could claim that South Africa accepted a de facto amnesty. This observation is confirmed when talking to people, reading the articles and comparing the cases before the truth commission and before courts. My question is whether we have a selective view when we claim that blanket amnesties cannot be accepted, knowing that these de facto amnesties exist and might lead to the same result. Let me add that sometimes the international community also provides a type of amnesty: such as the case of Aidid in Somalia. Although we had a specific Security Council Resolution regarding Aidid, which named hirn as a war criminal, in the end we acquiesced to dealing with hirn further on matters inside Somalia. When looking at the legal side of amnesties, my question is:

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Shouldn't we take such cases into account and then maybe come to a different conclusion on what the customary law is? Erika de Wet:

I was mentioning to Prof. Chinkin during the break that my question may come across as betraying my own gender, as I am conflicted about the Furundzija and Kunarac decisions. Although happy with the outcome, I have - as already became apparent yesterday - questions about the ICTY' s methodology in situations where it applies general principles to reach a progressive interpretation of crirninallaw concepts. Although I rnight have been personally happy about the Tribunal's progressive reinterpretation of the concept of rape, it did create a tension with the rights of the accused, as it bordered on the retroactive application of crirninallaw. This places the methodology of the ICTY on a slippery slope, especially if one considers the fact that the ICTY seems to be deviating from what has generally been understood to constitute the "major legal systems of the world." Such a deviation would not necessarily in itself be unjustified, as it may indeed be time to rethink the particular role of general principles in the very particular context of international crirninallaw. But this implies a well argued and motivated case as to why this is necessary, as well as a clear concept with regard to the way forward. Until now, these concepts and motivations have been lacking in the ICTY's jurisprudence, as a result of which the tensions between progressive interpretation and retroactive application of crirninallaw could become a major concern. My second point is closely related to the remarks by Prof. Bothe and Prof. Klabbers concerning the public/private distinction. If we criticize the fact that only those instances of rape that are wide-spread and systematic would constitute a crime against humanity, we seem to forget that this requirement also applies to all other acts that constitute a crime against humanity under the ICC Statute. If we do away with that qualification, for example, if we include all forms of rape in the definition, we may actually trivialize the meaning of a crime against humanity. In addition, there is the problem of feasibility if the threshold for these crimes were lowered and a wider definition approved (a point that Prof. Klabbers already raised). I do not think that it is the purpose of the ICC Statute to address all possible crimes against women or vulnerable groups in society. In saying this I do not mean that these issues should not be addressed internationally. I merely doubt whether international crirninal law and in particular the ICC would be the best

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way to proceed in addressing these issues, as it is an institution structured to deal with only the gravest crimes. Thilo Marauhn:

I would like to thank both speakers for their brilliant presentations. To begin, let me briefly comment on the public/private divide. This is not only the main starting point of any ferninist analysis of law but - more generally - the basis of many critical approaches to the law in force. But is this a sufficient basis for the conclusions presented? Isn't there a need to be more specific as far as the public/private divide in international relations is concerned? What is the specific character of the public/private divide in this context? I agree that there are good reasons to criticize existing law from that perspective. But - as Jan Klabbers pointed out - we should not forget that this divide also has positive facets. Thus the essential question is whether the critique of the public/private divide is asolid basis far the approach taken by the speakers. I fear that it is a rather weak basis not only because it has both positive and negative implications but also because its re1evance differs depending on the various areas and levels of the law. Apart from this, I agree that any critical approach must be based on a multi level analysis. Beginning with stock-taking at the sociologicallevel we then have to ask ourselves whether the law as it stands is sufficient to address the questions as we perceive them. Both steps are colored with subjectivity. And this subjectivity remains when addressing the question of whether or not we can reinterpret the law in light of what we perceive as good and bad. Moving to the next step brings us to the need for reform and thus to the process of political decision-making - and again we are faced with a very subjective approach to the law. Perhaps this is the only approach possible because the law itself bears subjective and objective elements - and the only question is about the relationship between the two elements in dealing with the law before USo Anne Peters in her statement rightly pointed out that we are all members of many different groups, an aspect which we have come to realize as a consequence of ferninist analysis. The application and implementation of law is not a purely technical process with a refined methodology nar can law simply be perceived as one of the social sciences. Rather, we should perceive legal analysis as a kind of KulturwissenschaJt, with the law rooted in a particular cultural context and being an expression of its underlying culture. With globalization - as Horst Fischer pointed out - we have to accommodate the existing body of public internationallaw to the various cultural environments that

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the law is in. Drafting, application and implementation of the law have to be put in context. This is, however, not specific to the feminist approach alone. Leila Sadat's paper gives rise to a reconsideration of the distinction between law and politics. Such a distinction is not a natural one which simply has to be "discovered," but it is the result of our interpretation of the law and of our analysis of politics. From a methodological perspective it is very important to distinguish the two, but we have to bear in mind that there are many grey areas depending on how we deal with particular problems. Your "conflict of laws" approach - as I would name it - suggests more c1arity than actually is in place. It may be an illusion to presume that the approach is more refined because it narrows down our spectrum for analysis. However, I think we cannot reduce our discussions to the alternative of either judicial proceedings or other means of redress. This would miss the cultural implications which have an impact on the law. When discussing the relationship between justice and peace we should perhaps recall that there is a similar relationship at the national level which is full of tensions but a complementary one: the relations hip between the rule of law and the principle of democracy - none can be fully accomplished without the other. Turning to justice and peace: Justice without peace or peace without justice is neither of the two. This means that justice is not limited to prosecuting war criminals. It may inc1ude other procedures which could also form part of a more general notion of justice. This would be a material or substantive notion of justice and not a formal one. In particular in our present context we should base our conc1usions on a thorough understanding of what justice really means. Christine Chinkin: I agree with most what has been said and will respond only on two or three particular points. First, the public/private distinction, since that has been raised by a lot of people. Feminists did not invent the public/private distinction; it is there and it is used in the domestic legal systems in Western liberal democracies and in internationallaw. We don't set out to destroy the public/private distinction. What we try to do is to point out the legal implications that flow from the public/private divide which so frequently are detrimental to women due to abuse. Destroying the public/private distinction would be far too simplistic. It raises so many complex issues. I will take the three examples Jan Klabbers gave to indicate some of the consequences. First, private spaces. On the one hand it is precisely because of the non-intervention of the law into private spaces that women have suffered domestic violence without legal accountability. Jan mentioned the bedroom as a private

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space where law should not intrude. But marital rape is a form of violence against women which is of major concern and precisely where we do need legal prohibitions. But on the other hand, women mayaIso benefit from private spaces. Let us go back to Afghanistan. When the State and religious fundamentalist elites are combined as they are in a regime like that of the Taliban, the private space is the only place that women have as their refuge. Throughout the Taliban period, women were operating underground schools for girls throughout Afghanistan. Insistence upon the intrusion of the State into the private sphere would have been completely detrimental to women's interests. There can be no single correct position. The second example Jan gave is that of conflating social relations and legal relations. Again, one of the classic social relations is the ethic of care which is associated typically with women. But women who have cared for family members, especially husbands and children, may find themselves being told they have made no legal contribution to the household that can be assessed in monetary terms on the dissolution of the family relationship through divorce. Perceiving women's contribution as social and performed through love and affection can leave them without financial support unless the law is used to ensure their legal position. There is a need to make a factual assessment of the position and to determine for whose benefit women's work has been done to ensure an equitable division of assets in particular situations. Finally Jan mentioned public space. I think the major problem with public space is not feminist deconstruction, but State deconstruction. As far as I can see with the ethos of privatization, one of the biggest problems is that States are using this public/private distinction precisely to abdicate social responsibility, and therefore State responsibility, for various actions on the international level. I think that is a very considerable concern which was taken up by Professor Bernhardt's point that we should look to the jurisprudence of the European Court of Human Rights. The Court has tried to address this issue by saying that there are certain public functions that simply cannot be delegated to private actors. Private education was the particular issue in the Costello-Roberts case where the ECHR held that when education is delegated to the private sector, the State still remains responsible for its human rights obligations. The public/private line shifts depending upon political philosophy with respect to the proper role of the State and creates different consequences in different areas of law. It needs formal and sophisticated thinking-through for determination of illegality under domestic or internationallaw in any given context. And in this the consequences for women must be part of the equation.

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I agree totally that many of the points of feminist analysis are just aspects of a general critical analysis of law. Perhaps feminist analysis throws a spotlight on certain issues and suggests ways in wh ich we could develop our thinking about law. This ties up with Horst Fischer's point about my example of the killing of Aigerian women at the bus stop. That example demonstrates to me still further levels of public and private analysis. How women dress is a matter of private concern, and yet it becomes public because it is expressed to be a matter of public morality. And then their form of dress is expressed by certain fundamentalist groups to make women a legitimate target of public violence. When I said that that violence is not regarded as an international crime, I was referring to the overall problem of the lack of international response to what is going on in Aigeria, particularly with respect to women, rather than to the legal technical definition of what constitutes an international crime. A similar lack of response is exactly what was going on in Afghanistan prior to September 11. There was a failure to realize that violative actions with respect to the treatment of women are in fact internationalized, violations of international standards and not merely issues of private morality or community mores. I share with Horst Fischer his concerns on a couple of other points. I agree with hirn about the general analysis of the war in Afghanistan. What I was trying to do was to draw a distinction between the value that is given to military necessity and to civilian life generally and how one comes to see military action as inevitable. I don't actually share the view of supporting the military response in the war against terrorism, however leaving that aside, if we go back to the binary oppositions I mentioned in my talk, military action is coded male, although it is not necessarily an exc1usively male activity, as opposed to civilian family life wh ich tends to be coded female. Obviously both male and female citizens are harmed by military action. I could certainly have referred to Protocol I, Art. 76 and other provisions requiring protective measures. However, I think there are concerns about references to protective measures in the Geneva Conventions. The first concern is that provisions requiring the protection of women seem to me to be weaker than outright prohibitions of the harmful acts. I would prefer a prohibition type language to protective language, but that is just a matter of preference. The second concern is that in most cases throughout the Geneva Conventions women tend to be protected because of their child caring. Continually, the category who is subjected to protection is "women and children" and I think that the specific issues for both women and children are lost by this unsophisticated association. I would go further with Professor Bernhardt about the mutual reinforcement of human rights law and international criminallaw by pointing out that the European

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Court of Human Rights and the Inter-American Commission have both added to the jurisprudence of rape as being contrary to the torture provisions of the respective regional conventions and have also considered the relationship between human rights and international humanitarian law. The issue of women on the bench. 1 hope 1 didn't say that 1 think women as women do decide and reason differently. 1 totally agree with Dr. Peters and 1 think that the work of Carol Gilligan suggesting that women reason differently and speak in a different voice has some very important, very difficult disadvantageous consequences and needs to be treated cautiously. 1 think the last thing we want to do is play into stereotypes of that sort. What 1 think is important is that women be included on the bench for a number of different reasons. One is just plain equity and equality. How can an international legal system that has norms of non-discrirnination on the basis of sex live with itself where the major international institutions clearly violate that basic rule right the way across the world? Second is the role model issue. It plays into stereotypes that women are never seen as judges or in other important positions. But thirdly, it is not biological determinism that makes the presence of women important but the realization that they have different life experiences and that we should bring into the decision-making processes as broad a range of experiences as possible. Women's experiences are different: they experience war, they experience peacetime activity differently from men. That should be fed into the particular decision-making processes. 1 don't think that it is coincidence that it was a woman judge who picked up upon the issues in Akayesu, although 1 am not saying that no man could have done likewise, or that only women would have done it. But it is important to have the opportunity at the very least of allowing for the inclusion of such differences. This ties up with Michael Bothe's point about the importance of how the Yugoslav Tribunal has developed the law. It has notjust been the Tribunal but a range of factors. First of all was the willingness of the prosecutor to bring these cases before the Tribunal. It isn't a coincidence that one of the first things that prosecutor Goldstein did was to create a gender advisor in the prosecution department to target cases and to ensure that they were brought up. Secondly, NGOs have been very active in presenting arnicus briefs and arguments, ensuring that the legal argumentation was there for the judges to build on. Third has been the willingness of the judges, women and men, to build upon these arguments and to weave them into the jurisprudence as it develops. It has been an interactive, iterative type process which then fed into the Rome negotiations as they were going on. 1 am not sufficiently satisfied 1 suppose that paper gains cannot be easily lost. We cannot be sure that this progress with respect to gender-related

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crimes will necessarily be continued all of the time. There are warnings by feminist writers that frequently what actually ends up as written law is not sub sequently applied and interpreted by those sympathetic to the feminist movement. We do not know the future composition of panels of judges; how they will interpret provisions how the law may be applied. What I was really saying is not so much that there has not been significant progress but that we have to maintain vigilance. Among the women's movement, there is concern about what happened between Cairo and Beijing and then at Beijing plus five where we saw many of the gains we had made being whittled away again. At Rome, issues that we thought were not going to be controversial became controversial again. And so it is ongoing vigilance that is needed. 1 had a more detailed question. Yes, I would accept the Kunerac definition of rape, although it is not actually finalized and the ICTYIR Appellate Chamber will have to provide its definition. However, the Kunarac definition must be seen in the context of the discussion around sexual autonomy. In addition there is the difficult issue of consent as a defense to rape (as opposed to the substance of rape) and the conditions when the defense can be argued. Issues around protective measures, in particular anonymity of witnesses from the accused, were raised. I wrote one of the amicus briefs in the Tadic case on this issue; so, c1early, 1 have a commitment to the arguments. I think two things have to be remembered about the Tadic protective measures decision that tend to get overlooked. One is that the war was still going on, the decision was in August 1995, Dayton was not until November 1995, and so it is adecision in the context of people giving evidence in conditions where there is still a very real fear of conflict that might affect them in different ways; secondly, the guidelines in Tadic were in fact extremely tight. Tadic does not say that anonymity is to be given to witnesses except in very restricted circumstances. Subsequent cases, certainly Blaskic, for example, tightened the guidelines still further. I think perhaps two or three things happened post-Tadic. One is that the war finished. So, I think one of the factors giving rise to the need for anonymity disappears. Secondly, that as trials have progressed, it has become c1ear that women and men are becoming more willing to talk about the sexualoffences that have occurred to them and that they are not necessarily requesting anonymity. Women are saying: "I wanted to confront hirn, Iwanted to stand up there and say: 'You did this to me and now you are going to answer for it.'" I think that is quite a change that perhaps has been generated by the very fact that at least theoretically anonymity was seen as possible. Whether we still need it as a possibility is arguable, but I think that arguably the Rome Statute and the Draft Rules of Procedure and Evidence seem to eliminate the possibility. I think one of the biggest issues in every kind of international tribunal is that of adequate

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victim protection. In addition we have to remember that in sexualoffences the protection may not be needed from the attackers and those who are accused; it may be from the farnily members, which is a fact that still isn't sufficiently taken into account. I agree with Erika de Wet, and I think it is one of the big debates of ferninist analysis of crirninology in domestic law that there is this constant tension between civilliberties, in particular the right to a fair trial, and victim's rights creating the need to balance the rights of the accused against the rights of victims. I think that is one of the major problems of the whole theme. Your second question about the random, widespread and systematic nature of rape to constitute a crime against humanity ties up with your question about the required threshold for crimes against humanity. I would make just two comments. One is that, I think, a high threshold is demanded by the wording in the ICC Draft Elements of Crimes, that the State or organization must "actively promote or encourage" the attack against a civilian population. It is going to be very easy for governments or groups to deny that they did this and to assert that rape and sexual violence is just what fighting men do, that such attacks just happened. Such responses revert to the assumption of sexual violence as private while I would question whether rape in armed conflict is ever in fact random and sporadic. Secondly, I would point out that a single act of violence against a prisoner of war is a war crime. So why should not a single act of rape in the same way also be construed as such? Leila Sadat:

I will first respond by way of a couple of general comments and then try to respond to people specifically. I think there is a tremendous tension in the law between the imperative of accountability and the practice of amnesties for the comrnission of international crimes. Prof. Bernhardt rightly noted that the case law of the European Court of Human Rights and the Inter-American Court strongly indicates that there may be a duty to prosecute under some circumstances that is present in the regional human rights systems. I skipped that part of my paper because it was too long. But the difficult question becomes whether you can extrapolate this to a more general duty under international law. When I first started this project, there was a lot of literature that advocated a duty to prosecute. But if you begin to exarnine the issues that Prof. Bothe noted, it becomes apparent that the discussion must become much more nuanced. If you exarnine the international law instruments, you see something very different in international armed

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conflict than is present for crimes committed in internal arrned conflict in the applicable international instruments. At the other extreme, you have people opposing the application of the criminal 1aw, arguing that we need more folk remedies and forgiveness. I would place Martha Minow in this category. But, having surveyed all the literature, I feit that the accountability paradigm was still preferab1e, with some flexibility in the system required to accommodate other forms of reconciliation with the past. With respect to the Rome Statute, the preambular language suggests a duty to try or extradite, which would be inconsistent with the grant of arnnesties. Yet the recently published work on the subject by Professors Bassiouni and Wise, "Aut Dedere Aut Judicare: The Duty to Try or Extradite in International Law," has the two most esteemed authorities on the subject arguing with each other in footnotes as to whether or not internationallaw is clear on this question. After September 11, the Security Council said in Resolution 1378 that all States do have the duty to try or extradite those accused of international crimes, at least as regard international terrorists. So maybe now it is clearer, although it is certainly not clear that the Security Council can make law - I am not going to answer that question today. I think the law is unclear, but there is adefinite tendency in internationallaw not to approve ofblanket arnnesties for international crimes. This does not interfere in aState' s internal criminal jurisdiction, because this would only apply to the commission of international crimes. What I have suggested, which follows Art. 53 (c) of the Rome Statute, is actually an attempt to finesse the difficuIty by taking into ac count the interest of justice. By using an interest analysis approach, it is possible to consider a variety of factors in deterrnining whether or not the international community and other States should respect immunities granted by aState undergoing a transition to democracy. Prof. Benvenisti's comment was very interesting when he suggested that one factor should be whether the group who was oppressed was involved in the political decision that brought about the arnnesty. The question was then raised, what does justice mean? There are, of course, many authorities on the question, and in this context there could be many interpretations of the term. However, even if there is imprecision as to the meaning of the term, it seems foolish not to use it, for it is part of our common vocabulary, and to communicate we need to be able to use common terminology. We use the language of justice because that is the language we understand, even though we could probably have a second symposium, which could last a week, on what the term means. But what I think people in the field mean when they use this term, whether it is as a general philosophy (shall justice be traded for peace) or in a more specific context, when negotiating a peace deal with a sitting dictator or a

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government that has presided over the commission of mass atrocities (such as in the Sudan, where there has been an 18-year-old ci viI war with two million casualties), is whether accountability for past crimes is going to be part of the process or not. The theory, of course, is that impunity encourages the commission of mass atrocities. And in this context the Sudan is a good example. Perhaps one of the reasons why there has never been a truly successful peace process in the Sudan is because they have never talked about accountability. The Intergovernment Authority on Development peace principles have specific requirements to stop the shelling and permit the distribution of humanitarian aid, but the killing, enslavement and overall horrendous human rights situation in the country continues because accountability has never been demanded. There needs to be a process that removes some of the people in power, at least those who have or are committing international crimes and have exhibited pathological criminal behavior. There have been proposals for a Great Lakes Tribunal to address some of these issues, but that never went anywhere. When I was examining the problem of impunity and alternative means of redress, I was really trying to find a third way that would neither take an absolutist position that requires the prosecution of every person who is arguably an international criminal nor say, you know, let's shake hands and forgive and forget. Rather, each situation is different and needs to be examined in context. In some circumstances, local or folk remedies may be required or effective, which is the purpose behind the establishment of the Gacaca Tribunals in R wanda. It is unc1ear whether the Rwandese solution will ultimately be effective, but that doesn't mean it should not be tried. These are extremely difficult and complex problems, and I do not presume to resolve them all. It is interesting that Christine and I both started with stories of people who were still, fifty years after they had been the victim of a crime, seeking some form of redress. Many of the victims in Christine's narrative were presumably Korean or perhaps Japanese, and mine were found in France. While culture is certainly relevant in speaking of justice (and I would not presume to opine with respect to cultures that are unfamiliar to me), it appears that the yeaming for an official recognition of wrongdoing appears to be a fairly universal idea. I thought J an was a little unkind about the deterrence issue or perhaps my point was misunderstood. What I was suggesting with deterrence was it that it was only one of several factors behind the quest for accountability. There are many reasons why societies employ criminallaw. One is the value of law itself, another is the idea of official recognition that the victim can come forward and have his or her day in court. In the international context, when we speak of deterrence, we have

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had some relatively good success with the idea of specific deterrence. After all, Milosevic is behind bars now, so he has presumably been specifically deterred from comrnitting more crimes, at least anytime soon (laughter). General deterrence, as everybody has said, is a much more difficult proposition. What I am suggesting is that there is at least a hope, not empirically demonstrable at this point, that through the prosecution of international crimes we are constructing a new normative discourse where impunity for international crimes is not just part of doing business anymore. And there are some indicators that this is actually happening. For example, there were discussions in the Israeli Parliament, right before the army went into Jenin, about the approach that should be taken with regard to the Intifada and the suicide bombings. It was reported in the press at the time that during one of the colloquies between parliamentarians that were arguing for very severe military actions and those who advocated a more restrained approach, Simon Peres said, if you take those actions, you are going to find yourself at The Hague in front of the Tribunal. What an extraordinary statement! Ten years aga nobody was talking about that. You may have different political views about it being good or bad, but personally I think the fact that leaders might be thinking that they need to be careful in planning military offensives, otherwise they could find themselves before an international tribunal, is a positive development. Even with the war in Afghanistan, the military lawyers I have spoken to suggest that, with respect to targeting, they take a great deal more care than they used to. With regard to Kosovo, according to the expert report comrnissioned by the Office of the Prosecutor at the ICTY, the casualty figures reported by the FRY were in the range of 500 casualties in 98,000 bombing sorties, fIown in 77 days, which is actually pretty low if you compare it to other campaigns involving air strikes such as the firebombing of Dresden or England. The NATO figures were much lower, of course. This doesn 't mean that the use of force was itself legal in that case, but it does suggest that perhaps there has been a certain normative infIuence that the criminal law has in requiring leaders to think more carefully about the possible consequences of their actions. Finally, I just want to clarify one point. I don't argue that there is a customary internationallaw duty to prosecute at all. In fact, as I noted earlier, I believe the evidence is quite mixed. The regional human rights bodies seem to be much more keen on the idea, but there is the countervailing tendency exhibited by Art. 53 of the Rome Statute to perrnit national arnnesties that might "serve the interest of justice." As Philippe Kirsch has noted elsewhere, the point in the Rome Statute was

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to pennit the prosecutor to be sensitive to the concerns of local justice. I am not sure if these answers are entirely responsive, but I think I will stop at this point. Michael Byers: Why has there been such evidently significant progress in the application of feminist approaches to international criminallaw but no comparable progress in other areas of international law, such as the law governing the use of force, international economic law or international development law? One possible explanation is simply good timing. International criminallaw became a hot topic at a time when non-governmental organizations were becoming more active and achieving greater salience. It was also a time when feminist theory was beginning to make a mark in international law - Christine Chinkin and some of her colleagues, for instance, had just published a prominent article in the American Journal of International Law. The timing was also good in another sense, in that the attempt to apply feminist approaches to international criminallaw coincided with an important generation shift in related areas of activity. One such area was the media. I have had quite a bit of contact with junior producers at the BBC the last five years and it is apparent to me that all of these young people, both women and men, are very aware of gender issues. This younger generation could thus be expected to be more responsive to the kind of concerns expressed in feminist theory. And of course, these junior people often have a profound influence on the kinds of stories that work their way through the production process and end up on air. Since this generation shift towards gender-awareness began around the same time as the effort to apply feminist approaches to international criminallaw, individual activists and nongovernmental organizations were able to plug into the media in ways that had quite a profound impact on thinking on these issues. Another timing issue concerns the fact that most areas of international law become implicitly categorized as involving either male or female issues. For example, the law governing the use of force is widely considered to be a male domain. In late September 2001, my wife complained to me that she had not heard or seen a single female commentator speaking to the use of force issues on radio or television following September 11. It seems to have been assumed that the appropriate response to the terrorist attacks was a military campaign, and that the people who should be commentating should therefore be military experts. And military experts tend to be male, which meant that the response to September 11 became a male domain. It so happens that international criminallaw had not yet

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been categorized as male or female prior to 1990, simply because it was such a neglected field. This meant that it was open to being claimed in part by women, and gender-aware men, as a topic of importance when it achieved prominence in the early 1990s. Another possible explanation is that international criminallaw is a "hard" as opposed to a "soft" issue. Most of the issues to which feminist approaches seem most relevant could be considered soft issues, for instance development, education, social, economic and cultural rights. And since these issues are, relatively speaking, lacking in technical details and devoid of clear and immediate legal obligations, it is difficult to get much traction for legal arguments with respect to them. International criminal law is different: it is full of technical detail and brimming with clear and immediate obligations - in large part because it is based on domestic criminal laws. Feminist scholars, activists and non-governmental organizations were thus able to get more of a grip on this topic, in tenns of justifying their positions and pro vi ding counterarguments in ways that traditional, maleoriented internationallawyers had to take seriously. Another possible, partial explanation is that it is very difficult to argue that rape should be legalorthat feminist perspectives are irrelevant with regard to rape. It simply cannot be done. The evident illegality of rape and the evident legitimacy of the feminist perspective on this issue made this an ideal target for feminist activists and others concerned about gender issues in internationallaw. It is not so blatantly obvious that feminist perspectives are relevant to use of force or international economic law issues. All of these possible explanations lead to a further question: Is the success of feminist approaches in international criminallaw somehow transferable to other areas of international law? In my view, feminist approaches may already be having more of an impact on other areas than most internationallawyers would think. Twice, in cases before the British House of Lords, I have seen sexual violence or gender issues directly affecting decisions concerning areas of internationallaw other than international criminallaw. The first occasion arose during the first set ofhearings in the Pinochet Case in November 1998, when Alun Iones QC, representing the Spanish government, was reading through the extradition request. At one point Iones stopped and said to the judges: "My Lords, I would prefer if you would read the next paragraph silently to yourself." They did, and then one of the judges looked up and said: "YoUf point, as I understand it, is that these acts could not possibly be official acts." The paragraph concerned the use of trained dogs to rape female prisoners. My point is that it was the account of sexual

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violence that most gripped and horrified the judges in that instance - and it clearly contributed to their decision that State irnmunity did not apply. The second occasion where sexual violence or gender issues had an impact was in the Shah Case in early 1999. The case concerned a Pakistani woman who had been accused of adultery and faced death by stoning if returned to Pakistan. The House of Lords ruled that women in Pakistan were a social group for the purposes of Art. 1 of the 1951 Refugee Convention. This was a groundbreaking judgement in British law and was also very significant for refugee law internationally. Again, concerns about gender-related violence had a direct impact on another area of internationallaw. Butjudges can only do so much. Connecting issues of concern in international affairs with the various elements of societies that vote and otherwise support politicians would seem to be the most important element in at least some recent efforts to influence the development of internationallaw, whether with regard to the International Crirninal Court, the Ottawa Landrnines Convention or the Kyoto Protocol. It makes littIe sense to talk about law and legal development in the abstract; law is about societies and cultures, and how the various approaches and arguments relate to societies and cultures will necessarily influence the kind of law that is made. The ability to connect with women and gender-aware men is one of the things that can make ferninist approaches to internationallaw work in practical terms. Taking advantage of this ability, however, involves working to some degree within the system, which I know is a difficult choice for many ferninists. But I would encourage ferninists to continue the hard work of reaching out to the rest of us, of seeking to change our ingrained assumptions and beliefs. Real progress has been made in international crirninal law, and there is no reason why ferninist approaches cannot influence other areas. Most importantly perhaps, at a time when the international legal system as a whole finds itself under threat, ferninist voices add much needed strength to the multitude of other voices demanding justice and equality in international affairs. Joachim Vogel: Yesterday we had a discussion on internationallaw, and I joined it by adding a specific crirninallaw perspective. Today I will do the opposite: since today's discussion focuses on crirninallaw, I would like to add three points of internationallaw (although I am, of course, not a public internationallawyer). Further, I would like to ask some specific questions to this morning's brilliant speakers.

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(1) Let me take up again the question of sources of international criminallaw. Yesterday I doubted whether the search for customary law in this field can be successful. Today my doubts are highlighted by the handout which was distributed by Ms Chinkin. Which sources of international criminallaw do we find here? Not customary law. In the first place, we find treaty law, in particular the Rome Statute. Insofar, I would like to ask again whether the Rome Statute is fully and adequately characterized as "treaty law" - or whether such a multilateral instrument, negotiated by plenipotentiaries and adopted by their majority vote, must be qualified as some sort of international statutory law decided upon by a quasiparliamentary (representative) body. If we also take into account that the Rome Statute can be arnended by the Assembly of States Parties, and that such an amendment can be adopted by a two-thirds majority (Art. 121 [3]), I would really say that a new fonn of internationallaw is evolving. In the second place, we find (again: not customary law, but) case law. The definition of rape printed out on page three of Ms Chinkin ' s handout is taken from the jurisprudence of the ICTY. It is judge-made law, case law, even if it purports to be customary law and even if it sterns from general principles of law (but I do very much doubt whether a definition of rape can be based on general principles of law). In the third place, we find the Rules ofProcedure and Evidence (RPE) ofthe ICTY resp. ICTR. The RPE are tertiary United Nations and - again - judge-made law. The Tribunals at The Hague and Arusha have been authorized to make such law, it is judge-made statutory law, and certainly not customary law but far beyond custom. Look at No. 96 (4) RPE under which prior sexual conduct of the victim shall not be admitted in evidence or as defense! Such a rule is certainly not an international custom but a rule which does not exist (and would be hardly acceptable) in many legal orders, e.g. in Gennany. It has been developed in some legal orders (in particular in the U.S.) where defense rights were abused and victims of sexualoffences were traumatized by extensive interrogations on prior sexual conduct of scarce or no relevance to the offence. The rule has been taken up by the Tribunals for the simple reason that, taking account of the special circumstances of international crimes against women, it is useful and reasonable. To sum up: I feel that customary law is not a major source of international criminallaw as it stands today.

(2) The second point I would like to make is that, in my opinion, the creation of an international criminaljustice system is part of a general movement from "traditional" internationality to "modem" supranationality. Of course, the United Nations are an international organization and not, like the European Community resp. Union, a supranational organization. But when the Security Council decided to create international criminal tribunals, in particular the ICTY and ICTR: Didn't the Security Council exercise truly supranational sovereignty? Didn't it act inde-

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pendently from States Parties' consent, and certainly not in line with customary law and the original vires granted to the United Nations by the States Parties? And when Ms Sadat spoke about universaljurisdiction as ajurisdiction inherent to the international community: Isn't such a universaljurisdiction a supranational concept and not ajurisdiction derived from States' jurisdiction? (3) Thirdly, I would like to point out that internationallaw seems to move from horizontal to vertical relations, from horizontality to verticality, and that international criminallaw is a major example of this movement. International criminal law implies a vertical relation between the international community and its criminal tribunals on the one hand and the individual on the other hand who has become a passi ve subject of internationallaw, a subject of duties and accountability. If we face such a vertical relation, two problems arise. The first is the problem of democratic legitimacy of the exercise of public and criminal powers over individuals. We must arrive at some sort of indirect, intermediate democratic legitimacy of international criminallaw, and I would very much argue in favor of the new international statutory law decided upon by a quasi-parliamentary Assembly of States Parties which I have just tried to describe. The second problem is how to balance public interest and individual rights (not only human rights). Here, many questions well-known in nationallawand national criminallaw will arise in the context of internationallaw and international criminallaw, too. Indeed, what we have been discussing this afternoon could have been very well discussed in any national criminallaw seminar: how to balance the interests of offender and victim; how to identify rational grounds and purposes of penalties and criminal law as such, etc. And that is why we need an interdisciplinary discourse between international and criminallawyers in the field of international criminallaw. (4) Let me finally add two questions, one to Ms Chinkin and one to Ms Sadat. Concerning Ms Chinkin's speech, I am convinced that the feminist approach is vitally important to criminallaw and a fmitful new paradigm. However, I see a certain change during the last years: In the beginning, the feminist movement aimed at decriminalization, e.g. of adultery, abortion or lesbian relationships. N ow, we find a tendency to broaden existing sexualoffences and create new ones, like new forms of "sexual harassment." So, my question to Ms Chinkin is whether it is possible that the feminist movement is following a development which has nothing to do with feminism: the rise of punishability in many societies all over the world. On aglobaI scale, punishability has risen over the last thirty or so years, and we may even speak of an "axis of punishability" with the U.S. on the one hand, communist China on the other hand and many Arab countries in the

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rniddle. The ferninist quest for more and more crirninal law against behavior harmful to women may well fit into this global movement. And my question to Ms Sadat is: What does "impunity" exactly mean? I fully agree with you that impunity must be avoided. But I would not go so far that an international crirninal must be crirninally prosecuted at all costs. Impunity, in my understanding, is lack of serious reaction to the offence. Certainly, crirninal prosecution is a serious reaction. But is it the only one? Might we not also take into account alternative redresses? For example, exile and forced exile, freezing of assets or resources etc. are serious reactions, and there is even aState practice that forced exile is an alternative redress against international crirninals. Rainer Hofmann:

Before I give the floor to Eibe Riedei, I amjust too tempted not to make the following two comments. The first comment is that this contribution, I think, clearly showed that it is good that we, the organizers of this symposium, at least tried to bring together international public law persons and 'international crirninal law persons in order to try to contribute to overcome this fragmentation in internationallaw. The second comment is based on a comment made by Martin Mennecke who is presently working at the Danish Centre for Genocide Studies in Copenhagen as, I think, the only internationallawyer there. Yesterday, after my opening address, he approached me and expressed his astonishment that I referred to this symposium as an interdisciplinary one; from his perspective as someone working together with historians, political and social scientists, a colloquium, attended by internationallawyers only, could not be called an interdisciplinary one. This made me ask myself whether it is really true that our subject has been already so deeply fragmented that we consider someone working with international crirninallaw to be a member of a different discipline as compared to someone doing research in public internationallaw. This fragmentation, I think, is an issue we have to be concerned about and I should like to come back to it later in my closing remarks. Eibe Riedel:

A few speakers have just spoken without stereotypes, so I will use another one, because Christine said she quite likes them. At the UN we usually congratulate speakers for their brilliant and erudite expose when we really mean it was hope-

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less. So, to be on the safe side, I will only say that it was thoroughly interesting and thought-provoking. Christine, now seriously, I really have very few points where I can disagree, even though I looked very hard for points of dissent. The first point I would like to raise concerns the comfort women issue in Japan; I found this particularly interesting and apt. Last year, in preparation for Japan's State report to the UN Committee on Economic, Social and Cultural Rights, I was invited to go to several cities in Japan. Amongst the most moving experiences was a meeting with comfort women in Kobe and Kyoto. I realized how very right you are in stressing that law is an instrument of civil society, not just of States. I suddenly became aware that, if it had not been for NGOs, Japanese NGOs at that, looking after these interests of the abandoned Korean and Philippine women and a few Hong Kong and Chinese women, living in Japan for over a generation, all the treaty bodies could not do their work properly. So, you are absolutely right and Leila convincingly pointed out that talking about accountability - meaning in the Oxford English dictionary sense "having to answer," so talking about crimes committed - is in itself a method, almost a remedy. It is not enough, but it is a remedy which internationallawyers usually do not pay much attention to, because it is not a legal issue but amoral, political, and ethical issue. As many prosecutors of German Nazi crimes discovered when they went to take evidence in Israel, forty or fifty years after World War 11 the issue was not so much seeing criminal justice being done, but being heard, for justice must not only be done but manifestly seen to be done, and to listen and talk to these people is the key issue. I was very pleased that both of you stressed that point, and it should not be forgotten when we talk about accountability structures. The comfort women were not interested in compensation or reparation or offers made by a private foundation sponsored by the Japanese govemment to solve the problem; the govemment said to us, when reporting to us six months later: WeIl, we have solved the problem, a couple of million Yen, and we give large sums to all women affected if they come forward. But they refused to come forward. The comfort women refused, because they want a dear apology admitting that the govemment policy at that time was criminal. The govemment refused to comply with this request because of a possible loss of face. We criticized that and were subsequently severely snubbed by the Japanese govemment as being biased towards NGOs. So much about that, but it is really interesting, in my opinion, that these women were not preoccupied with any financial settlement, despite the appalling living conditions they have in Kobe, which were really dismal. But they said it is

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a point of honor, much more important than merely a payment, they really want their reputation restored if that is at all possible. Now, Christine, about your feminist analysis of international criminallaw: I am a male, I won't say a male chauvinist pig, but I will say that I agree with most of the points you made. When you spoke about infanticide, trafficking of women, bullying in public service or domestic violence and, particularly, marital rape, you have really very strong points which mightjustify a feminist approach to internationallaw and, in particular, to international criminallaw. With regard to domestic violence, think of a Russian committee member who pointed out two weeks ago in Geneva - and you were there - that domestic violence is not limited to women being battered! It happens to men also and, in particular, to children, be they male or female. Listening to your really very convincing arguments, I think that, even if 95 % of the cases affect women and only 5 % affect male, one should not overstate one's case. What is lost by talking of domestic violence which, after all, is the terminus technicus and thus making quite sure that the other 5 % are not lost? This is exactly the same situation I encountered in Bihac when talking about children's rights in Bosnia-Herzegovina, and all the Bosnians wanted to say, "These terrible Serbs!" whereas I said it is the human rights violations and humanitarian law violations by perpetrators we should be dealing with, and it does not really matter whether they were Serbs or Bosnians or Croats, and whether they were 95 % Serbs and 2 % Croats and 1 % Muslims. These things tend to get lost, and my question is: Are you not possibly overstating your case? That was what I argued two weeks ago when one of the next general comments of our Committee on Art. 3, which is on equality of men and women, was on the agenda. Feminist NGOs proposed that we should first address female inequality before embarking on a general comment concerning the entire article. I am really against that, because it puts the focus into the wrong place. The inequality issue in our jargon now refers to marginalized and disadvantaged groups of society, be they old people, children, women, men, ethnic minorities etc. Otherwise the focus might be wrong. In some instances, the ethnic minority or indigenous population situation is far more prominent than the women issue involved in that. So let us get the balance straight! But the rest of the examples you gave are all very cogent, I cannot but agree with you. Probably, in some fields like environmentallaw or international economic law a more feminist approach seems called for. And if there is one lesson that I leamed from being on the UN Committee on Economic, Social and Cultural Rights, it is that in many parts of the world, in particular, in Asia, Africa, and in Latin America, the role of women is often totally disregarded and merely seen as a sort of general issue without requir-

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ing practical consequences. So you have a strong point there. But be specific in the examples you give, as you are when showing instances of discrimination against women or inequality of women! Last point, Leila, I liked your arnnesty analysis, but I feel that the sheer problem size of the huge numbers affected might be further elaborated upon. Look at the fact that tens of thousands of Hutu suspects, for instance, are still in prison in Rwanda awaiting trial when it is quite clear that some or quite a few of them are innocent, as the ICRC has pointed out to us, and that internationalizing the issue just does not solve that particular problem, and that truth commissions in such situations, as you quite rightly pointed out, are just not possible! So what should be done in that specific situation? Horst Fischer suggested that we look for specific means that cultures might provide. I found that very interesting in relation to the child soldier problem. But it would be nice if we knew of specific measures in relation to genocidal or mass murder situations where the memory of those events is still so alive amongst the population affected. Last week in the Netherlands, I sat next to an NGO Tutsi from Kigali with many visible scars on his arms and right next to hirn sat a Hutu ministry official from Bujumbura; they certainly both had no answer on how to solve that problem when I put it to both of them. I was quite pleased that they were sitting next to each other and speaking French. Possibly there is no comprehensive answer, as Thilo Marauhn has said, but maybe a country-specific or situation-specific approach ought to be adopted. Should that be the ans wer of internationallaw, to get away from the grands desseins and to look more for specific answers? That is the question I have for both of you, apart from the little comments I made.

Georg Nolte: Yesterday, we had two very provocative presentations. If I may exaggerate a little bit: Wolff Heintschel v. Heinegg wanted to make us believe that a widely accepted, seven year old judgement is wrong. This is a very difficult point to make. Jan Klabbers wanted to persuade us that an American soldier who commits war crimes in other countries should not be punished by an international criminal court because that would reflect badlyon the United States. Today's presentations, on the other hand, were rather balanced: Christine Chinkin did not describe the public/private distinction as an invention of male domination to suppress women but instead said that this distinction is sometimes misused and typically implies some risks for women. Leila Sadat proceeded on the presumption that a punishment should normally be in place, but that there might also be good reasons

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not to punish in certain situations and that there had to be a good mix between the international and the national judieiary in order to come to the right outeome. Therefore I only have two questions, and no comment. Christine Chinkin eited an artide aeeording to whieh the legal eoneept of military neeessity prefers men. Assuming that the men fight and the women stay at horne, I do not understand why the permission for men to use violenee against eaeh other should legitimize the use of violenee against women. I thought that, if any, the publie/private and the eombatantlnon-eombatant distinetions would be advantageous for women. The law then basieally says that men may kill eaeh other and that they are not supposed to kill women. Therefore I do not understand why the eoneept of military neeessity favors men. My question to Leila Sadat is: How would you apply your eriteria to the Israeli-Palestinian/Arab eonfliet? The suieide attaeks are probably part of a widespread and systematic attaek against a part of the ei viIi an population and in that ease they are erimes against humanity. Do you think that Arafat and his aeeomplices are in the same position as Milosevie and his aceomplices and that we must insist on his punishment no matter what this means for the prospeets of peaee in the Middle East? Fred Morrison: I also want to thank the speakers for their exeellent presentations. My comments will foeus on Christine Chinkin's paper. I thought you have made, maybe, a molehill out of a mountain and a mountain out of a molehilI. First let me address the molehill out of a mountain! Your emphasis on aecountability raises a question for me. Y ou thought you have solved this by saying it was only aceountability for international erimes in the ICC Statute, and so it is a molehill to you. One of the reasons it is a mountain for me is that if you push the aeeountability thing far enough, you neeessarily begin to say that aeeountability requires State responsibility. That would call for full reparations in ease of an illegal war. I think we know from the history of Germany after World War I that full reparations may just renew the eyde. I am not at all sure that full reparations is a good thing. I would also point out that in eontrast to your argument for full aeeountability in the case of international armed eonfliet, Geneva Convention III effeetively gives an arnnesty for most alleged war eriminals, against everything except the most major erimes when it imposes on the captor State a duty to repatriate at the end of the eonflict. In internal armed eonfliet presumably every aet of one of the belligerents was a breaking and entering or an assault and battery or an attempt to murder under the applieable domestie law. If you go to res tore any

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semblance of order, you are going to have to get past those kinds of criminal responsibilities either by an arnnesty or simply by not prosecuting or by not following up on various kinds of issues. The mountain out of a molehill side is with regard to extraterritorial enforcement of arnnesties. Under traditional conflicts of law analysis, a foreign penal or revenue law has no legal effect per se outside of the country in which it is issued and therefore it really has no extraterritorial effect. The national government cannot modify the international legal obligation. So a Chile an arnnesty might weIl protect Pinochet in Chile, but it can't protect hirn in England. I think it's a much simpler argument. Doris König:

I want to start with a stereotype and ans wer Georg who said that the presentations today were not provocative. I just want to answer hirn that women are good at balancing interests and presenting weIl-weighed arguments. This brings me to my first point which refers to something Christine Chinkin mentioned in her intermediate remark, namely the need for women judges at the ICe. I think this is an interesting point. Anne Peters said earlier that you can't put people into boxes. That is true on the one hand because women (and men) act in different social roles and being female is just one part of these different roles. But on the other hand, this argument does not speak against more women judges at the ICe. To my knowledge national experience with criminal courts shows that women judges have a different perspective and, as Christine pointed out, they have made different experiences in life and tend to look at things in a slightly different way. They often bring up new aspects which might be important when a court has to judge on sexual violence. Therefore I am really interested in what the States Parties will do with Art. 36 (8) according to which a fair representation of female and male judges is required. I am really anxious to see what is supposed to be "fair" when it comes to the election of the judges. I do hope that there will be at least a couple of women on the bench and not just one or two as is the usual quota in international courts. My second remark refers to Leila' s presentation. I think she had an interesting point when she said that we have to look at multi-Iayered or multi-tiered systems, because this approach is quite interesting for internationallaw and the relationship between the ICC and national criminal courts. I think she said that when national criminal courts apply nationallaws on the basis of universal jurisdiction, they are at the same time applying internationallaw, because these crimes are stipulated in

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internationallaw but enforced by national courts. This reminds me of an enforcement model in the law of the sea, namely port State control according to Art. 218 of the Law of the Sea Convention, on which I wrote my dissertation. National courts act as some kind of trustees for the international community by enforcing internationallaw. That is a very good enforcement mechanism, at least as long as we do not have an international court to take over this task. Now the ICC and the national criminal courts both have jurisdiction with respect to the crimes mentioned in Art. 5 of the Statute. Whether the distribution of jurisdiction between the national courts and the ICC in accordance with the complementarity principle will function satisfactorily we will see. I have my doubts about the functionality of this principle. Anyway, in my view the idea to look at national courts as trustees or agents who have the right and the obligation to enforce international criminallaw is an interesting one that deserves to be analyzed more thoroughly. The mechanisms we know from federal systems or - which in my opinion is even more interesting - from the European Community experience could serve as a model on how the international and the national courts can work together. Maybe there is a need for the application of a principle which is similar to the principles of adequacy and effectiveness we know from EC law. In order not to frustrate the objective of the ICC Statute, national courts should have, for instance, the power to prosecute international crimes under the same substantive and procedural conditions as those relating to national crimes. Transferring the view of the European Court of Justice that national courts applying Community law act as functional Community courts to the international level, one might say that national criminal courts applying international criminallaw act as functional international courts. As far as the obligation to prosecute is concerned, I have my doubts whether national prosecutors and criminal courts really have to acknowledge genuine truth and reconciliation mechanisms of other States. I don't see a principle of internationallaw which would oblige them to stop prosecution in such a case. But we probably have to think about this more thoroughly. At least the idea to look at multi-tiered systems for advice is an interesting idea which goes a little bit into the direction of what Prof. Vogel said. If I remember correctly, he spoke of something like "international supranationality." I don't know whether you can already call the relationship between the ICC and the national criminal courts supranational, but at least the relationship between national and European Community courts might give rise to some new principles with respect to this relationship. Maybe we can take over some of the mechanisms we grew accustomed to in supranational systems and adapt them to this new developing system of national and international criminallaw.

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Berta Herndndez-Truyol:

I have the benefit in making these comments on a Saturday afternoon after having been fortunate to hear four excellent and exciting presentations. I thank the speakers for such stimulating and challenging papers and take advantage of such vantage point to find linkages among the four works. On Friday we commented on the connections between Prof. Dr. Wolff Heintschel v. Heinegg's and Prof. Dr. Jan Klabbers' talks - the former addressing international crirninallaw and customary law and the latter focusing on international crirninal law and third States. My goal today is to find such linkages between those two works and the presentations delivered today by Prof. Dr. Christine Chinkin on international crirninallaw and ferninist approaches to internationallaw and Prof. Dr. Leila Sadat's on international crirninallaw and alternative methods of redress. In my view, there exist interesting cross linkages between both days' presentations. For example, there appears to be a strong connection between Dr. Sadat' s paper and Dr. v. Heinegg's paper in that they both interrogate the concept of the source of law. Their works pose the analogous questions of what is custom and how do we find it. What is a proper mode of redress and how do we establish its legality? Both scholars question the sources and validity of laws and norms as weH as the validity of legal interpretation. Sirnilarly, Dr. Klabbers' and Dr. Chinkin's papers are overlapping. Dr. Klabbers' analysis of third States and the questioning of the source of responsibility for either an individual or aState introduces the issue of the public/private dichotomy in the context of international crirninal responsibility. That publicJprivate divide as well as actors' responsibilities for their deeds in the framework of women' s well-being is one of the key dichotornies scrutinized by Dr. Chinkin in the analysis and critique of international law and norms as gendered. For example, she noted how violence against women, which often takes place at the horne, was considered, for a long time, a private matter rather than a matter for a State's concern - a position whoHy contrary to the State's posture on every other manifestation of violence. Given these intersections between and among both days' presentations, it is appropriate to revisit and deconstruct Friday's discussion in view of Saturday's analyses. We should question what are the proper sources of law, what law is valid and why, the legitimacy of law and lawmakers, and the accountability of State and non-State actors for breaches of law. For example: Who is to say that custom should be a source of law and, if so, what elements should be present to establish the existence and binding nature of customary norms? Sirnilarly, one can

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question what constitutes "general principles of law recognized by civilized nations," who decides what constitutes such principles, whether they continue to be "national" or "international" general principles, and why they should be considered a proper source of law. To be sure, it may weIl be more appropriate today than it was in 1948 to talk about general principles of internationallaw given the field's growth and development. However, it is important to acknowledge that there are arguably various internationallregiona1legal systems that vary in strength and approach; aIl of which may be threatened by imperialistic State action. Moreover, asking those questions about which "general principles" are sources of law also requires that we question what nations are civilized so that we can ascertain whether the principles are recognized. In this global society we may weIl still have varying views onjust which nations are civilized; we may still have some differing ideas as to whose voice counts. Both the notion of custom and general principles are embedded in Art. 38 of the Statute of the International Court of Justice. But that does not mean that today their validity and continued viability as primary and secondary sources of law and their underlying signification ought not be questioned. Reaching consensus in 1945 with respect to these sources was very likely a much easier exercise than it would be today. Today, the conversations are much more complex. I simply note that democracy is a dear requirement for membership in the European system. Yet, one can seriously question whether the system of governance in some of the newer member States can reaIly be caIled "democratic." One can also question whether democracy means (or should mean) the same thing today as it did in the early days of democratic movements that were aimed at abandoning monarchies. Even then, however, we have to acknowledge that this concept of democratic society and equality of aIl citizens was not an unproblematic idea. Democracy was embraced and daimed in societies that considered aIl women to be property and that accepted the institution of slavery - raising the question as to whether the ideal of democracy, in which every person is a fuIl citizen, has ever been attained anywhere in the world! Thus, returning to the notion of custom in internationallaw and Dr. v. Heinegg' s critique that courts appear to be blurring the requirements, perhaps there is nothing else courts can do given the ephemeral nature of the requirements themselves. Identifying the existence of State practice is something that is not ever done until "after the fact." So courts are left with needing to find concrete elements by reconstructing sovereign conduct. Under such circumstances, the only route available to courts in passing judgement on conduct is to seek to find justice captured in imperfect law. Perhaps then the courts are blurring the standards of

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custom and customary law because they have to; because the reality is that it is unlikely States will be expressly vocal and forthright with declarations that a particular action constitutes obligatory State practice. It is only after the undeclared fact that courts are required to evaluate and conclude whether a particular State's activity meets the requirement oflaw. And not all conduct fits neatly into the legally generated "boxes." Thus, the courts identify elusive actions and by so doing reconstruct - to use the language of post-modernism - notions of justice that are very imperfectly and perhaps inefficiently captured in what we calliaw. Law in the end is only a concept, a vehicle if you will, that permits us to attain the goal of, and do justice. Such human process renders the aims to do justice and to follow the rule of law not identical, but complementary and sometimes rnight even be at odds. This observation is not something new; tribunals have been engaging in these difficult and sometimes competing tasks for a long time - and this touches upon Dr. Sadat' s explorations of alternative forms of redress and which are acceptable and why. All we need to do to capture the historical reality is to think back to Nuremberg - a Tribunal whose judgement is universally accepted as just. Yet, nobody can say that the process to reach that judgement was unproblematic, with some of the challenges being those of enforcing ex post facto laws and violating the precept of nullum crimen sine lege. Those roadblocks notwithstanding, the international community views the Nuremberg decision as justice being done. The forms and nature of appropriate redress change over time and are often dependent on context. The "rules" or "laws" in a vacuum are not going to provide one sole answer. Given the strong pull in the international realm to follow the rule of law and to see, even if by manipulating some of those rules, that justice be done, it is very interesting to observe the shift in perspective of what legal norms really require when we turn to women. Every single positive international rule prohibiting discrirnination includes "sex" as a proscribed basis for discrirnination. The Universal Declaration, the UN Charter, the International Covenant of Civil and Political Rights, the Econornic Covenant, all mandate sex equality. There is even a Women's Convention focused on action needed for women to attain equality - a convention that is the most widely reserved against treaty in UN history. In light of this "law" it is appropriate to question, as I did with custom a moment ago: What exactly does the rule of sex equality mean? In looking at the reality of women's lives, condition, and legal status, as Dr. Chinkin's presentation underscores, this equality mandate is far from realized. Since the beginning of time, men and women have existed in different spheres of

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ci vii society. When we think of men we think of the public; when we think of women we think of the horne - the quintessentially private space. When we think of men we think of economies; when we think of women we think about relationalism - women's interactions with family and friends. There is a sense of "what do women want," specifically when we start seeking a realization of women' s full equality and rights. It is as if the idea that women are people too is too strange to warrant serious consideration. Too often violations or abridgments of women's rights are justified by cultural practices and deemed acceptable, no matter how grave. Somehow, women's "rights" are expected to be different, lesser than those of the "true," meaning male, citizens. The use of the public/private divide has facilitated this approach. For example, violence is a public act proscribable and punishable by the State, until we reach the doorway to the horne where it is considered a private act untouchable by the State. Similarly, freedom of movement is a public right, until we get to women, whose movement can be restricted by husbands and fathers alike in many places around the world, as the international community sits by and accepts these limitations as cultural. Women's rights and legal protections, as the discussion on the compromises for the realization of the International Criminal Court has evidenced, are freely traded for some objectives deemed to be more important, higher goals. It seems unlikely that the same negotiations would be contemplated if the rights to be bartered out were those of racial or ethnic groups. Two points are significant here, both raised by Dr. Klabbers in the context of third states and raised here in the context of women. One, we should more forcefully use the concept of "action" of State including omissions in evaluating women's location in society. It is aState obligation to ensure that women enjoy equality. If aState fails to take steps to make equality a reality, it is breaching the norm. Two, individuals are not only individuals, they are also part of a group. That is markedly true for women within international and national societies as well as within local communities. The piethora of rights that women should enjoy should be experienced in all these contexts; and it is important to recall that the range of rights - the individual ones that include civil and political as well as social, economic and cultural rights and the collective ones - are indivisible and interdependent. Thus, it does not satisfy equality norms for women to be equal in the horne but not at work or in war. Human rights and humanitarian norms should no more be used as a sword by the powerful to eviscerate minority cultures than they should be used by minority cultures as a shield against scrutiny and accountability by the human rights regimes for those cultures' evisceration of women' s rights. These so-called cultural

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tropes are devastating violations that deny women's human rights ranging from dignity and humanity to security of the person, from health to education, from the right to work to the right to movement. As Dr. Anne Peters noted, women have many roles in society and every woman is more than just one isolatable "thing" mother, daughter, wife. Women are also doctors and lawyers, soldiers and friends, teachers and writers. I will c10se these brief comments with an observation that struck me as Dr. Chinkin was noting the exceptional (meaning extraordinarily demanding) level of proof standards crafted for the exceptional (meaning it affects only women) resuIt of forced impregnation. The reaction against the regulation of gender-specific crimes, in particular sexual crimes, stemming from the fear of the possibility of women making false accusations of rape, resulted in the requirement of consent or intent as an element of the crime. This outcome seems to me to be analogous to the United States' fear of the possibility of rogue States making false accusations of violence/aggression resulting in its rejection of membership in the International Criminal Court unless its own citizen-soldiers are exempt from the Court' s jurisdictional reach. In the analogy I've set out, the fears are parallel. We do not want men falsely accused of sexual harassment or rape. Therefore, we need a strong system of proof, a meticulous system of evidence that avoids such false charges. This, of course, begs the question of why heightened scrutiny is only for false impregnation, a crime that can be committed only on women. That false accusation fear, one that lies in relative power, then resounds with the U.S. position with respect to joining the Court. Both of these realities raise, once again, the questions with which I commenced my remarks. Is there only one truth in law or is it subject to interpretation? Whose truth counts? Can there be absolute legitimacy in a system or is legitimacy relative? Who should be accountable in the international legal system? Who is the proper arbiter of accountability? Should we allow a jury of peers decide the reality of rape? Should we allow an international community of jurists decide whether there was a true criminal act on the part of the United States? These questions interrogate the legitimacy of existing structures and processes and assist in the exarnination of accountability of actors in a system grounded upon basic democratic principles.

Stefan Oeter: My point concerns the linkage between the two papers. I feIt some provocation with Christine's paper, and this provocation is linked to her line of argument using

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the diagnosis that there exists a lack of consistency with the international criminal legal system in protecting certain gender-sensitive values. To take up the example of rape in situations of armed conflicts, I think you are right by asking what the rationale is in singling out certain types of rape, allocating them to the international criminal jurisdiction in order to prosecute them, while at the same time leaving it in the other cases of rape to the grace of the States what to do with them. There is a certain point in that question. If you would say now, however, that consistency would mean that you have to shift the whole burden of prosecution to one system - international or national- then it would mean that we would end up in a serious problem. The drawing to the logical extreme of an argument always means overexpansion of the argument, because the international criminal legal system is part of the international legal system, a system with limited resources. Overexpansion of this system would end up in eroding the whole structure of international criminallaw, since the international criminallegal system does not possess - and will never possess - the necessary means to prosecute all cases of rape worldwide. So I think you need to have certain devices for singling out the urgent cases where involvement of the international community is needed - and this is the linkage issue. Leila explained that the international system is a multilayered system where the struggle for sensitive division of labor between different players is a necessary corollary. This means that we always have to create divides between national and international. In creating such divides we prioritize the issues, allocating certain issues at the international level while allocating the other issues at the national level of the criminallegal system. That does not necessarily mean that I think the traditional divide which we have inherited is perfect, or is convincing in a way you convince me that there are real issues behind that point, that we have to reconstruct these divides. We cannot avoid making such divides, however. I think this is an issue which really still needs a lot of further discussion - discussion of how to reconstruct these divides. But we need to have these divides in order to create a sensible division of labor in this multi-layered system.

Andreas Zimmermann: I have two remarks with regard to Christine's paper first, and that is a kind of a follow-up of what Claus Kreß had said beforehand. I think we have indeed made significant advances with regard to understanding international criminallaw from a feminist approach. I believe that maybe in this group we have a large consensus that we should have moved faster or that we should now move faster but we have to obviously balance substance and numbers. I think what we could have gained

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in substance in Rome or what we could gain now in substance, we could then lose in the number of ratifying States. Let me try to explain that by giving an example. If we did not have the indusion of the specific gender dause in Art. 7 (3) of the Rome Statute and the very limited dause on forced pregnancy, Jordan would probably not have been in a position to ratify the Rome Statute. And then we just have to decide whether we want a very "ferninist" court with sixty ratifications or a somewhat "less ferninist" court with 120 ratifications, and indeed I rather have a less feminist court for 120 States and then at least address the most serious offences against women in most areas of the world. In that regard we always have to remember that the crimes we are talking about, the most serious crimes of concern to the international community as a whole, will always be covered. Whether we caH it rape or fonnulate it in one way or another, we always have to remember that we think about offenders who are heads of States or heads of governments with command responsibility that's what we have to keep in mind. Those hopefuHy will mainly be the persons who will have to stand trial. I think we should indeed trust the judicial process as much as possible and I believe what Doris said that Art. 36 (8) of the Rome Statute is the key to that. We have to take note of the fact it speaks of "fair representation." That was thoroughly negotiated and one has to note that the provision does not refer to "equitable representation" of women and neither to "equal representation" of women. That is because many States believed that if the notion of equitable representation would have been introduced, they would have had no valid female candidates. We rnight not like that - and I myself do not like at aH the idea that there are still many States out there who do not have valid female candidates - but that is the reality we have to face. We are seeing it aH over the world. Again balance substance versus numbers. What do we do with it? Let me come to my second point: At least to a certain extent we now also punish non-State actors under the Rome Statute, as weH as under different other instruments. That relates to genocide, crimes against humanity, as weH as to war crimes, especiaHy when comrnitted in non-international armed conflicts. I believe what is very important in that regard is, at least under the Rome Statute, that we see here a dear intrusion into the public!private divide and that - given the principIe of complementarity - there is a dear incentive for States to now also come up in their domestic legislation with punishability of these crimes, even if they are comrnitted in non-public circumstances. That means that international crirninal law influences - if only indirectly - the public/private divide in domestic crirninal law too, which is a very good development, I believe.

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Let me now come to your paper, Leila - and that is maybe more specific on certain points. First, as to the question of whether there is really a development in acknowledging at least the legitimacy of certain conditional amnesties or not, or whether there is ablanket prohibition of amnesties: If we look at the recent practice ofthe United Nations, we have the United Nations Transnational Administration in East Timor regulation for East Timor, which clearly provides that no amnesty or similar mechanisms such as truth and reconciliation comrnissions can apply with regard to genocide, war crimes or crimes against humanity. Now, you could argue that East Timor did constitute an international armed conflict - as it indeed did. But if we have a look at the Statute of the Special Court for Sierra Leone, again no amnesty shall be recognized, and that was clearly a non-international armed conflict. And the Security Council clearly welcomed the Statute for Sierra Leone, including the unequivocal prohibition of amnesties. Therefore, maybe there is at least a certain tendency towards a more general prohibition of amnesties. I think, one could also eventually draw an argument from Art. 16 of the Rome Statute. That provision, as you all know, concerns the question whether the Security Council may defer prosecutions and investigations. At first glance, that has nothing to do with amnesties, but one could argue that the underlying idea of Art. 16 is that the only reason to bar investigations and prosecution for the core crimes exists if such investigations and/or prosecutions would constitute a threat to international peace and security. E contrario, one may then argue that where the Security Council does not deterrnine that such prosecution or investigation does constitute a threat to international peace and security, that prosecution should go and must go ahead. So maybe we can take that as an argument. As we know, under Art. 16 even the Security Council can only do it for a year, and after the said period must renew it and again renew it if it can be done twice, which we do not even know yet. That brings me to my last point: If we agree, at least arguendo, that there is something like conditional amnesties that are to be recognized, I would then agree with what Claus has said, i.e. that we then can really have a look at Art. 17 (2) as providing criteria for what is legitimate and what is not legitimate. That was indeed mainly in the originalltalian/Portugese proposal which was supposed to deal with the issue of amnesties under the Rome Statute. If we do this, we then recognize amnesties only under certain limited conditions. But then we have to take into ac count the fact that many States that did not want any kind of amnesty clause in the Statute argued that they would have clear constitutional problems with any kind of limitations of the right to grant amnesty given that their president

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can grant arnnesty or pardon. It is for that reason specifically that no such limitation was included. But what we are now saying is: "Alright, we did not include such limitation on purpose, but still we do not recognize any pardon or arnnesty." That would kind of contradict the bona fide ratification of States like France. It ratified on the clear perception that the right of its President to grant pardon or arnnesty would not be infringed upon. I don't have a clear answer here - it just came up to my mind and I am wondering, wh at you, Leila, might be able to do with that.

Daniel Thürer: I would like to make a couple of observations. Christine, it may be that you omitted some elements in your highly interesting outline of international humanitarian law. There are, in fact, some provisions that specifically protect women. They are in a way old-fashioned provisions: they protect the honor of women, pregnant women, mothers of young children and so on. Beyond those, I think key relevant provisions are the principles of non-discrimination and impartiality. I'm reminded of a case that the ICRC had to deal with in Afghanistan. The Taliban regime decreed that no women, only men, were to be accepted in a particular hospital or they would close the hospital down. This put the ICRC in a serious bind: Should humanity or impartiality have priority? There is also the question as to whether there are gaps in the Geneva Conventions or in the system of international humanitarian law as a whole. In my opinion, this is actually not the case. Many of your concerns, Christine, are in fact covered, albeit possibly only by way of very abstract principles. I refer, for instance, to the prohibition of cruel treatment, which embraces also rape, and to the right of respect for the dignity of the person. It may be that they are not expressed in very strong, concrete language, but the provisions I have in mind constitute binding principles of the Conventions as weH as customary internationallaw. What I also found interesting, Christine, was your comrnent that - in your opinion - military necessity seems to be a "male" principle and that Georg Nolte didn't understand this characterization. You pointed out that it is a "male" tendency to strive for "victory" and to conceive of everything necessary to attain "victory" as legitimate. According to this argument, priority is given to "combat" and not enough consideration is given to the "human values" of the "civilian population," to cultural heritage, to natural environment etc. I was also very glad that you criticized the term "collateral damage." You said that this was also a

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"male," rational expression; I am not sure about that, but in any case, it is a disgusting term. Then, while listening to you, I asked myself: Should the Conventions be amended in keeping with modem chaHenges? Or do we need a new type of conventions? I sometimes think lawyers lack creativity and courage: we seem to react to events and do not give enough consideration to what should be changed in the law as it exists today. I worry that we lack teleological, future-Iooking, strategic methods of thinking. Should we reform international humanitarian law? The law was changed in 1949 when the world discovered that the civilian population badly needed protection and that ci vii wars should be covered by international humanitarian law principles. It was changed again in 1977 in order to include national liberation movements. In the last half century, there have also been new conventions prohibiting particular weapons, e.g. anti-personnel mines, a draft concerning blinding weapons. Accordingly, is it not legitimate to ask whether we should not amend the Conventions to take account of terrorism or the feminist perspective that you raised? In view of the many basic criticisms currently being heard, I don't think it is an opportune moment to hold an international conference to amend the Conventions. It may, however, be a good idea to launch declarations with an appealing "soft law" character at a Red Cross Conference or a conference of delegates or to convene seminars of experts. In addition, we should try to develop the law according to a "common law approach," that is, pragmaticaHy. The ICRC should not announce new doctrines ex cathedra. We should find out from the delegations and other practitioners how they responded to new chaHenges. How did they react in the course of their activities? On the basis of such practical experience, we can try to identify good concepts, from the bottom up, not from the Conventions down. To include a stronger "common law perspective" in our method of conceiving and developing internationallaw does not, of course, mean that we should lose sight of basic human ideals as goals and points of orientation. It also seems time to convene seminars, maybe in Geneva. They should deal with "private" wars as weH as with public wars. By "private wars" I mean, for instance, the diamond wars in Africa. Furthermore, not only lawyers and not only Europeans and Americans should be invited to such seminars, but the seminars should also bring together a broad variety of disciplines as weH as third world perspectives. Leila: I found your presentation highly interesting just in this connection. I think that if one looks into the practical experiences of people and delegations, say in Somalia or East Timor, one disco vers so many intriguing - maybe para-legal, non-legal - habits, methods or mechanisms of negotiating or of settling disputes

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about distribution of food, property rights, weHs, water delivery etc. The day-today reality of humanitarian action represents a tremendous field for empirical research that would be fascinating to develop further. Finally, when we consider the position of women in international humanitarian law, I think new impulses will come from the bottom up. To choose one example, among the delegates employed by the ICRC, more than half, I believe, are women. It is, after aH, important not only to look at legal provisions but also at everyday reality. And if you ex amine the International Red Cross as it works from day to day, I think the female impact is becoming stronger and stronger. This will enrich our humanitarian enterprise. Rainer Hofmann: At this stage, I should like to apologize that it is only towards the very end of this discussion that the floor is given to those two academics among us who, at the same time, are - of course only in their personal capacity - representing two of these non-State actors to which you just referred: You, Daniel Thürer, as a member of the International Committee of the Red Cross, and Nils Geißler, to whom I shall give the floor now and who represents the Gerrnan Section of Amnesty International. Nils Geißler: I think it is important to stress the invaluable and fundamental role which NGOs and the civil society are playing in the process of establishing and developing new rules and new institutional mechanisms with regard to human rights and humanitarian law, and especially in the field of international criminallaw. This applies in particular to the women's movement, which is playing a tremendous role, if you only think about Women's Caucus which was and still is active in all the Preparatory Commissions for the establishment of the ICC and was also very active in Rome. I am convinced that without NGOs the process would not be as far as it is today. What I find very interesting in that respect is that all this factual influence on the development of a new legal regime has been irrespective of the subjectivity of NGOs in internationallaw. You will recall that four years aga we had a symposium where we discussed the issue of subjectivity of non-State actors including NGOs. Yet, if you look at the factual basis in front of us it seems that it doesn't have any importance whether an NGO has legal subjectivity or not and this applies in particular to the field of human rights. The main reason for the

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important influence is probably that the human rights movement is mainly victim driven and operates on a relatively clear human rights basis, which is an important point to keep in mind. Even if there might be some skepticism about positive discriminations of certain subsets of human beings, like children or elderly people, minorities or women, I think that it is both legitimate and also desirable to privilege these groups with regard to not only the legal basis we face today, but also concerning the factual basis. Christine Chinkin referred to a number of valuable arguments in that respecL I also believe that the jurisprudence which follows that perspective might be to some extent indeed result-oriented in order to better implement human rights. Yet, I do prefer this kind of result-oriented jurisprudence to the one in the ICI judgment in the Congo vs. Belgium case, which was certainly more diplomacy- and policy-oriented than human rights-oriented. If I were to compare the two approaches, I' d rather go for the human rights-oriented approach. But that is maybe a topic for further discussion. Turning now to Leila Sadat's paper, I find the distinction between conditional and blanket arnnesties very interesting. They can indeed be distinguished both from a legal as weIl as from a factual perspective. However, there is a reasoning that arnnesties underrnine the rule of law and can even be considered as a prolongation of human rights violations. Also, arnnesties are considered by many to be rebuttable and contrary to internationallaw with regard to the principle aut dedere aut judicare and the duty to prosecute, principles which can, of course, be established with regard to many core crimes under the Rome Statute. If you follow these presumptions, then I believe there shall be no further legal distinction with regard to those two categories of amnesties and the factual circumstances in which the crimes were committed. As Andreas Zimmermann has already pointed out, recent UN Security Council resolutions and the establishment of the two mixed ad hoc Tribunals in Sierra Leone and East Timor have shown that there is a tendency to agree that arnnesties in general are contrary to internationallaw. This relatively new notion is irrespective of the factual circumstances, that is to say, whether the crimes have been committed in international armed conflicts or non- international armed conflicts. That brings me to a final point which is the trade-off between peace and justice in transitional situations. Arnnesty International and other human rights NGOs generally take a principled and very strict approach and argue that there shall be no trade-off to the detriment of human rights and in favor of impunity. It is, of course, a problem for policy-makers how to deal with this principled approach. But from a strict1y legal perspective, I think there are very good arguments to take

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that approach. Lawyers can make suggestions on how policy-makers could deal with the approach. But lawyers should not take a self-restricting approach from the outset and argue in favor of solutions which might infringe internationallaw and human rights. There are very interesting combinations of, on the one hand, judicial trials and proceedings and truth commissions on the other. And even Arnnesty International' s strategy with regard to truth commissions isn' t fully developed. You have, for example, the South African example, which was criticized by Amnesty International because of unacceptable arnnesties with regard to core crimes. Another very interesting example is the recently established truth commission and special tribunal in Sierra Leone. In that context I would like to refer to the distinction which was made by Thilo Marauhn, saying that there might be a substantive approach which says we don't want arnnesties for the perpetrators at the high end of the hierarchy and the Schreibtischtäter, that is to say all those who are in superior positions. At the same time we may not take a formal approach where we deny any right to arnnesties at all. Here, I was wondering what your opinion was with regard to the Sierra Leone example, this interesting combination of a truth commission and a tribunal operating at the same time.

Leila Sadat: These are all wonderful, really wonderful questions, and it is an extraordinary privilege to be here and receive this kind of feedback. Let me address a couple of the smaller points first and then go to the million dollar questions and see what we can do about the Palestinian-Israeli situation or Rwanda. In terms of Art. 16 and the practice of the UN right now, I raise that question in a portion of the paper that I did not read. The UN clearly has a practice of not permitting arnnesty for core crimes which is evidenced by both the Sierra Leone Agreement and the Agreement of East Timor. Yet, the UN has looked the other way in regard to South Africa. With respect to the Rome Statute two of the crimes, grave breaches and genocide, are drawn from treaties where arnnesties are not permitted either. So I think with respect to the Rome Statute the decision of the prosecutor to perrnit arnnesties will be difficult, but still possible. That probably doesn't answer your question but I think its an open question and there is actually law going both ways. I think the more serious problem posited by the operation of Art. 16 is the situation where the Security Council attempts to order the Court to accept an amnesty as part of a peace deal. What if the Security Council attempted to immun-

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ize someone from the Court' s jurisdiction on the grounds that the threat of pro secution from the Court would threaten international peace and security and destabilize an already difficult situation? The question is: Must the Court accept an amnesty deal negotiated by the Council? Of course, pursuant to Art. 16, the Council can stop a prosecution from proceeding for a year. However, after the year is up, the Prosecutor can presumably res urne the action, unless the Council has indicated its opposition. So, the danger to the Court, I think, is to have peace deals imposed on it. I think in this circumstance the ICC would defer to the Council. It is hard to imagine the Court responding that the Security Council has erred in its judgement and that the continued liberty and immunity of the person in question is not actually a threat to international peace and security. I don't know what would happen in such a case, but I cannot imagine that the Court would be bold enough to question the Security Council' s judgement on the issue. Pardon raises another question. There had been a proposal to exclude pardons from complementarity, because they could create a huge loophole in the complementarity regime. Someone could be investigated or tried, invoke complementarity and escape the jurisdiction of the Court, and subsequently be pardoned. But the drafters just did not want to address the issue for a variety of reasons, which has clearly left a loophole in the Statute. I don't think you can do much about it. With regard to the sources of law, internationality, supranationality, hierarchy of norms raise very interesting problems, and I wish they were easy. I think there are States that would say, "no extraterritorial effect, we don't even look at the amnesty, we are just looking at universal jurisdiction." But the reality is that we now have international norms created by the international community and applied in a vertical manner and which are subsequently also enacted in States and applied horizontally, as Doris pointed out. So the question is whether national courts have some responsibility for the manner in which they apply the norms, either as a matter of customary internationallaw or cornity, or, perhaps, ultimately by treaty. With respect to the other issues that go along with the application of internationallaw by States, right now we live in a world in which very few States exercise the universal jurisdiction that they are theoretically able to. However, if that situation changed and States started vigorously prosecuting foreigners on the basis of universal jurisdiction, it would appear prudent to have some rules to systematize the system. For example, if conditional amnesties had been gran ted in a case such as South Africa's that has been largely approved of by the international community, perhaps other States should have to defer to the amnesties granted by

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the truth and reconciliation commission to perrnit people to travel abroad without unnecessary worry. Of course, the Biko farnily challenged the truth and reconciliation commission process, and others could as well, even in jurisdictions outside South Africa. Maybe that's simply inevitable. I understand that there are South Africans, such as Botha, who have made decisions not to travel in order to avoid the risk of prosecution. With the International Military Tribunal at Nuremberg and the two ad hoc Tribunals there is a vertical relationship not just of the law, of the prescriptive jurisdiction, but of the Tribunals themselves under the primacy doctrine. The International Crirninal Court is in a much weaker position because even though the law is in a vertical relationship to States, the Court itself is in a largely horizontal relationship with national courts, and in fact rnight even be conceived of as subordinate to national courts, especially with regard to jurisdiction to enforce, although perhaps I am too negative in my assessment. Finally we come to the very fine questions that were raised as to what to do with Rwanda and Israel and the Occupied Territories, which are wonderful questions, and I am very glad they were raised. I am sure I have no sure answers, but I have been thinking about these issues a great deal in connection with a project I have developed with Michael Scharf on international justice. We are doing a series of conferences this Spring, and we have initiated a set of expert group meetings on the Israeli-Palestinian problem. The meetings would not be public, because we want people to be able to speak freely, and we know that it is difficult not to be overly emotional in discussing the conflict in this part of the world. Our purpose is discuss the feasibility, advisability and possible modalities of developing a truth and reconciliation commission as part of a peace agreement. Although truth commissions are often an attempt to avoid responsibility and accountability, perhaps in this situation a truth and reconciliation commission rnight be a useful device; for this appearS to be a situation where serious allegations of crirninality have been made against both sides, but where neither side appears truly ready to admit to having committed crimes against humanity or war crimes. There are doves in each camp willing, perhaps, to adrnit that suicide bombings of civilians or the invasion of Jenin involved the commission of international crimes. But by and large, these are rninority views. Instead, you mostly hear political rhetoric from both sides, with some notable exceptions, in which there is an adamant refusal to adrnit that the actions taken are crirninal. So it rnight be an interesting place in which a truth and reconciliation commission rnight be useful. Certainly for the victims, be they victims of the suicide bombings or excesses of the Israeli army; they need to have some place to tell their stories and to have someone listen,

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whether it be somebody whose sister or brother was blown up in a discotheque or pizzeria or somebody whose house was wrongly destroyed or was a refugee in Ienin. The criminallaw could still apply, but not across the board, as in the South African case. Whether it is feasible or practical is unknown; it would just have to be worked on step by step. The Rwandan case is different, but also problematic. Rwanda asked for the ICTR to be established but ultimately opposed the Tribunals as created because no provision for the death penalty was induded. Yet the Tribunal has been remarkably successful, having tried and convicted the leaders of the genocide. At the same time, many people have criticized the Tribunal for various problems, and proposing the use of Gacaca tribunals, which have, in turn, been criticized for other reasons. But at some point, we have to say that we will do the best we can, which is really all you can say. But I think the Arab-lsrae1i situation is one in which there is injury, there are victims, and there are all the elements of being unable to bring peace without some kind of accountability. And yet, it is not dear that the criminallaw would be useful, because neither side is normatively able to see its behavior as criminal. Perhaps you could model it after the South African situation, where you do not have total immunity but conditional immunity. As you know, charges have already been brought against Prime Minister Sharon for the Sabra and Shatilla massacres, although the case will probably have to be dismissed after the ICI decision in Congo vs. Belgium. Certainly there is not even a suggestion that the Israeli government would perrnit an investigation into the allegations surrounding the current military incursions. The other thing that is true right now but might change if the conflict continues to escalate is that you do not have the number of casualties that other conflicts have experienced. The conflict between the Israelis and Palestinians is a very sad situation but fortunately has not yet escalated to the point of cases like Rwanda or Bosnia, where the victims numbered in the hundreds of thousands, and for which immunity of any kind was simply unthinkable. That is not to say that the conflict isn't heading that way, or couldn't ultimately degrade into that level of violence. I have been asked whether the Israeli treatment of the Palestinians amounts to genocide, and I have opined that under the jurisprudence of the ICTY and ICTR I do not believe so at this time, although the situation is terrible and the humanitarian crisis grows daily. The ICTY has been fairly dear in imposing a high threshold in terms of intent as well as level of casualties and has refused to find several accused of genocide guilty on that basis (although many have criticized these

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holdings). Indeed, the Kristic case involving the fall of Srebrenica was the first time the Tribunal was willing to make a legal finding of genocide in the Bosnian conflict. That is perhaps a very legalistic response, but it is probably the best one I can give as regards a very difficult situation. Obviously if the situation degrades further, it may be that any kind of immunity from prosecution for perpetrators on either side is out of the question. Christine Chinkin: I think that there were some very good comments. But it was pretty good that a lot of you have been answering each other' s questions which lets me nicely off the hook. In answer to the question about whether feminism is playing into the growing punitive environment, I would respond that it is accountability that we are talking about rather than punishment. Very frequently what happens at the end of proceedings is not as important as an apology or the acknowledgment that the crime in fact happened. For the cornfort women it was fifty plus years of silence that was broken, and what they were challenging was effectively the long term arnnesty that had been accorded to the Japanese govemment and officials. There was no issue of punishment, for the perpetrators are dead. What was being talked about was breaking that arnnesty and accepting some sort of accountability. I would like to add that there were some two hundred thousand cornfort women, not just a few. So punishment is not really the issue and, I think, that is true in many situations. It is accountability that is important and acknowledgment for the historical record about what was actually going on. Daniel Thürer answered Georg Nolte very nicely for me with respect to military necessity. But I was going to say that Georg ran two points together which I hadn't intended to do, as I was probably talking too quickly. These are the separate issues of military necessity and the distinction of combatant and non-combatants. My further comment is to draw upon an argument that comes from feminist analysis of domestic criminal law which is that once violence is legitimated in some sense it challenges the whole concept of illegitimate uses of force. The very fact that some uses of force are legitimated naturalizes or legitimates further types of violence including violence against women which then becomes less readily challenged. There is also the broader point that in intemationallaw women normally do not participate in decision-making about the use of violence; they are not normally part of policy-making of this sort, although Margaret Thatcher may be the exception. Normally, in decisions about the use of force, the conduct of war,

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the means and methods of warfare and peace, women are not participants and so they are further silenced. But I will come back to the other part later.

Georg Nolte: The law as such is simple: men may kill men and not women because women are private.

Christine Chinkin: No! The law is the exact opposite. The law generally is that men make decisions about the legitimation of the use of force and when they may use violence within a regulatory type of framework which normally operates in the public sphere. The public sphere is very carefully hemmed around by various legal regulations. But then when we come to the private sphere, there is the non-intrusion of the law, for example the long term acceptance of honor killings, the long term acceptance of domestic violence etc. which have only just begun be subject to legal regulation at all. In the course of armed conflict, while there may be formal prohibitions against the situation with respect to non-combatants (where women are to be found), the overwhelming priority given to an assertion of military necessity still, I think, tips the balance the other way. Look at the refusal by the ICTY prosecutor's office to indict individuals from the NATO States with respect to Kosovo at least in part on the argument that military necessity was essentially something that they were not going to look at in the context of prosecutions before the ICTY!

Horst Fischer: That was exactly the other point you mentioned, the distinction between crime and accountability. And that is the real point. We were focusing on the crimes and forgetting about the accountability.

Christine Chinkin: OK, but I would argue, that part of what leads to that is still the hierarchy of values in the first place that leads to that sort of blurring, obscuring of the various legal distinctions. Clearly, we have discrepancy between the law and its application around this still. I think that it is the price of negotiation. Equivocallanguage

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has to be accepted at different points and it is a matter of strategy what you argue through and what you let go, where do we put our balances, what priorities do we give. I think, lawmaking has been an extremely interesting sub-theme to the entire two days and I thank you for the analysis of all the sources of law included in the provisions that I put out. Daniel Thürer added to them with an assessment of the pluses and minuses of using a treaty against using the other sources that supplement and fill in treaty provisions. I think what we are dealing with are perhaps two things: One is, that internationallaw is shifting from being a primitive system that only has primary rules. What we are now beginning to have are the regulatory frameworks, the rules of procedure and evidence, the commentaries that give life to those primary rules. And so we are building up a body of interpretative provisions and rules of application through various processes, such as negotiations and authoritative bodies putting out what they regard as the appropriate secondary sources, which can then be reacted to, or rejected, or built upon etc. I think what we are seeing is the maturing of the international legal system and that we have already matured a long, long way since Art. 38 of the Statute of the ICI. And that secondary system requires far more application by a whole range of different bodies, whether national bodies or international bodies, whether courts or other forms of policy- or decision-making bodies. We need this body of further supplementary types of sources and we need to think about how international law is made in all of these ways. Both Leila and I also talked about forms of lawmaking by non-governmental organizations. The universal jurisdiction principles have been put out there by NGOs, and what States do with them is up to them; similarly with the Women's War Crimes Tribunal: we put the judgement out there, and what happens next depends on what States actually decide to do with it. Such initiatives create expectations. It then rests on wh at responses and counterresponses flow, to create further ongoing expectations. So, I think you ought to have another seminar on lawmaking. My final "big" question is: Why has feminist analysis impacted upon international criminallaw? What could we say for other areas of law? I am cynical as I say that the glass is only half full, not totally full. I would say international criminallaw has been susceptible to feminist analysis for two reasons. One is because there were the institutional frameworks that could be accessed by NGOs. There was aspace that could be used and which was able to be used for the furtherance of feminist concerns in this particular area. Secondly - and perhaps this relates to the comment you just made, that we forgot about accountability - inclusion of gender-related crimes in these various catalogues of war crimes, crimes against

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humanity and genocide did not really demand any consideration of the big questions such as structural issues of power in the whole international system. It did not really challenge any of the assumptions of internationallaw. So we can put rape into international criminallaw, we can put sexualoffences in and, as Michael Byers said, nobody is actually going to stand up and challenge their inclusion. There is going to be a consensus, a general feeling that "these are wrong acts"; so they can be dealt with and we can have a few cases where they are further analyzed, but we still do not get to the deeply controversial issues such as military necessity weighed against non-combatant deaths. The international legal system itself does not get directly challenged by these inclusions and therefore I think it was undemanding for the international legal system. What we are really left with is: Where do we ask those more fundamental questions about the concept of statehood, about various doctrines that are considered as fundamental to the legal system? The UN is very much pushing the strategy of gender mainstreaming in all aspects of internationallaw. And that requires asking in every context, in every act of lawmaking, whether it is international economic law, whether it is international development law, wherever: What are going to be the impacts of these laws differently on men and women and how should they be actually worked out from there? We should not look at an area of law and ask: Does it obviously relate to women? The question is rather: How does it relate to women and men? Maybe in some situations the answer will be: No, there is no difference. Maybe in others there will be a clearer emergence of the difference just by asking the question, and then leading on to consider how we change the structures and so on to take account of the differences. It is a long-term process. Rome wasn't built in a day nor does the international legal system change in a day. Andreas Zimmermann: Christine, you already raised an important point, which was the main subject that came back all over the time: lawmaking. What is lawmaking? We deliberately took the International Criminal Court as an example to see whether lawmaking is changing or not, and if so, to what extent. Indeed, I think we have realized that there are some specificities as to the lawmaking process in the field of international criminallaw. Since 1993 we have a constant flow of case law from the Tribunals. We will also have - hopefully or maybe not hopefully, I don't knowa constant flow of case law from the ICC and, I think, that has been very, very influential as to the development of how customary internationallaw is develop-

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ing. I was wondering all the time why it is so much more important that there is a Court decision as compared to an opinion of the Human Rights Committee, provided it is as persuasive. The second specificity is the fact that we had the Security Council as legislator when it decided to create the two ad hoc Tribunals. The third specificity that will come up is the question of national implementation given the system of complementarity because here, for the first time ever, we will have an international instrument, the Statute of the ICC, as a specific benchmark. States do not only have an obligation but rather have a clear incentive not to remain below this standard. They can obviously remain above it, but they should be very much aware that if they ever remain below, they might get into real trouble and be eventually under an obligation to surrender their own nationals, what they do not like to do. Therefore, that rnight be an incentive to really further develop customary internationallaw. The overall interesting questions are then: Do we have sirnilar developments in other parts of international law? Are there sirnilar developments in the field of WTO/GA TI law? Are there sirnilar developments with regard to human rights, and - that is what Mike Byers said before - are we now still speaking about the same sources as they apply to international criminal law or are they different in other fields? I think that these questions should eventually be reconsidered at some other stage. Let me finally thank all of the five speakers for their excellent lectures they gave. Like all of you, I suppose, I was· very much delighted and I liked it very much. I also want to thank all of the participants. I thank everybody who participated in the discussion. Indeed, I have not seen anybody who did not speak up. I believe it was a very lively, very helpful and forward-moving discussion. And a warm thank also to all of the members of the Walther Schücking Institute, who, in one way or another, have contributed to the success of this symposium. And Mrs. Nilsson - I told you all this already personally, but I want to reiterate it here publicly - let me in particular thank you once more for all your efforts that went into this symposium! Fred Morrison:

As the member of this group who has perhaps attended more of these colloquia than most of the other participants, on behalf of everyone here, I want to thank the Professors Hofmann and Zimmermann for the selection of the topics, the selection of the presenters and the fine organization. We have been talking about an intellectual feast. You have done an outstanding job of providing us with the multi-

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course European banquet. You deserve the greatest number of stars available in the applicable ranking system of intellectual cuisine. I also want to thank Frau Nilsson and Frau Heinz, who will probably be editing and documenting our work and who have in the past done an excellent job in making sense out of our garbled words. Thanks should also be extended to the assistants and to all the students who have attended to our every need and who have made these days a wonderful experience. On behalf of an visitors in this group, thank you an very much! Rainer Hofmann: Thank you for an these thanks! Of course, I should also like to thank very much indeed Mrs. Nilsson and all the members of the Institute for what I think was an excellent work. In my opening address, I referred to two terms - change and continuity - and I shouldjust like to come back to them, very briefly of course: Yesterday, Andreas referred to the famous quotation that "the times they are a-changing" and so are the topics of our symposia. But there is also continuity insofar as - and I think that this is very important - the ultimate goal of these Kiel symposia was and will remain - so there is continuity - a forum where we together can look into current issues with a view to further the development of the state of law. So it is not only about precisely defining the state of internationallaw but also, or in particular, to think about how to further develop, to advance that state of internationallaw. This brings me to a term which came up rather often during the last minutes, the term of lawmaking, and I must say that I was particularly struck by a comment Daniel Thürer just made. If I recall it correctly, you said that we international lawyers have become persons who only react but do no longer act. I do agree. We have to start to be more active again, active in the meaning of thinking forward, of anticipating problems which might arise in order to have thought about possible solutions if and when these problems indeed arise. Let me stress that point: not to have solutions for such problems, but to have thought about them in order not to be unprepared. I think this was one of the major aspects which our predecessors had in mind when organizing their Kiel symposia - and I can assure you that we, Andreas and myself, shall continue this approach to international law; and we certainly hope that you will assist us in this task. Yesterday, Andreas Zimmermann referred to Robert Zimmermann alias Bob Dylan. So, it is my turn now, and I should like to express my hope that when you come horne you will be able to tell yourself that this symposium was a worthwhile

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exchange of views which brought you c10ser to answers - some of which might even not be blowing in the wind. Dear friends, in two years time we shall celebrate the 90th anniversary of our Institute which, thus, started its work at the very beginning of the First World War. As far as we as its directors are concemed this fact certainly deserves to be marked by the next Kiel symposium, and I think that some of the issues mentioned today and yesterday certainly deserve to become the subject of a symposium inc1uding the concem about the ever increasing fragmentation of intemationallaw and the pertinent question as to whether there is still something like general intemationallaw. Anyway, since the time to c10se has come, I should like to thank all of you for your most valuable contributions and a particular thanks goes to our five speakers for their excellent presentations. Do have a safe joumey horne and see you again!

List of Participants

Prof. Eyal Benvenisti, LL.M., J.S.D. (Yale), The Minerva Center for Human Rights at the Hebrew University of Jerusalem Prof. em. Dr. Dr. h.c. Rudolf Bemhardt, Heidelberg Prof. Michael Byers, Ph. D., Duke University, School ofLaw, Durham, NC Prof. Dr. Michael Bothe, Johann Wolfgang Goethe University, FrankfurtlMain Prof. Christine Chinkin, The London School of Economics and Political Science, London Prof. em. Dr. Jost Delbrück, LL.M., LL.D. h.c. (IN), Walther Schücking Institute for International Law, Kiel Prof. Dr. Horst Fischer, Ruhr University, Bochum Dr. Nils Geißler, State Chancellery of Saxony, Dresden, Arnnesty International Prof. Dr. Wolff Heintschel von Heinegg, European University Viadrina, Frankfurt (Oder) Prof. Berta Hemdndez-Truyol, University ofFlorida, Levin School ofLaw, Gainesville, FL Prof. Dr. Dr. Rainer Hofmann, Walther Schücking Institute for International Law, Kiel VLR I Hans-Peter Kaul, Foreign Office, Berlin Prof. Dr. Jan Klabbers, University ofHelsinki Prof. Dr. Doris König, M.C.L. (Miami), Bucerius Law School, Hamburg Dr. Claus Kreß, LL.M. (Cambridge), University of Cologne Prof. Dr. Thilo Marauhn, M. Phil. (Wales), University of Giessen Prof. Fred L. Morrison, Ph. D., University of Minnesota Law School, Minneapolis, MN Prof. Dr. Georg Nolte, University of Göttingen Prof. Dr. Stefan Oeter, University of Hamburg Prof. Dr. Anne Peters, LL.M. (Harvard), University of Basel Prof. Dr. Eibe H. Riedei, LL.B. (London), University of Mannheim Prof. Leila Nadya Sadat, Washington University School of Law, St. Louis, MO Dr. Alfred Schmidt, Volkswagen Foundation, Cologne Prof. Dr. Christoph Schreuer, LL.M. (Cambridge), J.S.D. (Yale), University ofVienna

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Dr. Carl-Friedrich Stuckenberg, LL.M. (Harvard), University ofBonn Prof. Dr. Christian Tietje, LL.M. (Michigan), University ofHalle-Wittenberg Prof. Dr. Daniel Thürer, LL.M. (Cambridge), Institute for International Law, Zurich, International Committee of the Red Cross . RiOLG Prof. Dr. Joachim Vogel, University ofTübingen Dr. Erika de Wet, LL.M. (Harvard), University of Amsterdam Prof. Dr. Andreas Zimmermann, LL.M. (Harvard), Walther Schücking Institute for International Law, Kiel